Oklahoma City Public Schools Board of Education v. Dowell Brief Amici Curiae Lawyers' Committee for Civil Rights Under Law

    No. 89-1080

In the

Bupremp (Emxt of the Mmtzb States
October Term, 1990

The Board of Education of Oklahoma City Public Schools, 
Independent School District No . 89, Oklahoma County, 
Oklahoma, Petitioner,

Robert L. Dowell, et al.,
Respondents.

o n  w r it  o f  c e r t io r a r i to  t h e  u n it e d  states
COURT OF APPEALS FOR THE TENTH CIRCUIT

BRIEF FOR TH E LAWYERS’ COM M ITTEE 
FOR CIVIL RIGHTS UNDER LAW,

TH E AMERICAN CIVIL LIBERTIES UNION 
AND TH E AMERICAN JEW ISH CONGRESS AS 

A M IC I C U RIAE  IN SUPPORT OF RESPONDENTS

Robert F. Mullen, Co-Chairman 
Norman Redlich, Trustee 
Barbara R. Arnwine 
Paul Holtzman 
Lawyers’ Committee for 

Civil Rights Under Law 
1400 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 371-1212

July 25, 1990

Paul Vizcarrondo, Jr.*
Norman Redlich
Stephen R. Neuwirth
Wachtell, Lipton, Rosen & Katz
299 Park Avenue
New York, New York 10171
(212) 371-9200

Attorneys fo r  Amici Curiae

* Counsel o f  Record

(iContinued on inside front cover)



Other Amici:
John A. Powell 
Steven R. Shapiro 
American Civil Liberties 

Union Foundation 
132 W. 43rd Street 
New York, New York 10036 
(212) 944-9800

Marc D. Stern
American Jewish Congress 
15 East 84th Street 
New York, New York 10028 
(212) 879-4500



1

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES...........................................  v

CONSENT OF PARTIES................................................. 1

INTEREST OF A M ICI..................................................... 2

SUMMARY OF ARGUM ENT...............    3

ARGUMENT ...................................................................... 6

I. A SCHOOL DESEGREGATION DECREE 
CAN BE DISSOLVED ONLY WHEN THE 
OBJECTIVES TO WHICH IT WAS 
DIRECTED—THE ELIMINATION OF 
RACIAL DISCRIMINATION “ ROOT AND 
BRANCH” SO THAT A UNITARY 
SCHOOL SYSTEM IS ASSURED—HAVE 
BEEN FU LFILLED ..........................................  6

A. A School Desegregation Decree Is A Per­
manent Injunction And, As Such, Cannot 
Be Dissolved Until The Objectives To 
Which It Was Directed Have Been Ful­
filled ................................................................  6

1. School desegregation decrees are gov­
erned by traditional principles of equi­
table relief............................. ..................  6

2. An equitable injunction, including a
school desegregation decree, cannot be 
dissolved unless the objectives that 
made entry of the injunction necessary 
have been fulfilled.................................  8



11

B. The Objectives To Which A School Deseg­
regation Decree Is Directed Are The Elimi­
nation Of Racial Discrimination And Its 
Vestiges From The School System “ Root 
And Branch” So That A Unitary School 
System Is Assured ..................... ...................  12

1. A school system becomes “ unitary”
when the objectives to which a desegre­
gation decree is directed have been 
achieved........... ................................. 12

2. Mere compliance for a period of time 
with the particular terms of a desegre­
gation decree does not, of itself, make 
a school system unitary; rather, the 
conditions in and affecting the school 
system must be such that there is assur­
ance the school system will be unitary
in the absence of a court injunction .. 16

C. The Application Of Equitable Principles To
The Dissolution Or Modification Of Deseg­
regation Decrees Is Not Limited By Princi­
ples Of Federalism And The Value Of 
Local School Board Autonomy, But Instead 
Takes Those Factors Into Account ............  18

D. The Burden Is On The School Board To
Establish That The School System Has 
Become “Unitary” In The Sense Required 
By The Fourteenth Amendment, Thereby 
Justifying Dissolution Of The Injunction . .  20

PAGE



Ill

PAGE

II. BEFORE DISSOLVING A DESEGREGA­
TION DECREE, A DISTRICT COURT 
MUST MAKE A FACTUAL INQUIRY 
WHICH ESTABLISHES THAT THE VES­
TIGES OF THE DUAL SYSTEM HAVE 
BEEN ELIMINATED “ ROOT AND 
BRANCH,” AND THAT THE SEGREGA­
TIVE EFFECTS OF THE CONSTITU­
TIONAL VIOLATION WILL NOT 
REAPPEAR AFTER THE DECREE IS DIS­
SOLVED ..........................................................   22

Is the school system operating on a non- 
racial basis?............................................   23
In the absence of an injunction, is the 
school system likely to continue to operate 
on a non-racial b asis? ...............    24
Is it foreseeable that in the absence of an
injunction the school district may take 
actions, particularly with regard to pupil 
assignment, that would have a segregative 
effect?............................................................  25

III. BECAUSE THE DISTRICT COURT 
APPLIED AN ERRONEOUS CONSTITU­
TIONAL STANDARD IN DECLARING 
THE SCHOOL DISTRICT “ UNITARY”
AND DISSOLVING THE DESEGREGA­
TION DECREE, ITS DECISION WAS 
PROPERLY REVERSED AND THE JUDG­
MENT OF THE TENTH CIRCUIT SHOULD
BE AFFIRM ED..................................................  27
A. The District Court Never Properly Deter­

mined That The Desegregation Decree 
Could Be Dissolved.......................................  27



IV

PAGE

B. The Tenth Circuit Properly Reversed The 
Dissolution Of The Desegregation Decree 
By The District Court, And The Jurisdic­
tion Of The District Court In This Case
Should Be Retained......................... ............  29

CONCLUSION..................................................................  30



V

Cases PAGE

Alexander v. Holmes County Bd. o f Educ., 396 U.S.
19 (1969)......................................    2

Benjamin v. Malcolm, 564 F. Supp. 668 (S.D.N.Y.
1983).........    lln

Bd. o f  Educ. o f Topeka v. Brown, No. 89-1681 ........ 2

Board o f Education v. Harris, 444 U.S. 130 (1979)... 2

TABLE OF AU THO RITIES

Brown v. Board o f  Education, 347 U.S. 483 (1954). .passim 

Brown v. Board o f  Education, 349 U.S. 294 (1955). .passim

Columbus Bd. o f  Educ. v. Penick, 443 U.S. 449 
(1979)................................................................................passim

Cooper v. Aaron, 358 U.S. 1 (1958)...............................  19

Davis v. Bd. o f School Comm’rs o f Mobile County,
402 U.S. 33 (1971)......................................................... 21n

Dayton Bd. o f  Educ. v. Brinkman, 433 U.S. 406
(1977)............. .... ........................................................... 21n

Dayton Bd. o f  Educ. v. Brinkman, 443 U.S. 526
(1979)......................... ............................................14, 22, 25

Dowell v. Board o f Education, 338 F. Supp. 1256 
(W.D. Okla.), a ff’d, 465 F.2d 1012 (10th Cir.), cert, 
denied, 409 U.S. 1401 (1972).......................................  8, 16

Dowell v. Board o f Education, 606 F. Supp. 1548
(W.D. Okla. 1985), rev’d, 795 F.2d 1516 (10th Cir.), 
cert, denied, 479 U.S. 938 (1986), on remand, 677 F.
Supp. 1503 (W.D. Okla. 1987), vacated, 890 F.2d 
1483 (10th Cir. 1989)...................................................27, 28



VI

Freeman v. Pitts, No. 89-1290............... ....................... .. 2

Green v. County School Board, 391 U.S. 430 (1968) . .passim

Heath v. De Courcy, 888 F.2d 1105 (6th Cir. 1989).. l ln

Hodge v. Dep’t o f Housing & Urban Dev., 862 F.2d 
859 (11th Cir. 1989).....................................................  lln

Humble Oil & Refining Co. v. American Oil Co., 405 
F.2d 803 (8th Cir.), cert, denied, 395 U.S. 905 
(1969).......................................... ...................................Hn, 20

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

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

Louisiana v. United States, 380 U.S. 145 (1965).......... 16

Mayberry v. Maroney, 558 F.2d 1159 (3d Cir. 1977) . . .  lln

Milliken v. Bradley, 418 U.S. 717 (1974)..........7, 16, 18, 19

Milliken v. Bradley, 433 U.S. 267 ( 1 9 7 7 ) . . . . . . . ........passim

Missouri v. Jenkins, ____U.S. _____, 110 S. Ct. 1651
(1990).........................................................................2, 17, 19

New York State A ss’n fo r  Retarded Children, Inc. v.
Carey, 706 F.2d 956 (2d Cir.), cert, denied, 464 U.S.
915 (1983)..................... ................... . . . . . . . . . . . . . . l l n ,  20

Pasadena City Bd. o f Educ. v. Spangler, 427 U.S. 424 
(1976).............................................. .......... ....................passim

Pennsylvania v. Wheeling & Belmont Bridge Co., 59 
U.S. (18 How.) 421 (1856) .................... ......................

