Flemming v. South Carolina Electric and Gas Company Brief for the Appellee

    IN THE UNITED STATES COURT OP APPEALS 
FOR THE TENTH CIRCUIT 
Nos. 433-69, 434-69

—   —..................................- ......... . ............ ............... — ........... — r -
ROBERT L. DOWELL, an infant, who sues by A, L. DOWELL, 
his father and next friend, et al..

Plaintiffs-Appelle#s,
: V .

THE BOARD OF EDUCATION OF THE OKLAHOMA CITY PUBLIC 
SCHOOLS, et al..

Defendants,
and

DAVID WEBSTER VERITY, a minor, by and through GEORGE L. 
VERITY, his next friend, and GEORGE L. VERITY and 
ELLEN VERITY, on behalf of themselves and other persons 
similarly situated.

Intervening Defendants-Appellants, 
and

TAEJEMA DANZIE, a minor, by and through MRS. A. J. DANZIE, 
her next friend, and MRS. A. J. DANZIE, on behalf of 
themselves and other persons similarly situated.

Intervening Defendants-Appellants.

PETITION FOR REHEARING WITH SUGGESTION 
FOR REHEARING £N BANC

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

JOHN W. WALKER
1820 West 13th Street 
Little Rock. Arkansas 72202

ARCHIBALD B. HILL, JR.
407 North Durland 
Oklahoma City, Oklahoma 73104 

Attorneys for Appellees Dowell, et al.
CALVIN W. HENDRICKSON

2401 First National Building 
Oklahoma City, Oklahoma 73102 

Attorney for Appellees Sanger, et al.



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IN THE UNITED STATES COURT OF APPEALS 
FOR THE TENTH CIRCUIT

Nos. 4 3 3 -6 9 ,  4 34 -6 9

ROBERT L. DOWELL, an in fa n t ,  who sues by A. L. DOWELL, 
h is  fa th e r  and next fr ie n d , et a l . ,

P l a i n t i f f s - A p p e l l e e s ,

v.

THE BOARD OF EDUCATION OF THE OKLAHOMA CITY PUBLIC 
SCHOOLS, e t  a l . ,

D efendants, 

and

DAVID WEBSTER VERITY, a minor, by and through GEORGE L. 
VERITY, h is  next fr ie n d , and GEORGE L. VERITY and 
ELLEN VERITY, on b e h a lf  o f  themselves and other persons  
s im i la r ly  s i tu a te d ,

Intervening D efen dan ts-A ppellan ts  

and

TAEJEMA DANZIE, a minor, by and through MRS. A. J. DANZIE, 
her next fr ie n d , and MRS. A. J . DANZIE, on b e h a lf  o f  
themselves and oth er persons s im i la r ly  s i tu a te d .

In terven in g -D efen d a n ts-A p p ellan ts

PETITION FOR REHEARING WITH SUGGESTION 
FOR REHEARING EN BANC

A p pellees Robert L. Dow ell, e t  a l . ,  r e s p e c t fu l ly  request  

rehearin g , and suggest the appropriateness o f  en banc rehear­

ing o f  the d e c is io n  rendered September 15, 1969, in an order  

by C hief Judge Murrah, and C ir c u it  Judges B r e ite n ste in  and



Hickey. This d e c is io n  r e c a lle d  the mandate o f  th is  Court pre  

v io u s ly  issued fo llo w in g  an order o f  August 27, 1969, and 

vacated orders by the t r i a l  court denying in te rv en tio n  as 

defendants to in terven ors V e r i ty ,  e t  a l .  and Danzie, e t  a l .

Statement o f  the Case

This case in v o lv e s  the desegregation  o f  the p u b lic  schoolo  

o f  Oklahoma C ity ,  Oklahoma. I t  was f i l e d  October 9 , 1961, by 

ap p ellee  Dr. A. L. Dowell, a Negro parent ( la t e r  jo in ed  by 

oth er Negro parents who were allowed to intervene) ag ain st the 

e le c te d  5 member Board o f  Education o f  the Oklahoma C ity  Public  

Schools and other lo c a l  school o f f i c i a l s .  The issu e  in the 

present c o n so lid a ted  appeals in volves  whether the t r i a l  judge  

erred in denying in te rv en tio n  on August 8 , 1969, to intervenor  

V e r i t y ,  and in denying in terven tio n  on August 14, 1969, to 

in terven or Danzie. Consideration o f  the qu estion s now presented  

requ ires a b r i e f  resume o f  the course o f  the l i t i g a t i o n  sin ce  

1961.

1. Proceedings During 1961-62  b e fo re  Statu tory  
Three-Judge D i s t r i c t  Court.

On October 11, 1961, Chief Judge A. P. Murrah designated  

a th ree -ju d g e  d i s t r i c t  cou rt to hear and decide th is  c a se .

C h ief Judge Murrah and D i s t r i c t  Judges Bohanon and Daugherty 

were d esign ated . A p r e - t r i a l  order o f  January 26, 1962, framed 

the i s s u e s ;  i t  i s  se t  out in i t s  e n t ir e t y  in the appendix h ere to .^  

B r i e f ly  summarized, i t  in dicated  that the case involved whether

2



the school board was u n c o n s t i tu t io n a lly  continuing r a c ia l  segre ­

gation  or had adopted a good f a i t h  desegregation  plan and was 

already in compliance w ith  Brown v . Board o f  Education, 347 

U .S . 483 (1 9 5 4 ) ,  349 U .S . 294 (1 9 5 5 ) .  The i n v a l i d i t y  o f  

Oklahoma s ta tu te s  requ irin g  se g reg a tio n , sought to be en join ed ,  

was conceded by the defendants. The th ree-ju d g e  court held a 

f u l l  e v id en tia ry  hearing on the m erits  on A p r il  3, 1962. On 

July 10, 1962, the th ree-ju d g e  court entered i t s  order, which 

is  a lso  attached as an appendix h e re to . The court ruled that  

the th ree-ju d ge  court should be d is s o lv e d ,  but n ev erth e le ss  

expressed a view on the m erits  f in d in g  that the defendants had 

not u n c o n s t itu t io n a lly  applied the school laws.

