Oklahoma City Public Schools Board of Education v. Dowell Brief of Appellees

    BRIEF OF APPELLEES

Intteb States (Enurt nf Appeals
Tenth Circuit

No. 8523

T he B oard op E ducation of the Oklahoma City Public Schools, 
I ndependent District No. 89, Oklahoma County, Oklahoma, a 
Public Body Corporate, Jack F. Parker, Superintendent of the 
Oklahoma City, Oklahoma Public Schools, M. J. B urr, Assistant 
Superintendent of the Oklahoma City, Oklahoma Public Schools, 
Melvin P. R ogers, Phil C. Bennett, W illiam F. Lott, Mrs. W ar­
ren F. W elch and F oster E stes, Members of the Board of Ed­
ucation of Oklahoma City Schools, Independent District No. 89, 
Oklahoma County, Oklahoma, and Their Successors in Office,

versus
Appellants,

R obert L. Dowell and V ivian C. Dowell, Infants, by A. L. Dowell, 
Their Father and Next Friend, E dwina H ouston H elton, a Minor, 
by Her Mother, Gloria Burse, and Gary R ussell, a Minor, by His 
Father, George Russell,

Appellees.

Jack Greenberg 
James M. Nabrit, III 

10 Columbus Circle 
New York, N. Y. 10019

U. Simpson Tate
121% West Cedar Street 
P. 0 . Box 532 
Wewoka, Oklahoma

Attorneys for Appellees

May, 1966



I N D E X

Statement of the Case -...... -................ -...... -...... -....... —- 1

I. Legal Segregation in Oklahoma City Public 
Schools and Practices Which Continued Segre­
gation, from 1907 to Date of District Court’s 
Order .................................... ■............................. -......  2

II. The District Court’s Order Authorizing An Ex­
pert Study to Formulate an Effective Plan for 
Desegregation of the Oklahoma City Public 
Schools ............................................. -.......... ..............  9

III. The Expert Panel’s Analysis of the Deficiencies
of the School Board’s Plan of Desegregation, 
and Their Proposals for An Adequate Plan .......  11

A. The Adequacy of the Overall Plan ........... .... 11

B. Transfer Policies ..............................................  13

C. Zoning and Attendance Areas ............. ........  16

D. Faculty Desegregation .......................... - .........  19

IV. The District Court’s Order Requiring an Effec­
tive Plan of Desegregation of the Oklahoma City 
Public Schools, and Establishing Certain Stan­
dards for Such a Plan ..............................................  22

Argument

I. Substantial Evidence Was Introduced of the Ex­
istence and Continuation of Segregation in the 
Oklahoma City School System .......................... . 25

PAGE



11

II. Where There Is Legal Segregation in a Public 
School System, the District Court Must Order 
An Effective Plan of Desegregation ............-  28

Boson v. Rippy, 285 F.2d 43 (5th Cir. 1960) .... 30
Bradley v. School Board, City of Richmond,

Va., 382 U.S. 103 (1965) ..... .........................  32
Brooks v. County School Board of Arlington,

Va., 324 F.2d 303 (4th Cir. 1963) ...........30, 32
Brown v. Board of Education, 349 U.S. 294 

(1955) ...................... ....... ................. ............. -28,29

Cooper v. Aaron, 358 U.S. 1 (1958) ............... 29

Dove v. Parham, 282 F.2d 256 (8th Cir. 
1960) ...... ......................... ................... ...... -......  30

Goss v. Board of Education of City of Knox­
ville, 373 U.S. 683 (1963) ................. ......... 30, 31

Griffin v. County School Board of Prince Ed­
ward County, 377 U.S. 218 (1964) ........... 30

Holland v. Board of Public Instruction of 
Palm Beach, Fla., 258 F.2d 730 (5th Cir. 
1958) .................................................................. 32

Houston Independent School District v. Ross,
282 F.2d 95 (5th Cir. 1960) ......................  30

Kemp v. Beasley, 352 F.2d 14 (8th Cir. 
1965) ......................    32,33

Northcross v. Board of Education of the City 
of Memphis, 333 F.2d 661 (6th Cir. 1964) ... 31, 32

Price v. Denison Independent School District,
348 F.2d 1010 (5th Cir. 1965) ...........    31

Rogers v. Paul, 382 U.S. 198 (1965) ...........29, 31
Ross v. Dyer, 312 F.2d 191 (5th Cir. 1963) .... 30

PAGE



I l l

Singleton v. Jackson Municipal Separate 
School District, 348 F.2d 729 (5th Cir.
19 ) ;  355 F.2d 865 (5th Cir. 19 ) .......30, 31

III. The District Court Properly Obtained Expert
Testimony as a Basis for Formulating an Effec­
tive Plan of Desegregation, and Such Testimony 
Provided a Reasonable Basis for the Court’s 
Order ................................... -................................-.....  33

Ackelson v. Brown, 264 F.2d 543 (8th Cir. 
1959) .................................................... .............  33

Duff v. Page, 249 F.2d 137 (9th Cir. 1958) .... 33

Padgett v. Buxton-Smith Mercantile Co., 262 
F.2d 39 (10th Cir. 1959) .......... ....................  33

Wanner v. County School Board of Arlington 
County, Va., 357 F.2d 452 (4th Cir. 1966) .... 35

IV. Power and Duty of Court of Equity to Remedy a
Wrong Is Commensurate with the Scope of the 
Wrong .......................................................................... 37

Bowles v. Skagg, 151 F.2d 817 (6th Cir.
1946) ... ..................    37

Brown v. Board of Education, 349 II.S. 294 
(1955) ..............    39

Dabney v. Chase National Bank of the City of 
New York, 201 F.2d 635 (2nd Cir. 1953), 
cert, dism’d, 346 IT.S. 863 ............................   37

Leo Feist, Inc. v. Young, 138 F.2d 972 (7th 
Cir. 1944)

PAGE

37



IV

PAGE

Overfield v. Penrod Corp., 42 F. Supp. 586 
(D.C. Pa. 1942), affd  146 F.2d 889 (3rd 
Cir. 1942) ..........................................................  37

Schine Chain Theatres v. United States, 334
U.S. 110, petition denied, 334 U.S. 809 .......  38

Schneider v. Schneider, 141 F.2d 542 (D.C.
Cir. 1944) ..........................................................  37

United States v. Aluminum Company of 
America, 91 F. Supp. 333 (D.C. N.Y.
1950) ..................................................................  38

United States v. Bausch & Lomb Optical Co.,
321 U.S. 707 ....................................................... 38

United States v. National Lead Co., 332 U.S.
319 ...................................................................... 38

United States v. Standard Oil Co., 221 U.S. 1 .. 38 
United States v. United States Steel Corp.,

223 F. 55 (D.C. N.J. 1915), aff’d 251 U.S.
417 ...................................................................... 38

V. Conclusion .............................................................   40



Imfrii States (Emtrt nf Appeals
Tenth Circuit 

No. 8523

The Board of Education of the Oklahoma City Public 
Schools, I ndependent District N o. 89, Oklahoma 
County, Oklahoma, a Public Body Corporate, Jack F, 
Parker, Superintendent of the Oklahoma City, Okla­
homa Public Schools, M. J. Burr, Assistant Superin­
tendent of the Oklahoma City, Oklahoma Public Schools, 
Melvin P. R ogers, Phil C. Bennett, W illiam F. L ott, 
Mrs. W arren F. W elch and F oster E stes, Members 
of the Board of Education of Oklahoma City Schools, 
Independent District No. 89, Oklahoma County, Okla­
homa, and Their Successors in Office,

Appellants,
versus

R obert L. Dowell and V ivian C. Dowell, Infants, by 
A. L. Dowell, Their Father and Next Friend, E dwina 
H ouston H elton, a Minor, by Her Mother, Gloria 
Burse, and Gary R ussell, a Minor, by His Father, 
George Russell,

Appellees.