PAGE

12n



vii

Riddick v. School Board, 784 F.2d 521 (4th Cir. 1986), 
cert, denied, 479 U.S. 938 (1986)..............................18, 24

Ridley v. Phillips Petroleum Co., 427 F.2d 19 (10th 
Cir. 1970)........................................................................ l ln

Ruiz v. Lynaugh, 811 F.2d 856 (5th Cir. 1987)........l ln,  20

Spangler v. Pasadena City Bd. o f Educ., 611 F.2d 1239 
(9th Cir. 1979)................................................................  17n

Swann v. Charlotte-Mecklenburg Bd. o f Educ., 402 
U.S. 1 (1971)..................................................................passim

System Federation No. 91 Railway Employees’ Dep’t v. 
Wright, 364 U.S. 642 (1961)................................ . .10,  12n

United States v. City o f Chicago, 663 F.2d 1354 (7th 
Cir. 1981).................................................................   l ln

United States v. Lawrence County School Dist., 799 
F.2d 1031 (5th Cir. 1986), reh’g denied, 808 F.2d 
1063 (5th Cir. 1987)............................................   24

United States v. Montgomery County Bd. o f Educ.,
395 U.S. 225 (1969) ...........................    15

United States v. Swift & Co., 286 U.S. 106 (1932).. .passim

United States v. United Shoe Machinery Corp., 391 
U.S. 244 (1968)...........................................................  9, 10

Wright v. Council o f Emporia, 407 U.S. 451 
(1972).............................................................................21n, 25

PAGE

Rules
Fed. R. Civ. P. § 60(b) 9n



viii

PAGE

Other Authorities

7 Moore, Moore’s Federal Practice  ̂ 60.26[4].............. 9n

11C.  Wright & A. Miller, Federal Practice and Proce­
dure § 2863 (1973)............................... .......................... 9n

11C. Wright & A. Miller, Federal Practice and Proce­
dure § 2961 (1973)................... ......................................  10n



I n t h e

BnprEmT (Enurt nf tlie lilmteft States
October Term, 1990 

No. 89-1080

The Board of Education of Oklahoma City Public 
Schools, Independent School D istrict No . 89, 
Oklahoma County, Oklahoma,

Petitioner,

v.

Robert L. Dowell, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE TENTH CIRCUIT

BRIEF FOR THE LAW YERS’ COMMITTEE 
FOR CIVIL RIGHTS UNDER LAW,

TH E AMERICAN CIVIL LIBERTIES UNION 
AND THE AMERICAN JEW ISH CONGRESS AS 

A M IC I C U RIA E  IN SUPPORT OF RESPONDENTS

Consent of Parties

Petitioner and respondents have consented to the filing of 
this brief, and their letters of consent are being filed sepa­
rately herewith.



2

The Lawyers’ Committee for Civil Rights Under Law 
(“ Lawyers’ Committee” ) was established in 1963 at the 
request of President Kennedy to help assure civil rights to all 
Americans by affording legal services otherwise unavailable 
to minorities and the poor pursuing claims for equal treat­
ment under the law. The Lawyers’ Committee is a non-profit 
private corporation that has enlisted the services of thousands 
of members of the private bar in cases involving voting, edu­
cation (including school desegregation), employment, hous­
ing, municipal services, the administration of justice and law 
enforcement.

The Lawyers’ Committee has a long history of direct sup­
port of and participation in cases in the federal courts fur­
thering school desegregation. E.g., Board o f Education v. 
Harris, 444 U.S. 130 (1979); Pasadena City Bd. o f Educ. v. 
Spangler, 427 U.S. 424 (1976); Alexander v. Holmes County
Bd. o f Educ., 396 U.S. 19 (1969); Missouri v. Jenkins,------
U.S. ____ , 110 S. Ct. 1651 (1990).

The American Civil Liberties Union (ACLU) is a nation­
wide, nonprofit, nonpartisan organization with over 275,000 
members dedicated to the principles of liberty and equality 
embodied in the Constitution and our nation’s civil rights 
laws. In pursuit of those goals, the ACLU has been involved 
in numerous discrimination cases throughout its seventy-year 
history. Currently, the ACLU is representing respondents in 
two school desegregation cases that are pending before this 
Court on petitions for certiorari. Freeman v. Pitts, No. 89- 
1290; Bd. o f Educ. o f  Topeka v. Brown, No. 89-1681.

The American Jewish Congress is a national organization 
of American Jews founded in 1918 to protect the civil, reli­
gious and economic rights of Jews and all Americans. It has 
filed briefs in many of the Court’s school desegregation 
cases.

This Court’s decision will undoubtedly have significant 
implications in other school desegregation cases. Amici sub­
mit that their experience in school desegregation litigation 
enables them to provide a perspective different from the par­
ties and other amici on the issues before this Court.

INTEREST OF A M ICI



3

This case requires the Court, for the first time, to set forth 
the standards that district courts should apply in deciding 
whether to dissolve school desegregation decrees.

It has been more than thirty-five years since this Court in 
Brown I  stated unequivocally that the United States Constitu­
tion requires public school districts to dismantle dual race 
school systems. Over that time span, this Court and the other 
federal courts have confronted circumstances requiring the 
imposition of court-ordered remedies to assure compliance by 
school districts with their constitutional obligations. In articu­
lating the standards for determining the appropriateness and 
terms of such remedies, this Court has consistently applied 
traditional equitable principles.

An equitable remedy should only be granted to a plaintiff, 
and imposed on a defendant, if and to the extent necessary to 
give the plaintiff relief to which he or she is entitled. This 
Court after Brown II  thus provided de jure segregated school 
districts numerous opportunities and lengthy periods of time 
to act “ with all deliberate speed” to meet their obligations 
under the Fourteenth Amendment. Courts decreed the imple­
mentation of specific school desegregation plans only after 
school districts did not and would not implement effective 
steps to eliminate dual systems, making painfully clear that 
the constitutional rights of school children could not be vin­
dicated without injunctive relief. The case now before this 
Court followed precisely this oft-repeated pattern.

This Court has used the term “ unitary” to describe a 
school system in which the objectives to which a school 
desegregation decree is directed—the elimination of school 
segregation and its vestiges “ root and branch” so that there 
is assurance the school system will remain free from 
discrimination—have been fulfilled. As in any case involving 
equitable remedies, plaintiffs in school desegregation cases 
are entitled to enforcement of the court’s decree until and 
unless those objectives have been fulfilled. Thus, school 
boards that seek relief from the compulsion of injunctions 
bear the substantial burden—borne by any defendant who

SUMMARY OF ARGUM ENT



4

seeks dissolution of an injunction—of proving that the 
injunction is no longer necessary to assure the plaintiffs the 
relief that is their right.

This Court has not, to date, directly set forth the specific 
circumstances that would allow proper findings of “ unitari­
ness” justifying dissolution of the injunctions that finally 
forced school districts to comply with their constitutional 
obligations. Nevertheless, the factors to be applied can be 
readily derived if the constitutional objectives and equitable 
principles that have guided this Court’s previous examination 
of school desegregation remedies continue, as they must, to 
be applied. The application of equitable principles in deter­
mining the duration of school desegregation decrees is consis­
tent with concerns of federalism and local control of public 
education. This Court has always taken those concerns into 
account when defining the purposes and appropriate scope of 
school desegregation decrees, and they are not valid bases for 
now redefining the objectives to which the decrees were 
directed or otherwise departing from traditional equitable 
principles applicable to the modification or dissolution of 
decrees.

Because prevailing plaintiffs in school desegregation cases 
are entitled to an assurance of a unitary school system, mere 
compliance with the terms of a desegregation decree can 
hardly be dispositive of whether an injunction should be dis­
solved or remain in place. This Court has never used the term 
“ unitary” to describe such mere compliance. Rather, a 
school board seeking dissolution of a desegregation decree 
must demonstrate that the vestiges of a dual system have 
been eliminated and that the school district will operate an 
integrated, nondiscriminatory school system without the com­
pulsion of an injunction. Only then will the school board 
have fulfilled its constitutional obligation to effectuate a tran­
sition from a dual school system to a “ unitary” system.

