Oklahoma City Public Schools Board of Education v. Dowell Joint Appendix Vol. II
Public Court Documents
March 26, 1990
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Brief Collection, LDF Court Filings. Oklahoma City Public Schools Board of Education v. Dowell Joint Appendix Vol. II, 1990. b941bf45-c09a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/b704d59c-8999-40d9-898b-1c1de2101308/oklahoma-city-public-schools-board-of-education-v-dowell-joint-appendix-vol-ii. Accessed June 29, 2025.
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No. 89-1080
In The
Supreme Court of the United States
October Term, 1989
--------------4--------------
THE BOARD OF EDUCATION OF OKLAHOMA CITY
PUBLIC SCHOOLS, INDEPENDENT SCHOOL DISTRICT
NO. 89, OKLAHOMA COUNTY, OKLAHOMA,
vs.
Petitioner,
ROBERT L. DOWELL, ET AL.,
Respondents.
--------------4------ --------
On Writ Of Certiorari To The United States
Court Of Appeals For The Tenth Circuit
--------------4--------------
JOINT APPENDIX
VOLUME II
----------------- 4-----------------
Julius L. C hambers
C harles S tephen Ralston
* N orman J. C hachkin
99 Hudson Street, 16th FI
New York, N.Y. 10013
(212) 219-1900
Janell M . B yrd
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005
(202) 682-1300
Attorneys For Respondents
"Counsel of Record
(Additional Attorneys For
Respondents Listed on
Inside Cover)
"'Ronald L. D ay
Suite 260
6303 Waterford Blvd.
Oklahoma City, OK 73118
(405) 842-5988
C harles J. C ooper
M cG uire, W oods, Battle
& B ooth
1627 Eye Street, N.W.
Washington, D.C. 20006
(202) 857-1700
Attorneys For Petitioner
"Counsel of Record
Petition For Certiorari Filed January 3, 1990
Certiorari Granted M arch 26, 1990
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLHCT (402) 342-2831
J o hn W. W a lk er
J o h n W. W a lk er , P.A.
1723 So. Broadway
Little Rock, AR 72201
(501) 374-3758
L ew is B a r ber , J r .
B a r ber / T raviolia
1523 N.W. 23rd Street
Oklahoma City, OK 73111
(405) 424-5201
Attorneys For Respondents
1
VOLUME I
Relevant Docket Entries................................... 1
Motion to Close Case.............................................................29
Letter Opposing Motion (June 2, 1975)......................... 32
Opposition to Motion to Dismiss and Memo Brief
(June 30, 1975)................................................................... 34
Transcript of Proceedings at Hearing on Novem
ber 18, 1975.................................... .................. . ............. 38
Order Terminating Case (January 18, 1977)........... 174
Opinion of the United States District Court For
the Western District of Oklahoma, 606 F. Supp.
1548 [1985]...........................................................................177
VOLUME II
Opinion of the United States Court of Appeals For
the Tenth Circuit, 795 F.2d 1516 [1986]..................... 197
Final Pretrial Order (May 29, 1987) (Excluding
Witness and Exhibit Lists)............................................. 215
Excerpts from Transcript of Proceedings at Hearing
Conducted June 15-24, 1987
Record, Volume II
William A.V. C lark ....................... 235
Finis Welch....................... 262
Record, Volume III
Finis Welch (continued).............................................. 274
Belinda Biscoe.................................................... 305
Susan Hermes................................................................321
TABLE OF CONTENTS
Page
Record, Volume IV
Susan Hermes (continued)............................. . 330
Clyde M use............... 334
John Fink ...................... 344
Betty H il l ....................... 347
Maridyth McBee........................................................... 354
Vern M oore..................... 359
Betty Mason................... 370
Record, Volume V
Betty Mason (continued).............................................375
Alonzo Owens, Jr. .. .............. 379
Tommy B. W h ite .......................................................... 381
Carolyn Hughes............................................................ 389
Arthur W. Steller............................. 395
Karen Francis Leveridge......................... 401
Odette M. Scobey................. 402
Linda J. Johnson............................................................ 410
VOLUME III
Record, Volume VI
Gary E. Bender..............................................................418
Robert A. Brow n........................................................ 424
Billie L. Oldham.................................................. 428
John J. Lane.......................... 430
Herbert J. Walberg. ............ 436
ii
TABLE OF CONTENTS - Continued
Page
Ill
TABLE OF CONTENTS - Continued
Page
Record, Volume VII
Robert L. Crain...............................................................452
Yale Rabin............... 463
Record, Volume VIII
John A. Finger, Jr.......... ................................................ 482
Mary Lee Taylor. ............................ ........... ................ 487
Gordon Foster............................... 501
Record, Volume IX
Gordon Foster (continued).........................................515
Clara Luper ............................. 516
Melvin Porter .................... 521
William Alfred Sampson............................ 524
Arthur Steller ......................................................... 531
Selected Exhibits Admitted Into Evidence at
Hearing Conducted June 15-24, 1987
Record, Supplemental Volume I
Plaintiff's Exhibit 48
Racial Composition of Elementary School Facul
ties, 1972-73, 1984-85, 1985-86, 1986-87 .............. 539
Plaintiff's Exhibit 50
1984- 85 Elementary Enrollment and Faculty -
Percent Black........................... 543
Plaintiff's Exhibit 52
1985- 86 Elementary Enrollment and Faculty -
Percent Black........................................................ 546
IV
Plaintiff's Exhibit 54
1986-87 Elementary Enrollment and Faculty -
Percent Black. ......................................... 549
Plaintiff's Exhibit 56
Minutes, December 10, 1984, School Board Meet
ing. . . . . . ....... 552
Record, Supplemental Volume II
Defendant's Exhibit 5D
Population Change in East Inner-City Tracts,
1950-1980 ...................... ..................... .............. .......... 561
Defendant's Exhibit 5E
Black Population Turnover in East Inner-City
Tracts ........................ 562
Defendant's Exhibit 6
Population Growth/Change in Oklahoma City 563
Defendant's Exhibit 10
Abstract, Clark, Residential Segregation in Ameri
can Cities................................................. 566
Defendant's Exhibit 11
Oklahoma City Public Schools, Percent Black in
Residential Z o n es................................... 568
Defendant's Exhibit 21
White Population in Oklahoma City SMSA,
1970-1980 ............................................................ 571
Defendant's Exhibit 24
Black Population in Oklahoma City SMSA,
1970-1980 ........................................................................ 572
Defendant's Exhibit 38
School Districts in Comparably Sized SMSA's .. 573
Defendant's Exhibit 40
Indices for Residential Zones............... 576
TABLE OF CONTENTS - Continued
Page
V
TABLE OF CONTENTS - Continued
Page
Defendant's Exhibit 45
Indices for All Schools................. 578
Defendant's Exhibit 63
Racial Composition of Elementary Schools (K-4),
1985-86.................................. 580
Defendant's Exhibit 67
Student Population by Race, 1970-1986............... 584
Defendant's Exhibit 76
Minutes, July 2, 1984 School Board Meeting... . 586
Defendant's Exhibit 79
Minutes, November 19, 1984 School Board Meet
ing. ............................................................................... 602
Defendant's Exhibit 108
Majority-To-Minority Transfers............................ 609
Defendant's Exhibit 119
Extracurricular Activities Report - High Schools 611
Defendant's Exhibit 120
Extracurricular Activities Report - Middle
Schools..................................................... 612
Defendant's Exhibit 140
Parental Organization Statistics............................... 613
Defendant's Exhibit 142
Adopt-A-School Statistics ............................................614
Opinion of the United States District Court For
the Western District Of Oklahoma, 677 F. Supp.
1503 [1987] (Reproduced in Petition for Writ of
Certiorari at App. IB; not reproduced in Joint
Appendix)
Opinion of the United States Court of Appeals For
the Tenth Circuit, 890 F.2d 1483 (1989) (Repro
duced in Petition For Writ of Certiorari at App.
1A [majority], 46A [dissent]; not reproduced in
Joint Appendix)
197
[795 F.2d 1516 (10th Cir.1986)]
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
No. 85-1886
R o bert L. D o w ell , an infant under
the age of 14 years who sues by A.L.
Dowell, his father as next friend,
Plaintiff-Appellant,
V ivia l C. D o w ell , a minor, b y her father,
A.L. D o w ell , as next friend, et ah,
Intervening Plaintiffs-Appellants,
S teph en S. S a n g er , Jr., on behalf of himself
and all others similarly situated, et ah,
Intervening Plaintiffs,
and
Y vo n n e M o n et E llio t and D o n n o il S.
E llio t , both minor children, by and
through their parent and guardian,
D o n a ld R. E llio t , et al.,
Applicants in Intervention-Appellants,
vs.
T he B o a r d o f E du ca tio n o f th e O klahom a
C ity P u blic S ch o o ls, In d epen d en t D istrict
No. 89, O kla h o m a C ounty , O kla h o m a ,
A Public Body Corporate, et a l,
Defendants-Appellees.
[Filed June 26, 1986]
Appeal From the United States District Court
for the Western District of Oklahoma
(D.C. No. CIV-9452)
198
Theodore A. Shaw (Julius LeVonne Chamber and
Napoleon B, Williams, Jr., with him on the briefs), New
York, New York; John W. Walker, Little Rock, Arkansas;
and Lewis Barber, Jr., of Barber/Traviolia, Oklahoma City,
Oklahoma; for Plaintiffs and Applicants in Intervention-
Appellants.
Ronald L. Day of Fenton, Fenton, Smith, Reneau & Moon,
Oklahoma City, Oklahoma, for The Board of Education of
the Oklahoma City Public Schools, Independent District
No. 89, Oklahoma County, Oklahoma, Defendant-Appel
lee.
William Bradford Reynolds, Assistant Attorney General,
Walter W. Barnett, Mark L. Gross, and Michael Carvin,
Attorneys, Department of Justice, Washington, D.C., filed
an Amicus Curiae brief for the United States of America.
Before MOORE and ANDERSON, Circuit Judges, and
JOHNSON, District Judge/
MOORE, Circuit Judge.
This appeal is the latest chapter in the odyssey of the
desegregation of the public school system in Oklahoma
City, Oklahoma. After many years of litigation, in 1977
the trial court found that the school district had achieved
^Honorable Alan Johnson, United States District Judge for the
District of Wyoming, sitting by designation.
199
unitariness and entered an order terminating the court's
active supervision of the case. The parties are now before
this court after an unsuccessful attempt to enjoin the
school district from altering the attendance plan previ
ously mandated by the district court. The district court, in
part relying on its 1977 termination order, not only
denied the petitioners' motion to reopen the case, but also
decided the issue of the constitutionality of the new
attendance plan. Dowell v. School Board of Oklahoma City
Public Schools, 606 F. Supp. 1548 (W.D. Okla. 1985). In this
appeal, we address only the precise question of whether
the trial court erred in denying the motion to reopen. We
hold, under the facts present here, that the court erred
and remand for additional factual determinations.
I .
This case was filed in 1961, and the history of the
litigation is extensive.1 In the ensuing years, the parties
struggled through the difficult task of desegregating the
public schools, each proffering plans to accomplish that
goal. Finally, after finding the district had "emascu-
Iate[d]" a previously approved plan, the district court
ordered the implementation of the so-called "Finger
Plan." Dowell v. School Board of Oklahoma City Public
Schools, 338 F. Supp. 1256, 1263 (W.D. Okla.), aff'd 465 F.2d 1
1 See Dowell v. School Board of Oklahoma City Public Schools,
219 F. Supp. 427 (W.D. Okla. 1963); Dowell v. School Board of
Oklahoma City Public Schools, 430 F.2d 865 (10th Cir. 1970);
Dowell v. School Board of Oklahoma City Public Schools, 338 F.
Supp. 1256 (W.D. Okla.), aff'd, 465 F.2d 1012 (10th Cir.), cert,
denied, 409 U.S. 1041 (1972).
200
1012 (10th Cir.), cert, denied, 409 U.S. 1041 (1972). That
plan, which was instituted during the 1972-1973 school
year, restructured attendance zones for high schools and
middle schools so that each level enrolled black and
white students. At the elementary level, all schools with a
majority of black pupils became fifth grade centers which
provided enhanced curricula. All elementary schools
with a majority of white students were converted to serve
grades one through four. Generally, the white students
continued to attend neighborhood schools while black
students in grades one through four were bused to
classes. When white students reached the fifth grade,
they were bused to the fifth grade centers, while black
fifth graders attended the centers in their neighborhoods.
Schools which were located in integrated areas qualified
as "stand alone schools," and the students in grades one
through five remained in their own neighborhoods.
In June 1975, the school board moved to close the
case on the ground that it had "eliminated all vestiges of
State-imposed racial discrimination in its school system,
and [that it was] . . . operating a unitary school system."
Although the motion was contested, the court terminated
active supervision of the case because it found the Finger
Plan had achieved its objective. Dowell v. School Board of
Oklahoma City Public Schools, No. CIV-9452, slip op. (W.D.
Okla. Jan. 18, 1977). See Dowell, 606 F. Supp. at 1551
(quoting the unpublished order in part). The order was
not appealed. The 1977 order did not vacate or modify
the 1972 order mandating implementation of the Finger
Plan.
In February 1985, the plaintiffs sought to reopen the
case, claiming the school board unilaterally abandoned
201
the Finger Plan and instituted a new plan for school
attendance. The Student Reassignment Plan, which has
already been implemented, eliminates compulsory busing
of black students in grades one through four and rein
stitutes neighborhood elementary schools for these
grades. Free transportation is provided to children in the
racial majority in any school who choose to transfer to a
school in which they will be in the minority. The racial
balance of fifth grade centers, middle schools, and high
schools is maintained through mandatory busing. As a
result of this plan, thirty-three of the district's sixth-four
elementary schools are attended by students who are
ninety percent, or more, of one race.
The district court denied the motion to reopen.2 The
court held that the Student Reassignment Plan was not
constitutionally infirm and, therefore, no "special circum
stances" were present that would justify reopening the
case. Dowell, 606 F.Supp. at 1557. The court concluded as
a matter of law: (1) The principles of res judicata and
collateral estoppel prohibit the plaintiffs from challenging
2 Plaintiffs contend that the district court erred in not
specifically granting their motion to intervene. Nevertheless,
the court held those who sought intervention were within the
ambit of the orginal [sic] plaintiff class, and those persons,
through their counsel, actively participated in the hearing to
reopen. They were clearly treated as party litigants even
though a formal order granting them intervention was not
entered. Indeed, at the outset of the hearing, the court stated
that the parties "did meet the requirement to be a plaintiff." As
a practical matter,the appealing parties were allowed to inter
vene despite the order denying all relief prayed for; therefore,
within the peculiar context of this case, we conclude the issue
is moot and the appealing persons are proper parties.
202
the court's 1977 finding that the school system was uni
tary. (2) The 1985 school district displays all indicia of
unitariness. (3) Neighborhood schools, when impartially
maintained and administered, are not unconstitutional.
Moreover, the existence of racially identifiable schools,
without a showing of discriminatory intent, is not uncon
stitutional. (4) The Student Reassignment Plan is not dis
criminatory and was not established with discriminatory
intent.
On appeal, the plaintiffs contend the trial court erred
in arriving at these conclusions without reopening the
case and without giving them as adequate opportunity to
present evidence on the substantive issues. We agree and
hold that, while the principles of res judicata may apply
, in school desegregation cases, a past-’finding of unitari-
j ness, by itself, does not bar renewed litigation upon a
j m andatory;:^ wherHt is alleged tha t
l-j significant changes have been made in a court-ordered
J school attendance plan,'any party for whose benefit the
| plan was adopted has a right to be heard on the issue of
whether the changes will effect the unitariness of the
system. In such circumstances, it is not necessary for the
/ party seeking enforcement of the injunction to prove the
changes were motivated by a discriminatory intent.
Accordingly, we conclude the trial court erred in not
reopening the case. II.
II.
A.
Any analysis of the legal principles governing this
case must start with the procedural framework in which
203
it was postured when the plaintiffs sought to reopen.
When the defendant board adopted the Student Reassign
ment Plan, the 1972 order approving the Finger Plan and
ordering its immediate implementation still governed the
parties. That order was in the nature of a mandatory
injunction, and the effect of that order was not altered by
the 1977 order terminating the court's active supervision
of the case.
Perhaps the members of the present school board
acted upon the belief that the 1972 order was no longer
effective; if so, their belief was unwarranted. Indeed, the
1972 order specifically provided:
The Defendant School Board and the indi
vidual members thereof, both present and future,
together with the Superintendent of Schools,
shall implement and place [the Finger Plan] into
effect . . . .
The Defendant School Board shall not alter
or deviate from the [Finger Plan] . . . without the
prior approval and permission of the court. If
the Defendant is uncertain concerning the
meaning of the plan, it should apply to the court
for interpretation and clarification.
Dowell, 338 F.Supp. at 1273 (emphasis added).
Nothing in the 1977 order tempered the 1972 manda
tory injunction. In fact, the 1977 order states:
The Court has concluded that . . . [the Finger
Plan] was indeed a Plan that worked and that
substantial compliance with the constitutional
requirements has been achieved. The School
Board, under the oversight of the Court, has
operated the Plan properly, and the Court does
not foresee that the termination of its jurisdic
tion will result in the dismantlement of the Plan
204
or any affirmative action by the defendant to
undermine the unitary system so slowly and
painfully accomplished over the 16 years during
which the cause has been pending before the
Court.
. . . The Court believes that the present
members and their successors on the Board will
now and in the future continue to follow the
constitutional desegregation requirements.
Dowell, No. CIV-9452, slip op. at 1 (W.D. Okla. Jan. 18,
1977) (emphasis added).
In light of these statements reinforcing the impor
tance of the remedial injunction and the lack of any
specific or implied alteration of that remedy, we must
conclude the court intended the 1972 order to retain its
vitality and prospective effect. Therefore, the competing
interests of both parties must be assessed first within the
penumbra of the outstanding 1972 order. To do otherwise
renders all of what has occurred since 1961 moot and
mocks the painful accomplishments of sixteen years of
litigation and active court supervision.
As amicus, the government argues that once a find
ing of unitariness is entered, all authority over the affairs
of a school district is returned to its governing board, and
all prior court orders, including any remedial busing
order, are terminated. According to the government, the
defendants could not be compelled to follow the Finger
Plan once the court determined the district was unitary.
We find the contention without merit. The parties cannot
be thrust back to the proverbial first square just because
the court previously ceased active supervision over the
operation of the Finger Plan.
205
While there are sound reasons for courts to seek the
earliest opportunity to return control of school district
affairs to the local body elected for that purpose, those
reasons do not require abandonment of the inherent equi
table power of any court to enforce orders which it has
never vacated. The court's authority is not diminished
once the original case has been closed because the via
bility of a permanent injunction does not depend upon
this ministerial procedure. See Ridley v. Phillips Petroleum
Co., 427 F.2d 19 (10th Cir. 1970). Therefore, termination of
active supervision of a case does not prevent the court
from enforcing its orders. If such were the case, it would
give more credence to the ministerial function of "clos
ing" a case and less credence to the prospective operation
of a mandatory injunction.3 See Berman v. Denver Tramway
Corp., 197 R2d 946 (10th Cir. 1952).
3 The Fourth Circuit has taken a different view with which
we cannot agree. In Riddick v. The School Board of the City of
Norfolk, No. 84-1815, slip op. (4th Cir. 1986), the court seems to
treat a district court order terminating supervision as an order
dissolving a mandated integration plan, despite the absence of
a specific order to that effect. The court makes a bridge
between a finding of unitariness and voluntary compliance
with an injunction. We find no foundation for that bridge. It
also appears inconsistent with Lee v. Macon County Board of
Education, 584 F.2d 78 (5th Cir. 1978), in which the court held
that a finding by the district court that the school system was
"unitary in nature" did not divest the court of subject matter
jurisdiction of a petition to amend the desegregation plan
where the court had not dismissed the case. A finding of
unitariness may lead to many other reasonable conclusions,
but it cannot divest a court of its jurisdiction, nor can it convert
a mandatory injunction into voluntary compliance.
206
The government's position ignores the fact that the
purpose of court-ordered school integration is not only to
achieve, but also to maintain, a unitary school system.
Keyes v. School District No. 1, Denver, Colo., 609 F. Supp.
1491, 1515 (D. Colo. 1985).4 When the district court termi
nated active supervision over this case, it acknowledged
that the original purpose of the law suit had been
achieved and that the parties had implemented a means
for maintaining that goal. Dowell, 606 F. Supp. at 1551
(1977 termination order). However, without specifically
dissolving its decree, the court neither abrogated its
power to enforce the mandatory order nor forgave the
defendants their duty to persist in the elimination of the
vestiges of segregation.
We therefore see no reason why this case should be
treated differently from any other case in which the bene
ficiary of a mandatory injunction seeks enforcement of
the relief previously accorded by the court. See Swann,
402 U.S. at 15-16. When a federal court has restored
unsupervised governance to a board of education, the
board must, like any other litigant, return to the court if it
wants to alter the duties imposed upon it by a mandatory
4 See also Lee v. Macon County Board of Education, 584 F.2d
78, 81 (5th Cir. 1978) (after full responsibility for educational
decisions has been returned to public school officials by the
court, they "are bound to take no actions which would rein
stitute a dual school system"); Graves v. Walton County Board of
Education, 686 F.2d 1135 (11th Cir. 1982), aff'g in part, rev'g in
part, 91 F.R.D. 457 (M.D. Ga. 1981) (despite an earlier finding
that desegregation had been accomplished, the courts reject a
modification of the 1968 desegregation plan which would
effectively resegregate the system).
207
decree. Vaughns v. Board of Education of Prince George's
County, 758 F.2d 983 (4th Cir. 1985). See also Pasadena City
Board of Education v. Spangler, 427 U.S. 424 (1976). It^is
only_when the order terminating active supervision'also
dissolves the mandatory inmncBonH^
board regains total independence from the previous
injunction.
B.
The record in this case indicates that the defendants,
unilaterally and contrary to the specific provisions of the
1972 order, have taken steps to avoid the duties imposed
upon them by a continuing decree. By implementing the
Student Reassignment Plan, the defendants have acted in
a manner not contemplated by the court in its earlier
decrees. The Plaintiffs now are simply attempting to reas
sert the validity of the 1972 order and to perpetuate the
duties placed upon the district.
When a party has prevailed in a cause for mandatory
injunction, that party has a right to expect that prospec
tive relief will be maintained unless the injunction is
vacated or modified by the court. See W.R. Grace and Co. v.
Local 759, International Union of United Rubber Workers of
America, 461 U.S. 757 (1983). See also GTE Sylvania, Inc. v.
Consumers Union of United States, 445 U.S. 375 (1980). To
make the remedy meaningful, the injunctive order must
survive beyond the procedural life of the litigation and
remain within the continuing jurisdiction of the issuing
court. E.E.O.C. v. Safeway Stores, Inc., 611 F.2d 795 (10th
Cir. 1979), cert, denied, 446 U.S. 952 (1980); 11 Wright &
Miller, Federal Practice and Procedure § 2961 (1973). This
208
binding nature of a mandatory injunction is recognized in
school desegregation cases. Pasadena City Board of Educa
tion v. Spangler, 427 U.S. 424, 439 (1976).
Thus, the beneficiary of a mandatory order has the
right to return to court to ask for enforcement of the
rights the party obtained in the prior litigation. To invoke
the court's authority, the part seeking enforcement must
establish that the injunctive decree is not being obeyed.
Northside Realty Associates, Inc. v. United States, 605 F.2d
1348 (5th Cir. 1979).
C.
Although prospective orders must be obeyed, federal
courts are also empowered to alter mandatory orders
when equity so requires. United States v. United Shoe
Machinery Corp., 391 U.S. 244 (1968); System Federation No.
91, Railway Employee's Department v. Wright, 364 U.S. 642
(1961); United States v. Swift & Co., 286 U.S. 106 (1932). We
have previously adopted the rationale behind these cases
in establishing guidelines "applicable in all instances
where . . . the relief sought is escape from the impact of
an injunction." Securities and Exchange Commission v. Jan-
dal Oil & Gas, Inc., 433 F.2d 304, 305 (10th Cir. 1970).
Given the mandatory nature and prospective effect of
an injunctive order, changes in injunctions must not be
lightly countenanced but must be based upon a "substan
tial change in law or facts." Securities and Exchange Com
mission v. Thermodynamics, Inc., 464 F.2d 457, 460 (10th Cir.
1972), cert, denied, 410 U.S. 927 (1973). A change in atti
tude by the party subjected to the decree is not enough of
a change in circumstances to warrant withdrawing the
209
injunction. Id. Therefore, when a party establishes that
another has disregarded a mandatory decree or has taken
action which has resulted in a deprivation of the benefits
of injunctive relief, the court cannot lightly treat the
claim. Having^ once determined the necessity to impose a
remedy, the court should not allow any modification of
that remedy unless the law or the~uhderlying facts have
so changed that the dangers prevented by the injunction
"have become, attenuated to a shadow," Jan-dal, 433 F.2d
at 305. and the changed circumstances have produced
" 'hardship j>o extreme and unexpected' as to make_ the
decree oppressive." Safeway, 611 F.2d at 800 (quoting
Swift & Co.), see also United States v. United Shoe Machinery
Corp., 391 U.S. at 251-52. Indeed, this "difficult
and . . . severe requirement" is necessary to be consistent
with res judicata principles. Thermodynamics, 464 F.2d at
460.
D.
The court's 1972 order requiring implementation of
the Finger Plan was binding upon both sides. More point
edly, the order specified that the defendants were not to
"alter or deviate from the [Finger Plan] . . . without the
prior approval and permission of the court." Dowell, 338
F.Supp. at 1273. While defendants unilaterally could not
take action contrary to the plan, plaintiffs also could not
expect more than the approved plan provided. When, five
yeargjater, the court determined that the implementation
of-IhgJElnger Plan had resulted in unitariness within the
district, that finding became final, and it, too, is binding
upon the parties with equal force. Yet, that historical
finding does not preclude the plaintiffs from asserting
210
a that a continuing manda.tQ.ry._Qrder is not being obeyed
j and that the consequences of the disobedience have
destroyed the unitariness previously achieved by the dis- J trict. .....
Thus, while the trial court properly refused to permit
the plaintiffs to relitigate conditions extant in 1977, it
erred in curtailing the presentation of evidence of
changes that have since occurred. Consequently, plaintiffs
were deprived of the opportunity to support their peti
tion for enforcement of the court's prior order.
r—- In reaching this conclusion, we are not traveling new
trails. We contrast this case with the Spangler line of
cases5 in which (&§.aggrieved party sought remedial relief
in addition to the previous decree. Here, the plaintiffs do
not seek the continuous intervention of the federalxourt
decried by the SupremeJIpurt. We are not faced with an
attempt to achieve further desegregation bas_edjapon
minor demographic changes not "chargeable" to the
board. Spangler, 427 U.S. at 435. Rather, here the allega
tion is that the defendants have intentionally abandoned
a plan’ which achieved unitariness and substituted one
whichlippears to have the same segregative effect as the
l attendance plan which generated the original lawsuit.
Given the sensitive nature of school desegregation
litigation and the peculiar matrix in which such cases
exist, we are cognizant that minor shifts in demographics
or minor changes in other circumstances which are not
5 Spangler v. Pasadena City Board of Education, 375 F. Supp.
1304 (C.D. Cal. 1974), aff'd 519 F.2d 430 (9th Cir. 1975), vacated,
427 U.S. 424 (1976), on remand, 549 F.2d 733 (9th Cir. 1977).
211
the result of an intentional and racially motivated scheme
to avoid the consequences of a mandatory injunction
cannot be the basis of judicial action. See Spangler, 427
U.S. at 434-35; Swann v. Charlotte-Mecklenburg Board of
Education, 402 U.S. 1 (1971). However, when it is asserted j *
that a school board under the duty imposed by a manda
tory order has adopted a new attendance plan that is
significantly different from the plan approved by the
court and when the results of the adoption of that new
plan indictate a resurgence of segregation, the court is
duty bound either to enforce its order or inquire whethe
a change of conditions consistent with the test posed i
Jan-dal has occurred.
Therefore, consistent with traditional concepts of
injunctive remedies in federal courts, plaintiffs have the
right to a full determination of whether and to what
extent their previously decreed rights have been jeopar
dized by the defendants' actions subsequent to the entry
of the mandatory decree. Moreover, we hold the plain
tiffs' assertion that the defendants abandoned the Finger
Plan without court approval constitutes the "special cir
cumstances" the trial court found absent from the case.
The existence of these circumstances should have been
recognized by the trial court as a basis for relief under
Fed. R. Civ. P. 60(b), and the court's failure to do so
results in manifest abuse of discretion which requires
reversal. See Security Mutual Casualty Co. v. Century Casu
alty Co., 621 F.2d 1062 (10th Cir. 1980). III.
Having concluded the district court erred in not
granting plaintiffs' motion to reopen, we must decide
III.
212
whether the error is significant in light of the court's
factual findings on the board's new plan. After review of
the evidence, which led the district court to hold the new
plan was not constitutionally infirm, we conclude that
reversal will not be futile.
The record indicates that the hearing from which the
court's findings were drawn was called for a narrow
purpose. The order setting the hearing provided:
[T]he motion to intervene and reopen and the
defendants' response join the issues, and the
matters in them are set for evidentiary hear
ing . . . at which time the question of whether the
case shall be reopened and the applicants allowed to
intervene shall be tried and disposed of.
j (Emphasis added.) From the outset, then, the only issues
the parties were notified to..present to the court dealt with
reopening and intervention. The court did not indicate
that it intended to hear evidence upon or determine the
substantive constitutional issues relating to the plan or its
11 effects.
i
Plaintiffs now argue they were unprepared to be
heard on the ultimate issues. Indeed, on two occasions
plaintiffs' counsel inquired whether the only issue to be
heard was that of reopening, and the court replied affir
matively. Hence, plaintiffs argue their understanding of
the limited scope of the hearing curtailed their cross-
examination of the defendants' witnesses and prevented
them from introducing evidence of alternative plans. Our
review of the record supports this assertion. While evi
dence bearing on the substantive issue was presented, it
focused on the underlying reasons for reopening the case
rather than on the ultimate constitutional issue.