BRIEF OF APPELLEES

STATEMENT OF THE CASE

This case involves a suit by Negro plaintiffs against 
the Oklahoma City Board of Education and its agents as 
defendants to enjoin them “from continuing to enforce



2

rules, regulations, and procedures which affect and result 
in the maintenance of segregated schools in Oklahoma 
City, . . . from assigning plaintiffs and the members of 
the class they represent to racially segregated schools, . . . 
and from refusing to adopt and execute plans to eliminate 
existing patterns of racial segregation in the public schools 
of Oklahoma City” (R. 39-41). The lower court granted 
the requested relief in two opinions and orders, the first 
on July 11, 1963 (R. 50-82), and the second on Septem­
ber 7, 1965 (R. 147-165). Defendants-appellants have ap­
pealed the latter order which requires them to develop 
and institute an effective plan of desegregation and specifies 
certain standards for an adequate plan. Plaintiffs-appel- 
lees seek to uphold the district court’s order.

I.
Legal Segregation in Oklahoma City Public Schools 

and Practices Which Continued Segregation, from 1907 
to Date of District Court’s Order.

For nearly fifty years, from the time of its admission 
into the Union in 1907, the State of Oklahoma maintained 
legally required segregation of Negro and white students 
in public education as well as segregation of the races in 
other public activities (R. 56). The Constitution of Okla­
homa, Article XIII, Section 3, provided: “ Separate schools 
for white and colored children with like accommodation 
shall be provided by the Legislature and impartially main­
tained” (R. 56).

This state constitutional requirement was implemented 
by a statutory structure (Title 70, Oklahoma Statutes, 
Sections 5-1 through 5-8 and 5-11), which provided that



3

(1) “ The public schools of the State of Oklahoma shall 
be organized and maintained upon a complete plan of 
separation between the white and colored races . .
(2) members of each district school board must be com­
posed exclusively of members of the majority race; (3) 
private educational institutions must also be completely 
segregated; (4) any teacher or school official who permits 
a child to attend a school with members of the other race 
is guilty of a misdemeanor; (5) any student who attends 
a school with members of the other race is guilty of a 
misdemeanor; and (6) transportation will be furnished 
to other districts by those districts which do not maintain 
schools for a particular race (R, 56-58). It is undisputed 
that the State of Oklahoma did in fact maintain the com­
pletely segregated educational system required by its con­
stitution and statutes for nearly fifty years, up until 
the time of the second Brown decision in 1955.

In addition to the laws requiring segregation in all 
major public activities of the State, the district court 
found that residential segregation was customary and 
legally supported by statute and court enforcement in 
Oklahoma over a long period of time:

[W]hen new additions were added to the cities and 
towns in Oklahoma, it was generally the practice of 
the developers to provide in the plats restrictive 
covenants on lands used for new homes or dwelling 
places, prohibiting the sale of lands or lots or the 
ownership by persons of the Negro race. These restric­
tive covenants also generally provided some penalty 
for an attempt to violate them. In the case where 
lands or lots were sold at a tax sale in Oklahoma, 
these restrictive covenants survive the sale (68 O.S.A. 
Section 456) (R. 58).



4-

The district court also found that this general state prac­
tice of residential segregation with its supporting legal 
structure existed in Oklahoma City:

The residential pattern of the white and Negro people 
in the Oklahoma City school district has been set 
by law for the period in excess of fifty years, and 
residential pattern has much to do with the segrega­
tion of the races. . . . The east and southeast portion 
of the original city of Oklahoma City was Negro, 
and all other sections and districts of the original 
city of Oklahoma City were occupied by the white 
race. Thus the schools for Negroes have been centrally 
located in the Negro section of Oklahoma City, com­
prising generally the central east section of the city 
(R. 59).

After the Supreme Court’s decision in Brown v. Board 
of Education, the Oklahoma City Board of Education made 
the following public statement of policies:

Statement Concerning Integration Oklahoma Public 
Schools 1955-1956

August 1, 1955

All will recognize the difficulties the Board of Edu­
cation has met in complying with the recent pro­
nouncement of the United States Supreme Court in 
regard to discontinuing separate schools for white 
and Negro children. The Board of Education asks 
the cooperation and patience of our citizens in its 
compliance with the law and making the changes that 
are necessary and advisable. This action requires the 
Oklahoma Board of Education to change a system 
which has been in effect for centuries and which is 
desired for many of our citizens.



5

Boundaries have been established for all schools. 
These boundaries are shown on a map at the City 
Administration Building and maps are being dis­
tributed to each school principal. These new bounda­
ries conform to the policies, always followed in estab­
lishing school boundaries. They consider natural 
geographical boundaries, such as major traffic streets, 
railroads, the river, etc. They consider the capacity 
of the school. Any child may continue in the school 
where he has been attending until graduation from 
that school. Bequests for transfers may be made and 
each one shall be considered on its merits and within 
the respective capacity of the buildings (R. 60).

The foregoing resolution indicates that the Board of 
Education, as compliance with the Supreme Court’s deci­
sion, undertook only to redraw school boundaries to elimi­
nate obvious duality of zones based on race. Certain new 
school boundaries were established (R. 61). The formerly 
Negro Douglass High School and related Negro elementary 
schools in the east central area of Oklahoma City became 
the public schools for that district. Many white families 
moved out of the east central area and many Negro families 
moved into the area (R. 61). As the number of Negro 
families in the east central area increased, the facilities 
of Douglass High School were enlarged considerably 
through the use of temporary or portable classrooms 
until an enrollment of 1,820, which was the largest in the 
school system, was reached—while Northeast High School 
(in a white area) continued at an enrollment of 1,215 
students without any temporary or portable facilities (R. 
68, 74). This arrangement was in lieu of a re-zoning which 
would have distributed students more evenly among the 
various high schools, but which would also have lessened 
the amount of segregation of the races. With respect to



6

the assignment of high school students from dependent 
school districts (those without high schools) outside the 
city to high schools within the city, school officials con­
tinued their policy of assigning Negroes to “ Negro” schools 
and whites to “white” schools (E. 64). Negro plaintiff 
Robert Dowell was automatically assigned to all-Negro 
Douglass High School when he sought admission to the 
Oklahoma City high schools from outside the city (R. 
63-64) while a white child similarly situated would have 
been assigned to a “white” school.

The effects of the relatively small amount of desegre­
gation which necessarily took place because of the con­
solidation and elimination of dual school zones were coun­
teracted, the district court found (R. 79), by the Board 
of Education’s “minority to majority” transfer policy 
which was maintained through 1963 until invalidated under 
Goss v. Board of Education of City of Knoxville, 373 U.S. 
683 (1963) by the original district court order. The Board 
formally adopted a statement of the policy as follows:

It is the policy of the school board to consider, pass 
upon and to practically always grant the applications 
of parents for the transfer of their children from 
schools where the children’s race is in the minority 
to a school or schools solely of the child’s race or in 
which the child’s race is in the majority providing 
that transfers under policy last above described be 
granted only when it is the opinion of the parents 
of the child and the district that such transfer is 
necessary for the best interest of the child as a pupil 
(R. 70).

The board assumed that “ the best interest of the child as a 
pupil” was that he not be “unhappy” as a result of being in 
a minority racial position, and that this unhappiness was



7

sufficiently evidenced by the parents’ request to change 
schools (R. 66). The district court found that “ the policy 
set forth in this resolution is the same policy the school 
board has followed at all times since 1955. There can be 
no argument but that such a policy is designed to per­
petuate and encourage segregation . . .” (R. 70).

The combination of the Board of Education’s zoning and 
transfer policies successfully held down desegregation. 
This is indicated by a comparison of the racial composition 
of individual schools for 1959-60 and 1964-65:

Total
Schools White Negro Integrated

1959-60 73 12 7

1964-65 81 14 12
(R. 97)

Elementary
Schools White Negro Integrated

1959-60 62 9 6

1964-65 67 11 9
(R. 100)

Secondary
Schools White Negro Integrated

1959-60 11 3 i

1964-65 14 3 3
(R. 103)

Note: The working definition of an “ integrated” school used by the expert 
panel appointed by the district court was a school which is less 
than 95% white or less than 95% non-white.

There were 13 new elementary schools in operation in 
1964-65 which had not been in operation in 1959-60 (some



8

of the old schools had been closed down or combined), 
and all of these were segregated—11 completely so and 
2 with 99% members of one or the other race (R. 99). 
There were 6 new secondary schools in operation in 1964-65 
which had not been in operation in 1959-60, and 5 of these 
were completely all-white or all-Negro (R. 101-102). There 
were white high school students who lived in the all-Negro 
Douglass High School area but none attended Douglass 
in any of the years from 1954-55 through 1962-63 (R. 65).