Point II of this brief sets forth a series of factors that 
should be weighed in a factual inquiry by district courts to 
determine whether “ unitariness” has genuinely been 
achieved, thereby justifying dissolution of a desegregation



5

decree. Promulgation by this Court of such factors, as in 
prior desegregation cases, would guide the lower courts in the 
use of their equitable powers to achieve the mandates of 
Brown I. These factors are designed to test whether school 
authorities are currently operating the district on a completely 
non-racial basis, and whether structural reforms have been 
instituted to assure that the vestiges of a dual school system 
will not reappear if the decree is dissolved. In addition, these 
factors direct the district courts to determine whether, if the 
injunction is dissolved, the school authorities will institute 
changes that will have a predictably segregative effect; if such 
is the case, particularly with regard to pupil assignments, the 
district courts must be satisfied that the changes are necessary 
to achieve a compelling governmental interest that cannot be 
achieved by other means that have less, or no, segregative 
consequences.

As in any motion to dissolve an injunction, the burden of 
proof remains on the defendant school district to establish 
that a desegregation decree is no longer necessary. The show­
ing that school districts must make to meet their burden is a 
stringent one, and properly so, both in view of the burden 
that equity traditionally places on defendants seeking dissolu­
tion of the plaintiff’s remedy, and the history of school 
desegregation litigation that required injunctions to be 
entered in the first place. It is, nevertheless, a showing that is 
quite feasible for a school district that has established a genu­
ine unitary school system, and not merely complied with the 
specific directives of a court order.

The Oklahoma City desegregation decree was not properly 
dissolved by the district court because the school board never 
met its burden of establishing that such dissolution is justi­
fied. The district court’s reference to “ unitary” schools in 
Oklahoma City in 1977 was, at most, a finding that the 
injunction was effective in compelling the school district to 
operate in a nondiscriminatory manner. The district court did 
not then conduct a proper inquiry as to whether the injunc­
tion should be dissolved, and the mere incorrect use of the 
term “ unitary” does not change this result. The district 
court’s 1987 ruling formally dissolving the injunction simi-



6

larly was not based on a satisfactory showing by the school 
district with respect to the relevant factors; indeed, as in 
1977, the school board and the court largely did not address 
those factors. Most conspicuously, the school district failed 
to demonstrate the compelling necessity and unavoidability of 
reverting to essentially the same segregative neighborhood ele­
mentary school plan that, prior to the entry ot the injunc­
tion, was rejected by the district court because it perpetuated 
the dual school system that the injunction was intended to 
eliminate.

The correct resolution of this case requires that the district 
court’s improper dissolution of the decree be vacated, thereby 
reinstating that court’s jurisdiction. Because the Circuit 
Court’s judgment accomplishes this result, it should be 
affirmed, and the district court should exercise its jurisdiction 
in accordance with the standards set forth by this Court.

ARGUMENT

I
A SCHOOL DESEGREGATION DECREE CAN BE DIS­
SOLVED ONLY WHEN THE OBJECTIVES TO WHICH 
IT WAS DIRECTED—THE ELIMINATION OF RACIAL 
DISCRIMINATION “ ROOT AND BRANCH” SO THAT A 

UNITARY SCHOOL SYSTEM IS ASSURED- 
HAVE BEEN FULFILLED

A. A School Desegregation Decree Is A Permanent Injunc­
tion And, As Such, Cannot Be Dissolved Until The 
Objectives To Which It Was Directed Have Been Ful­
filled.
1. School desegregation decrees are governed by tradi­

tional principles of equitable relief.
Since Brown v. Board o f Education, 349 U.S. 294 (1955) 

(Brown II), this Court has established that “ [i]n fashioning 
and effectuating [desegregation] decrees, the courts will be



7

guided by equitable principles.” Id. at 300. See, e.g., Milli- 
ken v. Bradley, 418 U.S. 717, 737-38 (1974) (.Milliken I). This 
has remained “ the basic rule which governs to this day.” 
Milliken v. Bradley, 433 U.S. 267, 279 (1977) (Milliken II).

Thus, in Brown II, the “ segregation cases” w'ere remanded 
to the district courts for the “ exercise of . . . traditional 
attributes of equity power.” Brown II, 349 U.S. at 300. This 
Court instructed the district courts to “ retain jurisdiction of 
these cases” and “ to take such proceedings and enter such 
orders and decrees . . .  as are necessary and proper to admit 
[children] to public schools on a racially nondiscriminatory 
basis with all deliberate speed.” Id. at 301.

Consistent with principles of equity, courts did not enter 
injunctive orders until they determined that school children 
plaintiffs could not otherwise obtain the relief to which they 
were entitled. School districts were given ample opportunity 
and time after Brown II  to bring themselves into compliance 
with the Constitution. Consequently, when certain school dis­
tricts failed to take constructive steps towards the elimination 
of discrimination, this Court declared in 1968 that “ [t]he 
time for mere ‘deliberate speed’ has run out” and “ [t]he bur­
den on a school board today is to come forward with a plan 
that promises realistically to work, and promises realistically 
to work now.'" Green v. County School Board, 391 U.S. 430, 
438-39 (1968). Consistent with the equitable principles incor­
porated in Brown II, the Court observed that “ [t]he obliga­
tion of the district courts, as it always has been, is to assess 
the effectiveness of a proposed plan in achieving desegrega­
tion.” Id. at 439.

Three years later, this Court, in upholding equitable deseg­
regation decrees, stated that “ [t]he essence of equity jurisdic­
tion has been the power of the Chancellor to do equity and 
to mould each decree to necessities of the particular case,” 
and that “ [i]f school authorities fail in their affirmative obli­
gations under [Brown and its progeny], judicial authority 
may be invoked.” Swann v. Charlotte-Mecklenburg Bd. o f  
Educ., 402 U.S. 1, 15 (1971). The Court explained that “ [a]s 
with any equity case, the nature of the violation determines 
the scope of the remedy.” Id. at 16.



8

It was pursuant to the very invocation of equitable author­
ity mandated by Green and Swann that the district court for 
the Western District of Oklahoma entered the desegregation 
decree (the “Finger Plan’’) now at issue in this case. Dowell 
v. Board o f Education, 338 F. Supp. 1256 (W.D. Okla.), 
a ff’d, 465 F.2d 1012 (10th Cir.), cert, denied, 409 U.S. 1041 
(1972). In 1972, the district court found that the Oklahoma 
City School Board had “ totally defaulted in its acknowledged 
duty to come forward with an acceptable plan of its own,” 
and noted the “ unpardonable recalcitrance of the Defendant 
Board and the Superintendent of Schools.” Id. at 1271. Rec­
ognizing “ that those students who have been and are being 
subjected to segregated education in the public schools are, 
regardless of race, having thrust upon them educational infir­
mities which are constitutionally impermissible,” the district 
court would not “ tolerate further delay” in steps necessary to 
effectuate a transition to a nondiscriminatory school system. 
Id.

2. An equitable injunction, including a school desegrega­
tion decree, cannot be dissolved unless the objectives 
that made entry of the injunction necessary have been 
fulfilled.

It is a fundamental principle of equitable relief that a per­
manent injunction will not be dissolved unless the objectives 
to which the injunction was directed—including elimination 
of the conditions that made the injunction necessary—have 
been fulfilled. This principle was articulated by this Court in 
United States v. Swift & Co., 286 U.S. 106 (1932), where 
Justice Cardozo set forth that dissolution of an injunction is 
inappropriate unless the “ dangers” addressed by the decree 
have “ become attenuated to a shadow,” id. at 119, thereby 
permitting a release of the defendant from the burdens of 
compliance without “ prejudicing] the interests of the classes 
whom [the] restraint was intended to protect.” Id. at 117-18. 
In Swift, the Court also ruled that “ [n]othing less than a 
clear showing of grievous wrong evoked by new and unfore­
seen conditions” allows even a modification—as opposed to



9

a complete dissolution—of what was decreed. Id. at 119. 
Moreover, Justice Cardozo warned against allowing motions 
for dissolution or modification to be used as a means to 
relitigate the validity of, and ultimately reject, the objectives 
that the injunction was intended to secure “ under the guise 
of readjusting.” Swift, 286 U.S. at 119.