2. The Case in 1 9 6 3 -6 4 .

A fte r  remand to the re s id e n t judge, and fu rth er  pleadings  

and h ea rin g s , p l a i n t i f f s  f i n a l l y  obtained an in ju n ctio n  again st  

segregation  and an order requ irin g  a desegregation  p lan . The 

d e c is io n  i s  reported at 219 F. Supp. 427 (W.D. O k la . ,  July 11, 

1 9 6 3 ) .  In January 1964, the board f i l e d  a p o lic y  statement  

regarding in te g r a t io n . A fte r  a hearing the t r i a l  court d irected  

the board to employ a team o f  experts independent o f  lo c a l  s e n t i ­

ment to survey the problem o f  d eseg rega tion . When the board 

d eclin ed  to do t h i s ,  p l a i n t i f f s  responded to the c o u r t 's  in v i t a ­

tion and a team o f  three w e ll  q u a l i f ie d  experts were appointed  

by the court to study and make a re p o rt . (See d e c is io n  at 244 

F. Supp. 972 recounting the above events in d e t a i l . )

3



3. The Case in 1 9 6 5 -6 8 .

The expert report was f i l e d  and a f t e r  an ev id en tia ry  hearing  

approved by the t r i a l  c o u rt . The major fe a tu re s  o f  the e xp erts '  

recommendations (a m a jo rity  to m in ority  r a c ia l  tr a n s fe r  o p tio n ,  

the p a ir in g  o f  severa l sc h o o ls , and fa c u lty  in te g ra tio n )  were 

adopted by the c o u rt . 244 F. Supp. 971 . The d i s t r i c t  judge 

stayed h is  own order pending the b o a rd 's  appeal. This Court 

affirm ed by a d ivided vote  o f  2 -1  on January 23, 1967. 375 F.2d

158. The b o a rd 's  p e t i t i o n  fo r  c e r t i o r a r i  was a lso  denied, 387 

U .S . 931 (May 29, 1 9 6 7 ) .  A fte r  the appeal the board prepared 

a plan embodying the main fea tu res  o f  the e x p e rts ' plan and the 

d i s t r i c t  judge perm itted major implementation to be in the 

1968-69  school y ear . The t r i a l  judge d ire c te d  the board to con­

tinue fu rth er  study and in v e s t ig a t io n  and to improve the p lan .

4 .  The case in 1969.

On June 12, 1969, the board f i l e d  a new plan for  desegrega­

t io n . A fte r  a three day hearing in July 1969, the b o a r d 's  new 

plan was r e je c te d . The t r i a l  judge found that two o f  the schools  

p re v io u s ly  paired were developing a r a c ia l  i d e n t i f i c a t i o n  as 

Negro sch ools  and that the s i tu a t io n  was d e te r io r a t in g .  The 

cou rt required the school board to d e v ise  a new plan s im ila r  to 

the s o -c a l l e d  Wheat Plan which had been presented during the 

t r i a l .  The board responded by p resen tin g  a plan to enlarge the- 

attendance boundaries o f  c e r ta in  sch ools  during the 1969-70  term. 

The t r i a l  judge then approved th is  plan on August 1 , 1969. His

4



order a ls o  required a fu rth er  long—range plan to be f i l e d  by 

November 1 , 1969.

Promptly the McWilliams in te rv en o rs , a white fam ily  opposed 

to the p lan , appealed to th is  Court and applied fo r  a sta y  pend­

ing appeal. On August 5, 1969, a panel o f  th is  Court vacated  

the order o f  August 1, and remanded the case fo r  the t r i a l  judge 

to con sider the a p p l i c a b i l i t y  o f  se c t io n  4 0 7 (a ) ( 2 )  o f  the C i v i l  

Rights Act o f  1964. The d i s t r i c t  judge wrote an opinion dated

August 8 , re a ffirm in g  h is  p r io r  a c tio n .

On th is  same d a te , August 8 , the V e r ity  in te rv en tio n  request  

was f i l e d ,  and denied . Judge Bohanon denied in terven tio n  as 

"Too L a t e . "  On August 13, Judge Bohanon again entered h is  order  

approving the new desegregation  p lan . On August 14, the Danzie 

in terven tio n  v/as requested and Judge Bohanon denied that in te r ­

vention request the same day.

The Danzie and V e r ity  in tervenors then f i l e d  n o t ic e s  o f  

appeal, and sought sta ys  pending appeal in th is  Court. A panel 

o f  the court entered an order on August 27 a ffirm in g  the den ia l  

o f  in te rv e n tio n . At the same time the court again vacated the 

t r i a l  ju d g e 's  order.

On September 3, 1969, Mr. J u st ic e  Brennan re in sta te d  the 

d i s t r i c t  court order o f  August 13 pending d is p o s i t io n  o f  a p e t i ­

tion  fo r  c e r t i o r a r i .  The c e r t i o r a r i  p e t i t i o n  was f i l e d  w ithin  

the 15 days allowed by J u stic e  Brennan and the case is  now pend­

ing in the Supreme Court as No. 603 , October Term, 1969.

5



On September 2, 1969, the V e r ity  and Danzie in tervenors  

asked th is  Court to recon sider the m atter . A p p e lle e s , regarding  

the m atter as governed by Rule 4 0 , F .R .A .P . which fo rb id s  answers 

to a rehearing p e t i t i o n  un less requested , f i l e d  no response. On 

September 15, 1969, the court entered an order vacatin g  the t r i a l  

ju d g e 's  d e c is io n  denying rehearing and d ir e c t in g  the t r i a l  court  

to permit the Danzie and V e r ity  in tervenors to be heard on a 

motion to modify the August 13 order which, as we have noted, 

i s  re in sta te d  pending the United S ta te s  Supreme C o u r t 's  co n sid er ­

ation  o f  a p e t i t io n  fo r  c e r t i o r a r i .

On September 11, 1969, the t r i a l  judge extended the time 

fo r  the board to f i l e  i t s  desegregation  plan to March 1970 fo r  

elementary sc h o o ls , but denied an exten sion  o f  the November 1,

1969, d eadlin e  fo r  secondary sc h o o ls . On September 12, 1969, the 

board o f  education f i l e d  n o t ic e  o f  appeal from the order o f  

August 13, 1969, and the order o f  September 12, 1969.

Argument

I .  The Court Apparently Overlooked Important Questions in 
the In te r p r e ta t io n  o f  Rule 24, Federal Rules o f  C i v i l  
Procedure.

Because o f  the unusual course o f  th is  l i t i g a t i o n ,  th is  p e t i ­

tion fo r  rehearing is  a p p e l le e s 1 f i r s t  opportunity  to b r i e f  the 

m erits o f  the appeal. The c o u r t 's  August 27 ru lin g  follow ed an 

emergency hearing on a stay  a p p lic a t io n  and ap p e llee s  had no 

opportunity to prepare a b r i e f  b e fo re  that r u lin g . A pp ellees  had 

no opportunity  to respond to a p p e lla n ts ' request for reco n sid eratio n

6



ill view o f  Rule 40(a) , Federal Rules o f  A p p e lla te  Procedure. We 

b e l ie v e  that the court overlooked important q u estion s presented  

by the a p p e a l.