All of this led the district court to conclude that “ since 
August 1, 1955, the only integration has been in the fringe 
areas as between minority Negro residential pattern and 
the majority white residential pattern” (R. 79), and “ that 
evidence of gerrymandering or otherwise of maintaining 
separate and distinct schools for Negroes and schools 
for whites can be seen in a review of the testimony” 
(R. 77).

Racial segregation of students and teachers in public 
education was further preserved by the Board’s teacher 
assignments during the period since 1955. The district 
court found that “ during the school year 1954-55 there 
were no Negro teachers assigned to teach white students 
in the white schools or white and Negro schools where 
the white students were predominant and the same was 
true for the year 1961-62 and all years in between” (R. 65). 
The Superintendent stated the reason for this policy, 
which indicated his belief in the undesirability of contact 
between members of different races: “ I have advised the 
Board and have concluded that nothing would be gained 
educationally by a desegregation of staffs and that as a 
matter of fact the appointment of Negro teachers in cer­
tain schools and the mixing of staffs could very well 
detract from the quality of the instructional program in



9

Oklahoma City; and that there would be only one reason 
that I could think of for doing this, and it would not be 
an educational reason. It would be merely for the sake 
of integration . . (E. 76).

II.

The District Court’s Order Authorizing An Expert 
Study to Formulate an Effective Plan for Desegregation 
of the Oklahoma City Public Schools.

Based on the foregoing, the district court concluded 
in its opinion of July 11, 1963, that “ the School Board has 
not acted in good faith in its efforts to integrate the 
Oklahoma City Public Schools, as defined and required in 
the Brown cases, as to pupils and personnel” (R. 76). The 
court noted as an element of this finding of lack of good 
faith, the failure of the board to engage an expert who is 
familiar with the particular problems raised by the duty 
to desegregate a school system (R. 79). The court then 
ordered the school board to file a comprehensive plan of 
desegregation (R. 82).

The school board adopted another “ Policy Statement” 
on January 14, 1964, in response to the court’s order, 
which stated the general purposes of the Oklahoma City 
public schools, the policy of attendance zones based on 
“neighborhood schools,” certain criteria for the granting 
of special transfers, and the existence of opportunity for 
any teacher to apply for any position in the system (R. 
105-108). Concluding that this policy statement was still 
inadequate to achieve desegregation of the Oklahoma City 
public schools, the district court at the hearing on the plan 
on February 28, 1964, suggested that defendant school 
board employ an outside expert to draft an effective plan,



10

and that if they chose not to do so he would invite the 
plaintiffs to do so (R. 199-202). Defendant school board 
refused to employ such an expert (R. 83-84). Plaintiffs 
then moved for authority to undertake such a study (R. 
87-88), which motion was granted by the court on June 1, 
1964 (R. 90-91).

The experts commissioned to undertake the study were: 
(a) Dr. William R. Carmack, Director, Southwest Center 
for Human Relations Studies, The University of Okla­
homa, Norman, Oklahoma. Dr. Carmack advised that per­
sonnel of the Human Relations Center under his super­
vision were prepared and qualified to gather information 
concerning school curriculums, pupil distribution, faculty 
distribution, school zones, transfer procedures and other 
relevant facts necessary for the proper evaluation of the 
problem, (b) Dr. Willard B. Spaulding, Assistant Director, 
Coordinating Council for Higher Education, San Fran­
cisco, California. Dr. Spaulding is considered one of the 
outstanding educators in the nation. He has wide ex­
perience in public school administration, having served as 
Superintendent of Schools in Massachusetts, New Jersey 
and Oregon. He is a former Dean of the College of Edu­
cation of the University of Illinois and Chairman of the 
Division of Education of Portland State College. He is 
the co-author of several books on education, including 
The Public Administration of American Schools and 
Schools And National Defense, (c) Dr. Earl A. McGovern, 
Administrative Assistant to the Superintendent of New 
Rochelle Schools, New Rochelle, New York. Dr. McGovern 
has been in school administration since 1955 and was then 
involved in the research and evaluation problems in the 
New Rochelle school system’s efforts to achieve desegrega­
tion of its public schools (R. 88).



11

III.

The Expert Panel’s Analysis of the Deficiencies of 
the School Board’s Plan of Desegregation, and Their 
Proposals for An Adequate Plan.1

A. The Adequacy of the Overall Plan.

Pursuant to order of the court the expert panel analyzed 
both the adequacy of the school board’s plan as a whole, 
and that of specific components within it. With regard 
to the adequacy of the overall plan, they concluded: “In 
overview it may be said the policy statement of the Okla­
homa City Board of Education is not a plan to be followed 
to achieve integrated public education in Oklahoma City” 
(R. 108). Dr. Spaulding, the member of the expert panel 
who took primary responsibility for the section of the 
report dealing with the overall plan, amplified this state­
ment in his oral testimony. He said: “ First, I  would like 
to state that I do not consider this a plan. As I under­
stand planning in the area of public school administration, 
and I think I know this quite well, a plan requires a 
clear statement of the goals that will be achieved. It 
[includes] the description of what is going to be done to 
achieve those goals. Thirdly, it indicates the personnel 
who are going to be assigned to these tasks; and fourthly, 
it includes a time schedule indicating the steps to be ac­
complished at particular times, and the time in which the 
goal is to be reached” (R. 263).

1 The total school population in 1964-65 was 73,963, with 44,019 ele­
mentary and 29,244 secondary students (R. 95-100). The percentage of 
white and non-white pupils has remained relatively stable over the last 
six years with the white population decreasing slightly from 86.4% to 
83.1% while the non-white population increased from 13.6% to 16.9% 
(R. 95). The total number of schools in 1964-65 was 107, with 87 ele­
mentary and 20 secondary schools (R. 95-102).



12

In analyzing the board’s two stated purposes of public 
education in Oklahoma City of (1) providing the best 
possible educational program for every pupil, and (2) pro­
viding equal educational opportunity for all without refer­
ence to any hereditary or environmental differences, the 
expert panel pointed out in their report that “equal oppor­
tunity to profit from the best possible educational pro­
grams occurs most frequently when programs are designed 
to meet individual differences among pupils. When such 
differences are found to exist in substantial numbers of 
cases, wise educational planning yields adaptations of 
programs so that all students . . . may learn from them” 
(R. 108). They also noted that the Oklahoma City public 
schools now provide programs which are adapted to a 
number of pupils, such as those for the physically handi­
capped, slow learners, youth with special social and eco­
nomic problems, etc. (R. 109). Dr. Spaulding again ampli­
fied these statements in oral testimony: “It seems to me 
that these two statements [of purposes] are self-contra­
dictory. If one is to provide the best possible educational 
program for every pupil, then one must necessarily take 
into account the individual differences which exist and 
which exist among wide numbers of students . . .” (R. 
263-264).

Dr. Spaulding suggested that it is impossible to have 
an effective desegregation plan without considering factors 
of race, economic background, etc., since a system that at 
one time had been segregated cannot be effectively deseg­
regated unless affirmative steps are taken (R. 270). For 
example, he said, “ I think we recognize that in any school 
system which was segregated, that the location of build­
ings was determined by the pattern of segregation rather 
than by criteria which might have been used otherwise.



13

Obviously if one is going to have a school into which only 
Negroes would be assigned, it is located in an area where 
Negroes can be assigned to it . . .  so that generally in 
school systems of this character, the location of individual 
buildings is not the same as would be found in a city which 
was not segregated from the beginning” (R. 270-271). 
He concluded that the failure to do more than simply issue 
a policy statement that “we no longer believe in segregated 
schools” would be ineffective in changing the patterns of 
a segregated system (R. 271-272).

Dr. McGovern, in oral testimony, noted that during the 
five year period of the operation of the school system 
which the panel studied, some small progress in terms 
of the number of integrated schools had been made. How­
ever, he concluded: “As we examined it, we kept turning 
these things over, it became more obvious that this was 
not anything, that this was not due to any overt action 
I believe on the part of the Board of Education to provide 
for an integrated school system” (R. 214).