213
In reaching the substantive.Issues,, the.jdistr.ict court
also improperly recast the burden of proof. As we have
already noted, the plaintiffs, as the beneficiaries of the
original injunction, only have the burden of showing the
court's mandatory order has been violated. Northside
Realty Associates, Inc. v. United States, 605 F.2d 1348 (5th
Cir. 1979). The defendants, who essentially claim that the
injunction should be amended to accommodate neighbor
hood elementary schools, must present evidence that
changed conditions require modification or that the facts
or law no longer require that enforcement of the order.
See E.E.O.C. v. Safeway Stores, Inc., 611 F.2d 795 (10th Cir.
1979), cert, denied, 446 U.S. 952 (1980).
Thus, by placing the burden on the plaintiffs to show
the school district was not longer unitary, the court
changed the usual course of what in reality is a petition
for a contempt citation. The Plaintiffs were required not
only to prove the mandatory injunction had been vio
lated, but also that the violation contravened the constitu
tion. In the framework of this case, the latter element was
beyond the scope of the hearing and certainly never the
plaintiffs' burden.
Accordingly, we believe the trial court reached the
merits prematurely. We applaud the court's effort to bring
speedy resolution to a difficult issue, but fairness and our
understanding of the procedures governing federal
injunctive remedies require us to conclude the court did
not give the moving parties ample opportunity to
develop substantive issues.
We have confined our analysis to the narrow issue of
the plaintiffs' right to reopen; therefore, our holding
214
should not be construed as addressing, even implicitly
the ultimate issue of the constitutionality of the defen
dants' new school attendance plan. The judgment of the
trial court is reversed and the case is remanded for fur
ther proceedings to determine whether the original man
datory order will be enforced or whether and to what
extent it should be modified.
215
[RECORD, VOLUME I, doc. 17]
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ROBERT L. DOWELL, et al.,
Plaintiffs,
v.
BOARD OF EDUCATION OF THE
OKLAHOMA CITY PUBLIC
SCHOOLS, et a l,
Defendants.
CIV-61-9452-B
FINAL PRETRIAL ORDER
Date of Conference: June 4, 1987
Appearances: Lewis Barber, Jr., Oklahoma City, Okla
homa, for plaintiffs
John W. Walker, Little Rock, Arkansas, for
plaintiffs
Theodore M. Shaw, New York, New York,
for plaintiffs
Norman J. Chachkin, New York, New
York for plaintiffs
Ronald L. Day, Oklahoma City, Okla
homa, for defendant
Laurie W. Jones, Oklahoma City, Okla
homa, for defendant
I. Preliminary Statement
This case is before the Court pursuant to the remand
directions of the United States Court of Appeals for the
Tenth Circuit, 795 F.2d 1516 (10th Cir.), cert, denied, 93 L.
Ed. 2d 370 (1986).
In 1972 this Court granted plaintiffs injunctive relief
designed to dismantle the dual school system in Okla
homa City. 338 F. Supp. 1256 (W.D. Okla.), aff'd 465 F.2d
216
1012 (10th Cir.), cert, denied, 409 U.S. 1041 (1972). On
January 18, 1977 the Court entered an Order finding that
the Board had carried out the injunction and has "slowly
and painfully accomplished" the goal of establishing a
"unitary system." The Order dissolved the Biracial Com
mittee previously created and directed that "Jurisdiction
in this case is terminated . . . " but it did not by its terms
vacate or dissolve the injunctive relief granted in 1972.
From the 1972-73 school year through the 1984-85
school year, the public schools of Oklahoma City were
operated consistent with the 1972 decree. Although
changes in pupil assignments were made from time to
time during those years (for example, as schools were
closed due to declining system-wide enrollment), the
school system continued to utilize the techniques of pair
ing, clustering, and compulsory transportation at the ele
mentary level that had been the essential feature of the
assignment plan approved and ordered into effect in
1972.
Effective for the 1985-86 school year, the Board of
Education adopted a new plan for pupil assignment in
grades 1-4 which eliminated pairing and clustering, sub
stituting a "neighborhood school" assignment plan which
eliminated compulsory transportation at those grade
levels and utilized zone lines similar to those employed
for elementary school assignments prior to 1972. Under
this method of pupil assignment, some K-4 elementary
schools in the district became predominantly Black for
the first time since 1972. (Fifth-grade centers were relo
cated throughout the school district rather than being
placed only in the northeastern section of the city and
217
these schools, like those serving grades 6-12, remain
desegregated.)
The plaintiffs sought to intervene new class represen
tatives and to reopen this action in 1985, to challenge the
decision of the school board to alter the basic method of
pupil assignment at grade levels 1-4. This Court denied
relief, but the Court of Appeals has remanded for a
determination whether the school board can establish
sufficient justification for the Court to dissolve or modify
the 1972 injunctive decree. See 795 F.2d at 1521-22. On
February 5, 1987, the Court granted the Petition for Inter
vention and plaintiffs' Motion to Reopen, and set the
matter down for hearing on the merits.
In these remand proceedings, the burden of proof
rests with the school board. "The defendants, who essen
tially claim that the injunction should be amended to
accommodate neighborhood schools, must present evi
dence that changed conditions require modification or
that the facts or law no longer require the enforcement of
[1972] order." Id. at 1523.
II. Stipulations
A. All parties are properly before the Court.
B. All parties have been correctly designated.
C. After exchanging and reviewing the exhibits,
although there are some objections the parties
have agreed to stipulate as to the admissibility of
many exhibits. These stipulations are detailed in
Part IV of the Pre-Trial Order infra.
F. Legal Issues:
218
The primary legal issues presented in the current
posture of the case are:
1. Have conditions or circumstances so changed
since entry of this Court's 1972 decree that it should
be dissolved or modified to permit use of defendants'
"neighborhood school" assignment plan for school
attendance in grades 1-4?
2. If such dissolution or modification is war
ranted, is the school board's 1985 plan constitutional?
3. Has the school district maintained a unitary
school system since 1977?
4. May plaintiffs seek modification to alter the
form of relief provided through the 1972 decree, and
what showing must plaintiffs make to justify such
relief?
G. Factual Issues*:
1. Are the elementary schools with enroll
ments greater than 90% Black under the school
board's 1985 student assignment plan for grades 1-4
vestiges of the prior dual school system?
2. Is the residential segregation which exists in
Oklahoma City today a vestige of previous unlawful
state-compelled segregation?
3. How has white student enrollment in the
Oklahoma City Public Schools changed since 1972,
* The parties have attempted to identify major factual
issues. However, it should be noted that the parties are not in
agreement about the significance of each. Plaintiffs believe
that, with respect to some of the these areas, the facts articu
lated in support of the decision to adopt the 1985 plan, even if
true, are insufficient as a matter of law to justify that plan. The
school board believes that each of the factual issues is material
to the legal determinations which the Court must make. Both
parties agree that no single factual issue is necessarily out
come-determinative.
219
and what further changes would result from resump
tion of the Finger Plan for elementary schools or from
implementation of the plans proposed by plaintiffs?
4. Did the school board adopt the 1985 student
assignment plan without the intent to discriminate
on the basis of race?
5. Did the school board adopt the 1985 student
assignment plan for legitimate non-discriminatory
reasons?
6. Did parental and community involvement,
including PTA membership and participation, decline
in the Oklahoma City Public Schools after 1972?
7. What effect has the school board's 1985 plan
had, and what effect will it have in the future on
parental and community involvement?
8. Did elementary school students' participa
tion in extra-curricular activities decline in the Okla
homa City Public Schools after 1972?
9. What effect has the school board's 1985 plan
had, and what effect will it have in the future on
elementary school students' participation in extra
curricular activities?
10. What had been the pattern, if any, of faculty
assignments to elementary schools since 1977?
11. Are present teacher assignment practices a
vestige of previous unlawful state-compelled seg
regation, or are they motivated by discriminatory
intent?
12. Did the Finger Plan result in placing a dis
proportionate share of the burdens of desegregation
upon young Black Children in grades 1-4, and did
demographic changes after 1972 increase those bur
dens?
13. Did the "stand-alone" feature of the Finger
Plan, in combination with demographic changes after
220
1972, result in placing further burdens on Black chil
dren?
14. Are plaintiffs' proposed plans logistically,
financially and educationally feasible?
15. Does the racial composition of public
schools affect the academic and social achievement of
black students?
16. Does parental and community involvement
in the public schools affect the academic and social
achievement of all students?
17. Is the 1985 student assignment plan being
implemented in a uniform, equitable and non-dis-
criminatory manner?
18. What are the attitudes of the school admin
istration and the community with respect to the 1985
student assignment plan?
19. Is the implementation of the 1985 student
assignment plan accomplishing the objectives of the
plan?
III. Contentions
The contentions of the plaintiffs and defendants are
attached hereto as Appendices "A" and "B" respectively. IV.
IV. Exhibits
1. Attached hereto as Exhibits "C" and “D" respec
tively are the Exhibit Lists of the plaintiffs and defen
dants. Exhibits not listed will not be admitted by the
Court unless good cause be shown and justice demands
their admission.
221
2. The parties stipulate that the following exhibits
may be received in evidence without objection (the par
ties reserve the right to argue to the Court concerning the
weight properly to the accorded to any exhibits):
Plaintiffs' Exhibits 1-29, 36-40, 47, 55, 56, 58
Defendants' Exhibits 1-6, 20-21, 24, 28, 34-37,
41-48, 57, 60-84, 88,
90-109, 111-121, 123-132,
134-137, 141-148, 151-160,
162-164, 172-174, 179-184,
187-196, 201-210
3. Plaintiffs agree to the introduction into evidence
of the following exhibits subject to defendants' willing
ness to stipulate as indicated:
a. Defendants' Exhibit 7, if it is stipulated
that the exhibit is based upon Defendants'
Exhibit 28; and if it is stipulated that the exhibit.
is a demonstrative representation of only selected
Black population relocations in the Oklahoma
City School District in the years indicated, that
is, Black students, living within the area indi
cated who were enrolled in kindergarten in the
district during the 1974-75 school year; and if it j
is stipulated that the exhibit does not indicate
the number of students who, according to the
records of the district, resided at the same \
address in 1977-78; and if it is stipulated that the
figure "209" labelled "to Non-ISD" on the
exhibit represents the number of 1974-75 Black
Kindergarten students whose names were not
found on the district's enrollment records in the
1977-78 school year or for whom the district's
enrollment records did not indicate an address, J
rather than the number of 1974-75 Black Kinder- '
garten students for whom the district had an
out-of-ISD 89 address in the 1977-78 school year.
222
b. Defendants' Exhibit 8, subject to the
presentation of an adequate foundation explain
ing the manner in which the data from which
the exhibit was prepared were gathered and
analyzed, if stipulations sim ilar to those
described above for Defendants' Exhibit 7 are
made concerning the selective character of the
population movements analyzed, the fact that
the exhibit does not include an indication of the
number of students who did not move, and the
meaning of the label "To Non-ISD."
c. Defendants' Exhibit 9, subject to the pre
sentation of an adequate foundation explaining
the manner in which the data summarized in
part (b) of the exhibit were gathered and
analyzed, and if it is stipulated that the data
summarized in part (a) are from Defendants'
Exhibit 28; and if it is stipulated that the
numbers indicated as being "no longer in dis
trict" represent students whose names did not
appear on the district's enrollment records for
the later year, or for whom the district had no
address on its enrollment records for the later
year, rather than students for whom the district
had an out-of-ISD 89 address for the later year.
d. Defendants' Exhibits 12 and 13, if it is
stipulated that the exhibits are demonstrative
representations of the proportions of students in
grades K-12 now living within each of the
"attendance areas" into which the school district
has been divided who are Black, rather than
representations of school enrollments.
e. Defendants' Exhibits 15-19, if the source
of the data represented in these exhibits is stipu
lated.
f. Defendants' Exhibits 58 and 59, if it is
stipulated that the term "population" on each of
these exhibits refers to the trial number of K-12
223
students enrolled in the public schools of Dis
trict 1-89 for the years indicated.
4. Plaintiffs do not intend to offer into evidence
their proposed Exhibits 42-45, 49, 51 or 53. At this time
plaintiffs do not expect to offer Exhibits 59, 61 or 63.
5. Defendants do not intend to offer into evidence
their proposed Exhibits 149 or 150.
6. The parties are unable to stipulate to the admis
sion into evidence of the following exhibits in the absence
of presentation of an adequate foundation, and they
reserve the right to object to the exhibits based upon
information developed during the presentation of foun
dation; unless otherwise indicated in this Pre-Trial Order,
however, the parties are not at this time aware of other
bases for objection to these exhibits:
Plaintiffs' Exhibits 41, 46, 48, 50, 52, 54
Defendants' Exhibits 11, 14, 22, 23, 25, 26, 29-33,
38-39, 40, 56, 56A, 85-87,
89, 110, 133, 138-140,
165-171, 175-178, 197-200
7. Plaintiffs object to the following exhibits on the
ground of relevancy: Defendants' Exhibits 38, 39, 49-55,
186.
8. Defendants object to the following exhibits on
the ground of relevancy: Plaintiffs' Exhibits 30-35, 48, 57.
9. Plaintiffs object to the following exhibits on the
ground of hearsay: Defendants' Exhibits 10, 27, 186.
10. The parties reserve the right to object to the
following exhibits which have not yet been completed or
224
withdrawn from the Clerk's Office and been made avail
able for inspection:
Plaintiffs' Exhibits 3, 60, 62
defendants' Exhibits 122, 161, 185
V. Witnesses
Attached hereto as Exhibits "E" and "F" respectively
are the witness lists of the plaintiffs and defendants. No
unlisted witness will be permitted to testify as a witness
in chief except by leave of Court when justified by excep
tional circumstances.
VI. Trial Briefs
The parties are submitting trial briefs simultaneously
with the filing of this Pre-Trial Order.
The Court has ordered that proposed Findings of
Fact and Conclusions of Law be submitted within two
weeks of the conclusion of the trial herein.
VII. Estimated Trial Time
Five to ten days. VIII.
VIII. Possibility of Settlement
Good __ F a ir___ Poor X
All parties approve this Order and understand and
agree that this Order supersedes all pleadings and shall
not be amended except by Order of the Court.
225
Norman J. Chachkin
LEWIS BARBER, JR.
Barber/Traviolia
1528 N.E. 23rd Street
Oklahoma City, OK
73111
(405) 424-5201
JOHN W. WALKER
John W. Walker, RA.
1723 Broadway
Little Rock, AR 72206
(501) 374-3758
Attorneys for Plaintiffs
/ s / Ronald^L. Dâ y
LAURIE W. JONES
Fenton, Fenton, Smith,
Reneau & Moon
Suite 800
One Leadership
Square
211 North Robinson
Oklahoma City, OK
73102
(405) 235-4671
Attorneys for Defendants
APPROVED this __ day o f ____________________ , 1987.
JULIUS L. CHAMBERS / s /
THEODORE M. SHAW
NORMAN J. CHACHKIN
99 Hudson Street,
16th floor
New York, New York 10013
(212) 219-1900
LUTHER BOHANAN
UNITED STATES
DISTRICT JUDGE
226
APPENDIX "A"
Plaintiffs' Contentions
1. Circumstances and conditions have not changed
since entry of the Court's Order in 1972 so as to provide
legal justification for the modification or dissolution of
the decree sought by the school board.
The purpose of the 1972 Order was to eliminate pupil
segregation at all grade levels from the Oklahoma City
Public Schools. The Court explicitly found that a system
of geographic zoning (often referred to as "neighborhood
schools") for pupil assignments was insufficient to
achieve that purpose in Oklahoma City because of the
pattern of intense racial residential segregation and the
deliberate location of schools for students of each race in
areas of racial residential concentration.
Moreover, the Court has found in this case that the
pattern of residential segregation, and specifically the
overwhelming concentration of Black residents in north
eastern Oklahoma City, was the result of deliberate dis
criminatory policies enforced and maintained as the
public policy of the State of Oklahoma and of school
authorities' actions.
These underlying conditions have not been altered
since entry of the Court's 1972 decree:
(a) Although the public schools of the district were
desegregated between 1972-73 and 1984-85, all of the
demographic exhibits to be introduced at the hearing
indicate clearly that the northeastern portion of Okla
homa City is today as nearly exclusively Black as it was
in 1972.
22 7
(b) At the 1985 hearing, the President of the school
board testified that the attendance zones adopted for K-4
pupil assignment in 1985-86 and 1986-87 were "the same
neighborhood boundaries as have existed for years" (Tr.
336). A comparison of the attendance zones used by the
district for elementary schools in the early 1960's, in 1970,
and currently, confirms this statement.
(c) As the enrollment figures demonstrate graph
ically, reimposition of those zoning patterns on the
unchanged areas of minority residential concentration in
the school district results in precisely the consequences
which the 1972 Order was intended to prevent: the cre
ation of a set of virtually all-Black elementary schools,
enrolling a substantial proportion of all Black students in
the district at grade levels K-4 or 1-4. Thus, the 1985-86
assignment plan for grades 1-4 uses the same pre-1972
attendance technique (geographic zoning) and many of
the identical pre-1972 zones (modified principally by
school closings) and produces the same segregated, vir
tually all-Black facilities (except for those which were
closed) with which the Court was confronted in 1972.
2. Although the district's schools were desegregated
between 1972-73 and 1984-85, the method of pupil assign
ment was not fully equitable.
The author of the plan embodied in the 1972 decree,
Dr. Finger, testified without contradiction that a lack of
adequate time and information accounted for his place
ment of only a single grade in formerly all-Black schools.
As a result, all young Black children were transported out
of Black residential areas for the first four years of school
228
(after kindergarten), without exception, while white stu
dents in the elementary grades were transported only for
a single year, in the fifth grade.
This inequity was never alleviated, despite the fact
that between 1972-73 and 1984-85 the school board made
numerous modifications to the plan for reasons such as
school closings.
Additionally, the "stand-alone school" feature of the
original Finger Plan, over time, increased the burdens
borne disproportionately by Black children. As new areas
of the district qualified for "stand-alone" status the dis
tances which Black students in grades 1-4 would have to
be transported increased and the likelihood that schools
in Black residential areas would be closed increased.
If, as plaintiffs contend, the school board is unable to
meet its burden of demonstrating adequate legal justifica
tion for returning to a system of geographic zoning to
assign pupils in grades 1-4, a new plan of pupil assign
ment for these grades consistent with the Court's 1972
decree must still be developed by defendants, since the
board has voted to close 7 schools at the end of this year.
Plaintiffs contend that the Court should require that such
a new plan avoid the inequities of the disproportionate
busing of younger Black students, and the threatened
discontinuation of schools in Black residential areas
which results from the Finger Plan's "stand-alone school"
feature.
Even if a new plan of assignment taking account of
the additional school closings did not have to be drawn,
plaintiffs would be entitled to seek modification of the
pupil assignment plan to allocate its burdens more fairly
229
between Black and white students. Such a modification
would facilitate the central purpose of the decree: pre
serving desegregated schools and eliminating discrimina
tory treatment of Black students. The standard for
modifying a decree so as better to achieve its goals is
quite different from that which governs a defendant's
request for the effective dissolution of the decree. Thus,
plaintiffs' right to more equitable means of student
assignment does not imply that the criteria for making
the much more drastic change in the decree sought by the
defendants have been established.
APPENDIX "B"
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ROBERT L. DOWELL, et ah, )
Plaintiffs, |
vs. ) CIV-61-945 2-B
THE BOARD OF EDUCATION Of J
THE OKLAHOMA CITY PUBLIC
SCHOOLS, INDEPENDENT '
DISTRICT NO. 89, et al., j
Defendant. )
230
DEFENDANT'S CONTENTIONS1
1. The objective in this desegregation case was to
dismantle the dual school system which existed in Okla
homa City. The purpose of the 1972 desegregation decree
was to correct the condition that offended the Constitu
tion. No child was to be excluded from any school on
account of race. The remedy was designed to operate
during the interim period when remedial adjustments
were being made to eliminate the dual system. The need
for the remedy extended until it was clear that state-
imposed segregation had been completely removed.
When the Board's affirmative duty to desegregate was
accomplished and racial discrimination through official
action was eliminated, the Court found the school system
unitary. The Court's unitary finding in 1977 signified the
purpose of the litigation had been achieved. The dual
system had been dismantled. The School District's contin
ued adherence to fundamental tenets of the Finger Plan at
all grade levels through school year 1984-85 further
insured that all vestiges of prior state-imposed segrega
tion had been removed. Today, after 13 years of imple
mentation, the dangers prevented by the 1972 decree
have become attenuated to a shadow. Now, the particular
1 Defendant's contentions, as well as the legal and factual
issues stipulated to in the Pretrial Order, are framed in light of
the mandate of the Tenth Circuit Court of Appeals. The Defen
dant Board does not want to be misunderstood as waiving its
previous position in this case. With all due respect to the Court
of Appeals, the Board continues to believe the analysis applied
by this Court in 1985, and applied by the Fourth Circuit in
Riddick v. School Board of City of Norfolk, 784 F.2d 521 (4th Cir.
1986), is the correct one.
231
school a child attends is not determined by race. The
purposes of this litigation as incorporated in the 1972
decree have been fully achieved. The achievement of the
purposes of the litigation constitutes a substantial change
in conditions which warrants dissolving the 1972 decree.
2. The Finger Plan appropriately served its purpose
during the interim period when remedial adjustments
were being made to dismantle the dual school system.
However, the plan was never intended to operate in
perpetuity. After 13 years, demographic changes in Okla
homa City rendered the "stand alone" school feature of
the Finger Plan inequitable. The greater the number of
"stand alone" schools, the greater the busing burden
placed on young black children. More "stand alone"
schools meant less fifth year centers. With demographic
change, the "stand alone" school feature produced hard
ship so extreme and unexpected as to make the decree
oppressive. Such a substantial change in conditions is
additional justification for dissolving the 1972 decree. At
the very least, it warrants modifying the decree to
accomodate [sic] the Board's 1985 plan.
3. The Board of Education's 1985 Student Assign
ment Plan, which calls for neighborhood schools in
grades K-4, does not offend the Constitution. Nor does it
affect the unitary character of the School District. The
Constitution does not mandate that a certain degree of
racial balance be maintained in public schools. Rather, it
prohibits the assignment of students to schools on the
basis of their race. The mere existence of some predomi
nantly white or predominantly black schools in a commu
nity, w ithout m ore, is not u ncon stitu tional. A
neighborhood school policy violates the Equal Protection
232
Clause only when its adoption is motivated by discrimi
natory purpose. The 1985 Student Assignment Plan was
not adopted with discriminatory intent. It was adopted
by a unitary school district for the purpose of avoiding
the progressive inequity of the "stand alone" school fea
ture, and for the purpose of enhancing academic achieve
ment through increased parental and community
involvement in the schools. The faculties at the K-4 neigh
borhood schools are racially mixed. The "majority to
minority" transfer policy insures that no student is com
pelled to attend any school where children of the stu
dent's race constitute a majority. Today, the particular K-4
elementary school a student attends in Oklahoma City is
determined by the housing grades 5 through 12.
5. Any residential segregation which presently
exists in Oklahoma City is not a vestige of previous state-
compelled segregation. The barriers which prevented
black people in the past from living in many sections of
the community have long since been removed. Today,
blacks are free to move, and in fact have moved into most
neighborhoods in this community. Where black families
live in Oklahoma City is now determined by their prefer
ences and socioeconomic status, not by the color of their
skin. The same is true with other minorities. In 1987,
Orientals, Indians, Spanish and blacks are dispersed
through most sections of the Oklahoma City School Dis
trict. They all have the freedom to live and attend school
where they choose. Oklahoma City in 1987 is remarkably
will integrated. The numbers of black people who con
tinue to reside in previous unlawfully segregated neigh
borhoods have decreased over the years. The fact that
233
some of the previous unlawfully segregated neighbor
hoods continue to have a high percent of blacks living
there today is not the result of any action taken by the
Oklahoma City Board of Education. Those people live
where they do by choice. State action, past or present,
does not restrict them from living elsewhere. If it were
not for certain pockets of residential segregation pres
ently existing in Oklahoma City, Plaintiffs would not
have the Board engaged in the present contest. Plaintiffs
would not contest the neighborhood school plan if all
neighborhoods were integrated. Yet, no compulsory
desegregation plan implemented by a public school sys
tem can eliminate residential segregation regardless of
the_Jength of time it is in operation. Under Plaintiffs'
rationale, this Court should continue to order the busing
of young students in Oklahoma City indefinitely, until
such time as racial balance exists in all neighborhoods in
the city. Such action would be oppressive and totally
unrelated to the objective of this desegregation case,
which is to insure that no child of a racial minority is
excluded by school authorities from any school on
account of race.
6. Plaintiffs are not asking this Court to enforce the
Finger Plan. Rather, Plaintiffs are impermissibly asking
this Court to award additional remedial relief, which, for
the first time in the history of Oklahoma City, would
require the compulsory, busing of young white children
in grades 1-4. Plaintiffs' contention that white children
should share the busing burden now because blacks car
ried the burden in the past does not square with princi
ples of equity. In light of the unitary status of the
Oklahoma City School District, it is clear that Plaintiffs
234
may not seek this relief. Since this school district is uni
tary, it no longer has the affirmative duty to desegregate.
Granting such relief would be impermissibly aimed at
eliminating a condition which does not offend the Consti
tution. The Court of Appeals noted that as most Plaintiffs
were limited to seeking the enforcement of the Finger
Plan. The Board of Education contends that implementa
tion of Plaintiffs' busing proposal would: (1) work
extreme financial hardship upon the School District, (2)
adversely affect its "Effective Schools" Program, (3) bring
about another substantial wave of white flight which
would tend to resegregate the School District, and (4)
constitute an abuse of the Court's remedial authority.
7. The School District was declared unitary 10 years
ago, and it remains unitary today. After more than 25
years of litigation, control over the schools in Oklahoma
City should be returned to its Board of Education. Its [sic]
time to turn our attention to effectively educating the
children in this community.
EXCERPTS FROM TRANSCRIPT OF
PROCEEDINGS AT HEARING CONDUCTED
JUNE 15-24, 1987
RECORD, VOLUME II
235
WILLIAM A.V. CLARK
* * *
[p. 45] Q. Were there any changes between 1960 and
1950 that's revealed in these maps?
A. Yes. The area of concentration, the area in which
blacks were concentrated has increased, and there are a
number of tracts with lighter tones in the school district,
but perhaps most obvious was the increase in the north
eastern areas of the school district in which the propor
tions of blacks had increased during this period.
But, in general, between '50 and '60, although there
was some spread, some diffusion, there was still a signifi
cant concentration of black households in the inner city -
the east inner city area.
Q. In your study of this district, were you able to
determine why such a large percentage of blacks were
living in these tracts that are shown on the map in the
dark olive color?
A. Well, in Oklahoma City, as in many other metro
politan areas, there are a complex set of explanations.
We know that blacks settled near the central cities,
the [p. 46] downtowns, where there were jobs available,
and certainly the downtown of Oklahoma City was very
different in 1950 - in the 1950's than it is today when it
was much more of the center of the city. The downtown
has changed a great deal in the last 30 years. And there
were jobs available, so that was one element of explaining
that concentration.
236
Another, of course, is what we do know related to the
preferences and information networks that black house
holds moving to Oklahoma City would have other con
tacts and would tend to find housing nearby. The housing
was less expensive in those central areas, often having
been vacated by other families who had moved out.
And we must, of course, also note that in the 30's
there were ordinances which had the - attempted to
concentrate black households in certain parts of the city.
* * *
[p. 52] DIRECT EXAMINATION (CONTINUED)
BY MR. DAY:
Q. Doctor Clark, you mentioned that the concentra
tion of blacks in the 50's and 60's was, in part, responsible
for the state compelled dual school system being imple
mented in Oklahoma and also ordinances which required
blacks to live within these tracts; is that correct?
A. I'd like that read back. I'm not sure that's exactly
what we were talking about when we ended. We were
talking about the ordinances and the effect of the ordi
nances.
Q. All right. Well you are also aware that there was
a state compelled-dual-school-system -
A. Yes.
Q. - In Oklahoma City for many years?
A. Excuse me. If that's your question, I am aware of
that.
237
Q, Now, after 1970, in your study did you note any
changes in the demographic movement of black people in
this community?
A. Yes. When you look at the maps for 1970 and '80,
you notice considerable change from the maps in 1950
and '60.
Q. Okay. Now, in your investigation, did you
review any local ordinances or state statutes which, in
you opinion, affected where black people could live in
the Oklahoma City area?
A. Yes.
Q. Would you briefly tell us about those local laws?
[p. 53] A. Well, when I found that there had been
these ordinances in the 30's; 1933 and '34, which had been
promulgated, even though I think they were unconstitu
tional, given other court rulings, I was interested to know
what specific responses there had been. So I looked at
some of the other material, and, of course, I think those
ordinances were actually declared - I think "unconstitu
tional" would be the correct word - in the 30's.
But during the 70's, we - beginning, of course, in
1968 with the Federal Fair Housing Rules; these were
followed, specifically, in Oklahoma in 1970 with the Fair
Housing decision and that was followed with a number
of ordinances during the 70's which were designed to
make sure that blacks had access to public accommoda
tion, that there couldn't be discrimination in the housing
market, and these - there were several of these ordi
nances through the 70's, culminating in 80, I think, with
238
the Human Rights Commission that was set up there in
Oklahoma City.
