Dowell v. Oklahoma City Board of Education Reply Brief for Appellants

    In the
UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 
No. 88-1067

ROBERT L. DOWELL, et al.#
Plaintiffs-Appellants 

v.
THE BOARD OF EDUCATION OF THE 

OKLAHOMA CITY PUBLIC SCHOOLS, et al.,
Defendants-Appellees.

REPLY BRIEF FOR APPET.TANTS

LEWIS BARBER, JR. 
Barber/Traviolia 
1523 M.E. 23rd Street 
Oklahoma City, Oklahoma 73111 
(405) 424-5201

JOHN W. WALKER 
LAZAR M. PALNICK

John W. Walker, P.A.
1723 Broadway
Little Rock, Arkansas 72206 
(501) 374-3758

JULIUS L. CHAMBERS 
NORMAN J. CHACHKIN 
JANELL M. BYRD

99 Hudson Street, 16th f1.
New York, New York 10013 
(212) 219-1900

Attorneys for Appellants



TABLE OF CONTENTS
Page

I The District Court's Ruling Turns Upon its 
Insistence that Proof of Discriminatory Intent 
Is Necessary to Prevent Dissolution of the
197 2 D e c r e e ..........................................  1

II Vestiges of Officially Enforced Segregation 
Remain in the Oklahoma City Public Schools 
under the 1985 Pupil Assignment Plan Approved
b e l o w .................................................  4

III Appellees Distort or Misstate the Record
Evidence in this C a s e ...............................  9

Conclusion.................................................  16

Table of Authorities
Cases:
Board of Education of Oklahoma City v. Dowell,

375 F.2d 158 (10th Cir.)/ cert, denied, 387
U.S. 931 (1967)...................................... 5n

Dowell v. Board of Education of Oklahoma City, 795
F.2d 1516 (10th Cir.), cert, denied, 107 S. Ct.
486 (1986) .................................  3, 4, 6n, 7, 15

Dowell v. Board of Education of Oklahoma City, 465 
F.2d 1012 (10th Cir.), cert, denied, 409 U.S.
1041 (1972)..........................................  5n

Dowell v. Board of Education of Oklahoma City, 677 F.
Supp. 1503 (W.D. Okla. 1987)   passim

Dowell v. Board of Education of Oklahoma City, 244 F.
Supp. 971 (W.D. Okla. 1965), aff'd in pertinent
part, 375 F.2d 158 (10th Cir.), cert, denied, 387
U.S. 931 (1967)...................................... 13

Dowell v. Board of Education of Oklahoma City, 219
F. Supp. 427 (W.D. Okla. 1963) ....................  12

Goss v. Board of Education, 373 U.S. 683 (1963) . . . .  5n
Lee v. Macon County Board of Education, 584 F.2d

78 (5th Cir. 1978) .................................  7n, 8n



Table of Authorities (continued)
Page

Cases (continued):
Morgan v. Nucci, 831 F.2d 313 (1st Cir. 1 9 8 7 ) ......... 7n
Riddick v. School Board of Norfolk, 784 F.2d 521

(4th Cir.)/ cert, denied, 107 S. Ct. 486 (1986) . . 7n
Securities and Exchange Commission v. Jan-Dal Oil

& Gas, Inc., 433 F.2d 304 (10th Cir. 1 9 7 ) ......... 6
Spangler v. Pasadena City Board of Education, 611

2d 1239 (9th Cir. 1 9 7 9 ) .............................  5n
Spangler v. Pasadena City Board of Education, 311 F.

Supp. 501 (C.D. Cal. 1970) ........................  5n
Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1 (1971)...................................  8n
United States v. Board of Education of Jackson County,

794 F . 2d 1541 (11th Cir. 1986) ....................  7n
United States v. Overton, 834 F.2d 1171 (5th Cir. 1987) 7n, 8n
United States v. Swift & Company, 286 U.S. 106 (1932) . 6



In the
UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 
No. 88-1067

ROBERT L. DOWELL, et al., 
Plaintiffs-Appellants

v.
THE BOARD OF EDUCATION OF THE 

OKLAHOMA CITY PUBLIC SCHOOLS, et al.,
Defendants-Appellees.

REPLY BRIEF FOR APPELLANTS

There is little in the briefs of the Appellees or the United 
States which warrants any extended response. Indeed, most of the 
points made by these parties were anticipated and covered in our 
main brief. We therefore address only a few subjects in this 
brief, in addition to correcting a number of factual mistakes or 
misstatements of the record made by the school board.

I

The District Court's Ruling Turns 
Upon Its Insistence that Proof of 
Discriminatory Intent in Adopting 

the 1985 Plan Is Necessary 
To Prevent Dissolution of the 1972 Decree

Appellees labor mightily to persuade that the district judge 
properly interpreted and applied the directions in this Court's



1986 opinion, 795 F.2d 1516. They claim that " [c]ontrary to plain­
tiffs' assertion, the district court's decision to dissolve the 
decree did not focus on whether the board adopted its neighborhood 
school plan with discriminatory intent."1 A close examination of 
the district court's own explanation of its decision to dissolve 
the 1972 decree conclusively rebuts this contention, however.