B. Transfer Policies.

Dr. McGovern, who took primary responsibility for the 
section of the report dealing with transfers, pointed out 
that the board’s present transfer policy continues to per­
petuate the segregationist effects of the “minority to 
majority” policy which was invalidated in 1963. Up until 
that time there had been four or five thousand transfers 
annually (R. 218). Under the present policy, a pupil who 
successfully transferred under the “minority to majority” 
policy before 1963 is allowed to remain in the school to 
which he transferred. Furthermore, a brother or sister 
of such a student may also obtain a transfer to that school 
under the policy permitting transfers to make it possible



14

for two or more members of the same family to attend 
the same school (R. 218, 107), Based on detailed statistical 
study, he also said that the “good faith” transfer criterion 
further provided white pupils with an effective loophole for 
escaping from integrated school situations (R. 220, 113). 
He concluded that under the board’s present policy it is 
still possible for many parents to achieve the same results 
as they might have under the “minority to majority” trans­
fer policy (R. 223-224). He also noted that the result of 
some whites getting transfers out of schools with Negroes 
is an ever increasing tendency of remaining whites to also 
attempt to transfer out (R. 221).

As a remedy for the effects of these transfer policies 
and the general failure of the board to take affirmative 
action to correct the effects of segregation, the expert 
panel proposed a “majority to minority” transfer policy 
which would turn the old “minority to majority” policy 
inside out (R. 115). The “majority to minority” policy 
would permit an elementary school pupil, if he were in a 
majority group, to transfer to a school in which he was 
in a minority. Thus if the attendance area for a school 
was predominantly Negro (over 50%), Negro pupils could 
transfer out. However, the Negro pupils could transfer 
only to schools in which they would be in a minority, i.e., 
white schools (over 50%) (R. 115). The report said: 
“Admittedly, due to present circumstances, it is not likely 
that many white pupils would take advantage of this policy, 
but it would provide Negro pupils—especially those who 
care enough—with a way for escaping from the restrictions 
of the present neighborhood school plan” (R. 115). In 
support of this proposal as a workable means of helping 
to remedy the past effects of segregation within the con­
fines of the present school system, the report emphasized



1 5

the considerable amount of excess capacity available partic­
ularly in the elementary schools (R. 116).2

In amplifying the basis for this recommendation in his 
oral testimony, Dr. McGovern noted that in making the 
proposal, the panel had carefully considered the capacity 
of the various schools in the system. It was for this reason 
that they avoided an open enrollment or free transfer 
plan where everybody could just go to the school they 
wished (R. 230). It was pointed out by Dr. Carmack that 
“ this is not a plan that completely ignores attendance 
boundaries or the so-called neighborhood concept. This is 
in fact in relation to some other plans that are being 
utilized, a relatively modest plan” (R. 297).

Dr. McGovern said that the basis for this plan was es­
sentially what is being done in his own city (R. 227). He 
indicated that the achievement levels of students who had 
been in predominantly Negro schools who were distributed 
out to predominantly white schools improved: Having 
this opportunity to receive an education in a different 
milieu had “a very salutary effect, in terms of the distri­

2 Excluding three elementary schools for which no data was available, 
in 1964-65 the total capacity o f the remaining 84 elementary schools was 
54,973 pupils, while the enrollment was 43,752—leaving space available 
for 11,221 pupils (R. 103). The 63 all white schools had room for 8,928 
additional pupils, and the 6 schools with a majority of white pupils had 
room for 1,137 additional pupils—or a total of 10,065 additional pupils. 
Forty-five of these 69 schools had room for 100-plus pupils (R. 104). 
The elementary schools with all or a majority of non-white pupils had 
room for 1,156 additional pupils (R. 104).

Excluding three secondary schools for which no data was available, 
in 1964-65, the total capacity o f the remaining 20 secondary schools was 
31,936 pupils, while the enrollment was 29,774—leaving space available 
for 2,162 additional pupils (R. 104). The 13 all white secondary schools 
had room for 262 additional pupils, and the 4 secondary schools with a 
majority of white pupils had room for 759 additional pupils— or a total 
of 1,021 additional pupils. Six of these 17 schools had room for 100-plus 
additional pupils (R. 104). The secondary schools with all or a majority 
of non-white pupils had room for 1,141 additional pupils (R. 105).



16

bution of readiness of scores . . .  I would say that this is 
largely due to the fact that when the youngsters have an 
opportunity to receive this education where the expecta­
tion of both the pupils and the teachers and all in general 
are much higher, that they respond to this” (R. 231-232). 
He also said that there were not any effects of a negative 
nature on the white population, and furthermore, that 
some of the stereotypes that both Negroes and white pupils 
had of each other as a result of being in a segregated 
school system were broken down when they did have an 
opportunity to get together, and that they became less 
fearful of each other (R. 233-234).

In his oral testimony, Dr. Carmack suggested an addi­
tional effect of a “majority to minority” transfer policy: 
“I f  there is no attendance boundaries in Oklahoma City 
where one could go without anticipating the probabilities 
of some Negroes in the adjacent schools, the efforts to 
move one’s residence would be minimized; so I would say 
that this would have a throw-off effect or a spin-off effect 
of probably assisting in the stabilization of the community, 
particularly the northeastern section” (R. 298). He em­
phasized that at the same time the plan was reasonable 
and fair in that it takes into account not only the need 
to give substantive relief to the plaintiffs, but also the 
concept of freedom of choice. Thus those who do not wish 
to avail themselves of the opportunity to take advantage 
of a different kind of educational environment do not have 
to do so (R. 298).

C. Zoning and Attendance Areas.

The expert panel concluded that the school board’s zon­
ing and attendance area policies lacked flexibility needed 
to promote progress toward desegregation of schools. 
These policies serve, the panel determined, to contain



17

Negroes, and the few whites who do not wish or cannot 
afford to move, in present attendance areas or in new 
ones established under them. If progress toward desegre­
gation of schools is to be achieved, the panel said, the 
racial composition of schools must be considered in de­
termining the boundaries of attendance areas (R. 109).

Dr. Spaulding, in amplifying the report in his oral testi­
mony, noted the confusion which has arisen around the 
use of the term “neighborhood school.”  He pointed out 
that the term “neighborhood” as used in the study of 
people is a sociological term wdiich indicates a group of 
people having certain kinds of relations with each other. 
However, schools are not generally designed for this kind 
of a neighborhood, but the boundaries are drawn in order 
to get enough students inside the schools to fill them and 
to operate them effectively, i.e., in terms of density of 
population, size of buildings, etc. (R. 265). It is probably 
not proper to attach to these zones the word “neighbor­
hood” which has emotional connotations which suggest 
that these people are already related to each other and 
all know each other, etc. (R. 264-265).

The expert panel recommended in their report that two 
sets of adjacent school districts, each containing schools 
with grades 7-12, be combined so that one school in each 
combined district would house grades 7-9 and the other 
would house grades 10-12. The combination of the Harding 
and Northeast districts would produce a racial composi­
tion of 91% white and 9% non-white, compared to a 100% 
white enrollment in Harding and a 78% white enrollment 
in Northeast; the combination of the Classen and the 
Central districts would produce a racial composition of 
85% white and 15% non-white, compared to a racial com­
position of 100% wdiite in Classen and a racial composi­



18

tion of 69% white in Central (1964-65 enrollment figures) 
(R. 118-120).

Dr. McGovern said in oral testimony that the basis for 
this recommendation was particularly that the northeast 
area of the school district appears to be changing from a 
white to a non-white district based on what is happening 
in the elementary schools (R. 237). He concluded: “If 
the decision is made to do nothing, they have made the 
decision . . . that they will have the same kind of a school 
in Northeast as they have in Douglass, that they have in 
Kennedy and they have in the Moon area [all Negro 
schools]” (R. 237-238).