The standards for dissolution of injunctions, articulated in 
Swift, derive both from fairness and common sense: where 
an injunction has been entered in response to particular con­
ditions, the injunction should only be dissolved if those con­
ditions have been eliminated. A permanent injunction is 
designed to prevent a harm; if the conditions or institutions 
giving rise to the harm remain, then simply dissolving the 
injunction and ending court jurisdiction serves no equitable 
purpose. An injunction should only be dissolved if it is no 
longer necessary to secure relief to which the plaintiff is enti­
tled.

This Court has never deviated, in any context, from the 
equitable principles, articulated in Swift, that an injunction 
cannot be dissolved unless the objectives to which it was 
directed have been fulfilled, nor modified except to further 
those objectives.* 1 This Court and the lower courts have, in 
certain cases, required less than a showing of “ grievous 
wrong evoked by new and unforeseen conditions” to allow 
modifications that further equitable objectives; however, the 
fundamental principle underlying Swift—that the objectives 
to which the injunction was directed must be pursued—has 
not been limited. Thus, in United States v. United Shoe 
Machinery Corp., 391 U.S. 244 (1968), though this Court 
granted the government’s motion to modify an injunction to 
impose more onerous limitations on the enjoined party, the 
Court also expressly observed that, consistent with Swift, a

1 In modern cases where a party seeks to dissolve or modify a perma­
nent injunction, relief has normally been sought under Rule 60(b) of the Fed­
eral Rules of Civil Procedure, which incorporates into the Federal Rules the 
equitable principles, articulated in Swift and its progeny, governing dissolu­
tion and modification of injunctions. See generally 11 C. Wright & A. Miller, 
Federal Practice and Procedure § 2863; 7 Moore, Moore’s Federal Practice
1 60.26[4],



10

decree “ may not be changed in the interests of the defen­
dants if the purposes of the litigation as incorporated in the 
decree . . . have not been fully achieved.” Id., 391 U.S. at 
248 (emphasis in original). Rather than reject Swift, the 
Court in United Shoe noted that “ [t]he present case is the 
obverse of the situation in Swift if the Government’s allega­
tions [that a more stringent decree is needed to effectuate the 
purposes of the order] are proved.” Id. at 249.2 Nothing in 
United Shoe undermines the application of Swift in circum­
stances where “ the defendants [seek] relief not to achieve the 
purposes of the provisions of the decree, but to escape their 
impact.” Id.

Similarly, in System Federation No. 91 Railway Employ­
ees’ Dep’t v. Wright, 364 U.S. 642 (1961), though this Court 
allowed a decree to be modified, it did not limit the applica­
tion of the fundamental principles articulated in Swift where 
the objectives to which the injunction was directed have not 
been fulfilled. Rather, in Wright, the modification of a 
decree barring “ union shop” labor agreements on certain rail 
lines was found appropriate because the federal Railway 
Labor Act had been amended, subsequent to the granting of 
injunctive relief, to make lawful the very activity—“ union 
shop” agreements between railroads and labor unions— 
prohibited by the decree. Clearly, the circumstance warrant­
ing imposition of the injunction—the illegality of “ union 
shop” agreements under the Railway Labor Act—had been 
eliminated. In Wright, the Court attributed the very power of 
a district court to modify a decree to “ the fact that an 
injunction often requires continuing supervision by the issu­
ing court” to achieve the objectives for which the injunction 
was entered “ on behalf of the party who obtained that equi­
table relief.” Id. at 647.3

2 See 11 C. Wright & A. Miller, Federal Practice and Procedure 
§ 2961, at 602 (1973) (United Shoe “ has said that the thrust of the Swift test 
is based not so much on the harm being suffered by the enjoined party but on 
the continuing need for the injunction” ).

3 The lower federal courts have not deviated from the principles that 
absent a showing that a decree is no longer necessary, or that modification

(footnote continued on next page)



11

Consistent with the equitable principles for dissolution of 
injunctions, this Court has recognized that district court

(footnote continued from  previous page)
will further the objectives to which the decree was directed, an injunction will 
not be dissolved or modified. In certain cases, application of these principles 
has resulted in denial of motions for dissolution or modification. See, e.g., 
Mayberry v. Maroney, 558 F.2d 1159 (3d Cir. 1977) (denying State of Penn­
sylvania’s motion for modification of a previous consent order enjoining the 
state from confining inmates in a basement facility at a state penitentiary); 
Ridley v. Phillips Petroleum Co., A ll F.2d 19 (10th Cir. 1970) (denying oil 
company’s motion to dissolve an injunction that restrained it from discon­
necting a gas line); Humble Oil & Refining Co. v. American Oil Co., 405 
F.2d 803 (8th Cir.) (Blackmun, J.), cert, denied, 395 U.S. 905 (1969) (deny­
ing motion to modify an injunction restraining oil companies from using cer­
tain trademarks and names).

In other cases, where motions to dissolve or modify have been granted, 
courts have similarly not deviated from the principle that dissolution or mod­
ification in contravention of the purposes of the injunction is not appropri­
ate. See, e.g., United States v. City o f  Chicago, 663 F.2d 1354, 1360 (7th Cir. 
1981) (“ [t]he standard for modifications and injunctions that emerges from 
Swift and United Shoe . . . incorporates consideration of whether there 
remains any need to continue the injunction, that is, whether ‘the purposes 
of the litigation as incorporated in the decree’ have been achieved” ); New 
York State A ss’n for Retarded Children v. Carey, 706 F.2d 956, 970 (2d 
Cir.), cert, denied, 469 U.S. 915 (1983) (Friendly, J.) (granting modification 
of injunction addressing conditions at state community care facilities, where 
modification offered an improved means of achieving the “ desired objec­
tives” to which the injunction was directed); Heath v. De Courcy, 888 F.2d 
1105, 1108 (6th Cir. 1989) (allowing modification of consent decree designed 
to limit overcrowding in prisons where modification did “ not increase the 
risk to inmates” that was the subject of the decree); Hodge v. Dep’t o f  Hous­
ing & Urban Dev., 862 F.2d 859, 861 (11th Cir. 1989) (dissolution of injunc­
tion, mandating compliance with certain notice and hearing requirements for 
proceedings relating to payments by tenants for damaged property, permissi­
ble if new statutes mandate compliance with the terms of the decree); King- 
Seeley Thermos Co. v. Aladdin Industries, Inc., 418 F.2d 31, 35 (2d Cir. 
1969) (modification of an injunction permissible where “ the decree is not 
properly adapted to accomplishing its purposes” ; power to modify should be 
exercised sparingly). Cases such as these have addressed “ the preferable 
means for achieving the ends to which the decree was intended,” not 
“ whether the proposed modification would or would not derogate the pri­
mary objective of the decree.” Benjamin v. Malcolm, 564 F. Supp. 668, 686 
(S.D.N.Y. 1983). See also Ruizv. Lynaugh, 811 F.2d 856, 861 (5th Cir. 1987) 
(courts have not deviated from “ the Swift principles that a modification 
should not vitiate the decree” ).



12

jurisdiction in school desegregation cases will end “ [a]t some 
point,” but only when ‘‘school authorities . . . have 
achieved full compliance with this Court’s decision in Brown 
/ . ” Swann, 402 U.S. at 31. In the past, as remains true 
today, there is no basis for a conclusion that school desegre­
gation decrees should be dissolved before the objectives to 
which they are directed have been fulfilled.4 Nor should the 
objectives defined in Brown and its progeny now be re­
evaluated under the guise of dissolution or modification. 
Rather, upon a motion to dissolve or modify, the proper 
exercise of equitable power requires a determination whether 
those objectives have been achieved.

B. The Objectives To Which A School Desegregation Decree 
Is Directed Are The Elimination Of Racial Discrimination 
And Its Vestiges From The School System “ Root And 
Branch” So That A “ Unitary” School System Is Assured.
1. A school system becomes “ unitary” when the objec­

tives to which a desegregation decree is directed have 
been achieved.