* * *
[p. 55] One of the reasons, if I may just give a little
background, that I do so much of my research in Europe
is that Europe keeps very detailed records on population
relocation. They actually have information on point-to-
point moves. The U.S. does not have very much of this
data.
So when I found some of the data available in a
report that had been done for the school board on actual
relocations of black households, I was interested in map
ping it to see whether or not it would tell us something
about the patterns of change over time for this period in
the 1970's.
Q. Well, tell us a little bit about that study that you
found.
A. I found a study by Steven Davis, a study done by
the - for the school administrative group. I don't know
whether he did it for the school board or whether he did
it for the research group. I think he was a member of
research staff at that time.
And he laboriously took the printed records, - we
didn't have at that time computerized material - he took
the printed records for kindergarteners who lived in the
area of the so-called fifth-grade centers, and he wanted to
know, for the attendance areas of those fifth-grade cen
ters, what had happened to those pupils that were being
bused out of there over time. So he was interested in
knowing three years later, in 1977/78, where were those
239
people that were in those [p. 56] attendance areas in
1974/5, where were they living three years later.
So he actually looked at the matrix of their moves
between attendance areas. He asked, "can I find a name
and address in the attendance area in the center, and now
where were they three years later?"
And I was able to plot that data and present the
record.
Q. I believe the record, the Davis study, is in evi
dence as defendant's exhibit 28; is that correct?
A. I don't remember the number. I did review it, but
I could look it up. I think it is.
Q. Okay, if you would, please, just confirm that for
us.
A. It is. It's defendant's - it's Steven Davis, an anal
ysis of elementary school enrollment trends, department
of technical services, research and evaluation unit, Okla
homa City Public Schools, and it's defendant's exhibit 28.
Q. And that is what you used to prepare the map
from?
A. That's correct.
Q. I'd like to direct your attention now to defen
dant's exhibit number 7.
Doctor Clark, is exhibit 7 the map that you testified
you prepared from the study that Mr. Davis did?
A. That's correct.
Q. Would you explain what you're depicting here in
this map?
240
A. Whai I'm doing in this map is trying to express
the kinds [p. 57] of changes that were occurring during
the 70's for black households who were living in the
inner city east area, which has - which was still an area of
concentrated black households, and I'm showing, for the
data that we had for kindergarteners - it is a limited
sample - for kindergarteners, where those households
relocated in that three-year period,
And for those who relocated but stayed within the
district, I showed that as a curved band for 149 individ
uals who moved but stayed within the fifth-year center
areas, and I showed a band moving out of the district,
that is, names and addresses who could no longer be
found, 209 of them moving to non-Oklahoma indepen
dent school district areas.
Q. What information did you use to determine that
these students were classified as to non-ISD area?
A. I took the Davis result that there was neither a
name or address in the district, and so we can make the
assumption that they moved out of the district.
But, in addition to the 177 that he so identified in his
report, I added another 32 names for which there was no
address but the names were present, and put that in with
that category.
That's a judgment call whether they should be within
the two non-ISD's or to the 149 moving within the fifth-
year center area, but in that my major concern was the
relocation behavior of the blacks in the district, I wasn't
that concerned about [p. 58] the judgment call between
the two.
241
Q. Would you point out the significance of these
arrows for the court?
A. Yes. I plotted only moves of two persons or
more. There were a number of moves of a single individ
ual, but most of them were to nearby areas. And this gave
me a general picture, and I decided that was sufficient to
make the point that we have, for example, three people
going from the fifth-year center areas to Harrison, seven
going to Western Village, -
Q. Now, is this - you say this fifth-year center area.
You're referring to the east inner part of the city that was
predominantly black?
A. Yes, but it's more than the area that was predom
inantly black, because half of that east inner city area to
the north, schools like Longfellow and Dewey and Polk,
back in 1960 had very small proportions of black house
holds.
Q. And the movements that you're talking about of
students are movements of black students and their fami
lies; is that correct?
A. Yes. These are residential relocations.
Q. All right.
A. I was saying that we have seven to Western
Village, four households or students and their families
went to West Nichols Hills, eleven from Dewey to Edge-
mere, four to Putnam Heights, and so on. Four to Rock-
wood, two to Shields Heights, three fp. 59] down to the
Bodine area, and then on the other side we have some
moves from the Garden Oaks area to Star and to Spencer
and so on.
242
Now, this means that those families came from some
where within that fifth-year center. It wasn't that they
came from a specific school, though that also could have
been mapped. But Davis did map those, and it was a
rather confusing picture. It was hard to get a general
feeling for the kinds of changes that were going on from
his map.
Q. In this map where you show the arrows going
out into the other parts of the school districts, at the base
of the arrow you have a circle and a number. What does
that number represent?
A. That's the number I've just been reading. That's
the number of students and, one assumes, their families
that residentially relocated from the east inner city area to
one of the other attendance districts.
Q. Were you able to determine, from the data that
you reviewed, how many students or black students actu
ally moved with their families into attendance zones
where they were being bused?
A. This was one of the concerns of Davis, and in his
report he notes that, of all of the relocations, only one
family could be identified as having moved to an atten
dance area that it had previously been bused to.
[p. 60] Q. One out of how many students?
\ A. Well, one out of about 350, something like that,
jof these - these kindergarten students.
Q. Do you have an opinion with respect to why the
other families located where they did in the school dis
trict?
243
A. Well, during the 70's there was the beginning of
quite a lot of movement of black households throughout
the district, and they were moving, in many cases, to
areas nearby the inner city concentration, to Edgemere, to
Putnam Heights, or moving to areas like Rockwood
where there was some public assisted housing. There
were moving, of course, to areas that they sought as
white households so, where they could improve their
housing, buy houses, perhaps, rather than rent in the
inner city area, the kinds of standard reasons that we
know apply to people seeking to move and and to resi-
dentially relocate within the city.
Q. You did a map showing the census tract popula
tion in 1980, did you not?
A. That's correct.
Q. Is that exhibit number 4?
A. I believe so. Yes.
Q. Would you identify and explain that exhibit,
please.
A. Exhibit 4 is, again, Oklahoma City, the Metro
politan area, with the percent black population by tract
for 1980. Again, the red line indicates the boundary of the
Oklahoma School [p. 61] District, and the shading is
consistent with the other maps, from white, pearl, light
yellows, light greens, to darker greens, with increasing
percentages black with the heavier shadings.
Q. What percent black is located in these areas with
the tan shading?
A. It's between one and ten percent.
244
Q. In your opinion, were there any significant
changes in the location of the black population between
1970 and 1980?
A. Yes, there were.
Q. Would you explain those?
A. Whereas between 1960 and '70 we saw the con
siderable movement to the eastern part of the county,
between 1970 and '80 we saw an increasing movement to
the western parts of the city and the county.
Now, those light tan shadings, that is, they're still
lower percentages than the percentages moving to the
eastern part of the county, but, whereas, between '60 and
'70 there was eastward movement, between '70 and '80
we now have westward movement as well, such that
many, many tracts throughout the city have some black
households ranging between one and ten percent.
* * *
[p. 65] Q. (BY MR. DAY) Doctor Clark, thus far
we've been talking about the percent of black population
in various census tracts in the area over time.
In you analysis, did you examine any of the actual
numbers of black population living in these various
census tracts over time?
A. I did.
Q. Have you put that information in chart form so
we can use it in court?
A. I have.
245
Q. Where did you obtain the numbers and the data
for this [p. 66] exhibit?
A. This data, like the other data, is from the census
tract information.
THE COURT: What exhibit is this?
MR. DAY: Beg your pardon?
THE COURT: The number of this exhibit.
MR. DAY: It's 5-D.
Q. (BY MR. DAY) Doctor Clark, explain for us what
exactly is demonstrated in this chart.
A. There has been some discussion of the concentra
tion of black households in the east inner city area, and, *
in examining that data and plotting it, I was concerned
that the percentages might give a misleading impression,
in that there is still very - therejrre still very significant
concentrations of black households in those inner city
tracts.
Therefore, I wanted to look at the absolute numbers
from the area that we've called the concentrated inner
city area, that is tracts 13, 27 through 30, 38, and 79. I
wanted to look at the aggregate or the raw numbers for
those tracts.
Q. Would you show us the location of those tracts
on exhibit number 4.
A. The tracts that I'm speaking of are the tracts
here, 13, 28, 29, 38, 30, and 27.
Q. Go ahead with your explanation.
246
A. I was able to determine the numbers of the total
popula- [p. 67] tion and the black population for each of
those tracts and to show, to get right to the point, that,
whereas in 1960, for example, to take just two examples,
tract 27 had almost 2,700 blacks, in 1980 it had only 22. In
tract 29 there was 3,684 blacks. In 1960 there were 447.
Q. You mean '80?
A. In 1980.
So that what we see is a significant change in the
absolute numbers of blacks, of course, as that area has
undergone demographic transition.
Q. What about tract 30 and 38?
A. Well, tract 30 went from 5,000 in 1960 to 853.
Tract 38 went from 3,324 in 1960 to 912 in 1980.
Q. Were you able to determine the percent of the
black population living in the metropolitan area which
chose to live in the tracts that you've identified as of
1960?
A. Yes. By taking the 19— taking the data for the
total metropolitan area that was black, and then taking
the proportion and summing up the number in these
seven tracts and putting it over as a ratio, I was able, to
jshow that somewhat more than 80 percent in 1960 and in
|1950_were_in these seven tracts, but by 1980 it was less
Jthan 17 percent.
Q. Do I understand you correctly that in 1980 only
16.8 percent of the black population in Oklahoma City
resided within these tracts?
247
[p. 68] A. In Oklahoma City Metropolitan area resi
ded in these tracts.
Q. And that in 1960, 84 percent of all blacks in the
metropolitan area resided in these tracts?
A. That's correct.
Q. Have you personally been to these areas of this
community?
A. Yes.
Q. In these tracts where we have a dramatic drop in
numbers, what do you see when you drive through?
A. Well, I was interested in going to these areas,
given the significant change in population, and some I
could work out just from examining maps. For example,
1-40 and the 35 interchange certainly had a dramatic
impact in tract 29.
But what we have, of course, is an area that was
undergoing land use transition, there were developments
of institutions in the area, the freeway system, and now
the Broadway extension is having a considerable impact
as further transportation developments in the area
require the clearing of residential use in that region.
Q. Does the census data show the amount of popu
lation turnover within a given tract?
A. Yes. You can get a general idea of turnover from
the census tract data.
* * *
[p. 71] mobility, and we find that the mobility rates have
dropped on average, oh, nine percent over that period,
248
and you can see it specifically in individual tracts. But the
turnover rates in 38 and 30 are still quite high.
Q. What's the significance of that high turnover
rate?
A. Well, the significance to me is that there's a fair
amount of population change going on in the area. It's
not a stable area. People are coming and going. People
are choosing to live there and to move away from there.
Q. In your analysis of this school district, did you
become familiar with the total black population in the
community over time? The numbers?
A. Yes.
Q. Do you have an opinion as to where the blacks
that were previously living in these tracts went which
would account for this substantial drop in numbers from
'60 to '70 to '80?
A. Well, if you look at the charts and the maps that
I've prepared previously, we have an expansion of the
black population throughout the region. Some of them
certainly came from this region. I'm not - certainly not
saying they all came from here, because this just says
whether or not you're living in the same house. You may
have moved down the street, and often people do that
around the block.
But we know that the black population expanded, we
know it was living throughout eastern and increasingly
\ western parts of [p. 72] the city and the county. Some of
Vthat population came from the inner city area.
249
Q. Doctor Clark, I'd like to direct your attention
now to defendant's exhibit number 6, which is in the
book in front of you there, and I would ask that you
identify and explain that exhibit, please, sir.
A. This is a chart which gives data on the popula
tion growth/change in the Oklahoma City Metropolitan
area, and it is an attempt to look at the kinds of demo
graphic changes that were going on in a very broad-brush
approach.
And I divided the district that I was concerned with
into - the Oklahoma City School District in three parts,
then Eastern Oklahoma County, Northern Oklahoma
County, Western Oklahoma County, and part of Canadian
County.
I didn't do the total metropolitan area. I though this
would be sufficient to examine the kinds of changes
going on in the region between 1960 and 1980.
Q. And what sort of change did you note in that
period of time?
A. I presented the data in the chart for 1960 to '70, /
for '70 to '80, and 1960 to '80 as an aggregate, and I think 1
the points can be made quite simply. There was, in the
Oklahoma City School District in the major - the centra 1
core, the largest area, a loss of about 40-, almost 43,000
whites, and a gain of 13,000 blacks.
* * *
[p. 76] Q. Were you able to determine how many
black families actually moved into an attendance zone
where their child was being bused?
250
A. Yes. I also asked for that part of the run to be
done, and there were eleven families who had relocated
to attendance areas that they'd previously been bused to.
Q. And approximately how many families relocated
in attendance areas other than those where their children
were being bused?
A. Approximately 250, but we'd have to add it up
exactly.
Q. Do you place any significance on that figure?
A. Well, f was interested in this, because I have
been examining the issue of whether or not busing or
moving children from one attendance area to another will
integrate the residential area, and I think this is evidence
that it does not integrate~tKeTesiHential area. The residen
tial areas change [p. 771 from a long series of decisions
made by individual families, and simply busing a child
from one attendance area to another will not, in and of
itself, integrate that residential area.
Q. Do you have an opinion as to why these black
families were moving into other areas of the school dis
trict during the 80's?
A. Yes.
Q. What is your opinion?
A. I think they're moving there for the reasons that
families move in general. They're moving there because
they could own a house, perhaps, instead of rent, or they
could find a house they could afford; they were moving
there because there were other families of similar socio- J economic status; they are moving there for reasons of
251
preference, they liked the area; or, in the case of Rock- /
wood, they were moving there because they could get
housing that they could afford, publicly assisted housing.
* * *
[p. 82] Later I was asked by the U.S. Commission on
civil rights to attend a consultation and hearing and to
write a paper for that hearing, which I did, and it was
published as part of a proceedings.
I then, with the permission of the commission,
revised that paper, and it was accepted for publication in
population research and policy review.
Q. When did the commission on civil rights ask you
to do the study and present your findings to them?
A. That was in the fall of 1985.
Q. I'd like to direct your attention to defendant's
exhibit number 10 and ask you if that is a true and correct
copy of the article on residential segregation which you
originally did for the U.S. Commission on Civil Rights.
A. It is, with the proviso that in preparing the paper
for publication, part of the article that was presented to
the U.S. Commission on Civil Rights is not included in
here, and, of course, it's been subject to considerable
revision with peer group review and editorial input. But
it is substantially the same.
* * *
[p. 84] And I began work on trying to assess the
relative role of each of the many factors that had been
thought to influence patterns of residential neighbor
hoods in cities, and the request from the civil rights
252
commission came at an opportune time, because I was
able to take the period of my research and review a large
number of studies and put them into a context, and was
able to show in that paper and in the published paper
that we have what I believe are a set of factors, which
includes economics and housing affordability and
income, preferences and social relationships, what I call
urban structure and structure of cities, and elements in
the past of discrimination. That these four groupings
summarize the different things that have been at work in
the cities to influence the patterns of residential separa
tion.
Q. How about current private discrimination? Do
you find to any extent that is one or a part of the factors
you must consider when you're determining the causes of
residential segregation?
A. When you say "current," you're talking about
the present time, and we know that private discrimina
tion in the past was a factor in accounting for patterns.
But currently the work that's ongoing, and I report
two surveys that were done in the civil rights paper
where specific [p. 85] questions were asked of black
households about whether they had been discriminated
against on the basis of race in attempts to secure housing
and who was responsible, and something on the order of
two to three percent of the respondents indicated that
they had - they had been subject to private discrimina
tion.
So it is a much smaller factor today than it was 30
years ago.
253
Q. Addressing the causes of residential segregation
today, what part did you find that personal preferences
played?
A. In looking at the various factors, again beginning
with some studies by sociologists in the 60's, people were
interested in the question of why you got some of these
concentrations and to what extent what people desired
was a basis for that, and the early studies established
quite quickly that what we've called the gap between
black and white preferences is quite important in under
standing patterns.
If you ask whites the kinds of neighborhood compo
sitions that they would like, their preferences, they tend
to report in the range of zero to 20 percent minority,
depending on the city, - I say "minority" because it may
be black or Hispanic - and perhaps in the range 80 to 90,
percent white. We find that 80-20 is a commonly-
expressed view for white households. Black households
commonly express a view of wanting 50-50 neighbor
hoods, 50 percent blacks, 50 percent whites.
And so we have this separate - this distinct view of
the [p. 86] kinds of neighborhood compositions that
whites and blacks want, and that, of course, leads to a
gap in the preferences such that it's very difficult to
maintain stably integrated neighborhoods.
Q. Today what part does economic status play?
A. I've - I've always felt that the attempts to down
play the role of income in terms of explaining patterns of
residential separation have been perhaps too great. I
think income is a very important element, and we see it
254
in the gains in black incomes that were made in the 7Q's
and the 60's. Given those gains, we see it being expressed
in the spatial pattern of black households.
But it's true that you can find cheap housing in the
suburbs as well as in the central cities, so it's not a
complete explanation, and I like to turn beyond income to
looking at assets.
The fact that white households, in general, have
somewhere on the order of ten times the assets that black
households have, independent of house value, is a very
powerful explanation in terms of the inability in the past
for black households to enter the homeowner market
simply because of the down payments required.
So these are very important elements of understand
ing why economics does play a role, just the ability to
afford homeownership, and, of course, the suburbs are
largely - were [p. 87] largely, I should say, because there
are changes going on - were largely homeownership. So
we have some understanding why we don't find more
blacks in the suburbs in the 50's and 60's.
Now, during the 70's and into 80's, we're seeing more
black suburbanization.
Q. And did you find that true in your study of the
Oklahoma City School district?
A. I would say that the movement of black house
holds into the Eastern Oklahoma - Eastern Oklahoma
Metropolitan Area is an expression of that - to some
extent, that spread to suburbs outside of the city.
Now, we have do [sic] be careful, in that the city of
Oklahoma City is a very large city unit. Many cities are
255
smaller, and so we talk about suburbs and cities. But, of
course, there are suburbs within the city of Oklahoma
City.
Q. How does urban structure affect residential sep
aration?
A. Urban structure is a term we use to describe the
relationships of cities and suburbs, the patterns of trans
portation, and the behavior of individuals.
For instance, we know from a large number of
studies that households tend to move nearby. Your prior
address is a very good indication of where you're likely
to move to. If you're located in a particular - excuse me -
area of the city, it's a good indication of the fact that
you'll move somewhere nearby. It isn't always true or for
every individual, but, on [p. 88] average, people tend to
move relatively short distances.
That element of the urban structure explains why we
have patterns of growth such that the spread is often
from a previously concentrated area.
Q. Doctor Clark, do you have an opinion as to
whether or not today there are local or state govern
mental barriers which compel black people to reside in
the tracts that we've been talking about in the east inner
part of the city?
A. I do.
Q. And what is your opinion?
A. I think if you review the factual information that
I've brought together; if you look at the extent to which
black households live throughout the Metropolitan Area,
256
the fact that a very small proportion of the total black
population lives in that concentrated area, something
around under 17 percent; if we look at the rates of turn
over, the fact that many of those people are no longer
living in the same house, so they have been expressing
residential decisions to live in other houses nearby; if we
look at the movement of black households from the inner
city district via the maps of residential relocations; if we
consider that, in addition to the affirmative actions taken
with the fair housing laws of 1968 at the national scale,
1970 at the local scale, I come- to the conclusion- lha r there
arg.jqQt barriers affecting the concentration of black
households in the inner city area.
[p. 93] CROSS-EXAMINATION
BY MR. CHACHKIN:
Q. Doctor Clark, on Exhibits 5-D and 5-E which are
the charts showing population change for selected census
tracts in the northeast portion of Oklahoma City, why did
you select only these tracts and not additional tracts in
the northeast section of the city?
A. They were the inner city tracts that had the
greatest concentrations of black households in 1950 when
I looked at the map, and, as that was of some concern in
this litigation, I focused on those tracts.
Q. Do you know whether these tracts that you have
selected encompassed the school attendance areas for all
or most of the schools that were more than 90 percent
black in 1972, just before entry of the court's order requir
ing the implementation of the Finger Plan?
257
A. They probably encompassed a large number of
those schools, but there were some areas that had a large
black population to the north of these tracts that, by 1970,
would have had schools [p. 94] with large numbers of
blacks.
So, to answer your question, it probably does not
accomplish an overlap with all of the schools.
Q. And you haven't studies the tracts that were left
out of these exhibits to see if they suffered the same
proportion - excuse me - proportionate diminution in
absolute numbers or whether they actually increased in
the numbers of residents between 1960 and 19__ - or
1950 and 1980; is that correct?
A. I did examine those, and those tracts increased in
the numbers of blacks.
Q. But they're not reflected on here, so this is a
subset of the area in which more than 90 percent black
schools were located in 1970 that coincides generally with
diminishing population trends?
A. The aim of the analysis was to look at the pre
vious concentration of black household residentially in
1950 and 1960, not the 90 percent black schools. That
would be a different analysis.
[p. 105] Q. Now, Doctor Clark, you mentioned the
importance of personal preferences in explaining the pat
tern of residential movement, and you referred to surveys
indicating that whites generally wanted to live in areas
that were 20 to 25 percent black, something on that order,
258
and black respondents indicated they would prefer to live
in areas either 50-50 or slightly a majority black; is that
correct?
A. That's generally correct. Yes.
Q. Haven't you also written about the strong disin
clination on the part of whites to move into established
black residential areas?
A. That's correct.
Q. How would you describe that - the strength of
that disinclination?
A. I believe when neighborhoods reach a certain
percentage minority, it may be 25, 30 percent, we find
that not only do some white households continue to leave
that, but the neighborhood changes as much because
white households do not move into those areas. But
there's a very, very small proportion of whites house
holds that will move into neighborhoods that are heavily
minority.
S ' [p. 106] Q. So that we - is it your opinion that one
would not expect, based on those surveys and your
knowledge and the opinions you have expressed, that
whites would move into the established black residential
areas in Oklahoma City after 1950 or 1960, whatever
̂point we want to take and look at the areas of concentra
tions?
A. Generally, that's correct.
Q. And does it not therefore follow that, to the
extent that past discrimination was a factor in establish
ing concentrated minority residential areas, that those
areas are unlikely to change because of the antipathy of
259
S
whites to moving in unless and until their black residents
move somewhere else?
A. I think that you would have to agree with that, \
given what I've testified. Yes.
Q. And so to bring that down to the issue that's of
concern in this case right now, the black schools serving
grades one through four in the northeast quadrant of
Oklahoma City are unlikely to change until all of the
black families living in that area move elsewhere in Okla
homa City in your view.
A. No, that isn't what I said. I think you have to be
much more complicated, much more careful when you go to
shift over to schools, and you have to be careful about the
kinds of neighborhood compositions you're talking about.
For example, if a number - if enough of the black
families take advantage of the majority-to-minority trans
fer [p. f 07] plan, which I think is an important part of the
plan, you certainly can have blacks moving to other
schools, and those schools can be reduced, and it may be
that there is the possibility for developing other alterna
tives to try and attract whites to move to those schools
voluntarily. I mean, those kinds of things can influence
the school composition independent of the residential
composition.
Q. Apart from those matters, as long as school
attendance is determined by residential zones, such as
those which have been drawn which overlay areas of
established black concentration, you wouldn't anticipate
white families moving into those areas?
A. I would not anticipate white families moving i:
No.
*
260
[p. I l l ] Q. Now, Doctor Clark, if I can return to the
subject of preferences, and particularly the white disin
clination to move into areas of minority residential con
centration.
In your view, are those preferences related to prior
official discriminatory policies of governmental agencies,
both to their tangible and symbolic value?
A. I would say that there is probably some effect of
the past, but how much, in my opinion, -
Let me restate that.
But the amount, in my opinion, is probably small,
because we see other ethnic groups, and in my own city is
a good example. Of these other ethnic groups, like the
Vietnamese, the Koreans, the Japanese, having quite high
levels of preference for people of their own race. The
Hispanics also.
So I think that these preferences are reflecting some
thing about people's social needs, and they're not simply
ascribed as the result of prior discrimination.
Q. But you don't exclude prior discrimination as a
j factor leading to the development of the private prefer-
jences that you've spoken and written about?
A. No, I would - I would be less than an honest
academic if I didn't concede that there may be an element
of that
[p. 113] When I'm using the word preference, I'm
talking about people's desires for a certain combination.
261
Clearly, preference can also shade over into prejudice,
that is, not wanting to live with some other group.
So I distinguish them, for my purposes, as saying
preference is a positive function that you prefer to have a
certain combination, prejudice is when you talk about not
wanting something, and that's the way I distinguish the
two terms.
Q. Well, when you used the term "private prefer
ence" today, particularly in response to Mr. Day's ques
tions, did you mean to exclude from your answers,
therefore, private prejudice? Were you speaking only of
preference?
A. No, I think the [sic] do - when we [sic] talking
about the terms, we're talking about - when I use the
term preference," I include that combination of elements,
preference and prejudice, but I'm not talking about pri
vate discrimination, which is something quite distinct.
And, of course, even though it's private, not showing a
house to a black family or another minority family is, of
course, illegal, and it is discriminatory practice.
* • * *
[p. 115] REDIRECT EXAMINATION
BY MR. DAY:
Q. Doctor Clark, in your opinion can a compulsory
or voluntary School desegregation plan eliminate residen
tial segregation?
A. No, it cannot.
262
Q. In your opinion, is there anything a public
school district, standing alone, can do to eliminate resi
dential segregation?
[p. 116] A. I don't believe so, although, when you
say "anything," - but I don't believe that I've seen any
instances where a school district has been able to change
the residential patterns.
Q. Are you aware of any city in the United States
where a compulsory or voluntary desegregation plan has
brought about the elimination of residential segregation
in that community?
A. I'm not aware of any.
* * *
FINIS WELCH
[p. 122] Q. Have you published any papers on the
subjects of race discrimination or school desegregation?
A. Yes, I have.
Q. Would you tell us briefly about those?
A. I have published primarily empirical papers, a
few theoretical papers, on race discrimination in eco
nomic outcomes. I've conducted very, very many empiri
cal studies of income differences both between blacks and
whites, between men and women, and between Hispanics
and Gringoes.
Q. How about in the area of desegregation?
A. In the area of desegregation, I have just authored
one study entitled "new evidence on desegregation" for
the U.S. Commission on Civil Rights.
263
I have another paper accepted for publication in
November in Sociology of Education. It's called "a recon
sideration of white enrollment responses to desegregation
plans."
Q. Have you qualified as an expert witness in any
race discrimination or school desegregation cases?
A. Yes, I have.
Q. Would you tell us about those cases.
A. I have been qualified in various matters and
have testified about 16 times where I was qualified as an
expert. They have ranged most recently from a school
desegregation [p. 123] case, the Little Rock School District
v. Pulaski County Special District.
Before that I testified in an OFCCP case involving
charges of race and sex discrimination in employment
against Harris Bank.
Earlier, in the Denver School Desegregation case, on
a Unitary hearing.
And so on. Very, very many employment discrimina
tion cases.
Q. Was that the Keyes case in Denver?
A. It's the continuation of the Keyes case. Yes.
Q. I'd like to direct your attention to defendant's
Exhibit 27 in the book there in front of you, and ask you if
that is the study that you just mentioned that you had
completed for the U.S. Commission on Civil Rights.
A. Yes, it is. I have my own copy.
264
Q. Would you explain to the court the scope of that
study?
A. The primary intent was to establish a database
that would be both current and extensive about school
desegregation programs. We considered 125 school dis
tricts, including most of the largest districts in the Coun
try, for a period spanning roughly 20 years, having
enrollment data as recently as possible. We examined a
total of slightly less than 300 school desegregation plans
that were adopted over this period, or implemented, at
least, within these districts.
* * *
[p. 127] Q. (BY MR. DAY) Doctor Welch, I'd like to
direct your attention to table 13, page 51 of your study,
and ask you if on that page you make some findings with
respect to the state of desegregation in the Oklahoma City
School District over time.
A. Yes, I do.
Q. And tell us about those findings.
A. Well, what I do, within the 125 districts consid
ered in that table, I simply list the districts that had - that
experienced the largest change between the beginning
and the end of the data, the most recent data considered,
in an index of the amount of racial segregation among
schools in the district. The index used is the index of
dissimilarity.
Q. Will you explain what the * * * dissimilarity
index is?
265
A. It's a measure of how unevenly distributed the
populations are across schools. It's a two-group index.
In this case, the index refers to whites versus people
who are not white, and the idea, basically, is to say,
"Given the racial composition of the school, suppose, as a
hypothetical, that the school district were perfectly segre
gated so that no white attended school with anyone who
was not white and no-one not white attended school with
a white, what fraction of the population would have to be
redistributed, reassigned, so that every school moved to
exact racial balance?"
[p. 128] And with that as the norm, as an outer
bound, then we asked, "given the existing patterns of
assignments among schools, what number of students or
what fraction of students would have to be reassigned
such that each school has the same racial balance, the
district average, and we report the second number as a
fraction of the first.
So that if the dissimilarity index is zero, it means that
every school in the district has the same racial composi
tion, and if it's one, it means the district is fully segre
gated.
Q. So to make sure I understand, the closer the
index number is to zero, the more integrated the school
district?
A. Yes, the less dissimilar.
Q. The closer the index number is to the number
one, the more segregated?
A. It's perfectly segregated at one. That's true.
266
Q. Now, in this study, did you also make use of the
exposure index?
A. We did. Yes.
Q. Would you briefly explain the meaning of that
index, please?