The practical problems of merging these districts were 
considered in detail. The amount of traveling required 
of pupils in these merged districts would be no further 
than the board now requires of pupils living in the north­
west section of the city who are assigned to Northwest 
High School (R. 239). Merger should produce no sub­
stantially different operating costs because of the effi­
ciencies in having large schools (R. 240). Furthermore, 
combining these schools would allow for a broader and 
richer curriculum, and would bring these high schools 
more nearly in line with the other high schools in the 
system. For example, at Northwest, there is a 12th grade 
class of 800 pupils, one at Grant of 600, one at Capitol 
Hill of 731, one at Marshall of 468, and one at Douglass 
of 383. The proposed merged schools presently have 12th 
grade classes of the following sizes: (a) Central, 162, and 
Classen, 240; (b) Northeast, 212, and Harding, 288 (R. 
243).



19

D. Faculty Desegregation

The expert panel stated in their report: “ Since a
greater percentage of non-white personnel holds masters 
degrees than of white personnel, and since testimony of 
the superintendent of schools indicated no difference in 
quality of performance between white and non-white per­
sonnel, it is assumed that the range of individual com­
petence among faculty has no relationship to race” (R. 
93-94). They concluded, however, that the integration of 
teaching personnel in elementary and secondary schools 
has occurred only when the pupils in those schools were 
integrated, i.e. that if the pupil enrollment is all-white, so 
is the faculty, and similarly, if the pupil enrollment is all 
non-white, the faculty is all non-white (R. 95). The re­
port said that although the general policy statement of 
the school board appeared to point toward impartiality in 
respect to employment of faculty and other personnel, 
nevertheless “ it is somewhat too cautious to lead to fur­
ther progress toward integrated faculties” (R. 110). The 
school board’s general policy statement is susceptible of 
the interpretation that Negro teachers will be assigned 
to schools Avith all-white faculties only when they are 
“ ready” to accept Negro teachers, the panel concluded (R. 
110).

In order to avoid the disruption of the existing faculty 
of individual schools which Avould occur by withdrawing 
most of the Negro faculty members from the Negro schools 
and distributing them throughout the system, the panel 
recommended that “ a majority of the Negro teachers as­
signed to all Avhite or to integrated schools should be se­
cured by employing new teachers” (R. 114). Based on the 
frequency of vacancies in the system, the panel proposed 
that “the Board should immediately take action that it will 
Avithout reducing either the number of Avhite or the num-



20

her of non-white teachers now employed, integrate the fac­
ulty so that, by 1970, the following conditions will prevail: 
The ratios of whites to non-whites in, (a) the central ad­
ministration of the schools, (b) non-teaching positions 
which are filled by certificated personnel, and (c) faculty 
in each school will be the same as the ratio of whites to 
non-whites in the whole number of certificated personnel 
of the Oklahoma City Public Schools. Maintaining these 
ratios does not imply any policy in respect to the use of 
race as a criterion for initial employment. To the con­
trary, it assumes that the superintendent will recommend 
for employment, and that the Board will employ, the best 
faculty available” (R. 114).

Dr. Carmack amplified the basis for the panel’s recom­
mendation in his oral testimony:

. . .  if the members of the faculty who are now of a 
minority group are as well qualified and there is some 
evidence to suggest that they may be better qualified 
than their counterparts in the total faculty, there must 
be some artificial factor at work if we find them con­
centrated closely together, and that it might not be 
unreasonable to hope that if random selection were 
employed, eventually random distribution should oc­
cur.

We ought to find, if we have 15% or 20% or what­
ever it might be of this group, and they are just as 
well qualified and can function as effectively as the 
others, we ought to find them appearing all over the 
system in about their ratio on the general faculty 
(R. 302).

Dr. Spaulding noted in his oral testimony:

These tables will show also that the Negro teachers 
are paid on the average more than the white teachers



21

are paid. Yet if one examines the way in which people 
have been placed in the central administration of the 
schools, one finds that only 9% of those employed in 
the central administration are Negroes in 1964-65; 
and I have some difficulty understanding how it is that 
if the policy is in truth being followed that the teach­
ers with the longest experience, with the highest level 
of training on the average and who are paid best on 
the average, don’t provide a higher proportion of the 
educational leadership of the city in the central ad­
ministration (R. 268).

I)r. Spaulding also pointed out an important reason for 
the inclusion of specific standards in an adequate plan of 
faculty desegregation:

. . .  when schools are desegregated there is a tendency 
to dismiss Negro teachers or to reduce the number of 
Negro teachers employed and to fill these places with 
white teachers . . .

One of the things that we were concerned about 
then is that any program of integration of faculty have 
safeguards which would prevent the occurrence in 
Oklahoma City of what has occurred elsewhere—this 
has taken place in southern states—and so we were 
endeavoring to set up some kind of safeguard here 
when we suggest that the current percentage in num­
ber of white and Negro teachers be maintained (R. 
290).



22

IV.

The District Court’s Order Requiring an Effective 
Plan of Desegregation of the Oklahoma City Public 
Schools, and Establishing Certain Standards for Such 
a Plan.

Based on the foregoing, the district court, on Sep­
tember 7, 1965, ordered the school board to prepare:

. . .  a further desegregation plan purposed to com­
pletely disestablish segregation in the public schools 
of Oklahoma City, Oklahoma, as to both pupil assign­
ment and transfer procedures, and hiring and assign­
ment of all faculty personnel.

Said plan shall provide: (1) a statement of goals 
to be achieved, (2) descriptions of procedures to be 
followed to achieve such goals, (3) a statement of 
the personnel to be responsible for carrying out said 
procedures, and (4) a reasonably early time schedule 
of specific steps to be taken to attain the stated goals.

Said plan shall further specifically provide for:

1. New school district lines for the Harding and 
and Northeast High School attendance districts and 
the Classen and Central school attendance districts 
drawn in accordance with recommendations relating 
to said school attendance districts as contained in the 
Integration Report to the end that effective no later 
than the start of the 1966-67 school year:

a. The Harding (7-12) school attendance district 
and the Northeast (7-12) school attendance district 
shall be combined into one school attendance dis­
trict, . . . The decision as to which school shall serve 
grades 7-9 and which school shall serve grades 10-12



23

shall be left to the sound discretion of the school 
board, based on an appraisal of existing permanent 
facilities and the location of other secondary school 
facilities;

b. The Classen (7-12) school attendance district 
and the Central (7-12) school attendance district shall 
be combined into one school attendance district. . . . 
The decision as to which school shall serve grades 
7-9 and which school shall serve grades 10-12 shall 
be left to the sound discretion of the school board, 
based on an appraisal of existing permanent facilities 
and the location of other secondary school facilities.

2. A  new “majority to minority” transfer policy, 
under which policy all pupils initially assigned to 
schools where pupils of their race predominate (over 
50%) shall be permitted to request and obtain transfer, 
if space permits, to schools in which pupils of their 
race will be in a minority (under 50%), and such 
transfer shall make that his permanent home school 
for the grades it provides. . . .

3. A revised special transfer policy containing spe­
cific standards and designed to eliminate, as far as 
possible, requests for transfer, the intent and/or re­
sult of which is to obtain admission to a school in 
which the race of the pupil seeking transfer predom­
inates. . . .

4. Faculty desegregation of all faculty personnel, 
i.e., central administration, certified nonteaching and 
teaching personnel, so that by 1970, the ratio of whites 
to non-whites assigned in each school of the defen­
dants’ system will be the same, with reasonable leeway 
of approximately 10%, as the ratio of whites to non-



24

whites in the whole number of certificated personnel 
in the Oklahoma City Public Schools.

5. In-service education of faculty, incorporating 
recommendations for such training program contained 
in the Integration Report, including (1) City-wide 
workshops devoted to school integration, (2) special 
seminars for administrators and teams of teachers 
from each school, and (3) special clinics for all teach­
ing and administrative personnel (R. 162-164).

The Court also stated:

The Court does not by this Order intend to say that 
the performance of the provisions of this Order will 
satisfy and meet the full good-faith requirements of 
desegregation as provided by law. Further study and 
action of the Board of Education should be under­
taken in order for the Oklahoma City Public Schools 
to be further and completely desegregated as the law 
requires (R. 164).



25

A R G U M E N T

I.

Substantial Evidence Was Introduced of the Existence 
and Continuation of Segregation in the Oklahoma City 
School System.