School desegregation decrees have been entered where 
school districts failed to fulfill their affirmative duty, under

4 In Pasadena City Bd. o f  Educ. v. Spangler, 427 U.S. 424 (1976), this 
Court did order that a desegregation decree be modified, but only to elimi­
nate provisions that were determined, based on the intervening decision of 
this Court in Swann, to be outside the scope of the district court’s power to 
remedy de jure segregation. Spangler thus did not address the standards for 
modifying or dissolving valid desegregation decrees. This Court, however, 
did set forth that the “ well established rules governing modification of even a 
final decree entered by a court of equity” apply to desegregation injunctions. 
Id. at 437 (criticizing judge on Court of Appeals for “ overlook[ing]” those 
“ well established rules” ). Citing Swift, Wright and Pennsylvania v. Wheel­
ing & Belmont Bridge Co., 59 U.S. (18 How.) 421 (1856), this Court reiter­
ated that “ [t]he source of the power to modify is of course the fact that an 
injunction often requires continuing supervision by the issuing court and 
always a continuing willingness to apply its powers and processes on behalf 
of the party who obtained that equitable relief.” Spangler, 427 U.S. at 437 
(,quoting Wright, 364 U.S. at 647). It would be as inequitable as it would be 
illogical to dissolve a desegregation decree before eradication of the condi­
tions making necessary the “ continuing supervision by the issuing court.”



13

the Fourteenth Amendment, “ to effectuate the transition to a 
racially nondiscriminatory system.” Brown II, 349 U.S. at 
301. This Court has used the term “ unitary” to describe a 
school system that has completed effectively the obligatory 
transition from a previously de jure segregated (or “ dual” ) 
school system. Under the Fourteenth Amendment, “ ft]he 
transition to a unitary, nonracial system of public education 
was and is the ultimate end to be brought about.” Green, 
391 U.S. at 436.

The term “ unitary” in and of itself derives legal signifi­
cance in school desegregation cases from its use as a jurispru­
dential “ term of art.” As such, it is plain that a school 
system only becomes “unitary in the sense required by [this 
Court’s] decisions” when school authorities “ have achieved 
full compliance with this Court’s decision in Brown / . ” 
Swann, 402 U.S. at 31. The Court has thus explained that:

The objective today remains to eliminate from the public 
schools all vestiges of state-imposed segregation. . . . 
That was the basis for the holding in Green that school 
authorities are “ clearly charged with the affirmative 
duty to take whatever steps might be necessary to con­
vert to a unitary system in which racial discrimination 
would be eliminated root and branch.”

— Swann, 402 U.S. at 15.

See also Columbus Bd. o f Educ. v. Penick, 443 U.S. 449, 
458 (1979).

The reason that school districts are required to eliminate 
racial discrimination “ root and branch” is that the objective 
is not creation of desegregated systems that are ephemeral or 
that exist only by reason of an injunction’s compulsion. 
Rather, the objective is a school system whose unitary status 
is assured:

As with any equity case, the nature of the violation 
determines the scope of the remedy. In default by the 
school authorities of their obligation to proffer accept-



14

able remedies, a district court has broad power to fash­
ion a remedy that will assure a unitary school system.

— Swann, 402 U.S. at 16 
(emphasis added).

Accordingly, the objective to which desegregation decrees 
are directed—and the fulfillment of which would justify dis­
solution of a decree—is nothing less than “ a unitary system 
in which racial discrimination would be eliminated root and 
branch,” id. at 15, and, therefore, whose unitary status is 
assured in the absence of a decree.

This Court has not wavered in its recognition of the consti­
tutional obligation of school boards to eliminate discrimina­
tion and its vestiges ‘‘root and branch.” See, e.g., Keyes v. 
School District No. 1, Denver, Colo., 413 U.S. 189, 200 
(1973); Dayton Bd. o f Educ. v. Brinkman, 443 U.S. 526, 537 
(1979) {Dayton II). The school board’s ‘‘continuing ‘affirma­
tive duty to disestablish the dual school system’ is . . . 
beyond question.”  Columbus, 443 U.S. at 460 (1979) (cita­
tion omitted).

It is equally clear that the school district’s affirmative duty 
to eliminate racial discrimination root and branch and assure 
a unitary school system is not a modest one, and that 
‘‘school authorities should make every effort to achieve the 
greatest possible degree of actual desegregation.” Swann, 402 
U.S. at 26. It is now beyond dispute that “ discriminatory 
student assignment policies can themselves manifest and 
breed other inequalities built into a dual system founded on 
racial discrimination.” Milliken II, 433 U.S. at 283. See also 
Keyes, 413 U.S. at 203. For this reason, “ [fjederal courts 
need not, and cannot, close their eyes to inequalities, shown 
by the record, which flow from a longstanding segregated 
system.” Milliken II, 433 U.S. at 283.

Thus, nondiscriminatory reassignment of students alone 
has never been treated as defining a unitary school system. 
Green recognized that “ existing policy and practice with 
regard to faculty, staff, transportation, extra-curricular 
activities and facilities were among the most important indi­
cia of a segregated system.” See Swann, 402 U.S. at 18 {cit-



15

ing Green, 391 U.S. at 435). See also United States v. Mont­
gomery County Bd. o f Educ., 395 U.S. 225 (1969). Where, 
for example, it has not been established that procedures for 
hiring and promoting teachers and administrators in a school 
district have been rid of the vestiges of racial discrimination, 
“ it may well be that [the school board has] not yet totally 
achieved the unitary system contemplated by . . . Swann." 
Spangler, 427 U.S. at 436. In Milliken II, this Court upheld a 
school desegregation decree that addressed remedial pro­
grams, testing, in-service teacher training and counseling, 
explaining that the decree “ was aptly tailored to remedy the 
consequences of the constitutional violation” because “ [c]hil~ 
dren who have been . . . educationally and culturally set 
apart from the larger community will inevitably acquire 
habits of speech, conduct, and attitudes reflecting their cul­
tural isolation.” Id. at 287.

Indeed, segregated pupil assignments are often themselves 
only a reflection of systemic vestiges of a long-standing 
regime of de jure segregation, such as “ the community and 
administration attitudes toward the school.” Keyes, 413 U.S. 
at 196. At the same time, school desegregation can itself 
breed segregation in other areas, such as housing. As the 
Court unanimously recognized in Swann:

Over the long run, the consequences of the choices 
[made by the school board] will be far reaching. . . . 
The location of schools may thus influence the patterns 
of residential development of a metropolitan area and 
have important impact on composition of inner-city 
neighborhoods. . . .  In the past, choices in this respect 
have been used as a potent weapon for creating or main­
taining a state-segregated school system. . . .  [A dis­
criminatory school location policy] does more than 
simply influence the short-run composition of the stu­
dent body of a new school. It may well promote segre­
gated residential patterns which, when combined with 
“ neighborhood zoning,” further lock the school system 
into the mold of separation of the races.

— Swann, 402 U.S. at 
20- 21.



16

The term “ unitary” thus encompasses a far-reaching con­
stitutional obligation of the school board. If students have a 
“ constitutional right . . .  to attend a unitary school system,” 
Milliken I, 418 U.S. at 746, then a definition of “ unitary” 
that requires less than the fulfillment of the school district’s 
affirmative duties can only undermine the very constitutional 
rights this Court has sought to protect in mandating school 
desegregation plans.

2. Mere compliance for a period of time with the partic­
ular terms of a desegregation decree does not, of 
itself, make a school system unitary; rather, the con­
ditions in and affecting the school system must be 
such that there is assurance the school system will be 
unitary in the absence of a court injunction.

Consistent with the affirmative duty to remedy the consti­
tutional violation of de jure segregation by eradicating dis­
crimination and its vestiges “ root and branch,” mere 
compliance for a period of time with the terms ol a school 
desegregation decree has never been equated by this Court 
with the creation of a unitary school system. School desegre­
gation decrees were not meant to limit the affirmative duties 
of school boards; rather, the decrees were meant to assure 
that those duties would be fulfilled. Swann, 402 U.S. at 16. 
In this case, the district court implemented a desegregation 
decree as “ another step in the struggle to implement the con­
stitutional imperative for a unitary school system in the Okla­
homa City School District.” Dowell, 338 F. Supp. at 1258 
(emphasis added).

The objectives to which a desegregation decree is directed, 
then, are only fulfilled when there is assurance that the 
school district will be unitary in the absence of a court 
injunction. The district courts have had “ not merely the 
power, but the duty to render a decree which will so far as 
possible eliminate the discriminatory effects of the past as 
well as bar like discrimination in the future." Green, 391 
U.S. at 438 n.4 (emphasis added) (quoting Louisiana v. 
United States, 380 U.S. 145, 154 (1965)). For example, “ [i]n



17

devising remedies where legally imposed segregation has been 
established, it is the responsibility of local authorities and dis­
trict courts to see to it that future school construction and 
abandonment are not used and do not serve to perpetuate or 
re-establish the dual system.” Swann, 402 U.S. at 21 (empha­
sis added). See also Columbus, 443 U.S. at 459-61; Dayton 
II, 443 U.S. at 258.