F i r s t ,  i t  is submitted that the d e c is io n  below should be 

su stain ed  on the ground that the attempted in terven tio n  was not 

t im ely . This was the ground r e l ie d  upon by Judge Bohanon in h is  

order o f  August 8 , 1969, denying the V e r ity  in te r v e n tio n . I t  is  

not d iscu ssed  in e ith e r  opinion by th is  Court. Where the in t e r ­

vention comes n early  8 years a f t e r  s u i t  was f i l e d ,  i t  seems 

p la in  that a question  o f  t im e lin e ss  is  presented . The in terven ­

tion  was sought a f t e r  the proceedings in 1969 had progressed  

through a p r e - t r i a l  h earing , a three day t r i a l ,  appeal, and remand.

We b e l ie v e  that there i s  an apparent c o n f l i c t  w ith th is  Court s 

p rio r  d e c is io n s  ru lin g  that a d e c is io n  on the t im e lin e ss  o f  in t e r ­

vention is  w ith in  the d is c r e t io n  o f  the d i s t r i c t  court and w i l l  

not be d istu rbed  absent an abuse o f  d is c r e t io n .  See Simms v .

Andrews, 118 F.2d 803 (10th C ir .  1 9 4 1 ) ;  K e lle y  v . Summers, 210 

F.2d 665 , 674 (10th C ir .  1 9 5 4 ) ;  Miami County Nat. Bank v. B a n c ro ft , 

121 F .2d 921 (10th C ir .  1 9 4 1 ) .  See a ls o ,  3B M oore's Federal Prac­

t i c e , pp. 24-521  e t  se q . "In te rv e n tio n  a f t e r  judgment i s  unusual 

and not o fte n  g r a n te d ."  (Moore, supra, at p. 24—5 2 6 .)  The ques­

tion  o f  t im e lin e ss  should be f u l l y  b r ie fe d  and argued b efo re  the 

c o u rt . In view o f  the apparent c o n f l i c t  with p r io r  ru lin g s  by 

oth er panels o f  the Tenth C ir c u it  on banc rehearing may be j u s t i f i e d .

Second, Rule 2 4 ( a ) ( 2 ) ,  upon which in tervenors r e ly  for  th e ir  

claim  o f  in terven tio n  o f  r ig h t  requ ires  that the ap p lica n t claim

7



,r an in teres  t r e la t in g  to the property or tra n saction  which is  the 

su b ject  o f  the a c t i o n . "  This requirement i s  not d iscu ssed  by 

e ith e r  opinion o f  th is  Court. However, th is  C o u rt 's  action  has 

created a c o n f l i c t  w ith d e c is io n s  o f  the F if th  C ir c u it  in  

S t .  Helena Parish School Board v . H a l l , 287 F.2d 376, 379 (5th  

C ir .  1 9 6 1 ) ,  c e r t , den. 368 U .S . 830 (1 9 6 1 ) ,  and S t e l l  v . Savannah-  

Chatham County Board o f  Education, 333 F .2d  55, 60 (5th C ir .

1 9 6 4 ) .  In S t .  Helena, supra, the F i f t h  C ir c u it  ruled that white  

parents had no r ig h t  to intervene in school d esegregation  cases  

brought ag ain st a lo c a l  board. In S t e l l , supra, the court refused  

to overturn a t r i a l  d e c is io n  to permit in te rv e n tio n , ru lin g  again  

that i t  was a d is c r e t io n a r y  q u e stio n . For a s im ila r  ru lin g  see  

a lso  Blocker v . Board o f  Education o f  Manhasset, 229 F. Supp.

714 (E.D. N .Y . 1 9 6 4 ) .

We b e l ie v e  that the contrary r e s u lt  in a case in volvin g  the 

D i s t r i c t  o f  Columbia should not be follow ed in that the circum­

stances o f  the case  are d is t in g u is h a b le .  See Ilobsen v . Hansen,

44 F .R .D . 18 (D.C. 1 9 6 8 ) ,  remanded on appeal sub nom. Smuck v .  

Hobson, 408 F.2d 175 (D.C. C ir . 1 9 6 9 ) .  The Smuck case  i s  d i s ­

tin gu ish ab le  on se v era l grounds. There, in te rv en tio n  on appeal 

was perm itted because the school board decided not to appeal. In. 

Oklahoma C ity  the school board has appealed the disputed August 13 

ord er . This s i g n i f i c a n t  fa c t  may not have come to the a tte n tio n  

o f  th is  Court sin ce  the n o tic e  o f  appeal was f i l e d  only  three days 

b efo re  th is  C o u rt 's  September 15, 1969, d e c i s i o n . In any event, 

the le g a l  standing o f  the Smuck intervenors involved a lim ite d

8



intervenfcion to a sso r t  a s p e c i f i c  kind, o f  le g a l  r i g h t :  the pro

te c tio n  o f  the freedom o f  action  o f  the school board. Here, the 

V e r ity  and Danzie in terven ors a s s e r t  a c o n s t i tu t io n a l  claim  not  

to be assigned to sch ools  on the b a s is  o f  race to promote r a c ia l  

b ala n ce . We b e l ie v e  that th is  argument i s  w ithout m e rit , and is  

indeed so devoid o f  substance that the complaint in in te rv en tio n  

f a i l s  to s t a t e  a claim  upon which r e l i e f  may be granted. In  

any event, the same arguments are involved in the phase o f  th is  

case which is  now pending on p e t i t io n  fo r  c e r t i o r a r i  in the

Supreme Court o f  the United S t a t e s .

The t r i a l  judge has had no opportunity to ru le  on whether 

the V e r ity  and Danzie com plaints in in terven tio n  can su rvive a 

motion to d ism iss . This C o u rt 's  order o f  September 15 might be 

read as deciding those qu estion s sub s i l e n t i o  by assuming the 

n e c e s s ity  fo r  the t r i a l  court e n te rta in in g  a motion to amend the 

August 13, 1969, ord er.

Third, the court did ru le  that the in tervenors were not 

adequately represented by the McWilliams in te rv en o rs . This f a i l s  

to address whether th e ir  in te r e s t s  are adequately represented by 

the school board which has appealed the same order. Representa­

tion by the governmental a u th o r it ie s  i s  considered adequate in  

the absence o f  gross n eg ligen ce  or bad fa i t h  on th e ir  p a r t . "

3B Moore's Federal P r a c t ic e , pp. 2 4 -1 9 4 . Blocker v . Board o f  

Education o f  Manhasset, supra; S t .  Helena Parish School Board v . 

H a l l , supra.

9



II. A Judge o f  the Panel Which Decided the Case Was D isqu al­
i f i e d  under the P rovisions o f  28 U .S .C . §47 Because He 
P reviou sly  Heard and Decided Issu e s  Involved in the 
Cause as a Member o f  a S ta tu to ry  Three-Judge D i s t r i c t  
C o u rt.