Without dispute the State of Oklahoma maintained com­
plete segregation in public education for nearly fifty years, 
from its admission into the Union in 1907 until the second 
Brown decision in 1955,3 and segregation continued in 
Oklahoma City thereafter. As indicated by the statutory 
structure concerning segregation in public education (see 
Statement of the Case, supra) this meant that all planning 
concerning schools, all decisions on the location of build­
ings, all pupil attendance policies, all faculty assignments, 
etc.,—i.e. every facet of the school system -had to be 
designed and executed to achieve and maintain “com­
plete” separation between the races. Thus the entire pat­
tern of operation of the school system and the resulting 
action of staff and pupils, and community customs re­
lated to schools, were directed toward segregation as an 
explicit and overriding goal. Many decisions and most 
customs developed during the period of required segrega­
tion would necessarily have long continuing effects.

In this context of fifty years’ history of using all of 
the state’s resources to maintain a segregated school sys­
tem (as well as a segregation generally), the School Board 
ostensibly undertook to achieve desegregation required by 
the Fourteenth Amendment by simply publicly stating 
that certain zone lines would be redrawn.4 It cannot

3 See Statement of the Case, pp. 2-4.
4 See Statement of the Case, pp. 4-5.



26

seriously be contended that such minimal steps could 
undo the effects of fifty years of concentrated state effort 
to build a segregated school system.

Because of the obvious inadequacy of such a paper 
statement to effectively desegregate the schools and the 
depth of the roots of the practice of segregation in the 
public school system, it is not surprising that the record 
shows that School Board decisions and policies following 
1955 generally had the effect of maintaining segregation.5 
Thus, the Board zoned the all-Negro Douglass High 
School in such a way that it remained a predominantly 
Negro school, driving whites who lived in the area to 
either move out or at least seek transfers to other schools, 
thereby increasing residential segregation in the city. 
Furthermore, Douglass was continually enlarged by tem­
porary facilities so that nearly all Negro high school 
students could continue to be assigned to the “Negro” 
high school. Negro pupils who came into the Oklahoma 
City school system from dependent school districts out­
side the city were automatically assigned to predominantly 
Negro schools because it was assumed this was where 
they wanted to go.6 The segregationist effect of the 
Board’s zoning policies is even more graphically shown by 
the fact that virtually all of the new schools placed into 
operation during the period from 1959-60 through 1964-65 
were either virtually all Negro or all white.7 The board’s 
assertion that it was to the principle of the “neighborhood 
school” to justify perpetuating segregation cannot dis­
guise that when it draws zone lines it necessarily knows 
obvious facts such as the racial composition of the area

5 See Statement of the Case, pp. 5-9.
6 See Statement of the Case, pp. 5-6.
7 See Statement of the Case, pp. 7-8.



27

and is responsible for racial zones which result; school 
zoning has substantial influence on the racial composi­
tion of an area because private housing decisions fre­
quently are made on the basis of school zones.8

The “minority to majority” transfer policy was, of 
course, fundamental to continuing school segregation.9 
Whites assigned to formerly and still predominantly 
Negro schools were able to transfer out; Negroes assigned 
to formerly all-white schools were encouraged to avoid 
hostility, which they might have anticipated, by re-segre­
gating themselves. The existence of this policy until it 
was struck down by the Supreme Court in 1963 belies 
Board’s asserted dedication to the “neighborhood school.” 
That the combination of the board’s zoning and transfer 
policies even after 1963 continued to maintain segregation 
is demonstrated by comparing the number of white and 
Negro schools in 1959-60 with those in 1964-65; their 
number increased.10

That faculty members were assigned to schools only 
with members of their own race before 1955, and after 
1955 generally continued to be assigned only to schools 
where their race predominated (although some whites 
could teach in predominantly Negro schools) is conclusive 
evidence of perpetuation of racial segregation in faculty 
assignments.11

There was, therefore, substantial evidence to support 
the district court’s conclusion that the Oklahoma City 
public schools have not been desegregated.

8 See Statement of the Case, pp. 16-17.
9 See Statement of the Case, pp. 6-7.
10 See Statement of the Case, p. 7.
11 See Statement of the Case, pp. 8-9.



28

II.

Where There Is Legal Segregation in a Public School 
System, the District Court Must Order an Effective 
Plan of Desegregation.

A. General Principles.

The Supreme Court held from the beginning that the 
constitutional ban on segregation in public education re­
quired far reaching affirmative action to eliminate the 
practice.12 In the second Brown decision, 349 U.S. 294 
(1955), the Court said:

At stake is the personal interest of plaintiffs in ad­
mission to public schools as soon as practicable on a 
nondiscriminatory basis. To effectuate this interest 
may call for elimination of a variety of obstacles in 
making the transition to school systems operated in 
accordance with the constitutional principles set forth

12 This case does not involve a claim for relief from school segregation 
not shown to have resulted from officially sponsored and supported state 
action. Thus the several “racial imbalance,”  or so called “ de facto,”  cases 
of B ell v. S ch oo l C ity  o f  G a ry , In d ., 213 F. Supp. 819 (N.D. Ind. 1963), 
aff’d, 324 F.2d 209 (7th Cir. 1963), cert, denied, 377 U.S. 924 (1964), 
D ow n s  v. B oa rd  o f  E d u ca tion  o f  K a n sa s  C ity , K a n sa s , 336 F.2d 988 (10th 
Cir. 1964), cert, denied, 380 U.S. 914 (1965), and B arksda le v. S p rin g fie ld  
S ch oo l C om m ittee , 348 F.2d 261 (1st Cir. 1961), cited in appellant’s brief 
are irrelevant. As an aside, however, we might note that the right to such 
relief has been sustained in B o o k e r  v. B oa rd  o f  E d u ca tion  o f  P la in field , 
45 N.J. 161, 212 A.2d 1 (1965); B ala ba n  v. R u b in , 40 Mise.2d 249, 242 
N.Y.S.2d 974 (Sup. Ct. 1963), rev’d, 20 A.D.2d 438, 248 N.Y.S.2d 574 
(2d Dept.), aff'd, 14 N.Y.S.2d 193, 199 N.E.2d 375 (1964), cert, denied, 
379 U.S. 881 (1964), 9 Race Rel. L. Rep. 690; M orea n  v. B oa rd  o f  E d u ­
ca tion  o f  M on tcla ir , 42 N.J. 237, 200 A.2d 97, 9 Race Rel. L. Rep. 688 
(1964) ; J ackson  v. P a sad en a  S ch oo l B oa rd , 31 Cal. Rptr. 606, 382 P.2d 
878, 8 Race Rel. L. Rep. 924 (1963); B lo c k e r  v. B o a r d  o f  E d u ca tion  o f  
M a n h asset, 226 F. Supp. 208 (E.D.N.Y. 1964) ; B a rksd a le  v. S p rin g fie ld  
S ch oo l C om m ., 237 F. Supp. 543 (D. Mass. 1965), vacated without preju­
dice, 348 F.2d 261 (1st Cir. 1961).



29

in our May 17, 1954, decision. Brown v. Board of 
Education, 349 U.S. at 300.

Recognizing that time might be required to eliminate such 
obstacles further indicated the intent of that far reaching 
and basic changes be made. The Court directed the dis­
trict courts:

They will also consider the adequacy of any plans the 
defendants may propose to meet these problems and 
to effectuate a transition to a racially nondiscrimina- 
tory school system. Brown v. Board of Education, 
349 U.S. at 301.

The Supreme Court and the federal courts of appeals 
have had frequent occasion in the years since the Brown 
decision to reconsider general principles applicable to the 
duty to desegregate a school system where there has been 
legal segregation. The Supreme Court held in Cooper v. 
Aaron, 358 U.S. 1 (1958), that under the second Brown 
decision, state authorities were “ duty bound to devote 
every effort toward initiating desegregation and bringing 
about the elimination of racial discrimination in the public 
school system.” 358 U.S. at 7.

Recently in Rogers v. Paul, 382 U.S. 198 (1965), the 
Supreme Court treated the “adequacy” of a plan of de­
segregation and demonstrated the breadth of the concept, 
by holding that racial allocation of faculty would poten­
tially render inadequate a pupil desegregation plan. The 
Court’s statement that racial allocation of faculty denies 
students equality of educational opportunity further dem­
onstrates that decisions and policies which tend to pre­
serve segregation in any aspect in a school system are 
proscribed and must be changed.