Moreover, although desegregation decrees serve remedial 
functions, this “ does not change the fact that they are part 
of a plan that operates prospectively to bring about the 
delayed benefits of a unitary school system.” Milliken II, 433 
U.S. at 290 (emphasis in original). Even after a desegregation 
decree has been entered, the school board remains “ under a 
continuous constitutional obligation to disestablish its dual 
system,” and “ [e]ach instance of a failure or refusal to fulfill 
this affirmative duty continues the violation of the Four­
teenth Amendment.” Columbus, 443 U.S. at 459. See also
Missouri v. Jenkins, ____U.S. _____, 110 S. Ct. 1651, 1666
(1990).5

School desegregation injunctions, like other equitable 
decrees, “ requiref ] continuing supervision by the issuing 
court and always a continuing willingness to apply its powers 
and processes on behalf of the party who obtained that equi­
table relief.” Spangler, A ll U.S. at 437. See p. 12 n.4, supra. 
This Court has always held that “ whatever plan is adopted 
will require evaluation in practice, and the court should

5 It is thus inappropriate to distinguish school desegregation decrees as 
being “ remedial” rather than “ prohibitive.” Compare Spangler v. Pasadena 
CityBd. ofEduc., 611 F.2d 1239, 1245 (9th Cir. 1979) (Kennedy, J,, concur­
ring). The “ remedy” for long-term de jure segregation, as this Court has rec­
ognized, includes prospective application of the decree—so that a dual school 
system will not re-emerge—until discrimination and its vestiges have been 
eradicated “ root and branch.” See Milliken II, 433 U.S. at 290 (components 
of decree which operate prospectively “ are plainly designed to wipe out con­
tinuing conditions of inequality produced by the inherently unequal dual 
school system long maintained” ). This Court has recognized that school 
desegregation decrees can more appropriately be distinguished from “ puni­
tive” relief. See Milliken II, 433 U.S. at 288 (“ [t]he order does not punish 
anyone” ).



18

retain jurisdiction until it is clear that state-imposed segrega­
tion has been completely removed.” Green, 391 U.S. at 439. 
See also Brown II, 349 U.S. at 294; Swann, 402 U.S. at 21.

Compliance with the terms of a desegregation decree for a 
period of time, with nothing more, does not assure that a 
dual system will not re-emerge in the absence of the decree. 
See, e.g., Riddick v. School Board, 784 F.2d 521, 533 (4th 
Cir. 1986), cert, denied, 479 U.S. 938 (1986) (“ the mere 
implementation of a desegregation plan does not convert a 
dual system into a unitary one” ). Such compliance of itself 
does not justify dissolution of the decree and the termination 
of court jurisdiction.

C. The Application Of Equitable Principles To The Dissolu­
tion Or Modification Of Desegregation Decrees Is Not 
Limited By Principles Of Federalism And The Value Of 
Local School Board Autonomy, But Instead Takes Those 
Factors Into Account.

The exercise of equitable powers by federal courts in 
school desegregation cases has always taken account of prin­
ciples of federalism, and, therefore, concern for local control 
of public education has been a premise for the use of equita­
ble relief. In Brown II, this Court recognized that “ [sjchool 
authorities have the primary responsibility for elucidating, 
assessing, and solving” the varied local school problems 
encountered in the full implementation of the constitutional 
principles articulated in Brown I. See Brown II, 349 U.S. at 
299. It was for this very reason that the district courts were 
instructed to exercise their equitable powers: “ [traditionally, 
equity has been characterized by a practical flexibility in 
shaping its remedies and by a facility for adjusting and rec­
onciling public and private needs.” Id. at 300.

Since Brown II, this Court has continually recognized, and 
never ignored, that “ local autonomy has long been thought 
essential to both the maintenance of community concern and 
support for public schools and to quality of the education 
process.” Milliken I, 418 U.S. at 741. It has only been with 
express recognition of the value of local autonomy in public



19

education that this Court has upheld the imposition of equi­
table desegregation decrees. As this Court has explained, “ [i]t 
is, of course, quite true that the responsibility for public edu­
cation is primarily the concern of the States, but it is equally 
true that such responsibilities, like all other state activity, 
must be exercised consistently with federal constitutional 
requirements as they apply to state action.” Cooper v. 
Aaron, 358 U.S. 1, 19 (1958). See also Milliken I, 418 U.S. 
at 744.

Thus, in Swann, this Court could affirm the imposition by 
a district court of racial balances, altered attendance zones 
and a student transportation plan while recognizing that 
“ [sjchool authorities are traditionally charged with broad 
power to formulate and implement education policy.” 
Swann, 402 U.S. at 16.

Similarly, in Milliken II, this Court could uphold broad 
remedies relating to remedial programs, testing, teacher train­
ing and counseling while reiterating that “ the federal courts 
in devising a remedy must take into account the interests of 
state and local authorities in managing their own affairs, con­
sistent with the Constitution.” Milliken II, 433 U.S. at 280- 
81. Aware of the “ inherent limitation upon federal judicial 
authority,” this Court expressly found that the four remedies 
at issue in Milliken II, “although normally left to the discre­
tion o f the elected school board and professional educators, 
were deemed necessary to restore the victims of discrimina­
tory conduct to the position they would have enjoyed in 
terms of education had these four components been provided 
in a non-discriminatory manner in a school system free from 
pervasive de jure racial segregation.” Id. at 282 (emphasis 
added). See also id. at 291 (“ principles of federalism [are 
not] abrogated by the decree” ).

More recently, in Missouri v. Jenkins, ------  U.S. ------ ,
110 S. Ct. 1651 (1990), this Court was able to affirm the 
power of federal courts to require a school district to levy 
taxes for the funding of a school desegregation plan, while 
also reaffirming the principle that “ local authorities have the 
‘primary responsibility for elucidating, assessing, and solving’



20

the problems of desegregation.” Id., 110 S. Ct. at 1664 
(<quoting Brown II, 349 U.S. at 299).

Given that the remedial scope of school desegregation 
decrees has already been defined to account for the value in 
our constitutional scheme of local control over public educa­
tion, an interest in such local control cannot now appropri­
ately be a basis for deviating from basic equitable principles 
governing when those decrees can be dissolved or modified. 
Such a deviation would undermine—and effectively 
redefine—the objectives of desegregation decrees by allowing 
dissolution before those objectives, defined with full regard 
for local autonomy, have been fulfilled. The appropriate 
inquiry upon a motion for dissolution is to determine 
whether the objectives to which the desegregation decree is 
directed have, indeed, been achieved.

D. The Burden Is On The School Board To Establish That 
The School System Has Become “ Unitary” In The Sense 
Required By The Fourteenth Amendment, Thereby Justi­
fying Dissolution Of The Injunction.

The party subject to an equitable decree always bears the 
burden of establishing that it should be relieved of the obliga­
tion to comply with the decree. See, e.g., Swift, 286 U.S. at 
119; Ruiz v. Lynaugh, 811 F.2d 856, 861 (5th Cir. 1987); 
New York State A ss’n fo r  Retarded Children, Inc. v. Carey, 
706 F.2d 956, 969-70 (2d Cir. 1983); Humble Oil & Refining 
Co. v. American Oil Co., 405 F.2d 803, 813 (8th Cir.) 
(Blackmun, J.), cert, denied, 395 U.S. 905 (1969).

There is no basis for shifting the burden away from the 
enjoined party on a motion to dissolve or modify a school 
desegregation decree. Indeed, in the school desegregation 
context, the burden is always on the school board to justify 
actions that appear inconsistent with the affirmative duty to 
desegregate “ to the fullest extent possible” until a “ unitary” 
school system has been achieved.