A. The Exposure Index is an alternative index of
how well integrated a school system is. As is true of the
Dissimilarity Index, it's a two-group comparison index,
and throughout this report for the civil rights commis
sion, the two groups were whites versus others.
[p. 129] The Exposure Index simply computes, for
one group - in the case of this report, the minority group
- the fraction of classmates who are white, on average,
amongst all schools attended by minorities.
Now, a property of that index would be that if the
schools were perfectly segregated, exposure would be
zero, because the proportion of classmates who are white
by a minority would be zero.
If the school system were perfectly integrated, every
school had the same racial balance, then the Exposure
Index would be the fraction of students district wide who
are white, and if there was less than perfect integration, it
would lie somewhere between the two extremes, zero at
perfect integration, and the district wide percentage who
are white at perfect integration.
Q. Now, did you in your study use these indices to
measure the states of desegregation in the Oklahoma City
School District as compared to that in the other 124
districts you analyzed?
267
A. We used the Dissimilarity Index primarily as a
vehicle for examining school districts through time. Table
13 on page 51, as we have discussed, is one that simply
takes some extreme districts and says, "which districts
experienced the largest change over the - over the period
of time?"
But we're not trying, typically, in this study to com
pare one district and say, "this district is particularly well
[p. 130] Integrated while the other is not," so much as
saying "what are the sources of change within districts?"
And "What are the plan types that led to the sources of
change?"
We do not use the exposure index very intensively in
the study. What we do at the end of the study is observe -
is observe that many of the indices that could have been
used typically agree in their main conclusions, and we've
gone primarily with the dissimilarity index.
We then state exceptional cases and count them and
refer to them for some particular interest associated with
the problem of resegregation that is much discussed in
the literature that's associated with exodus of white stu
dents from schools moving into other districts or to pri
vate schools, and there's been a lot of discussion in the
literature speculating that some of these reactions have
been so violent that resegregation is actually occurring.
And what we do it divide districts into categories
and say, in a limited number of cases, resegregation per
haps is an issue. We don't attempt a definitive study, but
we think in most of the cases we can rule it out out of
hand.
268
Q. I'd like to direct your attention back to table 13
on page 51 and ask you specifically what your findings
were with respect to the Oklahoma City District when
compared to the other 124.
A. We find that, among the 125 school districts, the
Oklahoma fp. 131] City Public Schools experienced the
eighth largest reduction in the index of dissimilarity, the
eighth largest change in overall integration.
Q. Do I understand correctly that, out of 125 Dis
tricts, the Oklahoma City District was in the top eight
with respect to the amount of change which was brought
about due to the implementation of the desegregation
plan?
A. Clearly, the pattern in Oklahoma City is with the
implementation of the finger plan, and the amount of
desegregation that was accomplished over the full period
would place it eighth in the list of 125 districts that we
examined.
* * *
[p. 132] Q. And over what period of time, specifi
cally, did this study involve the Oklahoma City School
District? I think we've estimated that previously, but if
you could give us -
A. I did look back, and It's '68 through '82. I had
data -
The data source for the Oklahoma City Schools is
something known as the OCR DATA. I collected data
from the Oklahoma City Schools, but they were from
membership records, and gave only a two-way race
breakdown of blacks versus non-blacks. And, since when
269
were working with a different racial breakdown, we had
to go only with the OCR DATA, and, at the time this
report was finished, the 1984 OCR tape had not been
distributed.
Q. So that study then would not show the dis
similarity in the Oklahoma City School District after
implementation of the K-4 Neighborhood School Plan in
1985.
A. It would not.
* * *
[p. 136] Q. So your projections would not include
socioeconomic factors, would they?
A. To the extent that socioeconomic factors are
involved in changes '72 through '86 they do, but only as
they are related to the evolution of time. We do not look
specifically at socioeconomic factors.
Q. Let's say, for example, a big plant moved into a
certain part of the community, a big industrial plant, that
brought about a change in the racial composition of the
neighborhood.
You're not forecasting that sort of a thing, are you?
A. If a big plant had moved in, say, toward the end
of the data in 84/85, then we would project a trend that
would include a continuation of that growth.
Q. Okay.
A. We do not anticipate the arrival of plants where
they have not been in the past.
Q. Okay.
270
A. It's a smooth evolutionary projection.
Q. These projections then are strictly based on past
trends if they continue into the future?
A. That's all it is. It's just an extrapolation.
* * *
[p. 143] A. Yes. It would be between 45 and 46
percent black.
Q. And what is it presently? Do you know?
A. This year - It varies across data sources. For this
data It's 39.3 percent.
MR. DAY: I will reserve offering exhibit 14 until
Mr. Chachkin has the opportunity to cross-examine.
THE COURT: Very well.
Q. (BY MR. DAY) Doctor Welch, thus far we've been
discussing the racial composition of the students living in
the various attendance areas in this district.
In your study of the Oklahoma City System, did you
also examine the numbers of black and white students
enrolled in the Oklahoma City School District over time?
A. Yes, I did.
Q. Would you explain for us the scope of that
study?
A. I simply looked at alternative data sources that I
had, and looked both at the number of students and the
race composition of students on an annual basis from
1969 forward.
271
Q. And what data sources did you use?
A. There were various data sources used. I used the
membership records, which give membership on a
school-by-school basis. These are unlike the assignment
records that also show the zone of residence as we've
been referring to here.
The membership records have - well, that's it.
[p. 153] These numbers are put into percentages then
in the lower panel, and they show that, for example, over
the period 1971 - excuse me - 1969 through 1986 that the
fraction of students district-wide who are in this category
that I would call "Other Minorities," moves from four to
thirteen percent. The fraction of people who are black
moves from 22.7 to 40 percent. The fraction of people
who are white moves from 73 to 47 percent.
Q. Would you please identify exhibit number 21.
A. Okay. Exhibit 21 is something that's taken from
the 1970 and 1980 census. This particular exhibit is drawn
from STF-2. It's a summary tape file. That refers to a full
census to a hundred percent of the respondents in the
1970 and 1980 censuses.
What we've done is identify the Oklahoma City
SMSA, the metropolitan area, and the top panel refers to
people of all ages. We then -
By the way, this is - the entire table, exhibit 21, refers
only to the white population.
Q. Now, when you - on this table it says SMSA.
What does that mean?
272
A. Standard metropolitan statistical area. People
identified by the census as living in the greater metro
politan area in - whose central city is Oklahoma City and
it's named after its central city.
X * *
[p. 173] Remember, when the dissimilarity index
decreases, things are becoming more balanced. When the
exposure index increases, things are becoming more bal
anced. They are a little different to read.
The exposure index begins at .145, so it says, "Of
Students enrolled in Public Schools, that blacks live, on
average, in zones where 15 percent of students enrolled
and living in that zone are white as of 1972. That number
has doubled by 1986 to 29.
Now, notice in 1972 about 78 percent of all the stu
dents were not black. So if we had had full balance in
1972, the average black would have lived in a zone where
78 percent of the students were not black.
By 1986, 40 percent of the students were black, 60
percent were not black. So for full balance, the average
black would have lived in a zone where 60 percent of the
students were not black.
^ So we have had this drop from roughly 80 to 60
percent of the students who are not black, and, even so,
exposure - the population has decentralized in a way, so
that exposure of blacks to persons who are not black in
\ the same areas has doubled. IPs gone from 14.9 percent to
j 29 percent.
273
Q. Did I understand you to say that the drop in the
dissimilarity index and the gradual increase in the expo
sure index over this period of time shows that there was
more [p. 174] balance, racial balance in these neighbor
hoods?
A. That's right.
* * *
RECORD, VOLUME III
274
FINIS WELCH
[p. 187] Now, the comparison here that's interesting
is the 1985 comparison of Neighborhood Elementary
Schools with a dissimilarity index of .56 versus the 1971
comparison with neighborhood schools with a dis
similarity index of .83.
And what has happened, or course, over the period,
is what we were referring to at the start when we looked
at exhibits 11, 12, 13, and 14. The increased residential
integration of the city has resulted in a much lower level
of dissimilarity today associated with neighborhood
schools than was - than existed in 1971.
* * *
[p. 192] Q. In your analysis of this case, doctor
Welch, did you have the opportunity to compare the
degree of desegregation in the Oklahoma City School
District with other comparably-sized school districts in
other parts of the country?
A. Yes, I did.
Q. Briefly tell us what you did in that analysis.
A. Well, the idea was exactly as you've described it.
I wanted to look at comparably-sized - not school dis
tricts so much as urban areas and to look at the central
city district within them.
So what we did, Oklahoma City, in the 1986 state
Metropolitan Data Book, is ranked as the 39th largest
metropolitan area in the country, and so we identified
that 24th through the 56th largest metropolitan areas, that
275
would be those smaller than and larger than, we took a
total of 32, excluded Honolulu -
Q. Did you prepare a chart showing your findings?
A. Yes, I did. All I did for these districts is go to the
Office Of Civil Rights Data, take the central city district,
and use the most recent data I could find in the OCR data
and computed the dissimilarity index, and that's in
exhibit 38.
MR. DAY: Ms. Jones, would you put up Exhibit
38 for the court.
[p. 193] A. The districts are presented in rank
order of the Dissimilarity Index -
THE COURT: W hat's the number of that
exhibit?
MR. DAY: 38.
THE COURT: Okay.
A. - In rank order of the dissimilarity index,
descending, with Columbus, Ohio, having the lowest
degree of dissimilarity. The right-most column refers to
the year in which the data are taken.
For most of the districts that's 1984, which is the
most recently available OCR tape. You will noticed for
Norfolk, Virginia, it's 1986. That's because Norfolk
changed its plan went back to a neighborhood system
recently, and the OCR data for 1984 did not capture that
change. So we got membership data for Norfolk, and it's
for 1986.
276
Otherwise, in some cases we have 1982, because the
OCR '84 survey was not as extensive as '82, and some of
the districts weren't covered, and in one case for Scran
ton, PA, they do not appear after 1978, and we had to go
all the way back to that period.
In general, Oklahoma City is about the middle of the
pack of the districts considered with - it has 39.3 percent
black, with a dissimilarity index, as of 1986, the most
recent date, of 38.9 percent.
Notice, for example, in comparison to Oklahoma
City, we [p. 194] have Tulsa, which is a slightly larger
school system, and it has a dissimilarity index of 54
percent from the OCR data in 1984.
Q. What does that tell you compared to Oklahoma
City?
A. That black students and persons who are not
black - It's a black-versus-non-black comparison - were
distributed in 1986 more evenly among schools in Okla
homa City than is true in 1984 for Tulsa.
Q. Now, the data that you've used for the Okla
homa City District, do I understand correctly that that
shows the dissimilarity index in this district after the
neighborhood plan was implemented?
A. That's right, in the second year after implemen
tation.
Q. Okay.
A. That is, it's the membership records as of the fall
of 1986, the current academic year.
277
Q. So then even with the neighborhood plan in
place in Oklahoma City, the students in the schools are
more desegregated here than they are in Tulsa?
A. There's better racial balance here than in Tulsa.
Q. Would you -
MR. CHACHKIN: Excuse me. Your Honor, I'd
like to make an objection to this line of questioning, and I
am going to object to the introduction of the exhibit.
[p. 195] I think the relative dissimilarity indices in
Oklahoma City and other school districts around the
country is of no relevance whatsoever to the questions
before this court. This case concerns Oklahoma City and
whether or not a unitary school system was achieved and
is being maintained, and I think the constitution and
what the constitution requires depends upon the circum
stances in Oklahoma City and not some comparison with
a group of school districts around the country, some of
which may have operated dual systems, some of which
may not, and may be subject to all kinds of different legal
requirements. I just don't think this has any relevance to
the issues that are before the court.
THE COURT: Thank you.
Mr. Day, what's your response?
MR. DAY: Your Honor, we feel that it is relevant
and that it - it will be helpful to the court to know the
degree of desegregation and racial balance which has
existed in the past in Oklahoma City and what exists
presently in relation to other comparably-sized school
districts.
278
I think that the objection that Mr. Chachkin has could
be best addressed through his cross-examination of this
witness.
THE COURT: It seems to me like it might show
some parallel or relation to school boards in their opera
tion of their school system; that is, whether or not the
school board of Oklahoma City is less attentive to the
problem or more [p. 196] attentive to the problem than
others.
So the objection will be overruled, and you may go
into depth with your cross-examination if you care to do
so.
Q. (BY MR. DAY) very briefly, Doctor Welch, would
you explain what's shown in each column of that Exhibit?
A. Surely. Here I have just listed the name of the
Central City in the metropolitan areas. They're the names
that you recognize when you think of the metropolitan
areas.
Q. And how did you select those particular cities?
You mentioned earlier that it was within -
A. It's described here. I think there's a slight error,
actually, in this footnote. But the data source and the
method of selection is described in the first footnote.
It says, "based on 1984 SMSA Standard Metro
politan Statistical Area population reported in the 1986
state and Metropolitan Data Book. It includes the 24th
through and it says "the 55th," and it should say "the
56th" largest SMSA's, excluding Honolulu." Oklahoma
City is ranked 39th.
279
Q. Well, why did you select the 24th through the
56th largest Metropolitan Area?
A. Basically, we started with the observation we
wanted comparably-sized metropolitan areas, and we
started with the observation that Oklahoma City was the
39th, and so we took 15 smaller and 15 larger.
* * *
[p. 216] Q. I direct your attention to defendant's
exhibits number 68 through 75, doctor Welch, and ask
you if, in fact, those are the school research department
studies on stand-alone schools that you said that you had
reviewed.
A. I reviewed all of them. I want to check, there
may have been some others, as well, but I did review 68
through 75. Yes.
I have something marked as 78 which I also exam
ined. Yes, it's 68 through 75 and then 78.
Q. All right. Now, did you analyze the attendance
areas in the Oklahoma City School District in 1984 that
qualified for stand-alone status by virtue of the racial
composition of the area?
A. Yes, I did.
Q. Did you prepare a map demonstrating the find
ings in that study?
A. Yes. It's marked as Exhibit Number 88.
Q. Is Exhibit 88 the map you prepared on the stand
alone schools in '84?
A. Yes, it is.
280
[p. 217] Q. Would you explain that exhibit, please.
A. These are areas that we have marked attendance
areas that we have marked as being eligible for stand
alone status, and all we did is to take the areas that were,
for a district-wide average of 35 percent, within plus or
minus fifteen percent black and identify them. The areas
that are marked in this blue color had greater than 50
percent black, and, therefore, would have been uneligible
- ineligible for stand-alone status.
The one area marked with white, the star area, was
ineligible for being out of compliance. It would have
needed to have been in compliance for two - the two
most recent previous years, and was not. It was not stable
racially.
The areas marked in yellow are ineligible for having
too low a proportion of blacks.
And then the areas in the central color that are
marked in the green color, according to our calculations,
would have been eligible for stand-alone status. I believe
there are twelve of them. Three were already stand-alone,
and there were an additional nine areas that would have
been eligible under this criterian. ^
The Exhibits 68 through 75 and 78 that we've talked
about are really a series of memoranda that make alterna
tive calculations that consider whether you would go -
use the K-through-four stand-alones, K-through-five, the
implication for [p. 218] building capacity, and what
would happen under alternative rules under the JC policy
for racial balance to the feeders that might be coming into
281
an area and where these people might possibly be reas
signed. They're concerned much more with the prac
ticalities of implementing.
This is a lot rougher and just says, on a hard-nosed
view of percentages, "What is the Geographic pattern of
eligibility?" and, of course, you see pretty much what you
would expect, and that is the general diffusion from the
Northeastern quadrant, where the black population had
been concentrated, to adjacent Quadrants, and that's
something that we had noted earlier with residence pat
terns. But you see here the eligibility for stand-alone
status.
Q. And what percent black did a neighborhood
attendance area have to be before it could qualify for
stand-alone status?
A. It had to lie between 20 and 50 percent black.
Q. In your study, did you determine if the number
of residential zones that qualified for stand-alone status
in 1984 had an impact on any of the students in the
district?
A. Yes, I did.
Q. Would you explain how?
A. Well, the - I mean, the main purpose, actually, of
these planning documents that we've talked about and
the thing that's pretty obvious is students who would
have moved, particularly into the areas that were in the
25- to 30-percent black range, [p. 219] under existing
assignment plans, would have had to have been bussed
further into the areas out here had these eligible areas, in
fact, become stand-alones.
282
The other thing that was a concern and you can see is
that there's a real possibility that some of the Fifth-Grade
Center Schools, if we had stayed under the old fipger
plan and just taken the schools that were eligible for
stand-alone status out, some of the Fifth-Grade Center
Schools that were concentrated here would at least have
been pressed to close, would have fallen at least have
been pressed to close, would have fallen below, in terms
of enrollment, the policy guidelines for school closure.
Q. Is that because, if a school becomes a stand-alone
school, it reacquires its Fifth Grade?
A. That - that was |he finger plan provision, that a
stand-alone school would be" a K-through-Five School,
and the students from that attendance area would join the
busing plan at sixth grade.
Q. In your professional opinion, as of 1984, had
demographic change in Oklahoma City rendered the
stand-alone school feature of the Finger Plan inequitable?
A. The stand-alone feature of the Finger Plan
sounds very plausible, but, in a district of this type,
particularly where the fraction of students who are black
is growing, as it has here - you recall that by 1984 it's
much higher than it was in 1972.
[p. 219] The Finger Plan was really designed for a
district that's 20 percent black. The one grade one-way
busing and four grades the other way, or a ratio of four to
one, assumes that the body count is four to one going the
other way; that is, that there are four people who are not
black for each person who are black.
283
By the time that we move out to the current period,
where we're talking about upwards of 40 percent black,
we're much closer to a ratio of one-and-a-half to one.
The provisions for stand-alones that pull out the
central districts, and as we get diffusion going this way
that makes below-average attendance areas eligible for
stand-alone status, areas in - currently, as of 1984 - in the
20- to 35-percent range, whiplashes the remainder of the
district, and forces, in principle, continuing further bus
ing, and seems to me to be -
You know, it's just not a plan that was designed to
withstand the kind of demographic change that occurred
in this district. It was a fine idea in terms of racial
diffusion if you work with very, very tight bounds, but
then you don't need it. If you work with really tight
bounds, the schools are balanced anyway, and there
wouldn't have needed to have been any busing plan.
It's a funny provision, but you open this 30-percent
wedge, plus or minus 15 percent, creates a lot of slack
and creates a lot of inequity, and, to my mind, that,
coupled with [p. 221] The fact that the overall racial
composition of the district was changing, means that the
plan just couldn't last, that it was really designed to fail.
Q. Did you analyze what impact the stand-alone
school feature would have if it had been continued in the
Finger Plan over time, say from 1986 to 1995?
A. Well, what we did, and it's plotted in exhibit 89,
is take the projections that we referred to yesterday at the
beginning of the testimony for the racial composition of
284
attendance areas in 1995, and then, using the plus/minus
15-percent rule with our projections for 1995, -
Q. Just a second,
A. - we identified the areas that looked as though
they would be eligible under the projection.
And what we get is all of the areas that would have
been eligible in 1984 would also have been eligible - we
have star, which was almost eligible in '84. It's percentage
concentration was within bounds, but it was not racially
stable.
Q. Doctor Welch, let me interrupt you for just a
moment and ask whether or not you projected in 1995
what the range of the racial composition of the atten
dance area would have to be to qualify for stand-alone
status.
A. Yes, we did. There it's identified in the legend to
the map, and the range it 27.3 to 57.3 percent. Again, it's a
[p. 222] 30-percent range.
Q. Well, how does that range compare to 1984?
A. Well, it has slid up by 7.3 percent to allow for the
trend through time in the fraction of students - the
growth in the fraction of students who are black.
Q. So in 1995, under your projections, the neighbor
hood would have to have a higher percent of blacks
living there in order to qualify for stand-alone status?
A. Yes, than in 1984. That's actually - while we
piece this back together - an example -
I'll wait.
285
Q. Go ahead.
A. That's an example of what I would call the unin
tended features of the Finger Plan. The idea is that, in a
district where the overall fraction of students that were
black is changing, whether it's rising or falling, an atten
dance areas that's completely racially stable -
I thought it would be interesting?
THE COURT: Why don't we take a ten-minute
recess. Court is in recess.
(A recess was had, after which the following pro
ceedings were had.)
THE COURT: You may proceed, Mr. Day.
Q. (BY MR. DAY) Doctor Welch, again directing
your attention to exhibit 89, would you explain how you
did the projection of [p. 223] the zones that would qualify
for stand-alone status as of 1995?
A. Well, the - excuse me. In the - back in exhibit 11,
I described the projections in which we projected student
enrollment, residence patterns of students enrolled,
grades one through twelve, using assignment records
data, and here we just plot the data from those projec
tions.
So we're actually using grades one through twelve
here, but it is the same data as was referred to in exhibit
14 where we had the map of overall residence patterns.
And what we've done here is use the same percent
ages underlying those zones in exhibit 14, and we have
divided them into three groups, those identified with the
286
darker color, the blue color, would be those with above
57.3 percent black, or those that we would guess or
project by 1995 would continue to be above 57 percent
black. Those in the -
THE COURT: What was the - what was the
figure?
THE WITNESS: It's 57.3.
THE COURT: 57?
THE WITNESS: 57. Yes.
THE COURT: All right.
A. - and those in the lightest color would be above
- would be below 27.3 percent black, and those two
extremes, the lightest and the darkest, would be ineligible
for stand-alone status, one for not having enough people
who were not black, the other for not having enough
people who are black.
[p. 224] The intermediate color, the ghastly green, is
our projection of areas that would be eligible for stand
alone status. And there are, let's see, I believe, six regions
that would be eligible for stand-alone status, we would
guess, by 1995, that are not eligible today or were not
eligible in '84, and that's because of this process that we
referred to many times of the continuing diffusion of the
black population throughout the city.
Q. In your opinion, if the stand-alone feature was
followed year by year into the future up to 1995, in the
year 1995 would there be more of a busing burden being
placed on the young black children?
287
A. There are two edges. There's the - on the one
hand, as the stand-alones occur, a smaller number of
students are bussed. And so, obviously, some black chil
dren who might otherwise be bussed would not be as
they dropped out with the stand-alone schools. Those
who would be bussed, however, would be bussed further
and further distances.
What's clear, and what I hope is clear I wanted to
illustrate with this map, is that the areas that are inter
mediate in racial concentration are the areas that are
eligible for stand-alone status. They're also geograph
ically intermediate. They lie between the areas that have
too few blacks and the areas that have too many blacks in
terms of the balance of the district. And since busing goes
from too few to [p. 225] too many and from too many to
too few, busing distances of those bussed are designed to
grow. That's a feature of this plan.
Q. In your opinion, what impact would the stand
alone schools in 1995 have upon the fifth-year centers in
the northeast quadrant?
A In 1984, had the stand-alones been implemented,
the areas that were eligible, it would have continued to
draw down the number of fifth-grade centers, and that's
obviously an issue that one observes in going through the
planning documents. It's something that the school board
is asking about.
MR. DAY: At this time we offer defendant's
exhibit 89 into evidence.
MR. CHACHKIN: Your Honor, the projections
that are depicted on exhibit 89 are tied to defendant's
288
exhibit 11, as to which the court has reserved ruling until
there is an opportunity for cross-examination. I would
request the same with respect to this exhibit.
THE COURT: Very well. The court will reserve
ruling until -
I did something. I don't what it was.
Very well. You may proceed.
Q. (BY MR. DAY) Have you been involved in
designing and working on desegregation plans in the
past, Doctor Welch?
A. Not extensively. No. I did work on the design of
the [p. 226] Pulaski County Plan.
Q. In light of the 125-School-District Study that you
did that was recently approved by the U.S. Commission
on Civil Rights, are you familiar with the various types of
desegregation techniques and plans that are being used
throughout the United States?
A. I think so. Yes.
Q. Do you have a professional opinion as to
whether or not the Finger Plan was designed to operate
indefinitely?
A. Yes, I do.
Q. What is that opinion?
A. I think it was not. I've indicated earlier that it
may have served a useful purpose at one time, but it had
some inherent drawbacks. It was really designed for a
racially stable school system, and it becomes very, very
289
clear, and, of course, as the race composition of the Okla
homa City Schools has changed, they strained the pro
gram, they stressed it, and this stand-alone feature really
threatened it.
* * *
[p. 236] Okay. I think I had let you get as far as the
first step, which was how you derived your projections
for the district-wide racial composition in 1995. Why
don't you go on from there.
A. Okay. The only thing preserved from the first
step is the district-wide composition, by the way.
Step two moves within each zone and analyzes total
number of students in the district within the zone, and it
- and it does a trend line as step one does. All of these are
trend lines, but they're just different kinds of trends or
they're explaining different things.
And, again, it's time series regression that is used to
forecast the number of students within each zone, of
course, most have decreasing enrollment.
Step three -
Q. Let me interrupt you and just ask you to try to
summarize, as briefly as you can, for the benefit of the
court and the record, what you mean by time series
regression.
A. The - it's a statistical procedure, but the idea,
really, can be understood a bit more easily.
You take something like total enrollment in a zone,
there were 88 that were analyzed in this case, and think
of plotting, on a vertical axis, the number of students in
290
this zone and attending the Oklahoma City Schools, with
out regard to their [p. 237] race, and, on the horizontal
axis, the years, beginning with 1974 through '86, and just
plot them for the twelve - the thirteen years, '74 through
'86. And now think of drawing a line through those
points and then extending the line out to 1995.
And, of course, there are lots of ways to draw lines
through the points, and the regression property that I was
referring to has to do with the goodness-of-fit criterion
that's used in selecting one line amongst many.
Q. If I understand correctly, it's a mathematical
technique for shaping the line that best fits the points?
A. Subject to some constraints. It's a way of choos
ing the - what it does is, if in that hypothetical scatter
that I've described, if you pick a single point, which
would be the average over the period, the average years
and the average enrollment within the zone, any line
drawn through that point, regardless of whether it slopes
in the opposite direction of the data or whatever direc
tion, will have the property that if you use it to predict
within the range of the data, the average projection error
will be zero. You will overestimate as often as you under
estimate. In fact, drawing lines tqe lijsb that is a pretty
good way to see just how ridiculous average errors of
zero can be.
So the criterion is given that an average of zero is
free. It's easy to get. What other things would we like to
impose?
* * *
291
[p. 239] And so I checked to see, "Is there any evi
dence within this one zone, - " remember, we're going to
do this 88 times " - that the annual percentage growth
rate in attendance itself is changing through time over
this thirteen-year period?"
Now, while we're getting more precise, I should say
that all of these regressions are weighted toward 1986;
that is, I discount the more distant past. So I use linear
weights with calendar time.
So the first year, 1974, gets weight one; second year,
1975, gets a weight two; and 1986 gets a weight of thir
teen. So I place a lot more credence -
What I'm trying to do is hit the end of the data. I'm
more concerned with that, because I'm going to forecast
from that point forward, than I am the end of the data. So
I discount it with weighting logarithm.
Then I come back, and the first thing I do is I gener
ate these two lines. Now, all this is done - is computed
with computers, so I can't tell you how often these crite
ria matter. But I then check and say, "Let's take the recent
past. Let's take 1979 to 1986. Did enrollment increase
during that period, and, if so, do my two projections
agree that it should have increased over that period?"
* * *
tp. 241] A. That's - that's one of the criteria, the - it
was which one was consistent in projecting a sign change
over the coming nine years that would have agreed with
the most recent seven years. And, by "sign change," I
mean if enrollment had dropped during the most recent
292
seven years, I wanted to project a continuing drop. If it
had increased, I wanted to project a continuing increase.
Q. Well, are both of these projection methods valid
methods for making population projections or demo
graphic projections?
A. Let's think of that question two ways, okay?
One, "Is there such thing as a valid forecasting pro
cedure?" and the answer to that's "no." I mean, there is
literally no scientific basis for assuming that the world
regenerates itself.
The other is "Am I aware of are you aware of a
superior alternative?" and I don't think so.
"Is it state of art? Is it what people do?" Yes.
Q. Well, I don't know how you determine the mean
ing of the word "valid." These are -
Have you used both of these methods, and do
demographers use both of these methods in making pro
jections?
A. Routinely.
[p. 242] Q. So we have -
A. People who are doing forecasting use a variety of
models, and -
Q. And so we have two different methods, and the
one that is used in any given instance depends upon the
results that it comes out with.
A. Of course.
293
Q. Okay. I think we'd gotten you to the point of
describing how you came up with the projection for total
attendance for each of the areas in 1995.
A. I should point out that the forecast is not just one
to 1995, but it's every year, '87 - after '86, '87, '88, and so
on to 1995. That gets to be important in the third step.
The third step looks at - now considers all zones
simultaneously in a fairly complicated way, but what it
looks at is the proportion of students who are black in
that zone relative to the district-wide average, and it tries
to forecast it now not as a smooth trend line. As in the
first two cases, we used just trend regression. The first
step for the percentage of students district-wide who are
black, the second step for the total number of students in
each area. The third step now -
Think of what we have built so far. We know, district
wide, the fraction of students who are black. We know
how many students in each area there are. So if we add
that up and [p. 243] multiply it by the district-wide
fraction that's black, we know how many black students
there are.
The next step is to say "where do they live?" How to
allocate them among zones.
So what we do is come back over this same period
and take the distribution of blacks across areas and then
ask how that has changed through - through time.
And now we look for two factors, -
Q. Let me interrupt you and ask you why you
decided to do that rather than simply tracing the trend in
percent black in each attendance area between 1974 and
294
1986, the method that you used for estimating the propor
tion of blacks in the district as a whole and the propor
tion - I'm sorry - the total attendance in the future in
each attendance area, and simply do another trend
regression?