30

The Court of Appeals for the Fifth Circuit has now 
clearly held that school boards operating a dual system 
are required by the Constitution not merely to eliminate 
formal racial criteria, but must affirmatively and com­
pletely disestablish segregation in public schools, Singleton 
v. Jackson Municipal Separate School District, 348 F.2d 
729 (5th Cir. 1965), 355 F.2d 865 (5th Cir. 1966). As suc­
cinctly stated in the first Singleton case, “ . . . the second 
Brown opinion imposes on public school authorities the 
duty to provide an integrated school system.” 348 F.2d 729, 
at 730.5. This constitutional duty to desegregate is so in­
clusive that if the application of otherwise proper educa­
tional principles and theories results in the preservation 
of an existing system of imposed segregation, the neces­
sity of vindicating constitutional rights prohibits their use. 
Dove v. Parham, 282 F.2d 256 (8th Cir. 1960); Ross v. 
Dyer, 312 F.2d 191, 196 (5th Cir. 1963); Brooks v. County 
School Board of Arlington, Virginia, 324 F.2d 303, 308 
(4th Cir. 1963).

The Supreme Court and the federal courts of appeals 
have further held that the crucial test of the adequacy of 
a school board policy in desegregation plan is its effect 
in either preserving segregation or promoting desegrega­
tion, rather than whether there is an actual showing of 
specific purpose on the part of the board to retain segre­
gation. Thus plans and policies which have the effect of 
preserving segregation are invalid. Goss v. Board of Edu­
cation, 373 U.S. 683 (1963); Griffin v. County School Board 
of Prince Edward County, 377 U.S. 218 (1964); Boson v. 
Hippy, 285 F.2d 43 (5th Cir. 1960); Houston Independent 
School District v. Ross, 282 F.2d 95 (5th Cir, 1960). Not 
only is effect the crucial test, but the Sixth Circuit has 
held, in the context of a challenge to zoning, that where a 
board is required to desegregate, the burden of proof rests



31

with it to demonstrate that its policies do not preserve 
segregation. Northcross v. Board of Education of the City 
of Memphis, 333 F.2d 661 (6th Cir. 1964).

B. Specific Components of an Adequate Plan 
of Desegregation,

In Goss v. Board of Education of City of Knoxville, 373 
U.S. 683 (1963), the Supreme Court held a “ minority to 
majority” transfer provision invalid. The basis for the 
decision was that the policy tended to perpetuate the pre­
existing racially segregated system, running counter to the 
admonition of the second Brown opinion that a plan of de­
segregation must be “ adequate.” Thus any other transfer 
policy which has similar effects would also be invalid. 
However, transfer policies which would have the effect of 
promoting desegregation of a school system would stand 
on an entirely different footing, because they would im­
prove the adequacy of a plan of desegregation rather than 
impair it. The United States Office of Education recog­
nized this in its Revised Statement of Policies for School 
Desegregation Plans (March 1966) implementing Title VI 
of the Civil Rights Act of 1964 (42 U.S.C.A. §2000d) when 
it said: “ A school system may (1) permit any student to 
transfer from a school where students of his race are a 
majority to any other school, within the system, where 
students of his race are a minority, or (2) assign students 
on such basis.” Revised Statement of Policies §181.33(b). 
H.E.W. guidelines are an appropriate mode of desegrega- 
ton. Singleton v. Jackson Municipal Separate School Dis­
trict, swpra; Price v. Denison Independent School District 
Board of Education, 348 F.2d 1010, 1013 (5th Cir. 1965).

Where a school system has been legally segregated, zone 
lines cannot be drawn to preserve a maximum amount of 
segregation even though ostensibly based on customary



32

geographical criteria. Northcross v. Board of Education of 
City of Memphis, supra; see also Brooks v. County School 
Board of Arlington, Va., supra. This principle must be even 
more carefully and forcefully applied where there has been 
a past history of legal support of residential segregation; 
to do otherwise would preserve segregation in education 
under the guise of eliminating it. Holland v. Board of Pub­
lic Instruction of Palm Beach Fla., 258 F.2d 730 (5th Cir. 
1958). Obviously the racial composition of residential areas 
must be taken into account when drawing school zone lines 
if this result is to be prevented. The general basis of these 
decisions again is that a plan of desegregation which in 
fact preserves segregation in schools through the use of 
zones based on residential segregation cannot logically be 
“adequate.”

The constitutional prohibition of segregation in educa­
tion applies to faculty assignments. The Supreme Court, 
in Bradley v. School Board, City of Richmond, Va., 382 
U.S. 103 (1965), clearly recognized the close relation be­
tween faculty allocation on a racial basis and the adequacy 
of desegregation plans. By reference to the second Brown 
opinion’s mandate to desegregate the schools, the Court 
indicated that affirmative action would be required to 
eliminate the effects of previous faculty assignments on the 
basis of race. See Rogers v. Paul, supra. The holding of 
the Court of Appeals for the Fifth Circuit in Singleton v. 
Jackson Municipal Separate School Distrct, 355 F.2d 865 
(5th Cir. 1966), that the Jackson, Mississippi desegregation 
plan must “provide an adequate start toward elimination 
of race as a basis for the employment and allocation of 
teachers, administrators, and other personnel,” 355 F.2d 
at 870, requires an affirmative plan of faculty desegregation 
where prior assignments were based on racial segregation. 
The Court of Appeals for the Eighth Circuit held in Kemp



33

v. Beasley, 352 F.2d 14 (8th Cir. 1965), that the. “Board’s 
failure to integrate the teaching staff” is discrimination 
“proscribed by Brown and also the Civil Bights Act of 1964 
and the regulations promulgated thereunder.” 352 F.2d 
at 22.

III.

The District Court Properly Obtained Expert Testi­
mony as a Basis for Formulating an Effective Plan of 
Desegregation, and Such Testimony Provided a Reason­
able Basis for the Court’s Order.

A. The Propriety of Obtaining Expert Testimony.

Where a court faces issues, proper resolution of which 
requires specialized knowledge and which cannot be de­
termined intelligently merely with ordinary information, 
testimony of persons possessing special knowledge is ap­
propriate, indeed, necessary (20 Am. Jur. §775). Whether 
expert testimony is required depends primarily on the facts 
of the particular case and the question of its appropriate­
ness is for the trial court in the exercise of sound discretion. 
Duff v. Page, 249 F.2d 137 (9th Cr. 1958). The propriety 
of admission of such testimony will not be reviewed unless 
manifestly erroneous. Ackelson v. Brown, 264 F.2d 543 
(8th Cir. 1959). All expert testimony is admissible if it is 
not mere guess or conjecture and if it reasonably tends to 
aid the trier of fact in resolving a decisive issue. Padgett 
v. Buxton-Smith Mercantile Co., 262 F.2d 39 (10th Cir. 
1959).

The reorganization of a school system to eliminate segre­
gation is the type of complex problem to which this 
principle applies. Although the school board contended 
that its own staff was competent to formulate a plan of



34

desegregation, the district court could properly conclude 
that the school board’s staff did not have expert knowledge 
on the problem of planning for desegregation since they 
had always operated within a segregated system, and 
since the school board had been demonstrably ineffective 
in achieving substantial desegregation of the school system 
over a ten-year period.

B. The Expert Testimony Provided a Reasonable 
Basis for the District Court’s Order.

The expert panel made a detailed study of the Oklahoma 
City school system as a basis for their recommendations. 
As detailed supra in the Statement of the Case, the three 
experts were all prominent in the field of education and 
obviously competent to undertake this task. All of the 
sections of the district court’s order establishing standards 
for an adequate plan of desegregation are based on the 
report and testimony of the expert panel. The general 
conclusion of the panel was similar to the holdings of 
courts cited above, i.e., that effective desegregation of 
a school system which had been segregated requires sub­
stantial affirmative action which must be planned in detail 
to achieve the goal. The four components of effective 
planning which the expert panel outlined were adopted 
by the district court. The experts’ statement that in­
dividual differences have to be taken into account to 
equalize opportunity to obtain the best education, is the 
general basis of the district court’s premise that considera­
tion of race cannot be avoided in formulating effective 
measures of desegregation.13 As the Fourth Circuit re­
cently held it is obviously necessary and appropriate to 
consider race when attempting to correct racial discrimina­

13 See Statement o f  the Case, p p . 11-13.



35

tion. Wanner v. County School Board of Arlington City, 
Va,, 357 F.2d 452 (4th Cir. 1966).