I t  i s  r e s p e c t f u l ly  submitted that the p re sid in g  judge o f  the

panel which decided th is  case , Chief Judge A. P. Murrah, was

d is q u a l i f i e d  to p a r t ic ip a t e  by 28 U .S .C . §47 which p ro v id e s :

No judge s h a l l  hear or determine an appeal 
from the d e c is io n  o f  a case or issu e  tr ie d  
by him.

Judge Murrah1s p a r t ic ip a t io n  in the 1961-1962  th ree-ju dge  

cou rt proceedings i s  described  in the Statement, supra. The r e l e ­

vant orders in d ic a t in g  the issu es  framed fo r  t r i a l  and the issu es  

a c tu a l ly  decided are appended h e re to . See p r e t r i a l  order o f  

January 26, 1962, and order o f  July 10, 1962. Quite p la in ly  the 

f u l l  range o f  i s s u e s - - t h e  case as a whole— was tr ie d  b efo re  the 

three—judge co u rt . Although that court was d ou btfu l o f  i t s  

ju r i s d ic t io n  and u lt im a te ly  decided i t  had no j u r i s d i c t i o n ,  i t  

expressed a view on the b a s ic  m erits  o f  the case s ta t in g  that the 

school board was not g u i l t y  o f  m aintaining an u n c o n s t itu t io n a lly  

segregated school system.

A judge who has once heard the cause on the m erits  in the 

t r i a l  court i s  d i s q u a l i f i e d  from hearing an appeal in the same 

cause, which in volves  in any degree matters upon which he had 

occasion  to pass in the lower c o u r t . "  (Emphasis added.) 

v . D illin gh a m , 174 U .S . 153, 157 (1 8 9 9 ) ;  Rexford v . Brunswick-  

Balke-C o1lender Co. ,  228 U .S . 339 (1 9 1 3 ) ;  Wm. Cramp & Sons S. &

E. B. Co. v . In te r n a tio n a l  C u rtis  Marine Turbine C o .,  228 U .S .

10



645 (1 9 1 3 ) ;  American Construction Co. v. J a c k so n v ille  T. & K. W. 

Railway Co. , 148 U .S . 372, 387 (1 8 9 3 ) ;  c f .  United S ta te s  v .

Emholt, 105 U .S . 414 (1 8 8 2 ) .  The t e s t  under se c t io n  47 is  a 

s t r i c t  one. Section  47 is  "not r e s t r i c t e d  to the case  o f  a 

ju d g e 's  s i t t i n g  on a d ir e c t  appeal from h is  own d ecree , or upon 

a s in g le  q u e s t io n ."  (Moran, supra, 174 U .S . at 1 5 7 .)  "A Judge 

who has sa t  at the hearing below o f  a whole cause at any stage  

th ereof i s  undoubtedly d i s q u a l i f ie d  to s i t  in the c i r c u i t  court  

o f  appeals at the hearing o f  the whole cause at the same or at  

any l a t e r  s ta g e "  ( i b i d . ) .

The Supreme Court has twice held  that even a consent o f  the 

p a r t ie s  cannot make a d i f fe r e n c e  and j u s t i f y  f a i l u r e  to comply 

w ith s e c t io n  4 7 . Thus, i t  cannot m atter that the o b je c t io n  was 

not h e re to fo re  ra ise d  in th is  Court. Rexford v . Brunswick-  

B alke-C ollen der Co. ,  228 U .S . at 344; Wm, Cramp & Sons S. & E.

B. Co. v. In te rn a tio n a l C u rtis  Marine Turbine Co. ,  228 U .S . a t  

650 . In any event, a p p e lle e s '  f a i lu r e  to o b je c t  i s  p e r fe c t ly  

understandable in that none o f  a p p ellee^  present counsel p a r t i c i ­

pated in the 1961—62 proceedin gs. One o f  a p p e llee s  counsel in 

that proceeding, John Green, E sq ., became an A s s is ta n t  United  

S ta te s  Attorney (see 219 F. Supp. at 4 2 8 ) ,  and the other  

(Mr. U. S. Tate) i s  deceased.

The ru le  o f  se c t io n  47 is  q u ite  s t r i c t .  But as Mr. J u stic e  

Black observed in a d i f f e r e n t ,  but not unrelated c o n te x t , in 

Re Murchison, 349 U .S . 133, 136 (1 9 5 5 ) ,  such a ru le  "may sometimes 

]^ar t r i a l  by judges who have no actu al b i a s ,  but the rule  helps

11



In any event, the in te n tio ns a t i s f y  "th e  appearance o f  j u s t i c e . "  

o f  Congress i s  to require  that the court o f  appeals "be c o n s t i ­

tuted o f  judges uncommitted and uninfluenced by having expressed  

or formed an opinion in the court o f  f i r s t  in s t a n c e ."  Moran v . 

D illin gh a m , 174 U .S . 153, 156 -157  (1 8 9 9 ) .  Judge Murrah expressed  

a view on the m erits  in the July 10, 1962, ord er. Ihe Supreme 

Court precedents require  a rehearing b efo re  a court o f  appeals  

c o n stitu te d  in compliance with se c t io n  47 .

This same qu estion  in volv in g  se c t io n  47 i s  now pending in 

the United S ta te s  Supreme Court in the p e t i t io n  fo r  c e r t i o r a r i  

seeking review o f  th is  C o u rt 's  d e c is io n  o f  August 27, 1969, 

vacatin g  the t r i a l  court order o f  August 13, 1969.

R e sp e c tfu lly  submitted,

JACK GREENBERG 
JAMES M. NABRIT, I I I  
NO RMAN J .  CHACHKIN

10 Columbus C ir c le  
New York, New York 10019

JOHN W. WALKER
1820 West 13th S tre e t  
L i t t l e  Rock, Arkansas 72202

ARCHIBALD B. HILL, JR.
407 North Durland
Oklahoma C ity ,  Oklahoma 73104

Attorneys fo r  A pp ellees  Dowell, et a l .

CALVIN W. HENDRICKSON
2401 F ir s t  N ational Building  
Oklahoma C ity ,  Oklahoma 73102

Attorney for  Appellees  Sanger, e t  a l .