A. Okay, there are two reasons. The short reason,
and a sufficient reason, is that the numbers would not
have been consistent if I had done that. If I had used
within-zone trend regressions, they would not have
added to reasonable behavior at a district-wide level.
Q. I'm sorry, they would not have - the results
would not have been consistent with what?
A. With district -
A property of these forecasting techniques is that if I
run a linear regression on the fraction of students who
are [p. 244] black in each zone; I run linear regression on
the number of students who are black - or number of
students in each zone; I now take the product of those
two predictions; and I come back and I add up, over the
88 areas, and do a linear regression, log linear exponen
tial growth on numbers of students; and then I do a linear
regression on percentages who are black, take that prod
uct, I'll get, from that, a total number of blacks district
wide, an overall percentage district-wide. If I add up the
other data, it won't agree. I'll get another percentage.
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 con
sistent.
295
Q. You mean you designed a procedure to with
stand cross-examination?
A. Well, and also a straight-faced test. I wanted
numbers that were going to make sense and that would
be consistent.
If you start making the kinds of calculations that I'm
going to put these numbers through later on, and if
they're not consistent, you'll always have three or four
different ways of making a calculation. And then you're
always faced with the choice of explaining why you used
this procedure or the other, or saying, "No, we did it
every way and they agree, they disagree," And you work
yourself to death. It's just a good rule to be consistent at
the word go, and so you build up at [p. 245] these basic
blocks so that you're sure that it is going to be consistent.
Q. Well, I understand you to be saying that you
choose the method you're going to use to try to come out
with the result that you want that's consistent at the end,
even if that means you use different techniques for differ
ent parts of the database that you're building.
A. Well, -
Q. That is what you've done here; is that not cor
rect?
A. Yeah, a lot of what you say is true. You choose
the procedure that you want in order to be consistent,
and there is no necessary inconsistency with using alter
native models for different reasons. There are excellent
reasons for wanting to use alternative models for differ
ent zones.
296
One zone, as an example, in the northeast quadrant,
could have declining enrollment and smoothly declining
enrollment, linear trend. Another zone in the northwest
could have rapidly-increasing enrollment at an accelerat
ing rate.
Now, you surely wouldn't want to use a model that
projects increasing at the same rate in both areas, decreas
ing at the same rate in both areas, decreasing at an
accelerating rate in one area if the other is increasing at
an accelerating rate. You want to describe the data.
Q. Well, I mean, just how much confidence can one
have in the outcome of these projections then when we
have a moving target [p. 246] where the demographer or
the mathematician or statistician chooses among methods
in making the series of projections? I mean, what is the
reliability of these rather exact figures that you have on
the exhibit for racial composition of each attendance area
in 1995?
A. That's a fair question. The - one, you have more
confidence in them than you would if the demographer
or the mathematician or statistician who is making the
forecast had used a single and variant procedure.
Two, "How much confidence should you have? Can I
put sampling errors on these numbers?" Yes, in principle
I can. I did not.
"How wide are the intervals?" I can't guess, but I
think it would be appropriate to call these numbers
guesstimates, that I think they're straight-faced, they
come from a serious procedure that's applied conscien
tiously, there's no result in terms of configuration that I'm
297
working to. I'm trying to describe the data. I think I've
done that. It's as good a job as I can do in short time. I
can spend longer and, I'm sure, improve the procedure.
But you certainly don't want to look at a number like
.913 - or .193 and see the "3," and when you see the "9,"
you probably want to say .15 to .25. That's - I mean,
they're an indication.
* * *
[p. 249] As I was saying before we had the question
about why I used the ratio rather than the percentage, the
factors used to explain that ratio were, one, the previous
year's ratio, "How, in the year earlier, did this zone
compare to the district-wide average in terms of percent
age black?" And then we had a ratio in what I refer to as
adjacent zones.
And I should say that a property of these data, and
one that's not a surprising property, is that where one
area has a high proportion of blacks relative to the dis
trict-wide average, one expects growth in adjacent areas,
and that's part of the diffusion process that we've been
describing.
So, in addition to what this area was like last year,
which was always the best predictor of what it's going to
be like next year, we look at what surrounding areas were
like last year, and we do this by identifying what I have
referred to as first and second tier neighbors.
Roughly, First tier neighbors are those that are adja
cent to a given attendance area, and second tier neighbors
are those that are adjacent to those that are adjacent to a
given attendance area,
* * *
298
[p. 252] Q. Well, how is it that, if you turn the
second page of exhibit - Defendant's Exhibit 11, that for
zones that, for example, Dunbar, which was 97,3 percent
black in 1972 and moved upward to a hundred percent
black in 1986, your projection is that it will be less than 95
percent black in 1995? Intuitively the trend is in - is in the
direction of going to an all-black attendance area situa
tion.
Did you constrain - is it the influence of adjacent
tiers that results in that kind of a downward projection
even though the growth had been in one direction
between 1974 and 1986?
A. You know, I - I would - I'm not sure, I would
have to go back and - and pull out that one projection.
We should have - should have done that, if you were
interested, during the deposition.
It is true that in '86, Dunbar is a hundred percent
black and the forecast is 95 percent black, 94.6 by 1995.
Q. As a matter of fact, all of the areas that were
above 90 percent black in 1986 are projected by this
method to decline, if you compare the second two col
umns; isn't that correct?
A. I believe so. Yes.
Q. Does that suggest to you that, particularly with
respect to the zones that were a hundred percent black in
student residence in 1986, that whites are going to move
into those [p. 253] areas, whites with children attending
the Oklahoma City Public Schools?
A. That's certainly what’s in the projection.
299
Q, Fine. Now, Let me ask you another question,
Doctor Welch.
You talked about using adjacent tiers, and this is the
1995 exhibit, but I just am using it because it shows the
location of the attendance areas.
What did you use for adjacent tiers with respect to
attendance areas that are at the edge of one of these
portions of the Oklahoma City School District, such as
Garden Oaks?
A. Uh-huh.
Q. Now, clearly, the first adjacent tier to Garden
Oaks is Edwards. There's only one school zone, if I'm
interpreting the map correctly, one attendance area that
is, in fact, contiguous to Garden Oaks.
Would that then constitute the entire first tier or first
adjacent tier?
A. I'm quite certain, yes.
Q. So -
A. We use the average composition of the adjacent
tier, and it is - we do not go outside the district, so it's a
within-district adjacent tier. We -
Q. So that the calculations for the attendance areas
differ depending on their location in terms of the amount
of data that are entered in and the way that the calcula
tion is done?
[p. 254] A. Yes.
Q. Would that have had, conceivably, some impact
on the - on the numbers?
300
A. Oh, I'm sure. Everything does.
Q. Now, Doctor Welch, the data and the projections
that you made for Defendant's Exhibit 11 which were
translated onto the map which is Defendant's Exhibit 14
and then used in the projections of dissimilarity and
exposure indices on Defendant's Exhibit 40 all ultimately
point toward the calculation of these indices reflective of
the degree of racial balance throughout the attendance
areas; is that right? That's the way in which -
A. 14 to 40. I think so that's right. Yes.
Q. Doesn't the use of adjacent areas and adjacent
tiers have a tendency to round off the extremes? I mean,
isn't that reflected in the projections that these zones,
which have become all black by 1986, were going to
decline? Doesn't that have an impact on the dissimilarity
index which is supposed to take extremes into account?
A. It - there are two questions.
One, a general property of regression estimators - it
has less to do with the use of adjacent tiers as to the
property of the statistic in general - is that they fail to
predict extremes. I mean, the better you fit the data, the
more likely you are to hit an extreme, but that's a prob
lem.
* * *
[p. 269] A. We weren't privy to the projection infor
mation. We just observed what actually happened.
Q. Did you review court documents in cases involv
ing judicial proceedings?
A. Yes, we did.
301
Q, And you don't recall finding documents giving
projected results on their plans.
A. We didn't use them. We didn't - that's not part
of the database that we developed. It's nothing that we
retained.
Q. So we can only make judgments from this exhibit
about the results that are actually achieved. We really
don't know anything about effort or success or anything
like that in these districts from the data on these exhibits;
is that correct?
A. You see the index of racial balance here, and
that's all it purports to be.
* * *
[p. 280] Does this list of districts that the justice
department characterizes as unitary include, in Georgia,
Coweta County, C-O-W-E-T-A, Lee County, and Vidalia,
V-I-D-A-L-I-A?
A. Yes.
Q. Do you know if those school systems have been
held to have achieved unitary status by the federal
courts?
A. No, I do not. I did not research or attempt to
verify this list. I took it at face value as though it was
accurate.
MR. CHACHKIN: Your Honor, I'd like to hand
to the clerk a copy of an opinion of the Eleventh Circuit
which I have marked for identification as Plaintiff's
Exhibit 65 and of which I would request that the court
take judicial notice. It's a decision in a case called Georgia
302
State Conference Of Branches Of NAACP versus State of
Georgia, and I would direct the court's attention partic
ularly to pages 1413 and 1414, in which the Court of
Appeals states that none of the local - local defendants
ever acquired unitary status through this procedure,
referring to the prior paragraph in the decision, referring
to holding a hearing and entering an order that a system
is unitary, and going on to identify, among the local
defendants, specifically, Lee County, Coweta County, and
Vidalia City.
* * *
[p. 289] So is it not correct to say that this is an
instance where the busing distance for some black stu
dents was increased when a school no longer was a
stand-alone?
A. Yes, it is.
Q. So it really works both ways. You mentioned in
your direct testimony, particularly with respect to schools
that qualified for stand-alone status in 1984 and your
projections for 1995, that creation of additional stand
alone schools would increase the busing distance for
black students in the Northeast Quadrant.
A. As a general rule, that's right. This reassignment
is pretty strange. I mean, coming from the extreme North
of this Northeast Quadrant down to the South and West.
Q. Did you examine the history of stand-alone
schools in the Oklahoma City School District after 1972?
A. I think so. Yes.
303
Q. Do you recall how many stand-alone schools
there were in 1972?
A. I believe there were eleven. There were eleven.
Oops. Yes.
Q. And do you recall how many stand-alone
schools there were in 1984?
A. There were three.
* * *
[p. 292] Q. And you also said this morning, I
believe, that the four-to-one ratio, the grade division at
the elementary school level in the original Finger Plan
assumes the body count is four to one, and that by 1984 it
was closer to one-and-a-half to one; is that right?
A. That's right.
Q. In your opinion, if the Finger Plan had not
included the stand-alone feature in the beginning, would
it have been desirable, as these changes occurred, to alter
the plan to reflect those new ratios by perhaps adding a
grade to the - what were then fifth-grade centers?
A. If - if one is -
There's kind of a strange balance. When people talk
about the busing burden in these cases, the reference
ought to be to equal numbers of people and not to equal
percentages to groups, and that's the reason that I said
the original Finger Plan was designed for a four-to-one
system, and the system gradually moved to something
that was closer to one-and-a-half to one.
304
If you were going to maintain steady state racial
balance, if that's the objective, then, indeed, the grade
relationship [p. 293] among busing should have changed.
Q. Would you have - in your opinion, would that
have been a good change to make in a Finger Plan with
out a stand-alone feature?
A. I don't know in what sense you're defining
"good". If I wanted to maintain racial balance in the
school system with a minimum amount of busing, it
would have been an essential ingredient.
* * *
305
BELINDA BISCOE
[p. 295] THE COURT: Call your next witness,
Mr. Day.
Let the record show the parties are present.
MR. DAY: Our next witness is Doctor Belinda
Biscoe.
THE COURT: Driscoe?
MR. DAY: Biscoe, B-I-S-C-O-E.
Belinda Biscoe, (A Black Female)
Being first duly sworn to tell the truth, the whole
truth, and nothing but the truth, testified as follows:
DIRECT EXAMINATION
BY MR. DAY:
Q. State your full name and occupation for the
record.
A. My name is Belinda Biscoe. I'm an administrator
for the department of support programs with the Okla
homa City Public Schools.
Q. Would you tell us about your educational back
ground.
A. Okay. I received by [sic] Bachelors and Masters
Degrees from Fisk University in Nashville, Tennessee.
306
After that I began on my Phd in Psychology at Van-
derbilt-Peabody in Nashville, Tennessee.
* * *
tp. 302] Q. There is a pointer there in front of you, if
you need it.
THE COURT: What is the exhibit?
MR. DAY: 63.
A. Okay. The exhibit that Pm looking at is a rank
ordering of the elementary schools in our district. These
schools have been ranked by the percent of black stu
dents that are currently attending these schools.
I think what's interesting to note here is that there are
no schools -
Q. (BY MR. DAY) Excuse me. What year does that
exhibit cover?
A. This year is 1985/86.
Q. Okay. Would that have been the first year that
the board's 1985 assignment plan was in operation?
A. Right. This was the first year of implementation
of the new assignment plan.
Q. And does this show the racial composition of the
schools when the neighborhood plan was, in fact, imple
mented?
A. Yes, it does.
Q. All right.
307
■ A. I think probably what's most interesting to note
\ about this is that if you look at all the racial breakdown at
all of these schools, there currently, at this time, th&re
wera.no schools in the district that were 90 percent white
or above.
[p. 310] In addition to that, it was very important to
the board to apprise the community of that option. J5o
those of us in research sent out letters to all of the
elementary parents in the district apprising them of that
option, letting them know that, while the recommenda
tion would be made to return to neighborhood schools,
that anyone who wanted to opt for their same assignment
under the Finger Flan could have that option.
Q. And, to your knowledge, did parents opt to exer
cise the majority-to-minority transfer?
A. I believe that first year of implementation of the
plan we had approximately 200 students who took
advantage of that option.
Q. And do parents continue to take advantage of
that option today?
A. Over time what has happened is that the request
for that option_has decreased. There have not been as
many parents this year requesting that option as there
were year one of the plan.
Q. But some are still requesting it?
A. But there are some parents who still request that
option.
308
Q. Doctor Biscoe, while you were working with the
board committee during this six-month period of time, -
[p. 311] You were working with them the entire six-
month period, were you not?
A. Yes. That's correct.
Q. Did you at any time observe or sense, from the
actions of any of the board members, that they were in
any way trying to be unfair to any minority students?
A. No, I never sensed that. I would not have been')
able to work with the board if I had ever felt that. That]
just was not the agenda. They were very concerned about \
equity and about the welfare of all students in the d is-/
trict, and that was really projected in everything they said]
and did when I worked with them.
Q. As a black person, did you, at any time while
working with the board committee, sense that they were
taking any action or considering to take any action which,
in your opinion, would have been discriminatory against
black students or teachers or parents?
A. No, I never felt that at any time.
Q. Did you feel that the committee was watching out
for the interests of minority students, teachers, and patrons?
A. I felt that they were concerned about minority
students and just all students in the district.
Q. Were any members of that committee black?
A. Yes, Doctor Clyde Muse was the - was black and
was a member of that committee.
[p. 312] MR. DAY: Thank you.
309
CROSS-EXAMINATION
BY MR. SHAW:
Q. Doctor Biscoe, my name is Theodore Shaw. I'm
one of the Lawyers representing the black school children
in this litigation.
You testified that you are a member of the metro
politan fair housing board.
A. Yes, that's correct.
Q. Why did you get involved with that board?
A. Mainly because of my own concern for fairness
and for people having - I feel strongly that people have a
right to live where they want to live, and that if we need
to tighten the laws or do whatever we have to do to
insure that that happens, then I want some of my energy
directed in that - to that regard.
— Q. Well, to your knowledge is housing discrimina
tion something that still occurs within the Oklahoma City
Community?
A. I think housing discrimination occurs through
out this country. I don't think that Oklahoma City is
unique in that regard.
A. So there's a need for a metropolitan fair housing
board here?
A. Throughout this country.
Q. But I'm talking about Oklahoma City.
[p. 313] A. There's a need for one here just as there
is a need for one in California or -
310
Q. I understand. I would agree.
Now, Doctor Biscoe, is the testing that you do only
related to housing that is on the market and owned by
private individuals?
A. I've only - I've been out on just a few test cases,
and that was a privately-owned condominium that a
couple had. But it cuts across all boundaries.
Q. Is that - would you agree then that there has
been discrimination in the housing market in the past and
perhaps in the present that has been perpetrated by non
private entities?
A. That's probably true. Yes.
Q. Is it your view that black people in Oklahoma
City can live wherever they want to live; that is, free of
housing discrimination?
A. Yes.
Q. How does that square with the notion then that
housing discrimination is still a problem within the Okla
homa City area?
A. I don't think those two things are mutually
exclusive, in the sense that I feel that the work, for
example, that Metro Fair Housing does in this community
helps to give people a fair shake.
If a person, for example, does feel that they are being
[p. 314] discriminated against, there have been enough
cases in the books that have been won where people have
been able to finally get those housing - get that housing
even if initially they have been discriminated - felt they
311
had been discriminated against. I just don't see those two
things as - I don't think that having racial housing dis
crimination means that people can't live where they want
to. People can. But there will always be some people
discriminating.
Q. So I take it then that what you're saying is that
people can live where they want to live in the Oklahoma
City area because there's always the remedy of going to
court, if need be, to protect their rights?
A. Yes, but I don't want to give the impression that
it's a major problem. It's just - It's a problem that just
exists in this country, and I don't think it's of the magni
tude that it's - that the majority of the people who go out
are being discriminated against, but there are some peo
ple who are.
Q. Right. Now, would you agree that people who
seek housing - black people who seek housing sometimes
can be discriminated against and not even realize that
that discrimination has taken place?
A. Yes, I would agree with that. That does happen
sometimes.
Q. And testing then is one of the methods that is
used to verify that discrimination is taking place; is that
correct?
A. That's correct.
[p. 315] Q. But testers are trained; isn't that correct?
A. That's correct.
312
Q. And their training allows them then to recognize
or identify housing discrimination where someone who is
not trained in the same manner may not see it?
A. That's correct.
Q. Just to make sure I understood you, you indi
cated that in the Nashville experience that you had -
A. Uh-huh.
Q. - in which you were a victim of housing discrim
ination, you were actually told that the apartment would
not be available to you because of your race.
A. That's right.
Q. Is it your experience, as someone who's involved
with the fair housing board here in Oklahoma City, that
most people who are victims of discrimination are actu
ally told that they will not be rented to on the basis of
race?
A. Probably not. Discrimination is probably - is a
lost more subtle now than it was ten years ago. So people
probably find other ways to get around that without ever
giving a racial motive.
Q. You indicate that the laws weren't as stringent as
they were now when you wanted to pursue your claim. I
was wondering which law were you referring to? Was
that a local Nashville ordinance or something?
[p. 316] A. Well, I'm not sure, It's just that ten years
ago there was no such thing as a metro fair housing in
Nashville, and so we did our own test case. We had a
friend of ours, who was white, also call this apartment
313
complex - well, it was a duplex - and try and rent it, and
she was told it was available, that she could move into it.
At that point, the couple that did not want to rent to
us became a little fearful, because I think they were
starting to put two and two together, and so we called
back and they used other excuses. "You have a dog. We
don't want dogs here." And they went on and on. And
we continued to have other people call who were white
who had animals and this kind of thing, and - and they
were - they said "this is fine. You may still rent."
When the representative from HUD came to
Nashville from - well, he was in Atlanta. When he came
to interview us in Nashville, he basically said that we did
not have enough evidence, with the test cases that we had
done, we had witnesses who were willing to testify. We
had verbally told him that the couple had just point blank
said, "you are black and you do not want to live here
because there are no black people in this area," and we
were told that that was just not enough evidence.
And that is what I base my statement on that the
laws apparently were not a strong, because I considered
that to be [p. 317] really powerful evidence. Of course,
the other couple who filed the suit jointly with us had
money to get their own private attorney, and they subse
quently won the case. The settlement was about $1200.
But it caused a lot of anguish. It was in the papers, and -
Q. sure?
A. - people almost lost their jobs. It was not a - it
was a big thing for us.
Q. It's an unpleasant experience to go through.
314
A. Yes.
Q. Doctor Biscoe, when was the Fair Housing Board
in Oklahoma City established?
A. I don't remember that date of inception.
Q. When did you first become aware of the board?
A. I have been on the Metro Fair Housing - I think
this is my third year of being on the Metro Fair Housing
Board.
Q. You don't have any idea whether it's ten years
old, 20 years old?
A. I just cannot remember the date of inception. I
hate to guess at it.
Q. What does the board do to advertise its services
or, in fact, what does the board do to advertise that
housing discrimination is a problem and people who are
victimized can come to the board?
A. We have tried to do a lot of things. We've had
posters [p. 318] made up to put on local buses here in
Oklahoma City. We have fund-raiding events and go out
into the community. We send out lots of information. For
example, a lot of information comes to our school district,
and, as a part of the school district, I have provided
information on housing patterns in our district, and that
sort of thing, to Metro Fair Housing prior to becoming a
member of the board there.
Q. What kind of information of housing patterns
are you referring to?
315
A, Oh, just demographic information in terms of
where students are residing. They look at that and keep
those data just to get a feel for whether or not realtors in
the area are doing what they call steering; that is, steering
people to certain areas because of racial composition.
Q. And as somebody who is employed by the
school district, I'm not sure exactly - you mentioned that
as somebody who is employed by the school district that
you disseminate certain kinds of information, but I'm not
exactly sure why you're doing that and in what capacity.
A. When I was in the research department. Of
course, all of the information in that department is public
information, and anybody who requests information on
student population - on our student population in terms
of where students are residing or anything are privileged
to that information.
f Q. Has it been your experience as a board member
That - that [p. 319] is of the Fair Housing Board - that
realtors, in fact, do disseminate information about
1 schools when they're showing houses?
A. That is a real big drawing card. Yes.
\ Q. You indicate that the success rate of the Fair
(Housing Board in Oklahoma City is fairly high?
A. It has been. That's right.
Q. Can you tell the court or give the court an indi
cation of the volume of cases that the board has handled?
A. I don't have those exact numbers. I know a lot of
what happens in terms of volume of cases with Metro
Fair Housing, of course, depends on who the staff people
3 1 6
are at the time and how energetic they are in terms of
getting information - getting the cases tested, following
through with them. Right now there's a very - a new
person in that position, new staff person, and she's done
a lot of work. I don't know off the bat how many cases
per month we're seeing.
Q. You've indicated that the remedy for housing
discrimination cases may be monetary damages and that
often the people don't want the apartments by the time
they're available, or the housing, even though they may
have a right to it; is that correct?
A. Right. But I can't say specifically what - how
that's broken out in Oklahoma City, whether or not peo
ple have still opted to secure that housing once the case is
settled. I don't [p. 320] have those data available.
Q. But what may happen then is that even though
someone may recover a damage award if he or she is
victimized by discrimination, the segregative effect of
that discrimination may still continue if he or she does
not choose to take the apartment; isn't that correct?
A. It could, but I would speculate that, once people
lost a case of that nature, that they'd be real hesitant to
discriminate again.
Q. They might.
You indicated that there were - there wasn't enough
money for the Fair Housing Board?
A. Yeah, that's true. I work with a lot of non-profit
organizations here in Oklahoma City, and I think any
body who has worked with non-profits know that that's
3 1 7
always an ongoing battle, having enough money for oper
ational costs and just -
Q. How was it funded?
A. A lot of it is from private donations. They do get
some - some city money, I believe. But a lot of it is just
private donations.
Q. But, in any event, there's enough work for the
board to do so that it could use more funding; is that
correct?
A. Yes.
Q. Now, you were asked about Mr. Day - or by Mr.
Day, rather, about a number of exhibits, exhibits 63 and
64 and 65 [p. 321] which showed a rank ordering of
schools - elementary schools by racial percentages with a
projection made in exhibit number 65.
A. Yes.
Q. You also pointed out that no school in any of
those exhibits was more than 90 percent white; is that
correct?
A. Yes.
Q. What is the significance, in your view, of that
observation?
A. Well, I think oftentimes - one of the things that
happened with the Finger Plan is that we were asked to
balance our schools only on the percent of black student
in our district.
However, if you - since I work a lot with federal
programs and attend a lot of those meetings, as I've gone
3 1 8
around the country one thing I've noticed that happens in
many of the school districts is that people look at the
percent of minority students in their district, including
orientals, native American students, Hispanic students.
Of course if you look at our district in terms of total
minority population as compared to white population,
you get a totally different picture than if you just look at
those data black-white.
* * 5f
[p. 327] Q. Well, can you tell the court, Doctor Bis-
coe, what the board has done to promote M-to-M trans
fers?
A. There are things that are being talked about now
in terms of continuing to send out letters to apprise
parents of that.
Q. Has that been done previously?
A. That did not happen this year. No.
Q. Anything else?
A. No. I have talked with Doctor Steller at length.
He's been real concerned about beefing up the M&M
transfers and making sure that parents know. So I do
know that that's something that's been on his agenda in
terms of more communication with parents regarding
that.
Q. Did the board or did the administration do any
study of who was exercising the M-to-M transfers in the
first year?
3 1 9
A. I do not believe - I'm not familiar with any
analyses that have been done of the M&M transfers in
terms of who the people are that are requesting those
transfers.
Q. Was there any analysis done with respect to the
particular schools from which the transfers were being
made?
A. I think those data are available. I just don't recall
exactly which ones requested them. But we do have that
information.
* * *
[p. 338] THE WITNESS: Yes, I do.
THE COURT: Do you think it's discriminatory
in any way?
THE WITNESS: No, I do not.
THE COURT: Now, what is the faculty, black,
white, *R [sic] mixed?
THE WITNESS: The faculties at all - at all the
schools are mixed.
THE COURT: All schools -
THE WITNESS: Yes, sir.
THE COURT: - Throughout the whole system?
THE WITNESS: That's correct.
THE COURT: Is it your opinion that the K-4
students are too young to be bussed from school to
school?
3 2 0
THE WITNESS: I think they are.
THE COURT: And will you tell the court why?
THE WITNESS: Kids six - from six years old
until they're about eight years old, I think, are just begin
ning to make sound judgments. Having to walk to bus
stops and then to go to parts of towns that their parents
don't have access to, necessarily, during the day if they
get ill, I think it just creates a stress on the family and the
child.
By the time a child is ten years old, they're better able
to make decisions in terms of steering clear of strangers,
paying attention to street crossings, and those kinds of [p.
339] things, and I do believe they're just safer at that
point in terms of having to be bussed.
THE COURT: Do you think there's any distinc
tion in the busing of black children and white children?
THE WITNESS: No. Students are bussed
equally under the new plan. All students are bussed from
fifth grade on. That's regardless of race.
THE COURT: What has been the parent relation
- parent-teacher relation under the operation of the 4-K -
of the K-4 plan?
THE WITNESS: With the new school assign
ment plan?
THE COURT: Yes.
THE WITNESS: All of the data that we cur
rently have indicates that parent involvement has
increased significantly.
3 2 1
We now have more parent-teacher associations than
we have had for years in the Oklahoma City public
schools as a result of the uniting of communities, I guess
is the best way to put it, and there's a lot of work
continuing to go on to even - to increase those PTA
associations - PTA and PTO associations throughout the
district.
THE COURT: Do you see any discrimination in
the 4-K plan to blacks?
THE WITNESS: No, I do not.
THE COURT: I thank you. You've been a very
intelligent person.
* * *
SUSAN HERMES
[p. 347] blacks were more frequently moving into all
parts of the school district boundaries.
A. Oh, yes.
Q. Are you aware of any other effort or action taken
by the board of education to try to stop blacks from
moving into any areas of the school district?
A. Not to my knowledge.
Q. Okay. Tell us about the curriculum, teacher assign
ments, special-ed courses, the availability of counselers, [sic]
that sort of thing, under the neighborhood plan.
A. The board committee that was devised began
with the premise that we could recommend to the full
board that we stay unitary district; that we would make
sure that the curriculum in all of the schools was the
3 2 2
same; that the staffs in all of the schools would be racially
mixed; that the equipment, that the supplies would be
divided equally; and we provided for a majority-to-
minority transfer so that any parent who wras not happy
with a neighborhood situation could - would not be
locked into that situation, they could have their child
attend a school in which they would be in the minority.
* * *
[p. 349] Q. Now, has the board made any changes
whatsoever to its assignment plan for the fifth year and
up? I mean, aside from the boundary changes on the
fifth-year centers.
A. Aside from boundary changes, we were not, as a
committee, authorized to change anything beyond the
fifth-grade level.
So, no, there were no changes in the plan and there
are none today.
Q. So the tenants of the old Finger Plan, as they
applied to the fifth-grade level and up, are still being
followed by the board; is that right?
A. Yes. Yes, that's correct.
Q. Is the board still using compulsory busing to
achieve racial balance at those grade levels?
A. Yes, that's correct.
Q. Does the board have any intent of stopping that
procedure and reverting or resorting to neighborhood
schools grades K through twelve?
A. No.
3 2 3
Q. Have you ever heard any board member suggest
that?
A. No.
Q. Now, there has been testimony, Mrs. Hermes,
that, as a result of the implementation of the K-4 plan,
that there has [p. 350] been an increase in parental
involvement.
As a member of the board of education over the past
two years, have you personally - excuse me - personally
witnessed any events or seen any data which indicates
that there has been an increase in parental involvement?
A. Yes.
Q. Would you tell us about that?
A. Before every board meeting, the board has
brought to its attention various children in these districts
who have won awards and such like.
In addition to that, every new PTA unit that has
formed has come to the board for recognition.
In the last two years, we have gone from 15 PTA
units to nearly 50, sometimes recognizing three and four
units a meeting.
So I have been personally aware of a continuous flow
of units being developed.
Q. You've gone from how many? 15?
A. 15 to nearly 50, and it may be 50 by this time. It
was 47 or 48 the last time I read the evidence.
3 2 4
Q. Would you explain to the court the purpose of
the equity officer and the equity committee that was a
part of this plan?
A. Yes. That goes in conjunction with what I was
speaking about before, an attempt by this board to remain
unitary.