Having shown that the school system remained primarily 
segregated and that the board’s policies generally have 
the effect of perpetuating that segregation, it was in­
cumbent upon the expert panel to devise specific policies 
to promote desegregation. The effectiveness of the past 
policy of “minority to majority” transfers in maintaining 
segregation suggested that a converse “majority to mi­
nority” policy might he effective in producing desegrega­
tion. This was confirmed by an extensive analysis of the 
pupil composition of each school in the system, which 
showed that there was substantial excess capacity, par­
ticularly in the elementary schools. That the school sys­
tem was able to process several thousand transfers an­
nually under the old “minority to majority” policy showed 
that this proposal would not impose an undue adminis­
trative burden. The expert panel also testified that not 
only would the proposal counteract the former transfer 
policy and the present transfer policies which continue 
to perpetuate the effects of the former policy, but would 
also counteract the effects of the board’s zoning policies 
which have also fostered segregation through encourag­
ing residential segregation. This testimony provided a 
more than adequate basis for the “majority to minority” 
transfer policy in the district court’s order.14

Many of the experts’ findings regarding “majority to 
minority” transfer policy proposal also support the por­
tion of the district court’s order consolidating the four 
high school districts into two. While this order does not 
on its face have the same system-wide effect as the 
“majority to minority” transfer proposal, it is appropriate

14 See Statement o f  the Case, pp . 13-16.



36

relief for areas of the city which have particularly felt 
the effects of the board’s zoning policies in producing 
and maintaining residential segregation. That this was 
also practical as well as appropriate relief was shown by 
the experts’ analyses of such factors as amount of travel 
required by pupils in the merged districts, operating costs 
of the merged schools, effects on curriculum, and com­
parison of size of the merged schools with other high 
schools in the system. That the expert panel, after an 
exhaustive study of the entire school system, made this 
particular proposal, reasonably suggested to the district 
court that an adequate plan for desegregation should in­
clude such relief. Therefore, it was properly included in 
the order.16

The expert panel very carefully considered the proper 
remedy for faculty segregation, including qualifications of 
Negro and white teachers, necessity for continuity of fac­
ulty in individual schools, and annual faculty turnover 
rate. They concluded that most Negro teachers to be 
assigned to all-white or integrated schools should be se­
cured by employing new teachers to avoid unduly disrupt­
ing existing faculties of individual schools. However, in 
accordance with general requirements for effective plan­
ning, they considered there must be some defined goal and 
program if faculty desegregation were eventually to be 
achieved, and proposed that based on the annual faculty 
turnover rate, by 1970 the ratio of whites to non-whites 
assigned to each school and in the central administration 
should be the same as the ratio of whites to non-whites in 
the whole number of certificated personnel in the school 
system. This would provide a clear standard for measur­
ing the progress of the school system toward desegrega­

36 See Statement o f  the Case, pp . 16-18.



37

tion of faculty. It would also protect against the tendency 
which has developed elsewhere for desegregation of fac­
ulty to become a one-way street in which Negro teachers 
are squeezed out of the system. The experts’ analyses and 
proposal thus provided a reasonable basis for the district 
court’s order relating to faculty desegregation.16

rv.
Power and Duty of Court of Equity to Remedy a 

Wrong Is Commensurate With the Scope of the Wrong.

The general equity principle is that equity suffers no 
right to be without a remedy or, alternatively, that in 
equity jurisprudence there is no wrong without a remedy. 
Leo Feist, Inc. v. Young, 138 F.2d 972 (7th Cir. 1944). 
Where a duty exists equity will provide a remedy for its 
violation, and will not permit a wrong to remain unrighted 
if there is any possible way to remedy the situation. 
Schneider v. Schneider, 141 F.2d 542 (D.C. Cir. 1944). 
Because of this inherent general power and duty of a 
court of equity to remedy a wrong, equity courts have 
broad power to mold their remedies and adapt relief to 
the circumstances and needs of particular cases. Dabney 
v. Chase National Bank of the City of New York, 201 
F.2d 635 (2nd Cir. 1953), cert, dism’d, 346 U.S. 863; 
Bowles v. Skagg, 151 F.2d 817 (6th Cir. 1946). Equity 
courts have power to determine all of the rights of the 
parties and to grant such relief as will finally determine 
the issues between them, and the decree should be framed 
so that complete justice will be done. Overfield v. Penrod 
Corp., 42 F. Supp. 586 (D.C. Pa. 1942), aff’d 146 F.2d 889 
(3rd Cir. 1942).

16 See Statement o f  the Case, p p . 19-21.



38

The inherent power and duty of a court of equity to 
effectively remedy a wrong is graphically demonstrated 
in the area of monopoly cases. 15 U.8.C. §4 confers juris­
diction on the courts of the United States to prevent 
and restrain violations of the Sherman Antitrust Act, 
15 U.S.C. §§1-7. However, the scope of the power granted 
under that act is determined by classical equity juris­
prudence. United States v. National Lead Co., 332 U.S. 
319, holds that in suits to restrain violations of the Sher­
man Act, the federal district court, as a court of equity, 
has the duty of making the remedy as effective as possible. 
The test of the propriety of measures adopted by the court 
is whether the required remedial action reasonably tends 
to dissipate the effects of the condemned actions and to 
prevent their continuance. Indeed, a court can prohibit 
the use of admittedly valid parts of an invalid whole. 
United States v. Bausch & Lomb Optical Co., 321 U. S. 707. 
United States v. Standard Oil Co., 221 U.S. 1 holds that 
the relief must neutralize the extension and continued 
operating force which the possession of power unlawfully 
obtained had brought about and would continue to bring 
about, and that this required dissolution of a corporation. 
Not only must the court take account of the structure and 
position of the defendant corporation itself, but also present 
and future conditions in the entire affected industry, to 
determine adequately the relief required to undo effects 
of the past condemned action and to prevent their con­
tinuation, or in the language of the Court, to “ render 
impotent” the monopoly power. Schine Chain Theatres 
v. United States, 334 U.S. 110, petition denied, 334 U.S. 
809; see also, United States v. Aluminum Company of 
America, 91 F. Supp. 333 (D.C. N.Y. 1950); and see 
United 'States v. United States Steel Corp., 223 F. '55 
(D.C. N.J. 1915), afPd 251 U.S. 417.



39

Problems of formulating appropriate and effective relief 
in school desegregation suits bear considerable similarity 
to those involved in suits to prevent monopolization by a 
corporation, since in both situations a complex organiza­
tion involving large numbers of people and established 
practices are involved, and established practices may be 
expected to continue unless affirmative action is taken to 
change them. The mandate of the Supreme Court in the 
second Brown decision to the district courts to be guided 
by equitable principles, to review the adequacy of plans 
which defendant school boards might propose, and to con­
sider problems related to administration, physical condi­
tion of school plant, the school transportation system, per­
sonnel, revision of school districts and attendance areas, 
etc., indicated that the Court intended the district courts 
to perform their duties in the school desegregation area 
as effectively as elsewhere.



40

y .

Conclusion

Since the Oklahoma City school system has not been ef­
fectively desegregated as required under Brown v. Board 
of Education, and the school board has repeatedly refused 
to prepare an adequate plan of desegregation, the district 
court properly undertook to obtain expert advice on the 
preparation of such a plan, and properly ordered that cer­
tain basic elements of an effective plan be carried out by 
the board. As a court of equity obligated to provide ade­
quate relief for a wrong, it could do no less. There­
fore the district court’s order should be upheld.

Respectfully submitted,

Jack Greenberg

James M. Nabrit, III 
10 Columbus Circle 
New York, N. Y. 10019

U. Simpson Tate

1211/2 West Cedar Street 
P. 0. Box 532 
Wewoka, Oklahoma

Attorneys for Appellees
May, 1966



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