12



CERTIFICATE OF SERVICE

I hereby c e r t i f y  that on the 24th day o f  September, 1969, 

I served a copy o f  the foregoin g P e t it io n  fo r  Rehearing with  

Suggestion fo r  Rehearing en banc on attorneys fo r  in tervening

d e fe n d a n ts -a p p ella n ts  and on

o f  same in the United S ta tes

addressed to the fo l lo w in g :

V. P. Crowe, Esq.
George S. Guysi, Esq.
5th F lo o r , 100 Park A ve . Bldg. 
Oklahoma C ity  , Okla. 73102

George F. Short, Esq.
2401 F ir s t  N ational Bldg. 
Oklahoma C ity , Okla. 73102

Norman E. Reynolds, Esq.
2808 F ir s t  N ational Bldg. 
Oklahoma C ity ,  O kla. 73102

Attorneys fo r  McWilliams 
Intervenors

J. Harry Johnson, Esq.
2105 F ir s t  N ational Bldg. 
Oklahoma C ity ,  Okla. 73102

Attorney for  the Board o f  
Education o f  Oklahoma C ity  
Public Schools

defendants by d e p o sitin g  a copy 

a i r  m ail, postage prepaid ,

George L. V e r i ty ,  Esq. 
Brown, V e r ity  & Brown 
2220 F ir s t  N ational Bldg. 
Oklahoma C ity ,  Okla. 73102

Attorney for  V e r ity ,  e t  
a l and D anzie, e t  a l .

W illiam  G. Smith, Esq.
405 In v e sto rs  C a p ita l Bldg. 
Oklahoma C ity ,  Okla. 73102

Robert H. Warren, Esq.
325 Robert S. Kerr Ave. 
Oklahoma C ity ,  Okla. 73102

___
James M. N abrit, I I I
Attorney fo r  Plain  t i f f s - A p p e l le e s



45a

(Filed July 10, 1962)
Obder D issolving T hree-Judge Court

[Title Omitted]

This action was brought by Robert L. Dowell, a minor 
child of the negro race by and through his father as next 
friend, and as a class action in boliall of all others similarly 
situated, against the Board of Education of the Oklahoma 
City Public Schools, Independent District No. 89, and the 
indi\ iduals; in their capacities as set forth in the caption.

The original and amended complaint of plaintiff, insofar 
as this order is concerned, may be considered as setting 
forth the same complaints and asking for the same relief. 
The amended complaint seeks to strike down all Consti­
tutional and statutory provisions of the State of Oklahoma 
relating to segregation of the races in the public schools. 
Defendants admit, in their answer, that all of these Consti­
tutional and statutory provisions are unconstitutional. The 
real question posed by the pleadings is the application 
by defendants of Section 4-22 of Title 70, Oklahoma Stat­
utes Annotated. Plaintiff admits that this section is Con­
stitutional on its face, but contends that it is unconstitution­
ally applied. Defendants, by their answer, state that all 
actions taken by them were under the authority of this 
statute only, and that it is not being and has not been 
unconstitutionally applied.

The jurisdiction of the Court is invoked pursuant to Title 
28 U.S. Code, Section 1343 (3) as a suit in equity authorized 
by Title 42 U.S. Code, Section 1983, seeking to redress the 
deprivation, under color of law, regulation, custom and 
usage, of rights, privileges and immunities secured by the

Order Dissolving Three-Judge Court



46a

due process and equal protection clauses of the United 
States Constitution, 14th Amendment, Sec. 1, and rights 
protected by Title 42 U.S. Code, Sections 19S1 and 1983. 
Plaintiff contended that the subject matter of this action 
is cognizable by a statutory three-Judge District Court, 
Title 28 U. S. Code, Sections 2281 and 2284, being a civil 
action for permanent injunction, and to enjoin and restrain 
the enforcement, operation and execution of a State statute.

Under the complaint, seeking the relief above mentioned, 
Honorable Luther Bohanon, District Judge for the West­
ern, Eastern and Northern Districts of Oklahoma, made the 
initial requisite declaration that a substantial Federal ques­
tion was involved, notified the Honorable Alfred P. Murrah, 
Chief Judge, Tenth Circuit Court of Appeals of the filing 
of the case. A three-Judge District Court, comprised of 
Chief Judge Murrah, Honorable Fred Daugherty and 
Honorable Luther Bohanon, District Judges, was consti­
tuted by order of Chief Judge Murrah.

The three-Judge Court as so constituted, heard the evi­
dence of all the parties concerned in order that the matter 
would not be delayed in the event it was finally determined 
that a three-Judge Court had jurisdiction.

Section 4-22 Title 70, Oklahoma Statutes Annotated, au­
thorizes Boards of Education “ to designate the schools to 
be attended by the children of the District.”  The evidence 
shows that the plaintiff came from a dependent school dis­
trict, where there was no high school, into the defendant 
school district, and made his election to attend Douglass 
High School. After attending Douglass High School for 
one year, he then made an application to be transferred 
from Douglass High School to Northeast High School be­
cause a course of study offered at Northeast High School 
was not available at Douglass High School, and this trans-

Order Dissolving Three-Judge Court



47a

fer was permitted on the condition that the plaintiff enroll 
in this course of study and diligently pursue the same.

The plaintiff’s evidence failed to show that the above 
mentioned statute is or was unconstitutionally applied by 
the defendants.

Under the pleadings and evidence the Court is of the 
opinion that there is no justiciable controversy presented 
as to any of the constitutional or statutory provisions set 
out in the plaintiff’s first amended complaint, and there 
remained only for determination the cpiestion relating to 
defendant’s application of the above mentioned statute. 
There Avas no evidence to show that the unconstitutional 
proA’isions of the Oklahoma Constitution and the unconsti­
tutional statutes of Oklahoma relating to segregation of 
the races in public schools have been used and there is 
no controversy Avith respect thereto and nothing to strike 
doAvn. Under the pleadings there Avas only the issue as 
to defendant’s application of Section 4-22 Title 70, Okla­
homa Statutes Annotated. This issue is a factual one and 
does not address itself to a three-judge Court.

It further appears from the evidence that there has been 
no order made or promulgated by the defendants acting 
under the above statute, within the purvieAv of 28 U. S. 
Code Section 2281, which the plaintiff presents or points 
out to be unconstitutional by discriminating against the 
plaintiff and his class by reason of race or color.

It is always the duty of any Court to inquire into its 
jurisdiction, and in vieAV of Avhat has been above set forth 
this Court holds that it is Avithout jurisdiction, and is of 
the opinion that the subject matter of this suit is properly 
one for determination by one Judge. The case having 
been originally assigned to Honorable Luther Bohanon, 
District Judge, it is hereby reassigned to him for further

Order Dissolving Three-Judge Court



46a

I

9

3

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i1

Order Dissolving Tliree-Judge Court

due process and equal protection clauses of the United 
States Constitution, 14th Amendment, Sec. 1, and rights 
protected by Title 42 U.S. Code, Sections 1981 and 1983. 
Plaintifi contended that the subject matter of this action 
is cognizable by a statutory three-Judge District Court, 
Title 28 U. S. Code, Sections 2281 and 2284, being a civil 
action for permanent injunction, and to enjoin and restrain 
the enforcement, operation and execution of a State statute.