* * *
[p. 354] A. Yes. I think, just as music and choir and art
and PE are part of helping a middle- and high-school child
become well rounded, that extracurricular activities at the
elementary level, including boy scouts, girl scouts, honor
choirs, brownies, and those types of activities which are held
after school are helpful in allowing children to accept leader
ship and become more well-rounded.
Q. How about the schools in the district that were
closed by the board this past year that will not be open
next year? I think it's common knowledge that those
schools were closed for financial reasons.
But the question I want to ask you is: how were the
students attending those schools that were closed reas
signed to other schools?
A. Well, I didn't actually work on the reassignment
of those schools, but the children, in all the closed
schools, as I recall, were assigned either of two ways.
One, where the research department divided the chil
dren among the closest schools; or, two, where the parents
were brought together with the research department and
asked where they wanted their children to go to school.
* * *
3 2 5
[p. 356] The last report that we received indicated
that schools in section - in the southern part of section
4-A and B, in this area, those elementary schools need
repair, and their recommendation is that we go for a bond
issue as soon as possible to generate monies to fix roofs
and toilets and plumbing, et cetera.
Q. How do the facilities in that area you were just
describing, the southeast part of the city, compare with
the school facilities in the northeast quadrant, district
five?
A. Most of the schools in the northeast quadrant are
in fairly good condition. There are only one or two that
need as much repair as many of those in the southern
sections.
Q. And it is the northeast quadrant that contains
some of these schools with 90 percent or more black
students?
A. Yes.
* * *
[p. 361] Q. But you would agree that it is possible
that the board could change the plan in grades five
through twelve in the future?
A. Say that again. I'm not sure I understood.
Q. You agree that it's possible that the board could
change the plan with respect to five - from grades five to
twelve in the future?
A. By law, a school board may change student reas
signments. So, yes, they could change it in the future.
3 2 6
Q. Now, you indicated that the number of PTA
units has risen from 15 to 50; is that correct?
A. Yes, That's - well, Pm not sure it's exactly 50. It's
47, 48, and then I know there are some in the process of -
[p. 369] Q. That's right.
A. Okay, and what's the end of the sentence? We
could afford it?
Q. No, my question is whether the district could -
yes, the district could afford the opportunity to every
child within its neighborhood school scheme.
A. By our own policy, we would have to.
Q. I see. But I take it you agree that if that hap
pened that that would mean that there would be over
crowding in some schools, some schools might not have
the capacity to accept those students?
A. Well, by our own policy, we have provisions for
schools that come to capacity. Then we are - the research
department, or whoever is speaking with the parents,
encourages the parent to choose another school in which
their child would be in the minority so that we would not
overcrowd any one school.
Q. Presently there are neighborhood schools which
are overcrowded, are there not?
A. I don't believe there are any that are over capac
ity.
Q. The school district though, in order to meet
capacity, is making use of portables -
3 2 7
A. Yes.
Q. - in a number of schools?
A. Yes, but there is still room in the portables and in
the [p. 370] other rooms. So they are not at capacity even
with the portables.
Q. In fact, there is one elementary school, and I'll
have to look up the name, maybe you can help me, that is
so overcrowded that it almost doubled its enrollment and
they had to use portables? Are you familiar with that?
A. No.
Oh, Mrs. Hill is indicating Green Pastures, a fifth-
year center?
Q. Yes.
A. Yes, it's located out here in Star Spencer. It was a
very small elementary school, and we had no choice
when planning for a fifth-year center. We wanted a cen
trally-located fifth-year center, and we chose Green Pas
tures.
And, yes, because of its very small capacity, we had
to put a large number of portables on that site.
Q. And there has been discussion about building a
new school?
A. A couple of years ago when we did it, yes, we
talked about having to build a new school, but we're
going to have to wait for a bond issue, and at this time
the board has felt that the - that the - the community
feeling is not such that we can pass one.
3 2 8
Q. That there's not enough community support for
a bond issue?
A. To pass a bond issue at this point. The economy
is so [p. 371] low, and the legislature is raising taxes, and
it is not timely to ask for more money.
Q. In fact, the district has had to sustain a number
of cuts from state aid or in state aid; isn't that correct?
A. I can't speak to the state aid specifically, but we
have had six-and-a-half-million-dollars worth of cuts last
school year, and six-million-dollars worth of cuts this
school year alone, and we have not heard from the legis
lature yet if there are going to be more.
So, yes, we have received large cuts.
Q. What would happen then if the equity committee
were to recommend that something had to be done to
maintain equity that required a substantial expenditure of
funds?
A. Well, they've already done that, which is they
want us to go for a bond issue, but they - have also
indicated that they realize that we have to do that on a
timely, basis, because it costs us a lot of money to set up
voting machines, and there's no sense in doing it if you -
if you have a sense that it's not going to pass. You read
your community first, and then you go for the bond issue.
And the equity committee has been very understanding,
because they're part of the patron group themselves.
Q. So the ability of the recommendation - the abil
ity of the board, rather, to meet the recommendations of
the equity committee is somewhat limited by the ability
3 2 9
of the school [p. 372] district to obtain sufficient funding
in a time in which funds are rather short.
A. As it relates to major facility repair, I would
agree with you.
As it relates to curriculum or staffing changes or
equipment or smaller-dollar items, I would have to say
"no," that we would find the money in our budget,
because we have line items for equipment and curriculum
and textbooks.
Q. Is one of the assumptions of the equity commit
tee, or underlying the equity committee, that there is
going to be a close in the gap of academic achievement
between blacks and whites as a result of whatever mea
sures are implemented?
A. I'm not sure that's one of their - of the equity
committee's concerns. It is, however, a board concern. I'd
have to look at their charts to see if it's a part of their
concern.
* * *
RECORD, VOLUME IV
3 3 0
SUSAN HERMES
[p. 385] Q. Well, did the subcommittee or the board
direct anyone on the staff to run a simulation which
would have provided for equity in terms of the burdens
of transportation as distributed on black - among black
and white first through fourth graders while at the same
time maintaining desegregation?
A. No.
Q. Why not?
A. It was the felling of the committee that - that we
were not going to bus black and white children at those
early grade levels.
Q. Well, in fact, the board had been busing black
children at those early [sic] for quite a while, hadn't they?
A. Yes, and it had become quite inequitable.
Q. Inequitable?
A. Yes.
Q. And one of the things the board could have done
to relieve the inequity was to transport white students.
A. Well, in my opinion, that would have made two
wrongs, and two wrongs don't make a right.
Q. I see. So it would be wrong to transport black
and white students in equitable proportion for desegrega
tion purposes?
A. That is my personal opinion.
* * *
3 3 1
[p. 390] A. Certainly. My children have been bussed
up until two years ago, and they have had positive expe
riences.
Q. And what grades were they bussed?
A. Fifth Grade. And my son, who is in third and
fourth, had to be bussed to his local neighborhood school
because we lived across a hazardous street.
Q. In fact, there's a lot of busing that goes on in the
school district and throughout Oklahoma for non-deseg
regation purposes; correct?
A. Oh, yes.
Q. And, to you knowledge, does that busing cause
any psychological or educational harm to the children
who are transported?
A. I don't think so.
Q. When the board adopted the plan in 1984, you
were not aware of any educational basis for return to
neighborhood schools, were you?
A. It was my opinion, and still is, that educational
achievement would be enhanced by going back to neigh
borhood schools.
Q. On what did you base that?
A. I based that on my own feelings as a parent and
being involved in my local PTA or PTO, knowing that I
could be in school available for my children. I believe that
educationally it is better for a child to have family nearby.
* * *
3 3 2
[p. 394] REDIRECT EXAMINATION
BY MR. DAY:
Q. Mrs. Hermes, you have been asked a lot of ques
tions about the various elements of the 1985 student
assignment plan.
I'd like to direct your attention to defendant's exhibit
number 96.
MR. DAY: May I approach the witness, Your
Honor?
THE COURT: Yes.
Q. (BY MR. DAY) Would you identify that exhibit,
please.
A. Yes. It's entitled "Oklahoma City Public Schools
Board of Education Student Assignment Plan for
1985/86."
Q. And is that the final plan that was actually
implemented at the start of the 1985/86 school year?
A. Yes. That's correct.
Q. Does it set forth all of the elements of the plan
and the other considerations that the board gave in for
mulating the plan?
A. Yes, it looks like it's rather detailed.
Q. Mr. Shaw asked you about the M-to-M transfers
and the equity committee and equity officer.
Did the plan make any provisions for student interac
tion at these K-4 elementary schools?
3 3 3
A. Yes. The board decided to pair, if you will, those
[p. 395] schools that were racially ten percent or more
black - 90 percent or more black and ten percent or less
black in such a way that teachers could bring students
together among those pairings two, three, four times a
year for educational activities, particularly.
Q. And was that interaction plan implemented in
the 85/86 school year?
\ A. Yes, it was, and various schools and teachers
1 chose to do different academic offerings.
Q. Was the interaction plan implemented this past
year?
A. Yes, it was.
Q. Can you give the court just a basic idea of the
type of things that the various principals may be doing?
A. Yes. I'll give you some "what if's," and then I'll
give you a situation in which I was there, so that I know
for sure it happened.
We were encouraging teachers to allow children to
write letters to each other; to send video cassettes of
themselves. We were encouraging them to have the chil-
\ dren read the same literature; to, perhaps, bring in Arti-
\ san Residence for an art class, or maybe a musical fest, or
I a field day where the children would compete in races.
And, let me think, we did encourage PTA and PTO
I groups to have their meetings at the paired schools.
* * *
3 3 4
[p. 407] Q. You talked about what the board has done
and how the student interaction plan has played out.
How many hours a year would students be involved
in a student interaction plan?
A. About nine. Maybe twelve. Three hours for each
session, Three or four times a vgar, depending on the age
of the child.
Q. Would that include the pen-pal activities, where
students write to one another from various parts of the
school district?
A. Not necessarily. They could be - those activities,
where they would be separate, could be in addition to the
hours that I mentioned earlier.
* * * *
CLYDE MUSE
[p. 424] Q. Did you ever hold any offices on the
board?
A. I served as Vice-President my last year on the
board.
Q. During the time when you were serving on the
Oklahoma City Board of Education, was a committee
appointed to study the K-4 Elementary Schools and
stand-alone schools in the district?
A. Yes.
Q. When was that committee appointed?
A. In July of 1984.
Q. And who was on the committee?
3 3 5
A. Mrs. Hill, Mrs. Hermes, and myself.
Q. And what, exactly, did the committee study?
A. We studied the neighborhood racial makeup, we
studied potential busing reduction, possible boundary
changes, and possible grade realignments.
Q. What was the purpose of this study?
A. To see if we could maintain, first, a unitary sys
tem, and, at the same time, see if we could then place K-4
schools in all sections, and particular [sic] the northeast
section.
Also to look at the ultimate effect of the stand-alone
concept and to see if we could increase pride and paren
tal involvement, and then continue an integrated school
district.
Q. What was the problem with the stand-alone
school concept that prompted the appointment of this
committee to study it further?
A. Whenever a neighborhood reached the racial
makeup, insofar [p. 425] as student population is con
cerned, of the overall district average, then students
could not be bussed out of that neighborhood to fifth-
year centers, nor could students be bussed into that
neighborhood K through four.
So that meant that the children K through four - or
one through four who were bussed into a neighborhood
that had acquired stand-alone status had to be reas
signed, and because of the fact that the stand-alone
schools generally were found in the central part of the
3 3 6
district, it meant that the one-through-four children had
to be bussed further.
Q. Is there a map which shows this?
A. I think so.
Q. I direct your attention to defendant's Exhibit
Number 210 and ask you if that's the map you were
referring to.
A. Yes, it is.
Q. Okay. Go ahead with your explanation.
A. Also involved in the -
Q. Why don't you start over with the assignment of
the student's under the old plan at grades one through
four.
A. All right. The - the top map, I think, shows the
assignments of students one through four to the schools
that received them, and if you look from the northeast,
which would be this section over here, you would see
how the children are being bussed out. You would also
see the schools that are circled in the center, which are the
ones that would achieve [p. 426] stand-alone status first.
So that in order to have a student one through four
attend a school for integration purposes, once the schools
in the inter part of the district achieves stand-alone sta
tus, then you had to send the child further in order that
he could be assigned to a one-through-four school.
The same thing is true with respect to the white fifth
graders that were bussed into the fifth-year centers. Once
3 3 7
their district or their neighborhood achieved stand-alone
status, they no longer could be bussed in.
So we had a diminishing population insofar as white
students was concerned, and what that did was threaten
those existing fifth-year centers - which were the only
elementary schools in the black community - it threat
ened those schools with closing, because they could not
be operated in a cost-effective fashion.
Q. Did the - how long did the committee meet?
Over what period of time?
A. From July until the plan was ultimately given to
the public in December, I think.
Q. During that period of time, did the committee
make specific findings about its study?
A. Well, I'm not certain I understand what you
mean by specifics findings.
Q. Well, did they report to the Board of Education
what they [p. 427] found as a result of their study?
A. We reported to the board a comprehensive con
clusion that involved what our recommendations were,
but also why we did not make other kinds of recommen
dations.
Q. Did you report to the board on your findings
with respect to K-5 stand-alone schools?
A. Yes.
Q. And specifically what did you advise the rest of
the board?
3 3 8
A. We advised the rest of the board that the K-5
stand-alone arrangement could not continue to be a part
of the plan, because what it did was took away from the
board the prerogative as to how it was going to deal with
and continue the educational offering in the community.
In other words, most schools that became K-4 - I
mean became stand-alone, became stand-alone because of
the community demanding that they become stand-alone,
so that what - with some 13 potential stand-alone
schools, what that did was just left the board at the mercy
of a given community. Whenever they demanded it, then
it had to be implemented or else we could have been
accused of showing favoritism, and that would, of course,
expedite the breaking down of the original arrangement.
Q. During the period of time the committee was
meeting, did any members of the committee consult any
government agencies [p. 428] about what they were
studying and about their proposed plan?
Q. Yes, I did. I went to Dallas and consulted with
the Office of Civil Rights.
Q. Why did you do that?
A. Because I was concerned about whether or
in the matter of moving to a stand-alone status, if quoias,
or if the actual ratios were upset, would this be a matter
of concern for the Federal Government. And I was in
formed by Mr. McClure that ultimately the government's
concern^had to do with equity in educational offerings
and not with maintaining numbers in terms of the divi
sion of the student population.
3 3 9
Q. To your knowledge, was the Office of Civil
Rights provided with a complete copy of the plan before
the board took final on it?
A. Yes, it was.
Q. To your knowledge, was the Office of Civil
Rights invited to come to these board meetings where the
plan was being discussed?
A. It was.
Q. Doctor Muse, in your opinion, what are the ben
efits of the K-4 neighborhood plan?
A. Well, I think that, first, it provides K-4 schools in
all areas, and, insofar as the Northeast Quadrant is con
cerned, it provides K-4 schools for the Northeast Quad
rant that did not exist before.
[p. 429] It also provides for fifth-year centers in all
parts of the district, as opposed to just being located in
the Northeast Quadrant.
The K-4 arrangement reduces the amount of busing
that's required.
It provides for an improved program arrangement,
particularly with respect to the fifth-year centers,
because, with a larger student body, more activities can
be offered to all of the fifth-year centers as opposed to,
when you have a K-5 stand-alone system, you have a
smaller fifth-year grade component, and therefore can't
have the kind of activities you could have with more
students.
I'm convinced that the plan has increased community
involvement and support.
3 4 0
Q. Is that - you say community involvement and
support. Do you feel that it has increased black commu
nity involvement and support?
A. Yes. I think that the involvement of black patrons
has increased.
* * *
[p. 431] A. Yes. There were three that preceded me.
Doctor Moon, Mrs. Freddy Williams, and Mrs. Shirley
Dorrough.
Q. And were each of the those individuals elected
for district ̂ number five, the Northeast Quadrant of the!
'“district?
A. Yes.
Q. Doctor Muse, in light of the fact that you have a
Phd in education, in your professional opinion is the
board's 1985 student assignment plan, calling for neigh
borhood schools in grades K through four, educationally
sound?
A. Yes, it is, very definitely.
Q. As a member of the black community, in your
opinion does the Board's 1985 neighborhood plan dis
criminate against black pupils?
A. No, its does not.
Q. In your opinion, does it discriminate against
black teachers?
A. No, it does not.
Q. In your opinion, does it discriminate to people
living in district five?
3 4 1
A. No, it does not.
MR. DAY: Thank you.
CROSS-EXAMINATION
BY MR. BARBER:
* * *
[p. 432] Q. And, as I understand your concerns
then, you were concerned about the diminishing school
closures in the Northeast Quadrant; is that correct?
A. No, that's not correct. What I was concerned
about was that the schools in the Northeast Quadrant,
that the closing of them would actually be accelerated,
not diminished.
Q. Okay. This was an imminent fact, was it not?
A. Yes.
Q. Schools were going to be closed.
A. Right.
Q. And what you had in the Northeast Quadrant
where the fifth-year centers; is that right?
A. That's right.
Q. And you had a problem also with the Finger
Plan, as I recall your position, in that it was a unilateral
burden of busing.
Was that your position with the Finger Plan?
A. That the - That the major part of the busing
burden, grades one through four, had to be borne by
blacks.
3 4 2
Q. All right.
A. That was the concern.
Q. And, as I recall your position also, you were
trying to find a solution to the problem of the Northeast
Quadrant maybe [p. 433] waking up one morning and not
having any schools.
A. Right.
Q. And you did not oppose an equal burden of
busing white children as busing black children, did you?
You were not opposed to that?
A. No. I think my testimony shows, Mr. Barber, that
I did not and am not opposed to the equal distribution of
the busing burden. At the same time, however, my testi
mony showed that I had some concerns about whether or
not an attempt to do that would be feasible.
Q. Right. And, as a matter of fact, you didn't think
that that could be done.
A. That's right.
Q. You didn't think that your Board would act on
A. I didn't think it had anything to do with the
board. I didn't think that it would be recefm i instil
community.
Q. Okay. And when you say "received in the com
munity," you're speaking of the white community?
A. Yes, sir.
that.
3 4 3
[p. 435] Q. Your plan was passed on what, Decem
ber 17th?
A. Right.
Q. Okay. Now, are you saying at that last meeting
that you met with the ministers and the NAACP that you
didn't promise them that you would go back to the board
and try to get a continuance of the matter?
A. I never made that kind of commitment to them.
Q. Okay. So if others were to - that were there were
to say that you made the commitment, that you would
attempt to get a continuance, that would be in error; is
that right?
A. That's absolutely correct.
Q. Okay. Now, you testified on direct examination
today concerning the purpose of the current plan was to
enhance pride and parental involvement; is that -
A. That's one of the purposes. Yes.
Q. Okay. What about is it not equally as important,
Doctor Muse, to have pride and parental involvement
throughout a child's school days, throughout from K
through twelve?
A. It's important insofar as the overall outcome
would be concerned. I'm not certain that the value of it is
important enough to subject the children, grades one
through four, to the kinds of things that they had to
indure in order to have it at that early age.
* *
3 4 4
JOHN FINK
[p. 495] A. I've found the document.
Q. If you would turn to page 29. Are you familiar
with this document?
A. Yes.
Q. And it was prepared by the planning, research,
and evaluation department?
A. Yes.
Q. Am I interpreting the information on page 29
correctly to indicate that at the time of the December,
1982, Memorandum, - that is, between the years 1978 and
'84 - a portion of this Willow Brook attendance area,
which has the number 477, was assigned to Willow Brook
in grades one through four, and a portion was assigned to
Star?
A. Correct. The portion assigned to Star was done
so because of traffic hazards. Students - as I understand
it or recall it.
Q. And the point of the capacity problem was that if
all of those students were reassigned from Star to Willow
Brook in grades one through four and other students
from the Star Spencer area who might, at the time, have
been assigned to Willow Brook, had to go back to the
schools in their attendance areas, there would not be
capacity either - somewhere. It's not clear. Either in Wil
low Brook or in the other schools.
A. In the other schools.
Q. Now, one - if, in fact, the stand-alone feature
was an [p. 496] inflexible policy that said, "Whenever an
3 4 5
attendance area falls within the racial parameters plus or
minus ten percent, fifteen percent, whatever it was, we
must make that a stand-alone school," the capacity prob
lem could have been solved by increasing the capacity in
schools; isn't that true?
A. Capacity can be changed by adding portables,
one example.
Q. So again, one of the factors that the board con
sidered in deciding whether to make attendance areas
that qualified according to the racial balance policy into
stand-alone schools, was whether it would create capac
ity problems, and I assume what it would cost to resolve
those capacity problems, and that sort of thing.
A. I have only worked with the board with the
creation of one stand-alone - semi-stand-alone school,
Bodine, and those were two factors which were consid
ered.
* * *
[p. 498] Q. And am I interpreting that language
correctly as a suggestion, at least on the part of the
research staff, that stand-alone schools or additional
stand-alone schools might be created if there were mod
ifications to the attendance areas, to the boundaries of the
attendance areas?
A. An oprion [sic] if attendance zones were added
to - to the definition of the - a neighborhood, yes.
Q. Added or - attendance zones or portions of
attendance zones added or subtracted, I presume.
A. Right.
346
Q. Were modifications made, during your tenure in
the research department and to your knowledge, to atten
dance areas to deal with overcrowding problems?
A. Yes.
Q. Were modifications made, during your tenure in
the research department and to your knowledge, to atten
dance areas to deal with overcrowding problems?
A. Yes.
Q. So that the suggestion here for changing atten
dance areas was not something totally foreign to the way
in which the school system had operated?
A. Every time a reassignment was made, attendance
zones or areas were altered.
Q. And could you read the following paragraph?
A. "Regarding the schools which do not qualify as
stand-alone, different grade configurations, such as
grades K-l, -2, and -5 at the fifth-year centers may be an
option. If so, should this be considered at all fifth-year
centers or only those where we would want to reassign
because the membership [p. 499] would be below 200 or
to improve the racial balance?"
Q. So, at least in this memorandum, the research
staff suggested the possibility of adding grades to the
fifth-grade centers, which at that time were all located in
the Northeast Quadrant of Oklahoma City; is that cor
rect?
A. Yes.
* * *
347
BETTY HILL
[p. 511] Q. (BY MR. DAY) Did any leaders in the
back community [p. 512] appear that evening and state
their views to the board?
A. Yes, they did.
Q. What's the name of the people that came, or the
person?
A. Well, of course, we had Leonard Benton who
came and spoke that evening, and he -
Q. What - just read what the board minutes say
about what Leonard Benton said.
A. Okay. ? "Leonard Benton, President of the Okla
homa City Urban League, said that when the original
plan was developed it was unfair in that black children
had to be bussed grades one through four and white did
not. He said that if we are going to have two-way busing,
then students should be allowed to stay in their own
neighborhoods."
MR. CHACHKIN: Excuse me, could I ask that
Mrs. Hill read the last sentence again? I think you left out
one word that's fairly critical.
THE WITNESS: "He said if we are not going to
have two-way busing, then students should be allowed to
stay in their own neighborhood."
* * *
[p. 515] Q. As an educator and a member of the
board, do you have an opinion as to whether or not
parental involvement has an effect on academic achieve
ment of students?
348
A. Yes, I do.
Q. What is your opinion?
A. I - in fact, all the literature that we get and the
magazines that we read, it does say that parental involve
ment is very important in a child's education.
Q. Did the Oklahoma City Board of Education take
any action after you came on the board in 1976 to try to
increase the level of parental involvement in the district?
A. Yes, we did. One of the things that a neighbor
hood school - mine I know did, Kaiser - was that for the
PTA meetings, which were normally held of an evening,
and it was very hard for the - for the black patrons to
come from the east side, a bus was provided for them to
come to those activities, and it was not a successful
venture.
Q. You mean the School Board sent a bus over?
A. No, the PTA did that.
Q. The PTA sent a bus over?
[p. 516] A. Yes, to try to involve them more in the
activities.
Q. And that still didn't interest them?
A. It still did not work.
Q. Did the board do anything else to try to improve
parental involvement?
A. Well, I think we were constantly trying to
encourage people to come, and some of our principals,
too, were trying to get parents to - to help them out,
349
because there are many areas of volunteerism where they
can help. And we just really need the parents to be a
successful school system.
Q. Do you recall any occasions where the board
actually would move their regular meeting - excuse me -
their regularly-scheduled meetings from the administra
tion building out into various - different parts of this
community?
A. Yes. We did take our board meetings once a
month or maybe once a quarter out to the various sec
tions of Oklahoma City and hold our meetings there so
that the people could come to the board meetings and
have a - have a part in them if they so desired. And, there
again, the attendance became so scarce from the neigh
borhood, and it was rather expensive for the board to go
out to those areas by the time they took all of their
electrical equipment and all, that we did do away with
that.
* * *
[p. 518] Q. - to satisfy counsel.
What has been the result, Mrs. Hill, or all of the
efforts and actions taken by the Oklahoma City Board
over time to increase parental involvement?
A. I don't believe we've had any success in involv
ing parents.
Q. Since the time that the K-4 neighborhood plan
was implemented two years ago, have you, as a board
member, personally observed what you feel is an increase
in parental involvement?
350
A. Yes, I have observed a parental increase in
involvement.
Q. Tell us about that.
A. Probably last year. I can give an example of two
schools, [p. 519] one on the east side and one in my own
neighborhood, where I was invited to a program.
And I had attended this school - had been invited to
- it was to Creston Hills. And I had been invited to a
program there when it was a fifth-year center. I was
invited again when it was a K-4.
And I was invited to a program. It was of a morning.
I went into the school, was surprised, really very shocked
to see that the halls were full and the auditorium was full
of people, and they kept trying to bring in chairs and
bunching up. So I - to that - for that program that
morning, it was a standing-room-only performance. And
so the patrons - our patrons, grandparents, neighbors,
had all come this this [sic] program.
Q. What was your reaction -
THE COURT: Mr. Day, let's take a recess for ten
minutes.
MR. DAY: All right.
THE COURT: We'll take a ten-minute recess at
this point.
(A recess was had, after which the following pro
ceedings were had.)
THE COURT: Okay, you may proceed.
351
Q. (BY MR. DAY) Mrs. Hill, at the recess you were
telling us about your own personal observations of
increase in parental [p. 520] involvement, and you told us
about an experience at Creston Hills.
A. Yes. The other school I mentioned was Kaiser,
and I was invited there to a program. It was of an eve
ning, however. And when I went to that school, there
again, the auditorium was packed, standing room only. I
think one of the teachers commented later that this was
the first time she could ever remember when every stu
dent that attended that school was in attendance at the
program, they all had a part in the program, and by
neighborhood schools it meant that the children could
come to the school, and if for some reason the parents
couldn't come, maybe a neighbor could come with them,
but then they could still walk home and be home before
dark.
Q. When was that?
A. It was at the end of the first year that we had
done the K-4 neighborhood schools.
* * *
[p. 526] Mr. Day may have covered this, but let me be
sure I have your answer.
Would you describe the board's justification or rea
son for adopting the 1985 student reassignment plan and
going back to neighborhood schools in grades one
through four?
A. Ever since I have been on the Board, patrons
have - have come before the Board, have approached me
about - about their concern for busing. It's been black
352
and white across the deal that have said, you know,
"what can we do to do away with some of the busing;
have our kids closer to home?" One of the things, of
course, was that they wanted the fifth-year centers closer
to home. So these were the things that had been - the
community had been saying to us all these years.
We were very concerned about parental involvement.
There just really was none. And I really think in all the
many articles I've read that we felt like that parental
involvement was very important, that the parents needed
to be involved in the schools, so that as we talked about
home work, they - they could reinforce some of these
things.
* * *
[p. 528] A. I really was addressing the next plan
when I introduced that, so my answer pretty much dupli
cated itself.
Our patrons, our communities, had been told since
'72 that, if they became integrated, they could have a
neighborhood school, and they could not understand
why they had followed exactly what the court had said
and the board was not giving them their K-5 schools.
Q. So you're suggesting that the subcommittee felt a
total moratorium on the creation of any additional stand
alone schools was not desirable because the community
had been told at some prior time that stand-alone schools
would be created?
A. Yes, in '72, the Court Order said that.
Q. Do you agree with Mr. Fink's responses to my
questions that there was - it was not automatic that
3 5 3
stand-alone schools would be created, that the board had
to make that decision in individual instances, taking a
number of factors into account?
A. That is correct. It did have to be by board action.
* * *
[p. 530] THE WITNESS: Yes. '85.
THE COURT: 85/86?
Has that, in any way, in your opinion, diminished or
destroyed, to any degree, the unitary school system?
THE WITNESS: It has not.
MR. CHACHKIN: Excuse me, Your Honor. I'm
very reluctant to address the court with respect to the
court's questions, but it seems to me -
THE COURT: Well, this is the question that the
court's got to answer.
MR. CHACHKIN: I certainly agree with you,
and I think that it is 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?
MR. CHACHKIN: 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.
354
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.
* * *
MARIDYTH MCBEE
[p. 534] DIRECT EXAMINATION
BY MR. DAY:
Q. State your full name and occupation for the
record.
A. Maridyth Montgomery McBee. I'm a Senior
Research Associate with the Oklahoma City Public
Schools.
Q. What is your educational background?
A. I have a bachelor's degree in Psychology from
Oklahoma State University, I have a master's degree in
student-personnel guidance counseling from Oklahoma.
State University, and I worked for a year on my doctrine )
in Educational Measurement at Oklahoma State Univer
sity.
Q. And you do have a masters?
A. Yes.
Q. Ms. McBee, how long have you been employed
by the Oklahoma City District?
A. I came in the fall of '78 to the planning, research
and evaluation department. I have been there since '78,
with the exception of 1984 when I was not employed
there.
355
Q. What are your current duties in the research
department?