The affirmative duties of the school board under Brown 
thus place “ a heavy burden upon the board to explain its 
preference for” steps that are “ apparently less effective” in



21

achieving desegregation than other “ more promising courses 
of action.” Green, 391 U.S. at 439. This burden does not 
end, and is in fact appropriately triggered, where a school 
board seeks to abandon a decree that mandates desegregated 
schools. The district court must evaluate dissolution of the 
decree—or particular proposals for modification—“in light 
of any alternatives which may be shown as feasible and more 
promising in their effectiveness” towards desegregation. See 
Green, 391 U.S. at 439. As this Court has recognized, “ the 
availability to the board of other more promising courses of 
action may indicate a lack of good faith.” Id.6

Just as a school board can rebut a prima facie case of dis­
criminatory intent “ only by showing that its past segregative 
acts did not create or contribute to the current segregated 
condition” of the schools, Keyes, 413 U.S. at 211, so too a

6 In a school district with a history of de jure segregation, the school 
board’s evidentiary burden is defined by the constitutionai imperative that 
“ [t]he measure of any desegregation plan is its effectiveness,” Davis v. Bd. 
o f  School Comm’rs o f  Mobile County, 402 U.S. 33, 37 (1971). Where a 
school district seeks to implement, or deviate from, a desegregation plan, this 
Court has therefore “ focused upon the effect—not the purpose or 
motivation—of the school board’s action in determining whether it is a per­
missible method of dismantling a dual system.” Wright v. Council o f Empo­
ria, 407 U.S. 451, 462 (1972). As Justice Stewart explained for the Court in 
response to arguments by school board officials that their purpose in deviat­
ing from a court-approved desegregation plan was nondiscriminatory, an 
“ inquiry into the ‘dominant’ motivation of school authorities is as irrelevant 
as it is fruitless." Id., 407 U.S. at 462 (citations omitted) (emphasis added).

Indeed, as this Court has stressed, even a purportedly “ racially neutral” 
assignment plan “ may be inadequate; such plans may fail to counteract the 
continuing effects of past school segregation resulting from discriminatory 
location of school sites or distortion of school size in order to achieve or 
maintain an artificial racial separation.” Swann, 413 U.S. at 212. See also 
Keyes, 413 U.S. at 213 (“ neighborhood school policy is not to be determina­
tive ‘simply because it appears neutral’ ” ). Even if a finding of “ intent” 
were necessary, “ actions having foreseeable and anticipated disparate impact 
are relevant evidence to prove the ultimate fact, forbidden purpose” and 
stand as “ one factor among many others which may be considered by a court 
in determining whether an inference of segregative intent should be drawn.” 
Columbus, 443 U.S. at 464-65. See also Dayton Bd. o f  Educ. v. Brinkman, 
433 U.S. 406, 421 (1977) (Dayton I) (Stevens, J., concurring).



22

school board subject to a court desegregation order retains an 
affirmative duty to demonstrate that its actions do not allow 
the vestiges of prior discrimination to have continued effect. 
The school board is obliged “ not to take any action that 
would impede the process of disestablishing the dual system 
and its effects.” Dayton II, 443 U.S. at 538. Although “ at 
some point in time the relationship between past segregative 
acts and present segregation may become so attenuated as to 
be incapable of supporting a finding of de jure segregation 
warranting judicial intervention[,] . . .  a connection between 
past segregative acts and present segregation may be present 
even when not apparent and . . . close examination is 
required before concluding that the connection does not 
exist.” Keyes, 413 U.S. at 211.

The task, then, is to set forth the factors that a district 
court should consider in determining whether a school board 
has satisfied its burden of establishing that a desegregation 
decree should be dissolved.

II
BEFORE DISSOLVING A DESEGREGATION DECREE, A 
DISTRICT COURT MUST MAKE A FACTUAL INQUIRY 
WHICH ESTABLISHES THAT THE VESTIGES OF THE 
DUAL SYSTEM HAVE BEEN ELIMINATED “ ROOT AND 
BRANCH,” AND THAT THE SEGREGATIVE EFFECTS 
OF THE CONSTITUTIONAL VIOLATION WILL NOT 

REAPPEAR AFTER THE DECREE IS DISSOLVED

As set forth in Point I, supra, a school desegregation 
decree cannot be dissolved until the school board demon­
strates the fulfillment of the objectives to which that decree 
was directed, namely, the elimination of de jure segregation 
and its vestiges “ root and branch” so that the continuation 
of a school system free from discrimination is assured. This 
case involves an issue that this Court has not yet addressed— 
what are the factors a district court should apply to deter­
mine whether the dissolution of a desegregation decree is 
justified? By indicating clearly to the district courts the



23

nature of the inquiry they should undertake in deciding 
whether to dissolve desegregation decrees, this Court will 
continue to perform the role that it has played in prior deseg­
regation litigation when it established the standards to be 
applied by the district courts in determining the existence of a 
district-wide violation and the appropriate scope of a reme­
dial decree.

A desegregation decree, like other permanent injunctions, 
cannot be dissolved until the purposes to w7hich it is directed 
have been achieved. In applying that standard, a district 
court must direct its inquiry in two directions—backward, to 
determine whether the school authorities have fulfilled their 
obligation to operate a fully integrated school system that has 
eliminated the vestiges of the dual system, and forward, to 
determine whether dual schools are likely to emerge if the 
injunction is dissolved. Only if these conditions are met can 
the district court conclude that the injunctive remedy has 
accomplished its purposes and that the injunction can there­
fore be dissolved. Only then will the school district have com­
pleted the transition to a “ unitary system.”

In determining whether the school authorities have met the 
burden of demonstrating that the purposes of the injunction 
have been achieved, the district court should conduct a fac­
tual inquiry addressed, at a minimum, to the following 
issues:

1. Is the school system operating on a non-racial 
basis'? Prior decisions of this Court have outlined the 
scope of this aspect of a district court’s inquiry, which 
extends beyond the question of whether children, under 
the decree, are assigned to schools in a nondiscrimina- 
tory manner. See, e.g., Green, 391 U.S. at 435; Swann, 
402 U.S. at 18; Keyes, 413 U.S. at 196; Spangler, A ll 
U.S. at 436; Milliken II, 433 U.S. at 283. See generally 
Point I, supra, at 12-16. School districts must provide 
affirmative answers, supported by factual data, to the 
following questions:

a. Has the district’s pupil assignment plan achieved 
the objective of racially integrated schools?



24

b. Has the assignment of pupils to classes, programs, 
and activities within individual schools been done 
on a basis that does not perpetuate the effects of 
the racially segregated school system?

c. Has racial integration of principals, teachers and 
staff been achieved?

d. Has the district eliminated inequalities among its 
schools in physical plant, equipment, curriculum 
and extracurricular activities?

e. Are funds being allocated to schools on a fully 
nondiscriminatory basis?

f. Have efforts been made to remedy the educational 
deficiencies that may have resulted from the dual 
system?

g. Has racial integration been achieved in the admin­
istrative structure of the school system?

2. In the absence o f an injunction, is the school sys­
tem likely to continue to operate on a non-racial basis'? 
The purpose of this inquiry should be not simply to 
establish the subjective good faith of the school authori­
ties, but rather to determine whether structural changes 
have been adopted in the governance and operation of 
the system to assure that integration will predictably sur­
vive the dissolution of the decree. See, e.g., Green, 391 
U.S. at 438 and n.4; Swann, 402 U.S. at 16, 21; Keyes, 
413 U.S. at 196-211; Milliken II, 433 U.S. at 290; 
Columbus, 443 U.S. at 459; Riddick v. School Board, 
784 F.2d at 533; United States v. Lawrence County 
School Dist., 799 F.2d 1031, 1044 (5th Cir. 1986), reh’g 
denied, 808 F.2d 1063 (5th Cir. 1987). See generally 
Point I, supra, at 16-18. The district court’s inquiry 
should address the following questions:

a. Have electoral or appointive procedures been estab­
lished to assure that racial minorities have the 
opportunity for involvement in the governing pro­
cess of the school district?



25

b. Have policies been adopted to assure that decisions 
with regard to school construction and location are 
designed to achieve maximum racial integration?

c. Have personnel policies been adopted to assure 
racial integration in the assignment of teachers and 
the appointment of principals?

d. Are members of minority groups serving in policy­
making administrative positions within the school 
system?

e. If segregated residential housing patterns resulted 
from the operation of the dual school system, have 
these patterns remained in place, thereby diminish­
ing the likelihood that an integrated school system 
will survive the dissolution of the decree?

3. Is it foreseeable that in the absence o f an injunc­
tion the school district may take actions, particularly 
with regard to pupil assignment, that would have a seg­
regative effect? The district court should determine 
whether such actions are foreseeable and, if so, the 
school district will have a heavy burden of proving that 
those actions would be taken for compelling and non- 
segregative purposes, and that such purposes could not 
be accomplished in a manner that would have no, or 
less, segregative effects. See, e.g., Green, 391 U.S. at 
430; Swann, 402 U.S. at 26; Wright, 407 U.S. at 462; 
Keyes, 413 U.S. at 211; Dayton II, 443 U.S. at 538. See 
generally Point I, supra, at 20-22. Thus, where a change 
in the pupil assignment system is foreseeable, the decree 
should not be dissolved unless the district court is satis­
fied that:

a. The changes will not have the predictable effect of 
creating schools that are identifiably single-race 
schools.

b. The changes in the pupil assignment plan are not 
based on residential housing patterns that are 
themselves the outgrowth of the prior dual system.