Under the complaint, seeking the relief above mentioned, 
Honorable Luther Bolianon, District Judge for the West­
ern, Eastern and Northern Districts of Oklahoma, made the 
initial requisite declaration that a substantial Federal ques­
tion was involved, notified the Honorable Alfred P. Hurrah, 
Chief Judge, Tenth Circuit Court of Appeals of the filing 
of the case. A three-Judge District Court, comprised of 
Chief Judge Hurrah, Honorable Fred Daugherty and 
Honorable Luther Bolianon, District Judges, was consti­
tuted by order of Chief Judge Hurrah.

The three-Judge Court as so constituted, heard the evi­
dence of all the parties concerned in order that the matter 
would not be delayed in the event it was finally determined 
that a three-Judge Court had jurisdiction.

Section 4-22 Title 70, Oklahoma Statutes Annotated, au­
thorizes Boards of Education “ to designate the schools to 
be attended by the children of the District.”  The evidence 
shows that the plaintiff came from a dependent school dis­
trict, where there was no high school, into the defendant 
school district, and made his election to attend Douglass 
High School. After attending Douglass High School for 
one year, he then made an application to be transferred 
from Douglass High School to Northeast High School be­
cause a course of study offered at Northeast High School 
was not available at Douglass High School, and this trans-

' '  - V ' r -r



47a

Order Dissolving Tliree-Judge Court

fer was permitted on the condition that the plaintiff enroll 
m this course of study and diligently pursue the same.

Ihe plaintiff’s evidence failed to show that the above 
mentioned statute is or was unconstitutionally applied by 
the defendants. J

Under the pleadings and evidence the Court is of the 
opinion that there is no justiciable controversy presented 
as to anj of the constitutional or statutory provisions set 
out m the plaintiff’s first amended complaint, and there 
remained only for determination the question relating to 

pendant’s application of the above mentioned statute. 
1 here was no evidence to show that the unconstitutional 
provisions of the Oklahoma Constitution and the unconsti­
tutional statutes of Oklahoma relating to segregation of 
the races in public schools have been used and there is 
no controversy with respect thereto and nothing to strike 
down Under the pleadings there was only the issue as 
to defendant’s application of Section 4-22 Title 70, Okla­
homa Statutes Annotated. This issue is a factual one and 
does not address itself to a three-Judge Court.

It further appears from the evidence that there has been 
no order made or promulgated by the defendants acting 
under the above statute, within the purview of 28 U. S. 
Code Section 2281, which the plaintiff presents or points 
out to be unconstitutional by discriminating against the 
plaintiff and his class by reason of race or color.
. 11 is always the ^ t y  of any Court to inquire into its 
jurisdiction, and m view of what has been above set forth 
this Court holds that it is without jurisdiction, and is of 
the opinion that the subject matter of this suit is properly 
one for determination by one Judge. The case having 
been originally assigned to Honorable Luther Bohanon, 
District Judge, it is hereby reassigned to him for further

—y HQ Mil  IJij ■g ■ \pjgm»I m IMMWTOWi



48a

procedings, and this three-Judge statutory Court is hereby 
dissolved.

E ntered this 10 day of July, 19G2.

/ s /  A le red P. M urrah

A lfred P. M urrah, Chief Judge, 
Tenth Circuit Court of Appeals

/ s /  L uther B ohanon

United States District Judge

/ s /  F red Daugherty

United States District Judge

Order Dissolving Three-Judge Court



tiiavifiarwftiiSi •„ • *ltU,w ,1

49a

[Title Omitted]

A dmitted F acts

It is agreed that the defendant, Independent School Dis-
dist • f° ■ +°f  ° klahoma County> is an independent school
tl f f nC T  ! US UDder thG laWS ° f the State of Oklahoma;
Phi C B thiS aCti° n ° tt0 F - Thompson,Phil C. Bennett, AY illiam F. Lott, Eloise Welch (otherwise
known as Mrs. Warren F. Welch), and Luke F. Skaggs

S ch oll1V !  ° V lu  members 0f the Board of the Defendant 
School District; that since the filing of this action Foster
Estes has succeeded Luke F. Skaggs, Jr., as member of
said Board and has been by the order of this Court sub-
Jack F P a, def?lldant in the «toad of said Skaggs; that 
i  t  l ' P o 'ker 18 Supermtendent of the Schools of the 
Defendant School District and that M. J. Burr is Assistant 
Superintendent of such schools.

It is agreed that the plaintiffs are a father and minor 
son, citizens of the United States and the State of Okla- 
oma, and that they are members of the Negro race; that 

minor plaintiff resides with his parents in a school 
strict adJoining the Defendant Independent School Dis- 

uct Lo. 89 of Oklahoma County (last named school dis- 
tnct 89 is mentioned hereinafter as Defendant School Dis- 
tu ct ); that the school district of the residence of the plain­
tiff does not, but the Defendant School District does offer 
coupes of instruction above the 8th grade level; that the 
nnnor plmntiff is a pupil of the 10th grade; that the minor 
plaintiff made application to the County Superintendent of 

ols of Oklahoma County that such minor plaintiff be 
ransferred from his home school district to the defendant 

school district for the reason that the home district of the

Pretrial Order and Stipulations



50a

minor plaintiff did not offer instruction above the 8th 
grade level; that the first of said applications was made for 
the school year of 1960-61 Exhibit “1” and that the second 
was made to cover the school year of 1961 and 1962; Ex­
hibit “ 2” ; that each of said applications was granted by 
the County Superintendent of Schools of Oklahoma County 
as is evidenced by the copies of such transfers which have 
been furnished to and filed with the Clerk of this Court, 
which copies are exact copies of the originals of said ap­
plications for and grant of such transfers, and that the 
same may be introduced in evidence without further identi­
fication. That after the granting of said application for the 
school year 1960-61 the minor plaintiff entered Douglass 
High School, one of the schools of the defendant school dis­
trict that is attended solely by pupils of the Negro race.

It is agreed that after the granting of the transfer to 
the minor plaintiff for the year 1961-62 that the plaintiffs 
made application to the defendant school district for per­
mission to attend as a pupil, Northeast High School which 
is high school of the defendant school district, located in 
an area that is predominately populated by members of 
the white race and is attended by both Negroes and white 
children.

Thereafter the plaintiffs and their attorney, Mr. Green, 
appeared before the Board of Education of the Defendant 
School District and after discussion of said request a 
minute was made of said meeting, a copy of which minute 
has been filed with the Clerk of this Court, and it is stipu­
lated that said copy of said minute may be introduced in 
evidence without further identification, Exhibit “3” .