A. Well, mostly I respond to questions that require
data or studies concerning either evaluation or planning
policy [p. 535] questions raised by the cabinet or the
board.
Q. Is there any particular area in the research
department that you specialize in?
A. For a time, I was the planning team leader. Right
now, at my job as Senior Research Associate, I do both
planning activities and evaluation activities.
Q. Has the research department prepared docu
ments showing the retention ratios between students in
the fourth and fifth grade in this district?
A. Yes.
Q. I'd like to direct your attention to exhibit 32.
MR. DAY: May I approach the witness. Your
Honor, -
THE COURT: Yes.
MR. DAY: - and assist her in this.
Q. (BY MR. DAY) 32.
A. Okay.
Q. Would you identify that exhibit, please?
A. Yes. This is a document that I prepared last
spring entitled "Retention Ratios From Fourth To Fifth
Grade By Race."
356
THE COURT: What's the number of this?
THE WITNESS: It's exhibit number 32.
Q. (BY MR. DAY) And you prepared this last
spring?
A. Yes.
* * *
[p. 537] THE COURT: Then let the record show
exhibit 32 is received in evidence.
Q. (BY MR. DAY) Ms. McBee, as a research special
ist with the Oklahoma City School District, do you see
any special significance to the retention ratios in this
exhibit over time?
A. It's obvious to see that the number of black
students who were fourth graders and then subsequently
become fifth graders is very similar. There are almost the
same number in fourth grade as fifth grade.
For the others, that was the case in '71. However,
since '71 we have lost substantial percent of non-black
students from fourth to fifth grade until 1986 when the
number - the percent retained is higher.
Q. Do you have an opinion as to why that's
occurred?
A. Well, I would assume that the students that had
a choice preferred not to go to the fifth-year center during
the time when the numbers were going down, and now
that they're not, that is no longer the case.
Q. You're saying the non—
357
Q. — black students that were going to the fifth-
year centers?
A. Right. Right. The non-black students.
Well, maybe I should say the district was experienc
ing losses in the fifth grade, and we just assumed it's
because the [p. 538] parents of the children chose not to
send them to our schools.
Q. Have ratios been done at the other grade levels?
A. Yes.
Q. Are they as significant as these?
A. We do retention ratios every year for - for stu
dent enrollment projects.
Basically, the enrollment for our black students has
been very stable. The number for the whole district, as
well as the number from grade to grade, has stayed
almost the same from the early 70's to present.
We have had substantial losses in our non-black pop
ulation, and this is reflected from grade to grade. How
ever, the losses is more substantial from fourth to fifth
than it would be from first to second, second to third, et
cetera.
Q. I'd like to direct your attention to exhibit 33.
Would you identify that exhibit, please?
A. This is a five-year history. It's a bar graph that
shows the number of students in fourth grade, and then
the next year fifth grade, and the next year sixth grade,
A. The non -
358
and it goes from the year '75 through '77 through the year
of '79 through '81.
Q. What was the data source used for that exhibit?
Do you know?
A. It was the end-of-first-quarter membership
report for each of the years and for each of the grades
that are identified here.
* * X
[p. 540] MR. CHACHKIN: I have no objection,
as long as Ms. McBee has checked the figures, as she said.
THE COURT: Very Well. Let the record show
Exhibit 33 will be received in evidence.
Q. (BY MR. DAY) Do you see anything significant
about the results reflected in this exhibit?
A. Well, what it shows is, from the number of stu
dents we had in fourth grade, the next year the number
of students we had in fifth grade is quite a bit lower, and
in some instances we gain a few students the following
year in sixth grade, in some instances we do not. We
maintain the loss.
MR. DAY: That's all I have. You may cross-
examine.
MR. CHACHKIN: We have no questions, Your
Honor.
THE COURT: No questions of this witness? You
may step down.
(Witness excused)
THE COURT: Call your next witness.
359
MR. DAY: Mr. Vernon Moore.
Vern Moore, (a black male) being first duly sworn to
tell the truth, the whole truth, and nothing but the truth,
testified as follow:
DIRECT EXAMINATION
VERN MOORE
BY MR. DAY:
[p. 542] A. Yes. I'm on the Superintendent's Cabi
net.
Q. How many people are under your supervision
and control?
A. I have 26 people that I supervise.
Q. And are you also ultimately responsible for all
personnel in the school district?
A. Yes.
Q. Including principals, teachers, custodians?
A. Yes. The employment and maintaining of the
training opportunities for all employees in the district.
Q. And do you also participate in the interviewing
and hiring of employees?
A. Yes. Our board policy requires my direct
involvement at certain levels of employment. On the level
of administration, I am involved.
Q. In your opinion, at this point in time is the
\administration integrated?
360
Q. Are there other black people besides yourself
that hold upper echelon administrative positions in the
district?
A. Yes.
Q. Would you give us their names and position,
please?
A. Well, as I indicated, on the Superintendent's^
Cabinet there are three other individuals that also partici
pate on the cabinet, and that is the Director of Middles
Schools, Gloria [p. 543] Griffin, Director of Elementary
Schools, Sylvia Lyon, and Doctor Betty Mason, who is the
Assistant Superintendent for Instruction and Related Ser
vices that supervise those directors that I identified.
Q. What did you do in the district before 1984?
A. I was director of middle schools and fifth-year
centers.
Q. And when did you first take that position?
A. I took that position in July of 1978.
Q. So as of July of '78, you would have been work
ing out of the central office in the administration?
A. That's correct.
Q. Since that point in time, Mr. Moore, July of '78,
has the administrative staff of the Oklahoma City Public
Schools been integrated?
A. Yes, they have.
* * *
A. Yes, it is.
361
tp. 548] So the main aspect of the plan was to deal
with the transfer of over some 500 teachers and give them
some opportunity to identify places that they would like
to be assigned to other teaching assignments. We felt that
if we allowed them the opportunity to identify areas that
they would like to be assigned to, that we would be able
to hold on to what we considered to be some very good
teachers in the district, and I think we were successful in
accomplishing that.
Q. What does the agreement say with respect to
where a teacher will be assigned or how that will be
determined?
A. Well, what we - we developed what we call a
profile sheet, and all the persons that had been identified
for transfer were provided an opportunity to fill out the
profile sheet, and on the profile sheet they could give us
their preferences on where they would like to be assigned
based upon the vacancies we had.
Q. What determined which teacher got to go
where?
A. Well, what we first identified was first by prefer
ence and then by the length of time that the person had
been in the district. We refer to that as unbroken service
in the [p. 549] district.
Q. Is that also referred to as seniority?
A. Yes, sir, it is. That's correct.
Q. So, under this agreement, a teacher that had
been in the school district longer had a priority choice
over where he or she wished to be assigned that follow
ing year; is that right?
362
Q. And if that position was available, it had to be
honored under the agreement?
A. That's correct.
Q. Mr. Moore, after all the dust settled and all the
teacher assignments had been made pursuant to this
agreement, what - what did we end up with in the
Oklahoma City District with respect to faculty assign
ments in the school year 85/86?
A. Well, what we ended up with were people
assigned to buildings that they wanted to be assigned to.
More so than any - any other factor, that really was the
thing that we had. Everyone that - we had over 75
percent of the persons transferred received their first
choice. So that was a very good indication to us that
people were assigned into a position that they wanted to
- that they had chosen.
Q. What was the picture this past year?
A. As it relates to the assignments, that really didn't
change that much.
* * *
[p. 552] A. The information that I compiled here is
for the school year for 86/87 and then projecting it -
Q. Okay.
A. - for 87/88.
Q. All right. So you have it for the past year and
projected into next year?
A. That's correct.
363
What we have in the schools that have been identi
fied with 90 percent or more black students, in 86/87 we
have all - the schools have six white administrators and
four black administrators, and the composition next year,
in 87/88, it will be seven white administrators and three
black administrators.
Q. And what is the situation at the elementary
schools that have a less-than-ten-percent black student
population?
A. The composition for 86/87 was - it appears to be
ten white administrators, one black, and two Indian.
And for 87/88, that composition changes to four
black administrators, seven white administrators, and
one Indian administrator.
Q. Mr. Moore, has the Board of -
Excuse me. Do you need a drink of water?
A. Yes, please.
MR. BARBER: Here you are.
THE WITNESS: Thank you, Mr. Barber.
A. The percentage that we're looking at are as a
result of some of the changes. In 86/87 school year we
had 28.1 overall black administrators. In 1987/88 it would
have been an overall percentage of 29.2 black administra
tors. And this is all on the elementary level.
Q. Do I understand correctly, sir, that, although the
faculties at the elementary schools are not all perfectly
A. Yes. That's correct.
364
racially balanced, that they do remain integrated and
racially mixed?
A. That's correct.
Q. Has the Board of Education taken any recent
action to address the question of racial balance amongst
the faculty at the elementary schools.
A. Yes.
Q. Would you tell us about that?
A. In the meeting, I believe, on April 22nd, it was
indicated that there would be some very strong building-
level goals that building administrators will be held
accountable for as it relates to maintaining the racial
balance in the school and meeting the affirmative action
goals.
* * *
[p. 555] Q. (BY MR. DAY) Would you identify that
document, please.
A. Yes. This is a tentative agreement of a memoran
dum of understanding that was entered into by the Board
and the OCFT, who is the teacher's union for the Okla
homa City Schools, dated March - excuse me - April 21st,
1987.
Q. In that agreement, what was the primary consid
eration that determined where a teacher from a closed
school would be transferred?
A. The indication here, and this prim arily
addressed only transfers as opposed to '81 and '85. The
idea here is to transfer teachers to meet the affirmative
365
action goals of the Board. We wanted to give consider
ation to a person's experience and time in the district,
and we did that as long as the transfer did not impact the
affirmative action goals of the district in a negative way.
Q. Did the Board do anything else to address the
issue of teacher assignment for the coming year, aside
from this agreement?
Maybe not only the Board, but you, as the Executive
Director of Personnel, were you -
A. I think one of the things that happened as far as
the Board, through the Superintendent's direction, that
we'll all be going as a result of this language, is to make
sure that the concern that - how people were assigned in
'85 did not occur again. And so I think as far as influence
that was indicated [p. 556] through our Board is the fact
that, you know, through personnel and all other building
administrators, that persons would be assigned based
upon affirmative action.
Q. Since this memorandum of understanding was
entered into this past spring, and based upon what
you've been able to do as Executive Director of Person
nel, have you prepared projections for what the composi
tion of the faculty will be at the schools next year?
A. Yes. We have some actual assignment data that
we're proceeding with, as well as development of some
simulations that we think we can accomplish.
Q. We have listed as Exhibit 199 the original pro
jected assignments, I think, that we had that you pre
pared probably a month or so ago.
A. Yes.
366
Q. And between that time and now, I take it there
have been additional changes.
A. Yes, we have had some changes.
Q. We will take the appropriate action to substitute
that exhibit and provide -
Do you have a copy?
Do you have a copy, Mr. Moore?
MR. CHACHKIN: I'll give this back to you.
THE WITNESS: It's in my notebook.
Q. (BY MR. DAY) Mr. Moore, is Defendant's
Exhibit 199, which [p. 557] we've just had marked and
handed to you, a true and correct copy of your updated
projections for faculty assignments next year?
A. Yes, it is.
Q. And, without going into a lot of detail, can you
just explain to the court, in general terms, where you
anticipate that we will be next year on faculty assign
ments?
availability of applicants and availability of existing staff,
teachers that are on non-continuing contract status for us,
what we are projecting is that we'll be in compliance in
almost all of the elementary schools by August of '87.
Q. And what is compliance?
A. Compliance in making reference to the Board
Policy on Affirmative Action, which could be 36.9 with a
ten-percent variance either way. J
Q. So it would be 36-point -
A. - point-9.
Q. - point-9 plus or minus ten percent?
A. That's correct. Some schools could be at 26.9, and
others could be at -
THE COURT: What are you talking about,
white teachers?
THE WITNESS: No, sir. Making reference -
well, it depends on how the school's identified. It could
[p. 558] be white teachers, if you're talking about those
schools in the -
THE COURT: Well, is this the ratio throughout
the school system?
THE WITNESS: The ratio throughout the school
system?
THE COURT: Yes, sir.
THE WITNESS: Yes, sir. But I'm making refer
ence to the black teacher composition.
Q. (BY MR. DAY). The affirmative action goal; is
that correct?
A. Yes, that's correct.
Q. Well, but that's at all schools, all elementary
schools, is that right?
A, All schools. That's what I'm saying.
Q. All of these K-4's.
367
368
Q. They'll be between plus or minus ten percent of
36.9 percent blacks; is that right, sir?
A. That's correct.
Q. And, in your professional opinion, do you think
that goal will be reached by next fall?
A. Yes.
Q. Do you think there'll be any schools out of com
pliance?
A. Based upon what we're looking at, we think that
we can accomplish that. If the -
[p. 559] Q. Have you already made these assign
ments, Mr. Moore, a lot of them?
A. Yes. We have made several assignments that
have brought us - from the time the simulation was
developed to the point where we are now.
Q. Was the closing of these seven schools an advan
tage to you in terms of redistributing the teachers in the
district?
A. It was to a great extent, because that provided us
a number of black teachers to assign to those schools that
were out of compliance.
A. Yes.
* * *
369
[p. 566] REDIRECT EXAMINATION
BY MR. DAY:
Q. Mr. Moore, in your opinion, has the Oklahoma
City Board of Education discriminated against any minor
ity teachers in the Oklahoma City District as a result of
the implementation of the K-4 neighborhood school plan?
A. Absolutely not.
* * *
[p. 570] THE COURT: Mr. Moore, the court
would like to inquire of you, from your experience, your
knowledge, your education, do you have an opinion as to
whether or not the Oklahoma City School District is now
and has at all times since the Finger Plan operated as a
unitary school system?
THE WITNESS: Yes, sir, we have.
THE COURT: What is that opinion?
THE WITNESS: Well, given the fact that we've
set up the kinds of programs that are equal to everyone,
all students, as it relates to the extracurricular activities,
the language that we've put together any time we've had
any kind of mass movement to really address the needs
of all students, and they were never separated or set
aside for any reason, for any indications of race.
THE COURT: Does this opinion include the K-4
program or plan that you have established for the past
two years?
THE WITNESS: Yes, it does.
370
THE COURT: Do you have an opinion as to
whether or not the dual - the unitary school system
could, even if the school board wanted to, revert to a dual
school system?
THE WITNESS: No, sir, I do not believe it
could, primarily because of the persons and the people
that are involved in the operation of that school district.
THE COURT:
of this witness?
Very well. Any further question
* * *
BETTY MASON
[p. 576] Q. Doctor Mason, in your professional
opinion, being familiar with the plan and having been
responsible for its implementation, do you believe that
the plan discriminates against minority pupils?
A. I certainly do not.
Q. In your opinion, does the board's plan in any
way discriminate against minority teachers?
A. No, it does not.
Q. Or minority parents?
A. No, sir.
Q. In your opinion, was the plan implemented in a
non~discriminatory fashion?
A. It most certainly was.
Q. Did you insure that?
A. With everything that I possibly could. Yes, sir.
* **
371
[p. 578] We require systematically that they forward
that information to our offices at the end of those times.
This information was compiled from that data.
Q. Have you doublechecked this exhibit to make
sure that the data is correct?
A. Yes, I have.
* * *
[p. 582] In 1983/84, the membership went to 2,000.
Right at 2,000.
84/85, our membership was more like 1500.
85/86, we went up to about 2500.
And 86/87, we went beyond 3,000. I believe this
graph will support the data on the previous exhibit.
Q. Where was the data obtained for the years 1981
through 83/84? Do you know?
A. This information came from the State PTA.
Q. And is that the same information that's attached
to the original exhibit 140?
A. Yes, it is.
Q. Okay. Would you identify exhibit 139.
A. This exhibit speaks to the number of organiza
tions in the PTA in our district.
It shows here that in 1980/81, we had about 45 PTA
units throughout the district.
In '81/82, we had about the same.
372
In 82/83, our PTA organizations dropped to about 30.
In 83/84, they dropped again to about 20.
In 84/85, we had approximately 15 units.
And then 85/86, we increased to approximately 30.
In 86/87 we went up to about 45, 46 units.
* * *
[p. 584] Q. And is it your opinion that the neighbor
hood schools are also responsible for the increased open-
house attendance and parent-teacher day conference
attendance?
A. I most certainly believe that. Again, many par
ents can walk to their school and do not have to have a
second car, if you will, to get to a parent conference.
Q. In your opinion, if the neighborhood school plan
is allowed to continue, will we see more of an increase in
parental involvement?
A. Based on the visits that I have in my office and
the conversations I've had with many community people,
it is my opinion, my very strong opinion that we will see
many more - many, many more parents giving volunteer
service to schools and also aligning themselves with PTA
organizations.
Q. Have you noticed any difference in the level of
community involvement in the public schools since the
neighborhood plan was implemented?
A, Yes, I certainly have, and, if I may speak -
Well, in all of our communities I have noticed an
increase in community participation. Wee have the
373
YMCA's, the YWCA's coming to visit us, asking our
support in their beginning after-school programs that
they thought were somewhat prohibitive before because
children were were not necessarily in the neighborhoods.
[p. 585] We have social groups - social workers com
ing to us wanting to get into the schools and do special
kinds of things with the youngsters whom they consider
to be in need of certain kinds of counseling services.
We have the prime time program which has availed
itself to use to have after-school care for children.
It appears that many organizations recognize that
youngsters are close at home, will be turned out of school
as early as 3 o'clock in the afternoon, need something to
do with their time, and they are coming up with all kinds
of ideas to respond to that need.
Q. Are you familiar with the adopt-a-school pro
gram?
A. Yes.
Q. Would you explain that for the court?
A. The adopt-a-school program is a cooperative
effort between our - the Oklahoma City school district
and the chamber of commerce wherein many businesses
are encouraged to give support to the local school dis
trict. They do that through different kinds of services.
Q. And, since the neighborhood plan was imple
mented, has there been an increase in community partici
pation in the adopt-a-school program?
A. Yes, there has.
374
Q. In your opinion, is the neighborhood school plan
in any way responsible for any part of that increase?
[p. 586] A. In my opinion, the neighborhood school
plan gave a new focus, a new excitement, and a new
direction to the community in relation to education, and
it has caused as - just as it has caused parents and other
agencies to get involved in our school, it has most cer
tainly caused many businesses to become involved in
various ways. There seems to be a new excitement about
the Oklahoma City schools.
Q. I take it then you feel the plan is educationally
sound?
A. I very definitely feel the plan is educationally
sound. I think that the early years of a child's life are so
important that we need to provide the absolutely best
opportunity for our youngsters that we can.
Q. Do you believe that this neighborhood plan in
any way discriminates against black students or parents?
A. No, I do not believe that.
Q. Do you believe that it discriminates against black
teachers?
A. No, I do not.
* * *
RECORD, VOLUME V
375
BETTY MASON
[p. 609] Q. You would agree, wouldn't you, that it's
possible to implement an adopt-a-school program in a
desegregated school to which students are transported?
A. Yes, I would agree to that.
Q. And I take it you would also agree that majority-
to-minority transfers don't do anything or haven't done
anything to desegregate the schools which are located in
the northeast section of Oklahoma City?
A. I would agree to that.
MR. SHAW: One moment, please.
That's all, Doctor Mason. Thank you very much.
REDIRECT EXAMINATION
BY MR. DAY:
Q. Doctor Mason, Mr. Shaw, in cross-examination,
was talking with you about the decline in PTA member
ship in the district over time, and you said that you had
an opinion as to what you believe was the reason for the
decline of parental involvement in the predominantly
white schools while the Finger Plan was in operation.
Would you tell us what your opinion is in that
regard?
A. Recognizing that for some years now there has
been a negative perception of what goes on in our
schools, in spite of all the efforts that our district has
376
made, we suffered the [p. 610] problem of getting parents
into our buildings because of that negative perception,
and that crossed all color lines. This was not a situation
that was peculiar to one race. And I believe that that had
a direct effect on the lack of parent participation in P-T
organizations all over this city.
Q. I'd like to direct your attention once again to
defendant's exhibit 139, the graph that Mr. Shaw was
discussing with you.
A. Okay, just a minute here.
That's right, it's not in this one. I'll have to change.
I have it.
Q. Do you have exhibit 139?
A. Yes.
Q. Mr. Shaw was questioning you about the decline
in parental involvement shown on this graph starting at
the 80/81 school year and continuing down until the
84/85 year.
Do you know if this decline that is noted in the 80/81
year also extends back to the 1970's?
A. Again, I have to give 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, and they
support the fact that early -
MR. SHAW: Pardon me. Your Honor, this is
hearsay, and I'd like to object.
THE COURT: Overruled.
377
[p. 611] THE WITNESS: Em sorry.
THE COURT: I think this is important evidence
for both sides.
A. - that is prior to those years there was a tremen
dous amount of parent participation in P-T organizations,
and my position only is that what you see here represents
only from 1980, and if you were to look back further, you
would find that those figures are declining figures.
Q. (BY MR. DAY) Okay. Let me direct your attention
to exhibit 140, page 2. That is the letter from the president
of the Oklahoma State PTA Organization -
A. Yes.
Q. - That you referred to when - while Mr. Shaw
was cross-examining you.
A. Yes.
Q. Does that letter show what the PTA membership
in the Oklahoma City Public Schools was as of 1969?
A. Yes, it sure does.
Q. And what was the number of units, PTA units in
this school district as of 1969?
A. This letter indicates that there were 95 PTA units
in our district in 1969.
Q. And what was the total membership in the PTA
units?
A. 26,528.
* * *
378
[p. 619] The related services address all of the ele
ments that go towards causing those things to happen
smoothly within the school district, such as state reports,
discipline reports, safety reports, activities of students,
attendance records of students, guidance and counseling.
Those are the related services that affect schools.
THE COURT: Big job.
Does this entail the entire school system from north
to southeast to west?
THE WITNESS: Yes, it does. It entails the entire
school district preschool through twelfth grade?
THE COURT: Are you familiar with the order
this court made in January, 1977, that the Oklahoma City
School system had become unitary?
THE WITNESS: I am familiar with that.
THE COURT: The court will - or do you have
an opinion as to whether or not, from your job and your
services, your experience and your knowledge, has oper
ated a unitary school system in Oklahoma City at all
times since January, '77?
MR. SHAW: Pardon me. Your Honor, again, like
my co-counsel, I'm hesitant to object to the court's ques
tion, but it calls for a legal opinion which this witness is
not qualified to render.
* * *
tp. 625] Now, exhibit 138 and exhibit 139 are simply
graphs that show what's in exhibit 140 and the pages
attached to it from the state organization. We believe it's
379
reliable, accurate, and extremely relevant to these pro
ceedings.
MR. SHAW: Your Honor, if I may respond.
THE COURT: Yes.
MR. SHAW: With respect to exhibit 140,
although there are open-house figures that the district
provided, then the district can substitute another exhibit
which contains those figures.
With respect to the State PTA Organization, that is a
private entity. The question is not whether they have
reasons to inflate or deflate their figures, the question is
whether we can know for sure that the figures are accu
rate, the witness has testified she did not know, and an
adequate base has not been laid for the admission of that
exhibit, which, therefore, makes the charts also possibly
unreliable.
THE COURT: The court will take your objection
into consideration. They are in evidence, but you have
raised a question as to the authenticity of the exhibits,
and the court will consider your objections.
* * *
ALONZO OWENS, JR.
[p. 629] A. I didn't like it.
Q. Why didn't you like it?
A. Because I wanted my child in my neighborhood.
That's where I went.
My child was also asthmatic, and she, from occasions
- on occasions, had problems. The first time she had a
problem, I didn't know where Hawthorne was located,
380
and it was - it became a serious matter with us, but there
was nothing we could do about it.
Q. You felt that if she was at a neighborhood school
closer to home that you would have control over the
situation?
A. I knew we would have. Yes.
Q. After the neighborhood plan was adopted and -
What grade did your daughter attend, the first year
after the plan?
A. Fifth-year center.
Q. Fifth-year center?
A. Yes.
Q. That would have been at Page Woodson?
A. That's right.
Q. Which was close to home; right?
A. Yes.
Q. Okay. As a black parent from the northeast quad
rant, do you continue to support the neighborhood plan
today?
[p. 630] A. Yes.
Q. Have you noted any increases in parental
involvement, participation of parents at school activities
since this plan was implemented?
A. Yes.
Q. Can you give us a couple of examples of the type
of things you've seen?
381
A. I have a sister who lives in my neighborhood
who has grandchildren, and now that the children are in
neighborhood school, her participation has increased. She
attends meetings, and so does the child's mother. Prior to
that - prior to that, there was no way they could have,
work schedule and a whole bunch of other things. They
just didn't do it.
* * *
TOMMY B. WHITE
[p. 639] Q. Were there any other reasons that you
were in favor of the plan?
A. Well, I liked the idea that they were going to
have an equity committee that would assure - act as an
oversight committee and would assure us that - of equal
ity and equity within the education of our children and
within the school itself and the environment in which our
kids found themselves.
Q. At that point in time, did you have a view or an
opinion with regard to busing young children grades one
through four?
A. I did, and that's one of the reasons that - that I
was very strongly in favor of this plan, because I prefer
red my kids not to be bussed.
Q. When this plan was being proposed by the
board, did you view it as being discriminatory against
blacks?
A. No, sir, I did not.
Q. And, Doctor White, during the period of time
when the board of education was considering the plan
and holding the town meetings, discussing the plan with
382
patrons in the community, did you formulate an organi
zation of parents?
A. I did formulate a group of not only parents but
ministers and educators, doctors, and those who were
interested in the welfare of our children.
Q. And what was the name of that organization?
[p. 640] A. It was Coalition of Equity - of Excellence
and Equity -
Let me - may I refer to my notes, please?
Q. Oh, certainly.
A. Coalition for Equity and Excellence in Education.
The acronym was CEEE.
Q. That would be C-E-E?
A. C-E-E-E.
Q. What was the primary purpose of that organiza
tion?
A. The purpose of the organization was to promote,
as its name implied, equity and excellence in education in
the schools within the northeast quadrant, and -
Q. Did that organization -
Well, let me ask you this: were you the chair of that
organization?
A. I was what was know as the convenor.
Q. The convenor?
A. Yes, sir.
383
Q. Could you tell the court the opinion of the Coali
tion for Equity and Excellence in Education of the neigh
borhood plan?
A. They fully endorsed it, fully endorsed the pro
posed plan, at that time proposed plan.
Q. Did the Coalition of Excellence and Equity in
Education conduct or undertake a survey in the northeast
quadrant concerning patron and parental views on this
neighborhood plan?
[p. 641] A. Exactly. We did that.
Q. Could you give us the approximate point in time
when that survey was conducted?
A. If I can refer to my notes.
Q. Certainly.
A. Approximate time was around December - the
months of December and January of 19- - December, '84,
and January, '85.
Q. Doctor White, when you testified before this
court in April of 1985, as I recall at that time a survey had
not been completed; is that -
A. That's correct.
Q. Was it ever completed?
A. There were other people that signed the petition.
But, to be complete, no, not in the terms that we wanted
it to be complete.
Q. How many people in the northeast quadrant
were actually interviewed, approximately?
384
A. Approximately? Close to 400,
Q. And have you analyzed their responses?
A. Yes, sir.
Q. What was the question on the petition that was
circulated?
A. The petition - may I read the petition?
Q. Certainly.
A. The petition was that - because we would inter
view the people individually, one on one, discuss the plan
as we [p. 642] understood it, let them read our fact sheets,
and then the petition read like this:
"We, the undersigned, being patrons, past patrons,
and friends of the Oklahoma City School District, do
hereby endorse and support the new student reassign
ment plan for grades K through four as long as our
children receive the quality of education we desire, and;
"Number one. Elementary schools re-establish in the
black community K through four;
"Two. District-wide desegregation to begin for all
students, grades five through twelve;
"Three. Quality teachers, both black and white, spe
cifically grades K through four.
"Our endorsement is based upon the fact that the
plan will reduce the inequitable busing burden on all
children, especially black children, in the northeast quad
rant, and maintain elementary schools within the north
east quadrant."
385
Q. Now, did you supervise how that petition was
circulated?
A. Yes, sir.
Q. Do you have the - all the signatures there on the
document?
A. Yes, sir. And then, I might add, that there were -
there were some more signatures to come, but one of the
petitioners is no longer with us, so it's difficult to get
that.
Q. Well, do I understand you correctly, Doctor
White, that [p. 643] 400 black patrons in the northeast
quadrant of the district signed the petition to support the
concept that's stated on its face?
A. Approximately 400 did and accepted the - the -
as I've stated on the face.
Q. At the time the CEEE Coalition was in operation,
did you have a view or an opinion as to whether or not a
neighborhood school plan, grades K through four, would
cause an increase in parental involvement in the schools?
A. Very much so. We felt that very much so. In fact,
that's what was lacking. I sent my school - my kids to a
neighborhood school, and the neighborhood school hap
pened to be a private school, and, basically, it was
because we could have involvement within the school,
because our kids, the way the plan was set up, would
have to attend a school in Roosevelt, which was a great
distance from our home and from our community.
* * *
386
[p. 650] Q. When we talk about busing in a pejora
tive sense, would it also be correct to assume that we are
talking about busing for desegregation purposes?
A. I'm not against -
Let me say something, if I may. I'm not against bus
ing at levels five and above. I'm against busing K through
four, period. Those are formative years, children are
young, and that's what I'd like to deal with, because
that's what our [p. 651] coalition dealt with.
* * *
[p. 678] REDIRECT EXAMINATION
BY MR. DAY:
Q. Doctor White, Mr. Shaw examined you about the
existence of some predominantly black schools in the
northeast quadrant.