26

c. The school district has selected the least segregative 
means of adapting its pupil assignment system to 
changed circumstances.

d. Changes in the pupil assignment system will not 
impede the efforts of the school district to main­
tain a racially integrated school system.

In applying these standards, the district courts should, of 
course, be sensitive to the concerns that have been present in 
this Court’s prior desegregation rulings. These include the 
history and special circumstances of the district, such as the 
duration of time during which the district court operated a 
dual system, the district’s history of resistance to change, the 
duration of the decree, and the public’s acceptance of the 
permanence of a fully integrated school system. See, e.g., 
Swann, 402 U.S. at 20-21; Keyes, 413 U.S. at 211; Milliken 
II, 433 U.S. at 287.

Such concerns have also included the desirability of accom­
modating changed circumstances in the district through nar­
row modifications of an existing decree, rather than through 
the process of new desegregation litigation. Premature disso­
lution of a desegregation decree inevitably involves citizens, 
government officials and the courts in litigation far more 
extensive and complex than is involved in the consideration 
of more narrowly-defined modifications of existing decrees.

As always, the burden remains on the school district to 
demonstrate that the goals of the order have been achieved 
and that the injunction is no longer necessary to preserve 
those goals. The district courts should dissolve injunctions 
only where school districts have made such a showing.



27

III
BECAUSE THE DISTRICT COURT APPLIED AN ERRO­
NEOUS CONSTITUTIONAL STANDARD IN DECLARING 
THE SCHOOL DISTRICT “ UNITARY” AND DISSOLV­
ING THE DESEGREGATION DECREE, ITS DECISION 
WAS PROPERLY REVERSED AND THE JUDGMENT OF 

THE TENTH CIRCUIT SHOULD BE AFFIRMED

A. The District Court Never Properly Determined That The 
Desegregation Decree Could Be Dissolved.

The type of inquiry necessary to justify dissolution of a 
desegregation decree was never conducted by the district 
court in this case.

No such inquiry was made in 1977, when, after implement­
ing the desegregation decree for less than six full years, the 
Oklahoma City school board asked the district court to ter­
minate its jurisdiction. Although Oklahoma City schools had 
been segregated by law for well over half a century, and 
although the school board had been recalcitrant just six years 
earlier in refusing to adopt on its own an effective desegrega­
tion plan, the school board in 1977 claimed that it had 
already “ eliminated all vestiges of state-imposed racial dis­
crimination in its school system” and that it was “ operating 
a unitary school system.” See Dowell v. Board o f Education, 
606 F. Supp. 1548, 1551 (W.D. Okla. 1985).

In response to the school board’s motion, the district court 
held a hearing concerning “ the state of desegregation in the 
Oklahoma City public schools.” Id. The district court found 
that the school board had implemented the desegregation 
decree since 1972, and did not “ foresee that the termination 
of its jurisdiction [would] result in the dismantlement of the 
Plan” the decree had mandated. Id. Based on these findings, 
the district court terminated its jurisdiction and dissolved a 
“ biracial committee” that had been established to assist the 
court in actively ensuring compliance with the decree.

The district court, however, did not directly address 
whether the decree itself could or would be dissolved. Nor 
were the district court’s findings directed to that issue: as the



28

Tenth Circuit later observed, the district court did not con­
sider, for example, whether there existed any assurance that 
unitary schools would be maintained in the absence of the 
court’s injunction. See Dowell v. Board o f Education, 795 
F.2d 1516, 1520 (10th Cir.), cert, denied, 479 U.S. 938 
(1986). The district court’s reference in its 1977 order to a 
“ unitary system’’ in Oklahoma City described little more 
than compliance by the school board for a period of time 
with the terms of the desegregation decree. Such compliance 
was simply insufficient to justify dissolution of the desegrega­
tion decree—even where the school board had become “ sensi­
tized to the constitutional implications of its conduct” and 
had “ a new awareness of its responsibility to citizens of all 
races.” See Dowell, 606 F. Supp. at 1551. The district court’s 
reference certainly did not purport to constitute a finding 
that the “unitary system” was one “ in which racial discrimi­
nation [had been] eliminated root and branch,” Green at 
438, nor was there a record before the court that could have 
supported such a finding.

The district court again did not require the school board to 
make a sufficient showing when it formally dissolved the 
desegregation decree in 1987. Even on remand from the Cir­
cuit Court, and while seeking to determine whether the dan­
gers prevented by the injunction had “ become attenuated to 
a shadow,” see Dowell, 677 F. Supp. 1503, 1520 (W.D. 
Okla. 1987), the district court did not require a showing that 
racial discrimination and its vestiges had been sufficiently 
eradicated to assure a unitary system in Oklahoma City in the 
absence of injunctive relief—the very purpose articulated by 
the court when it imposed the desegregation decree in 1972. 
See Dowell, 338 F. Supp. at 1272 (recognizing a “ continuing 
duty . . .  to retain jurisdiction over the case until it is clear 
that the constitutional requirements have been achieved.” ).

More specifically, the district court in 1987 did not suffi­
ciently examine the appropriateness of dissolving its decree 
when it would result in a return to essentially the same neigh­
borhood elementary school plan that had been rejected in 
1972 because it perpetuated the dual school system that the 
injunction, then entered by the court, was intended to elimi-



29

nate. The school district was not even required to prove that 
its purported educational reasons for wanting to return to the 
segregative neighborhood school plan could not be accom­
plished in any other way that would not have such segrega­
tive effects. The district court approved reversion to the 
neighborhood school plan, even though it would result in seg­
regated schools, because the defendant school board claimed 
that it would serve purposes that the board deemed impor­
tant. And the court gave short shrift to the issue that is cen­
tral: the plaintiffs' resulting loss of the relief to which they 
are entitled—a unitary school system in which racial discrimi­
nation has been eliminated root and branch.

B. The Tenth Circuit Properly Reversed The Dissolution Of 
The Desegregation Decree By The District Court, And 
The Jurisdiction Of The District Court In This Case 
Should Be Retained.

Because the district court did not require the school board 
to satisfy its heavy burden of establishing that the constitu­
tional imperatives of the desegregation decree had been 
fulfilled—thereby assuring a unitary school district even in 
the absence of a decree—the judgment of the Tenth Circuit, 
invalidating the dissolution of the decree, must be affirmed.

The district court’s use of the term “ unitary” in 1977, 
though never appealed by the parties, is not a talisman allow­
ing a different result: the term “ unitary,” absent the neces­
sary underlying factual findings, can have no legal 
significance justifying dissolution of a desegregation decree. 
If “ [sjubstance, not semantics, must govern” in school deseg­
regation cases, Swann, 402 U.S. at 31, then only when the 
constitutional imperatives of the Fourteenth Amendment 
have been fulfilled can the Oklahoma City school system be 
deemed “ unitary” in the constitutional sense. While dissolu­
tion of the Oklahoma City injunction will be appropriate at 
some time, that time will not have arrived until the school 
board has made an appropriate showing. For now, the dis­
trict court must retain jurisdiction to take such action as may 
be appropriate in accordance with the constitutional stan-



30

dards set forth in this proceeding and the prior decisions of 
this Court.

The constitutional principles articulated by this Court in 
Brown and its progeny should not now be undermined by 
premature dissolution of the very desegregation decrees that 
have been necessary to carry out the mandates of the Four­
teenth Amendment.

CONCLUSION

The judgment of the Tenth Circuit Court of Appeals 
should be affirmed.

July 25, 1990

Respectfully submitted,

/s /  P aul Vizcarrondo, Jr .__________
Paul Vizcarrondo, Jr.*
Norman Redlich
Stephen R. Neuwirth
Wachtell, Lipton , Rosen & Katz
299 Park Avenue
New York, New York 10171
(212) 371-9200
Attorneys fo r  Amici Curiae

* Counsel o f  Record

Robert F. Mullen, Co-Chairman 
Norman Redlich, Trustee 
Barbara R. Arnwine 
Paul Holtzman
Lawyers’ Committee for Civil 

Rights Under Law 
1400 Eye Street, N.E.
Washington, D.C. 20005 
(202) 371-1212



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