It is agreed that the Board of the Defendant School Dis­
trict by a unanimous vote adopted on August 1, 1955, the 
resolution of desegregation, a copy of which is attached

Pretrial Order and Stipulations



ftyftViBiiiitalii*l > ^ - - ^ j i i ( '1iiirriMif,l < ii. •

Pretrial Order and Stipulations

hereto as Exhibit ”4” , which copy may be introduced in 
evidence without further identification.

It is agreed that thereafter the Board of the Defendant 
School District adopted a map, a copy of which has been 
delivered to the Clerk of the Court, which map showed what 
is commonly called attendance areas, that is, it showed the 
area of the school district surrounding various schools 
and the Board provided that an individual within the at­
tendance area of a school be a pupil of and attend the 
school of that particular area, Exhibit “5” .

It is agreed that there are now white children of high 
school age who live within the Douglass High School at­
tendance area that are not attending Douglass High School 
and that there are Negro children now attending Douglass 
High School who live outside of the Douglass attendance 
area.

51a

S tipulation’s

The parties to this action stipulate and agree as to the 
following for the purpose of the trial of the issues. Each 
party, however, reserves the right to object to the intro­
duction of any evidence as to any fact on the ground of 
competence, relevancy, or materiality.

1.

It is stipulated and agreed by plaintiff and defendant 
that there are no amendments to be made to plaintiff’s 
first amended complaint and that there are no amendments 
or additions to be made to the defendant’s answer to plain­
tiff’s first amended complaint.



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52a

Pretrial Order and Stipulations

2 .

Defendant stipulates and agrees that plaintiff has served 
proper live day notice on the Governor of the State of 
Oklahoma and the Attorney General of the State of Okla­
homa as provided by law for a Three Judge Federal Court 
proceeding.

3.

It is stipulated and agreed between plaintiff and defen­
dant that this Court has jurisdiction of the subject matter 
of this case.

A. The defendant contends as stated in their amended 
answer that the plaintiffs are not entitled under the 
law and the facts in this case, to have a three Judge 
Court convened to hear this matter.

B. Planitilfs contend that the subject of this lawsuit 
is cognizable by a statutory three Judge Court and 
that a three Judge Court must determine its jurisdic­
tion.

• 4.

It is stipulated and agreed by plaintiff and defendant 
that the following provisions of the Oklahoma constitution 
and the State statutes of the State of Oklahoma as are 
now carried on the statute books of the State of Oklahoma, 
and being unrepealed, are unconstitutional under the Con­
stitution of the United States of America by reason of the 
decisions of the Supreme Court in the Brown case of May 
17, 1954 and subsequent segregation opinions, to-wit:

(1.) Declare that provision of Section 5, Article I, of 
the Constitution of Oklahoma, which reads: “And pro-

**■»!> «*  •? f •V’ "wrf ** .r - J y*» *-mmi



53a

vided, further, that this shall not be construed to prevent 
the establishment and maintenance of separate schools for 
white and colored children,” is unconstitutional and void;

(2.) Declare that Section 3 of Article XIII of the Con­
stitution of Oklahoma, which reads:

“Separate schools for white and colored children with 
like accommodations shall be provided by the Legislature 
and impartially maintained. The term ‘colored children’ 
as used in this Section, shall be construed to mean children 
of African descent. The term ‘white children’ shall include 
all other children,” to be unconstitutional and void;

(3.) This provision hereafter treated.

(4.) Declare Section 5-1 of Title 70, Oklahoma Statutes, 
Separation of races Impartial facilities. “The public schools 
of the State of Oklahoma shall be organized and main­
tained upon a complete plan of separation between the 
white and colored races with impartial facilities for both 
races.” Laws 1949, p. 536, Art. 5, Sec. 1, unconstitutional 
and void;

(5.) Declare Section 5-2 of Title 70, Oklahoma Statutes, 
definitions. “The term ‘colored,’ as used in the preceding 
section, shall be construed to mean all persons of African 
descent who possess any quantum of Negro blood, and the 
term ‘white’ shall include all other persons. The term 
‘public school’ within the meaning of this Article shall in­
clude all schools provided for or maintained, in whole or 
in part, at public expense.” Laws 1949, p. 536, Art. 5, 
Sec. 2, unconstitutional and void;

(6.) Declare Section 5-3, of Title 70, Oklahoma Statutes, 
separate school defined—Designation—Membership of dis-

Pretrial Order and Stipulations



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trict board. “ The separate school in each district is hereby 
declared to be that school in said school district of the 
race having the fewest number of children in said district. 
Provided, that the county superintendent of schools shall 
have authority to designate what school or schools in the 
school district shall be the separate school or schools and 
which class of children, either white or colored, shall have 
the privilege of attending such separate school or schools 
in said school district. Members of the district school 
board shall be of the same race as the children who are 
entitled to attend the school of the district, not the separate 
school.” As amended Laws 1955, p. 423, Sec. 15, uncon­
stitutional and void ;

(7.) Declare Section 5-4, of Title 70, Oklahoma Statutes, 
teacher permitting child to attend school of other race. 
“Any teacher in this state who shall wilfully and know­
ingly allow any child of the colored race to attend the 
school maintained for the white race shall be deemed 
guilty of a misdemeanor and upon conviction thereof shall 
be fined in any sum not less than ten dollars ($10.00) 
nor more than fifty dollars ($50.00), and his certificate 
shall be cancelled and he shall not have another issued 
to him for a term of one (1) year.” Laws 1949, p. 537, 
Art. 5, Sec. 4, to be unconstitutional and void;

(8.) Declare Section 5-5, of Title 70, Oklahoma Statutes, 
maintaining or operating institution for both races. “ It 
shall be unlawful for any person, corporation or associa­
tion of persons to maintain or operate any college, school 
or institution of this State where persons of both white 
and colored races are received as pupils for instruction, 
and any person or corporation who shall operate or main­
tain any such college, school, or institution in violation

54a

Pretrial Order and Stipulations

i

I



55a

hereof shall be deemed guilty of a misdemeanor and upon 
conviction thereof shall be fined not less than one hundred 
dollars ($100.00) nor more than five hundred dollars 
($500.00), and each day such school, college or institution 
shall be open and maintained shall be deemed a separate 
offense.” Laws 1949, p. 537, Art. 5, Sec. 5, to be uncon­
stitutional and void;