Is it your understanding under the neighborhood
plan that where a child goes to school in Oklahoma City
is based on where that child lives?
A. Yes, sir.
Q. As of this time, are you aware of the extent that
black people have elected to live in other parts of the
Oklahoma City District aside from the northeast quad
rant?
A. I'm acutely aware.
Q. In your opinion, sir, are there any governmental
barriers today which compel blacks to live in the north
east quadrant?
387
A. None whatsoever.
Q. So those people are free to move and go to
school where they want; isn't that true?
A. Exactly.
Q. And the CEEE Organization, at the time they
supported this plan, was aware of the majority-to-minor-
ity transfer option that the board was offering; isn't that
true?
A. I believe that to be true, sir.
[p. 679] Q. And did you understand under that
option that the parent of any child who is attending a
school where the child's race was in the majority had a
chance to transfer to a school where the child's race
would be in the minority?
A. We were very aware of that.
Q. And that the board of education would pay for
the transportation?
A. I'm aware of that.
Q. In light of these factors, doctor, in your profes
sional opinion does the board's K-4 neighborhood plan
discriminate against any black students in this district?
A. Not in my opinion, sir, at all.
Q. In your opinion, does it discriminate against any
black parents?
A. In my opinion, it does not.
Q. In your opinion does it discriminate in any way
against anybody?
388
A. Not in my opinion.
Q. Notwithstanding the question from Mr. Shaw
about the methods that you used in circulating this posi
tion - petition, is it your professional opinion that the
results stated in this petition is reliable?
A. Yes.
Q. Are reliable?
A. Yes, sir.
3 f * *
[p. 681] MR. DAY: Thank you, Your Honor.
Nothing further.
THE COURT: All right. Any further question of
this witness?
MR. SHAW: No, Your Honor.
THE COURT: Are you familiar with the - do
you have an opinion as to whether or not, under the
Finger Plan, the Oklahoma City School District became a
unitary school system? Do you have an opinion?
THE WITNESS: No, sir, I do not, sir.
THE COURT: All right.
MR. SHAW: Objection, Your Honor. That draws
a legal conclusion?
THE COURT: He has no opinion.
You may step down.
* * *
389
CAROLYN HUGHES
[p. 682] Carolyn Sue Hughes, (a white female) being
first duly sworn to tell the truth, the whole truth, and
nothing but the truth, testified as follows:
DIRECT EXAMINATION
BY MR. DAY:
Q. Doctor Hughes, would you state your full name
for the record?
A. Carolyn Sue Hughes.
Q. What is you occupation?
A. I'm Assistant Superintendent for curriculum and
program development at the Oklahoma City Public
Schools.
Q. When were you first employed by the Oklahoma
City School District?
A. In July of 1986.
Q. What is your education background?
A. I have a bachelor's degree from Miami Univer
sity in Ohio, a master's degree from Miami University in
Ohio, and a PHD from Kent State University, also in
Ohio.
Q. What are your duties and responsibilities in your
present position with the school district?
A. My responsibilities are basically to insure that
adequate attention is given to the planning and delivery
of curriculum.
* * *
3 9 0
[p. 685] The criteria I set was that I wanted to work in
an urban district, I wanted some responsibility for curric
ulum, and I wanted to be in a district where there were a
significant number of minority children.
The reason for that was perhaps a little selfish,
because I'm convinced that the quality of life that my
grandchildren will have will be heavily impacted by how
well we educate minority youngsters.
Q. Are you familiar with the effective schools con
cept?
A. Yes, I am.
Q. Before you came to the Oklahoma City District,
what did you know about effective schools?
A. Probably my first contacts with it go back to the
early 80's when, as part of the association for supervision
in curriculum development program, I had direct contact
with Ron Edmonds and Larry Payzant, both of whom are
researchers in the field, Edmond no longer among the
living but having made a major impact. I knew that from
his research we could do a far better job than many
schools are doing in the education of minority young
sters, the basis of that research being that there do exist
schools in which there is a high degree of achievement
for both majority and minority youngsters, for both afflu
ent and less affluent students. I knew that the correlates
of effective schools included instructional leadership on
the part of the Principal, the safe and orderly [p. 686]
learning environment, a strong instructional focus, high
expectations for all students, and measurement or the
391
ability to monitor students' achievement and report
those.
Q. After you arrived and started working in the
Oklahoma City District, did you find that they had an
effective schools program?
A. I was delighted at what I found.
Q. Tell us what you found.
A. The wheels had been - the wheels had been set
in motion to do a broad range of staff development for
teachers and administrators throughout the Oklahoma
City Public School District. That particular program that
had been adopted is one that focused on the very corre
lates of effective instruction that I mentioned earlier, and
means had already begun to train a district-level cadre
whose task it was to train the teachers in every - in every
building in being able to do a better job of instructing
students effectively.
Q. What aspects of an effective schools program are
most relevant to curriculum development?
A. Probably the ones that are most important are
instructional focus. That's probably at the top of the list.
Secondly, the monitoring or measurement of achieve
ment. And third, the establishment of high expectations.
Q. As assistant superintendent in the district over
curriculum and instruction, where is the Oklahoma City
School [p. 687] district headed in the future in this area?
A. Well, we have made some progress even this
year, I believe. One of the things that we have done in
392
clarifying our instructional focus has its strongest impact
on kindergarten through fifth grade.
What we've done there is to establish, for every
single grade level, a set of grade-level essential skills, and
we have directed and helped to train teachers across the
district in making certain that every student in the partic
ular grade level is given direct instruction in the skills of
that grade level.
That has not been, across the country, generally true,
but we find, as we look at the research and as we see
what people in other major school districts are doing that
works, that if we clarify what the expectations are, what
the skills are that students are to learn, we make sure
parents and students and teachers and administrators all
understand those, we're much more likely to make prog
ress.
We're in the process this summer of fine tuning our
monitoring system so that we'll be able to report to
teachers, students, parents, each student's progress
toward these.
Q. Does the research show that an effective schools
program can enhance or improve academic achievement?
A. Absolutely.
Q. Tell us a little bit about that.
A. Well, one of the significant research studies, I
believe, [p. 688] this year, has been - that has been
reported this year was conducted in the state of Washing
ton, and there, when effective school procedures were put
in place, there were extremely significant gains on the
393
part of students in their achievement, and those gains
were the strongest among poor and minority students.
In general across the country, we experienced dispro-
portionality in achievement based on socioeconomic and
racial differences. Where effective schools are being put
in place, those differences are being narrowed.
Q. Across the Oklahoma City School District, is
there a uniform curriculum provided at all grade levels?
A. Yes, there is.
* * *
[p. 691] In addition to that, this year, as part of our
effective schools thrust, we have done what's called the
disaggregation of test data.
Q. What does that allow you to accomplish?
A. Well, the disaggregation of test data is something
that's been strongly recommended by some of the urban
educators and curriculum leaders across the country. It's
a risky thing to do, I might say, because it recognizes that,
across the country, there's a disproportionality in
achievement by race and socioeconomic level and gender.
Q. So this allows you to concentrate on that gap?
A. This enables us to, one, identify and face up to
the gap, and then concentrate on reducing the gap.
Q. In your opinion, will the effective schools pro
gram that has been implemented in the Oklahoma City
District have the effect of closing the gap between black-
white achievement?
A. It's my opinion that that's true * * *
* * *
394
[p. 693] Q. If this court were to order the operation
of the Oklahoma City Public Schools in such a fashion as
to desegregate grades one through four in all schools,
could you oppose - I mean, I'm sorry - could you impose
a plan which would utilize effective schools techniques?
A. Yes.
[p. 695] THE WITNESS: Judgment from what I have
seen in this district since I have arrived, and what I've
learned about it, we do not have a dual system. Whether
or not the Finger -
THE COURT: I wasn't - I hadn't got to that.
THE WITNESS: I'm sorry. I thought that was
what you were asking me.
THE COURT: Well, I'd asked you if you're
familiar with it, the knowledge of it.
THE WITNESS: Yes, I am.
THE COURT: Do you have an opinion?
THE WITNESS: Yes, sir.
MR. SHAW: Pardon me, Your Honor, may I just
take a running objection to -
THE COURT: Yes.
MR. SHAW: - Any questions of this kind -
THE COURT: Yes.
MR. SHAW: - to fact witnesses?
THE COURT: You may.
395
THE COURT: What is that opinion with refer
ence to whether or not it resulted in a continued dual
school system or unitary system?
THE WITNESS: It is my opinion that we do not
have a dual system.
* * *
[p. 697] Q. * * * The cost of the imposition of a
busing plan could affect the ability of the school district
to implement an effective schools program; is that cor
rect?
A. Yes, sir. Yes, sir.
Q. In fact, it would be true that any costs which
resulted in substantial outlays of funds could impact
upon the school district's ability to provide effective
schools programs, couldn't it?
A. Yes, sir.
* * *
ARTHUR WAYNE STELLER
[p. 702] Q. You mentioned effective schools. There's
been testimony in this case that there is an effective
schools program being implemented in the Oklahoma
City District.
Would you briefly describe that program for us and
tell us, in your opinion, where this school district is
headed in the future with that program?
A. Well, there are five basic correlates to the effec
tive schools program. It's based on, really, the premise
that all children can learn, regardless of any disadvantage
which they may bring to school.
396
The first premise - well, it depends on your prefer
ence on which you give first, but one of the correlates is
that a principal is the instructional leader at his school.
Another one is that there needs to be a positive
school climate in each school.
Another correlate is that there should be an instruc
tional focus in the school, concentration on academics.
Another one of the correlates is that you monitor
student achievement periodically through standardized
tests and other ways to make * * * sure that you know
exactly how the student's performing at all times.
And the fifth one is high expectations for students.
Q. Does the research show that an effective schools
program fp. 703] can increase academic performance?
A. Very much so. Ron Edmonds, a black scholar,
was considered to be the founder of the effective school
movement, and he's done extensive research on that. That
research has been replicated by others, like Larry Lazod
from Michigan, and various other researchers, which has
all demonstrated that effective schools can improve the
academic achievement of students, and it can also lower
the gap and close the gap between black students and
white students, or any other minorities or socioeconomic
levels, and also gender levels.
Q. How long had the effective schools program
been in operation in the Oklahoma City District?
A. Well, we started some things actually last year.
But, in terms of meaning - when I say last year, 1985/86.
But in terms of really being a full-fledged program that
397
was up and running, it would be in this past school year,
the 86/87 school year.
Q. And have you received any results that would
indicate how the program is working?
A. Well, if we simply look at our test scores, we can
correlate our test scores to the number of staff members
in the various schools who took advantage of the pro
gram and completed the instructional effectiveness train
ing program. There is a definite correlation between the
number of staff that completed the program and the test
scores in those schools.
* * *
[p. 705] Q. Doctor Steller, are you familiar with any
of the busing distances involved in Oklahoma City under
the old Finger Plan, let's say, from the schools - let's start
with schools that are 90 percent or more black - and the
schools they were paired or clustered with?
[A], I really don't have the information on exactly
the time and distance factors in the old Finger Plan. I
have a general notion. And, looking at a map, I know
approximately what the distance would be, but I can't
give you the exact numbers.
Q. Can you give the court some examples of those
distances?
A. Well, I could in terms of a - I made a few
examples of what they would be if we looked, not neces
sarily under the Finger Plan, but we looked - if we
looked at the schools right now that are 90 percent or
more black to schools that are less than ten percent black,
and some of the examples would be - these are not exact,
398
because they are not routing distances. They're simply
mileage. And the routing distances of a school bus to go
from one place to another is always going to be higher
than the distances I will give here.
Q. Well, how did you compute the distances that
you're going to give?
A. Mileage in terms of the most direct route by a
car, by an automobile, for one staff member to go to
another school. But that - a school bus obviously is going
to take a different route.
* >4- *
[p. 716] Q. Do you have an opinion as to whether or
not the board's 1985 K-4 Neighborhood Plan has had the
effect of increasing community involvement in the
schools in Oklahoma City?
A. Yes, I do.
Q. What is that opinion?
A. That from every indication that you want to look at,
there's much more community involvement in the schools
than there had been before, and that the sport is out there in
terms of the community for the school system.
* * *
[p. 727] A. Okay, the schools that are predominantly
black, and that's the very bottom of that column, and that
cost is $1,562 per student. So the cost of the schools that
are 90 percent or more black is $10 - averages $10 per
student more than the cost of the schools where there are
ten percent or less black students.
* * *
399
Q. In your opinion, are the funds allocated per stu
dent at the various schools throughout the district in any
way discriminatory against minority people?
A. Not at all.
* * *
[p. 736] Q. * * * Do you have an opinion, based
upon your educational background and your experience,
as to whether or not parental involvement is essential to
positive academic achievement?
A. Very much so. We talked earlier about commu
nity support for bond issues and financial, but the same
thing is true in terms of academic achievement in terms
of students, in my opinion.
Q. Do you have an opinion as to whether or not the
increase in parental involvement that has been experi
enced in this district over the past two years is related to
the K-4 Neighborhood Plan?
A. Well, definitely. I think the district had made
attempts [p. 737] and had tried to continue to promote
and retain parental involvement through the number of
PTA organizations, through membership, through a vari
ety of other things, and yet it had steadily declined.
With the return of the neighborhood schools, people
were much more willing to participate in PTA meetings,
they were much more willing to come to parent confer
ences, open houses, and other things such as that.
Q. In your opinion, if the Neighborhood Plan is
allowed to continue in operation, will we see additional
increases in parental involvement?
400
A. Definitely. And I think it's one thing that when
you look at the various numbers, you know, part of the
problem that the state PTA has had is to keep up with our
growth, because we're growing so quickly. The number
used in exhibit 140 says that we have 42 PTA's. Well, the
exhibit was done earlier this spring, and we now have
over 50. So it's continuing to grow at that kind of a rate.
The memberships also continue to increase, and I
would predict that within a year, by this time next year,
that all the schools would have a PTA, and that member
ship in every school would be increased, as well.
Q. Speaking or exhibit 140, is that the one where the
state department or the state PTA data is attached?
A. Yes, that's correct.
* * *
[p. 742] MR. CHACHKIN: I'm not going to ask
the witness anything further, Your Honor, but, again, I
would respectfully move that the exhibit should be
stricken. It is hearsay, and there's no adequate foundation
for it.
THE COURT: I think his explanation is sound
enough to justify its admission.
* * *
[p. 744] Q. And so it is - the exhibit does not repre
sent a comparison of the performance of the same group
of students from one year to the next.
A. That - that is correct. We could do that, and I
think you would find, really, the same - the same reduc
tion of gap.
401
Q. Well, you couldn't do it for the metropolitan
achievement test, because it hadn't been given in the
second grade up until this point.
A. No, we could go third-grade/fourth-grade, how
ever.
Q. I'm sorry, my understanding was that it was only
administered in the third, seventh and tenth?
A. In 1985/86, it was administered in three, seven,
and ten, but in 1986/87, we could compare the same third
graders with the same fourth graders.
Q. But that's not what this exhibit does.
A. No, it does not.
Q. It doesn't really show the change in gap of per
formance, if you want to put it that way, looking at the
same group of students.
A. It does not compare the same group of students.
It compares the same grade level, and that's an accepted
technique.
* * *
KAREN FRANCIS LEVERIDGE
[p. 775] Q. What is your opinion?
A. I think it's, without a doubt, probably - probably
one of the major reasons for that increase and for that
stability coming back.
Q. Have you personally observed this increase
yourself -
A. Yes, I have.
402
Q. - Throughout the community?
A. Yes.
Q. Can you share with us a few of the incidents that
you have observed?
A. Well, I have stayed very active in PTA, though
not an officer on the state level or any other level at this
time. I have moved on from that involvement. But I work
very closely with the state PTA organization through the
Oklahoma coalition for public education and other educa
tion organizations, as well as work with the legislature.
I also do have three grandchildren who will be in the
Oklahoma City School District next year and two this
past year and have kept very involved and very informed
of their activities and what's happening within their PTA
at Sequoyah School.
* * *
ODETTE M. SCOBEY
[p. 785] Odette M. Scobey, (A black female)
being first duly sworn to tell the truth, the whole truth,
and nothing but the truth, testified as follows:
DIRECT EXAMINATION
* * *
Q. Would you state your name for the record,
please.
A. My name is Odette M. Scobey.
Q. And where are you employed?
403
A. I'm employed presently at the Truman - well, in
between the Truman Elementary School and Dunbar Ele
mentary School.
Q. Are you employed by the Oklahoma City Public
School District?
A. Yes, I'm employed by the Oklahoma City Public
Schools.
* * *
[p. 788] Q. In your visits to other buildings and in
communication with other principals, do you feel that, in
any way, Truman was discriminated against or afforded
any different treatment than any of those other district
schools?
A. I cannot say that I have observed that to be true.
Q. Did you have adequate supplies at Truman?
A. Yes. We have been able to acquire adequate sup
plies.
I would like to explain that. The first two years that I
was there it was a fifth-year center, and with the
changeover to the neighborhood schools, we have differ
ent grade levels, different types of supplies and equip
ment. So we had to resupply the school for the K-4
building.
Q. But did you acquire those adequate supplies?
A. Yes. Yes.
Q. And was the district receptive to your request
for supplies?
404
A. Yes. As a matter of fact, we were encouraged to
be sure that everything was there that was needed upon
opening day.
Q. Are you afforded input into the supplies or text
books at your school?
A. Oh, yes.
* * *
tp. 790] Q. And your staff is mixed; is that right?
A. Yes, it is.
Q. Based on your observations, what was the reac
tion of parents to the neighborhood school plan?
A. Parents were excited about having a school
where they could enter almost any time during the day.
As a matter of fact, during the first few weeks of the
school year when we reimplemented the neighborhood
school, parents would come and want to just go into the
room and visit because they had never had this oppor
tunity before.
At dismissal time, there were so many parents stand
ing around the door that we couldn't get the doors open
to let the children out.
So that they were very excited about it. They - they
were just available and anxious to be a part of the school.
Q. Do a lot of parents walk up to the school?
A. Yes, they do.
Q. What are some other ways that parents have
gotten involved in the school?
405
A. I have parents who volunteer in the classrooms
or in any way that we need parents at school, which they
did not have this opportunity before.
[p. 791] Our neighborhood is compriesed [sic] of
many indigent families who don't have transportation, so
therefore they can walk to school.
They help directly in the classroom. They come up
and have lunch with their students. Those who work
outside the home can come for early conferences, 7:30 in
the morning, or make an effort to be there by 3:00 or 3:30
in the afternoon.
So there were many avenues opening up to parents to
be directly involved with their students and with their
schools.
Q. Ms. Scobey, has that level of parental involve
ment changed with the implementation of the neighbor
hood school plan?
A. I believe it has. During the time that we were a
fifth-year center, parents came as we needed them to
come. But now many times parents do volunteer to be
involved.
Q. In your opinion, do parents support the neigh
borhood school plan?
A. Yes. The only objection which I have heard is
that some of the students do have to walk longer dis
tances, and parents have a concern about that.
Q. Do you have parents that sometimes assist chil
dren walking to school or assist at crosswalks?
406
A. Yes. Upon opening of school the first year of the
neighborhood plans, students - I realized that the stu
dents had never had to cross a street before and had no
idea how to do so safely. So they would just bolt out of
the door across [p. 792] the traffic.
Parents who saw this - as a matter of fact, a grand
parent who saw this happening, volunteered to man the
crosswalks. We had two parents every day at 3 o'clock
who were there, until the health of one of them failed,
and she's no longer able to do this, and the father had to
gain other employment. But they volunteered to bring
order to dismissal, which helped us a great deal.
Q. Ms. Scobey, in your opinion, do the students
appreciate or enjoy having a neighborhood school?
A. The students are very proud, because many of
them are attending a school that their parents attended,
so they have a special sentimental attachment to this
particular school. And I can only speak for Truman. But,
yes, the students are very proud.
As a matter of fact, during our recognition of student
of the year, one of the students wrote that he was very
glad to be there because he had been involved in more
activities than he had ever had an opportunity to partici
pate in, and he was a fourth-year student.
Q. What kind of extracurricular activities do you
have at Truman?
A. We have Boy Scouts, which is not new. We also
had that during the time of the fifth-year center. But
we've also had Girl Scouts added.
407
[p. 793] We have a teacher who volunteers to do a
little thing we call the Truman Troopers, and they come in
before school, sing, do plays which they present to the
student body or at PTA meetings.
Students have had the opportunity to perform for
their parents during night meetings.
Parents have come up to have lunch with their stu
dents.
If we have special activities on the playgrounds, such
as our 89er day, which was named "Truman Hoedown,"
parents came up and were involved with the students in
kite flying and other outside activities.
Q. Were you able to have extracurricular activities
to this extent before the neighborhood plan?
A. Not at Truman. No, we did not.
Q. At any other Elementary School?
A. At the previous school, yes. At the Western Vil
lage School where I was principal seven years, we did
have a high level of parent involvement there.
Q. And was that a stand-alone school?
A. It was not a stand-alone school my first five
years, but the last two years it was a stand-alone school.
Q. If students were bussed, would they be able to
be involved in activities like the Truman Troopers?
A. They are limited, in that they must observe the
bus schedule.
408
[p. 794] I might add that we can also provide stu
dents extra time to do academic work. Many times stu
dents would leave their homework or be absent for a day
or two, and they can come in or stay late after school and
complete their work assignments.
Q. Have you noticed a change in discipline with the
implementation of the neighborhood school plan?
A. Yes. Our students, during the first year of the
neighborhood plan, felt that they had to fight, and I
cannot say exactly why they had to fight, but we had
more referrals for fighting during the first year than we
did the second year of the neighborhood plan.
Q. Has it been easier to discipline students with the
neighborhood plan in any respect?
A. It is easier in that parents are available to us. We
can see a parent when they bring the child to school or
when they pick a child up from school. We don't have to
suspend them for long periods of time for minor disci
pline problems, and that, in itself, makes it much better
for us.
Parents will arrange to come early in the morning, or
I can get in my car and take a child to the parent, if that
becomes necessary.
I have often visited parents in their homes after
working hours. They're just more available to us.
Q. Have you been able to use after-school detention
as a disciplinary measure?
[p. 795] A. Yes, we do. We keep students for about
20 minutes after school.
409
Q. Could you do that if these students were bussed?
A. No.
Q. Have you been trained in the district's effective
schools program?
A. Yes, I have.
Q. Have teachers in your building been trained?
A. Yes, the majority of them have.
Q. Do you set goals at your building?
A. Yes.
Q. What are some of those goals?
A. One of the goals which we set this year was to
increase parent involvement.
Another goal was to raise our achievement scores
closer to the 50th percentile.
And our immediate goal was to raise those scores by
six percent during the first year, six percent the second
year, and by the third year we hope to have our students
at the 50th percentile in reading and math.
Q. Have you achieved some of those goals?
A. We came within one percentage point, in a quick
review which we did at the building level, in the first
grade. The other two grades did not get that close. But
the first graders did get within one percentage point of
reaching our goal.
* * *
410
[p. 798] Q. In your opinion, does the school board
or the school administration discriminate in any way
against students at Truman School?
A. No, I don't believe so.
Q. Or the faculty?
A. No.
Q. Or the parents?
A. No.
* * *
LINDA JOYCE JOHNSON
Linda Joyce Johnson, (A black female)
being first duly sworn to tell the truth, the whole truth,
and nothing but the truth, testified as follows:
DIRECT EXAMINATION
BY MR. DAY:
Q. Ms. Johnson, state your full name for the record.
A. Linda Joyce Johnson.
[p. 802] Q. What is the affirmative action goal set
forth in that plan?
A. The goals set forth in this plan are twofold.
There are building goals, which are building staff goals,
and those goals are black other, for the black teaching
staff in each school building. The goal is that each build
ing has a black teaching percentage 36.9 with a ten per
cent variance plus or minus.
There are also goals, district-wide goals, and those
are for all races. I believe those goals are - they begin on
411
page 35 and they're by category, not just for black other,
they're for all races. We have a goal for Asian males, for
example, in the elementary teaching field.
So the district-wide goals are by category. Those cate
gories are defined from the EEO-5 report, which is 17
broad categories.
Q. In your opinion, as the affirmative action officer
for the district, does the Oklahoma City Board of educa
tion attempt to [p. 803] implement its affirmative action
plan in good faith?
A. Yes.
Q. Does the board of education have an affirmative
action and equal opportunity policy -
A. Yes, they do.
Q. - In addition to this plan?
A. That is correct.
* * *
[p. 809] Q. Have you recently made any recommen
dations to the board of education concerning its affirma
tive action policy?
A. Yes, sir, I have.
Q. Would you give us the background behind that,
please?
A. One of my goals this year was to recommend a
plan to balance the schools. So, in order to try to obtain
that goal, I prepared an affirmative action plan for bal
ancing the schools and worked with my supervisor in
devising that plan.
412
Q. Was this done in conjunction with the closing of
the seven schools and the reassignment of faculty for
those schools?
A. Yes, it was.
Q. Okay.
A. Okay. What the plan did was outline some steps
for - what the plan did, it outlined steps for principles,
personnel, and the affirmative action office to follow in
order for us to try to get more schools into compliance
with the current affirmative action goals.
Q. Is that exhibit 193, Ms. Johnson? Was that your
recommendation to the board this past April?
A. Yes, it is.
Q. How did the board respond to your recommen
dation?
A. This recommend was approved by the board.
Q. Is that shown in the official minutes of the board
meeting?
A. Yes, it is.
[p. 810] Q. Is that - are those minutes set forth as
exhibit 194?
A. Those are the minutes.
Q. There's been previous testimony from Mr. Vern
Moore, Executive Director of Personnel, that as a result of
the closing of the seven elementary schools this past year,
the primary consideration of faculty reassignment was
affirmative action.
413
Was that your understanding?
A. That is correct. That is my understanding.
Q. And was your recommendation to the board this
past spring consistent with that goal?
A. Yes, it was.
Q. You mentioned earlier in your testimony that if
an employee in the school district felt that they were
being discriminated against on the basis of race that they
could file an EEOC complaint; is that right?
A. That is correct.
Q. And in the position of affirmative action office,
do you know when such complaints are filed?
A. Yes, I would.
Q. Do you recall when the board implemented their
neighborhood school plan in 1985/86?
A. Yes, I do.
Q. The K-4 neighborhood school plan?
A. Yes, I do.
[p. 811] Q. That plan has now been in operation two
years.
As a result of the faculty assignments resulting from
the implementation of the board's 1985 student assign
ment plan calling for neighborhood schools, did any
teacher or faculty member file an EEOC complaint in
connection with their assignment claiming race discrimi
nation?
414
A. No, sir, they did not.
Q. Has any black teacher filed an EEOC complaint
because he or she was not allowed to teach in a black
school in the northeast quadrant?
A. Yes, sir, they have.
Q. Tell us about that.
A. We have one complaint pending from a black
non-continuing contract teacher who was not placed at
green pastures this past school year. This complaint was
filed with the EEOC and it is pending at this time. She
was not placed at green pastures because the black fac
ulty at that particular school was above the goal. That
was one of the reasons.
Q. Do you find it common that black personnel
wish to be stationed near their homes?
A. I can't answer that based on facts, because I
really don't get involved with all of the personnel hiring.
Q. Okay.
A. I have had occasion to hear about that, but I do
not know directly.
[p. 812] Q. In your opinion, as the board's affirma
tive action officer, did the school district, through the
implementation of the 1985 K-4 neighborhood plan, dis
criminate against black faculty members?
A. No, it did not.
Q. Since you have been employed by the Oklahoma
City School District, has the Board maintained an inte
grated faculty?
4 1 5
A. Yes, it has.
Q. Has the board maintained integrated staffs?
A. Yes, it has.
Q. Has the board maintained integrated administra
tive positions?
A. Yes, it has.
Q. And has the board maintained a group of inte
grated support employees?
A. Yes, it has.
Q. Throughout the school district?
A. That is correct.
Q. In your opinion, does the Board's affirmative
action plan and affirmative action policies discourage
race discrimination?
A. In my opinion, yes, it does.
* * *
[p. 814] THE WITNESS: It is my opinion that
the Oklahoma City Public School District is a Unitary
School District. The board is racially integrated, the staff,
the student body, and, as a parent, I also know that the
activities, the extracurricular activities are also inte
grated.
THE COURT: Has this integration that you tell
the court about been a part of the program of the school
board at all times since January, 1977, when the court
terminated its jurisdiction? Do you have an opinion as to
that period of time?
416
THE WITNESS: I do not have an opinion as to
that period of time.
Restate your question. I'm not sure I understand
what you're asking.
THE COURT: Well, after the court surrendered
its jurisdiction, to date, -
THE WITNESS: Uh-huh.
THE COURT: - Has the school board operated a
Unitary school system?
THE WITNESS: Yes, I do have that opinion that
it has operated as a unitary school system.
THE COURT: Now, does that include the K-4
plan also?
THE WITNESS: Yes.
THE COURT: Did the - in your opinion, does
the K-4 plan in any way disturb the Unitary school sys
tem that's been [p. 815] in operation?
THE WITNESS: Oh, no, sir.
THE COURT: Has there been any discrimina
tion that you've been able to find on the part of the
school board in the establishment of the K-4 plan?
THE WITNESS: No, sir.
THE COURT: Is it free of discrimination?
THE WITNESS: In my opinion, yes.
THE COURT: Do you have an opinion as to the
public acceptance of the Unitary school system as it's
now operating?
417
THE WITNESS: I have an opinion that it's been
accepted by many, and also there are some who have not
accepted it for various reasons.
THE COURT: Do you have an opinion, from
your knowledge and from your work and services you
have performed for the past several years, whether or not
the Unitary system would continue if the court, you
might say, abdicated further duties?
THE WITNESS: It is my opinion that the Okla
homa City Public School system would remain as a Uni
tary School System.
* *