(9.) Declare Section 5-6, of Title 70, Oklahoma Statutes, 
teaching in institution receiving both races. “Any instructor 
who shall teach in any school, college or institution where 
members of the white and colored race are received and 
enrolled as pupils for instruction shall be deemed guilty 
of a misdemeanor, and upon conviction thereof, shall be 
fined in any sum not less than ten dollars ($10.00) nor 
more than fifty dollars ($50.00) for each offense, and each 
day any instructor shall continue to teach in any such col­
lege, school or institution shall be considered a separate 
offense.” Laws 1949, p. 537, Art. 5, Sec. 6, to be uncon­
stitutional and void;

(10.) Declare Section 5-7, of Title 70, Oklahoma Statutes, 
white person attending institution receiving colored pupils. 
“It shall be unlawful for any white person to attend any 
school, college or institution where colored persons are 
received as pupils for instruction, and anyone so offending 
shall be fined not less than five dollars ($5.00) nor more 
than twenty dollars ($20.00) for each offense, and each 
day such person so offends as herein provided shall be 
deemed a distinct and separate offense: Provided nothing 
in this Article shall be construed as to prevent any private 
school, college or institution of learning from maintaining 
a separate or distinct branch thereof in a different locality.” 
Laws 1949, p. 537, Art. 5, Sec. 7, to be unconstitutional 
and void;

Pretrial Order and Stipulations



56a

(11.) Declare Section 5-8, of Title 70, Oklahoma Statutes, 
support and maintenance of Separate Schools. “ The annual 
budget of each school district maintaining separate schools 
for white and colored children shall provide for the sup­
port and maintenance of both the school or schools for the 
white children and the school or schools for the colored 
children.” As amended Laws 1955, p. 423, Sec. 16, to be 
unconstitutional and void ;

(12.) Declare Section 5-11, of Title 70, Oklahoma Stat­
utes, transfer of pupils. “ When any school district having 
both white and colored children of school age does not 
maintain schools for both races, the county superintendent 
of schools shall transfer the children of the race for which 
a school is not maintained to a school of their own color 
in another district when the same can be done with the 
consent of their parents, guardians or custodians, or with­
out such consent when such children can be transferred 
without compelling them to walk more than one and one- 
half miles to attend such school; provided, that such chil­
dren may be required to travel more than one and one- 
half (IV2 ) miles when proper provision is made for the 
transportation of such children, and the consent of the 
parents, guardian or custodian of any child being required 
to travel more than one and one-half (IV2 ) miles shall 
not be required when such transportation is furnished.” As 
amended Laws 1955, p. 424, Sec. 18, to be unconstitutional 
and void;

Pretrial Order and Stiimlations

5.

It is further stipulated between plaintiff and defendant 
in relation to the foregoing articles of the Oklahoma Con­
stitution and sections of the Oklahoma statutes that the

a ysaapy



57a

plaintiff will offer no oral testimony showing a use of the 
said Articles of the Oklahoma Constitution and sections of 
the Oklahoma state statutes in the operation of defendant 
schools.

A. Except plaintiff reservies the right to contend that 
the defendants have continued to operate and are 
now operating segregated schools under said statutes 
or otherwise contrary to the decisions of the Supreme 
Court of the United States, under said designated 
Articles of the Constitution and statutes.

Plaintiffs’ PriuCipaa Issue 

(Item 3, Above Referred To)

Oklahoma Statutes, Title 70, Section 4-22 authorizes 
Boards of Education in part as follows: “ To designate the 
schools to be attended by the children of the district.”

Plaintiffs say the foregoing is unconstitutional as applied 
to and used by defendants as to these plaintiffs and as to 
members of the class of persons that plaintiffs represent 
who are similarly situated because of their race and color.

The defendants’ contention is that the last mentioned 
statute is constitutional and that any question that can be 
raised in this cause by the plaintiffs as to the application 
and use of said statute in this matter is purely factual.

Plaintiffs’ Proof

Plaintiff may offer such proof as he may have showing 
a trend of conduct during the preceding five years prior to 
September, 1960, establishing the grievance set out in the 
complaint, and in this connection, plaintiff will have the 
following witnesses:

Pretrial Order and Stipulations



i5-i

•:i

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Pretrial Order and Stipulations

A 0klnT' Hign0n’ Superintendent Of Schools, Oiaahoma County;

^ S ch o o l^ ’ ASSIStaUt SuPeri*tendent of Defendant 

Nora Belle Oringdorff.

-T. P. Cherry, Oklahoma City;

M. 0. McDaniels, Douglass High School;

P. D. Moon, former Principal, Douglass High School; 
Ira D. Hall, Page Elementary School;

rs. Ruby Fleming, "Woodson Elementary School;
B. V. Watkins, Dunbar Elementary School;

William Johnson, Creston Hills Elementary School;

MSchool;y M° Ulder’ PfinCipa1’ Elementary

Delbert Burnett, Culbertson Elementary School;
Mrs. Hazel Kibler, Lincoln Elementary School;
Lederle Scott;

Mrs. Etoise Flenoid, Oklahoma City;
John Flenoid, Oklahoma City;
Gloria Burse.

58a

I



59a

Pretrial Order and Stipulations 

D efendants’ Proof

Defendants’ conception of the issue in tills cause is not 
that set forth by the plaintiffs, but that under the segrega­
tion opinions of the Supreme Court of the United States, 
the province of this Court is to determine whether or not 
the defendants have adopted a plan which is a good faith 
attempt to comply with the said decisions on desegregation 
as rapidly as possible, all things being considered; and that 
by those decisions the local School Board has imposed on 
it the duty of devising such a plan, and the contention will 
be that the plan adopted by the Defendant District is such 
reasonable plan which entitles it to be approved by this 
Court, and that all complaints by the plaintiffs are made of 
actions honestly and in good faith done under said plan.

Witnesses who may be called to testify in addition to the 
defendants are:

Nellie Melton and John C. Pearson, Jr., former mem­
bers of the School Board;

and in general personnel employed by the School District, 
all of whom, in the belief of the defendants, have been 
named as witnesses by the plaintiffs.

T rial D ate

On information from Judge Murrah’s office and Judge 
Daugherty’s office that they will be available for April 3, 
1962, it is stipulated and agreed by all parties concerned 
that the trial of this case will commence on April 3, 1962 
at the hour of 9 :30 a.m. and continue thereafter until sub­
mitted.

•• **ef.. . r v y



60a

Pretrial Order and Stipulations 

E xhibits

Attached is a map or plat showing Pleasant Hill District 
D-45, and attendance area covering Douglass High School 
and Northeast High School, which is admitted in evidence 
and made a pgrt of this stipulation, being Exhibit “B” .

Dated this 26th day of January, 1962.

L uther B ohanon

Luther Bohanon, U. S. District Judge

A pproved:
John E. Green

For the Plaintiff

W. A. L ybrand

For the Defendant.

>V * ' •• t -" • r <*• • •«•■*****-* • -■ .rr -y rn y i*