The district court considered whether the 1972 decree should 
be enforced, modified or dissolved in Section IV of its opinion 
(Mem. Op. 40-47; 677 F. Supp. at 1520-222), and at the end of that 
section it summarized its conclusion as follows (Mem. Op. 47; 677 
F. Supp. at 1522) :

When the Oklahoma City School Board adopted 
its 1985 student assignment plan, it was uni­
tary; and the purpose of this litigation had 
been fully achieved. The same remains true 
today. The "substantial change in conditions" 
which over time resulted in the elimination 
of illegal discrimination and satisfied the 
objective of this case is precisely the change 
which compels dissolving the 1972 decree.

Thus, the court's finding that the school system remains 
"unitary" —  which the court discussed in the earlier Section III 
of its opinion3 —  was central to its decision to dissolve the

-^Brief for Appellees, at 4.
2Since the filing of the opening briefs, the district court's 

memorandum opinion has been published at 677 F. Supp. 1503. For 
the convenience of the Court, we provide parallel citations to 
the printed opinion in this brief. As in our opening brief, cita­
tions to prior opinions in this case either refer to "Dowell" or 
omit the case name entirely.

3Section III., "HAS THE SCHOOL SYSTEM RETAINED ITS UNITARY 
STATUS?." Mem. Op. 29-40; 677 F. Supp. at 1515-19.

2



decree and to ratify implementation of the K-4 "neighborhood 
school" plan.4 But when one turns to Section III of the opinion, 
the discussion is replete with references to the school board's 
lack of "discriminatory intent" (see, e.g. . Mem. Op. 29-31, 33-
35, 38; 677 F. Supp. at 1515-1519).5 The district court ultimately 
concluded that the substantial resegregation of the elementary 
schools under the 1985 plan does not alter the system's "unitary 
status" because the plan was not motivated by discriminatory intent 
(Mem. Op. 33-35; 677 F. Supp. at 1517-18).6

It is therefore clear from the lower court's opinion that
the court refused to retain its 1972 injunctive decree in the
absence of proof of "discriminatory intent." This is precisely
the approach which this Court disapproved in 1986:

[W]hen it is asserted that a school board under 
the duty imposed by a mandatory order has 
adopted a new attendance plan that is signifi­
cantly different from the plan approved by 
the court and when the results of the adoption 
of that new plan indicate a resurgence of 
segregation, the court is duty bound either

4Cf. Dowell. 795 F.2d at 1522 (1977 finding of unitariness, 
while binding upon the parties, "does not preclude the plaintiffs 
from asserting that a continuing mandatory order is not being 
obeyed and that the consequences of the disobedience have destroyed 
the unitariness previously achieved by the district").

5The very first subheading in this section of the opinion 
refers to intent, Mem. Op. 29; 677 F. Supp. at 1515 ("A. K-4 Plan 
Was Adopted Without Discriminatory Intent"). The next similarly 
states that the "K-4 Plan Was Adopted For Legitimate, Non-Dis- 
criminatory Reasons," Mem. Op. 31; 677 F. Supp. at 1516.

6"A school board serving a unitary school system is free to 
adopt a neighborhood school plan so long as it does not act with 
discriminatory intent" (Mem. Op. 35; 677 F. Supp. at 1518); see 
Appellees' Brief at 30.

3



to enforce its order or inquire whether a 
change of conditions consistent with the test 
posed in Jan-dal has occurred.

795 F . 2d at 1522. "Discriminatory intent" is not an element of 
the Jan-dal test. See Brief for Appellants, at 29-33 & cases 
cited.

II
Vestiges of Officially Enforced Segregation 
Remain in the Oklahoma City Public Schools 

Under the 1985 Pupil Assignment Plan Approved below

We argued in our opening brief that vestiges of the dual 
system remained operative in the Oklahoma City public schools under 
the school board's 1985 "neighborhood school" plan, and that the 
trial court's "attenuation" finding was clearly erroneous. See 
Brief for Appellants at 33-40. The United States charges that 
our argument is, "if official discrimination played any part in 
initially forming minority residential areas, the failure of those 
areas to become residentially integrated can never be separated 
from the original discrimination" (Amicus Brief at 13).

Our submission, however, rests upon no such broad rule. 
Instead, it flows directly from the testimony of the school board 
witness upon whom the district court purported to rely, in conclud­
ing that the impact of long-maintained discriminatory school prac­
tices in Oklahoma City was too attenuated to warrant retention of 
the 1972 decree. On the present record, it is incontestable that 
the school board's racially discriminatory practices contributed

4



materially to the virtually all-black character of the "northeast 
quadrant" of Oklahoma City, and that according to Dr. Clark's own 
analysis of demographic forces, the effects of these practices 
continue today. Thus, the conditions requiring entry of the 1972 
decree remain unchanged —  the inadequacy, due in part to the 
effects of school officials' prior discrimination, of a "neighbor­
hood school" plan7 to remedy the segregation of the public 
schools.8

7The school board argues that this Court's 1967 ruling, Board 
of Education of Oklahoma City v. Dowell. 375 F.2d 158, 166 (10th 
Cir.), cert, denied. 387 U.S. 931 (1967), recognized the "neigh­
borhood school plan" as constitutional, and governs disposition of 
the present appeal. See Brief for Appellees, at 6-7. The board 
apparently has forgotten the fact that it was the appellant in 
that proceeding, and that this Court's judgment sustained a remed­
ial order of the district court requiring affirmative deviations 
from its "neighborhood plan" in order to achieve desegregation. 
See also Dowell. 465 F.2d 1012 (10th Cir.), cert, denied. 409 U.S. 
1041 (1972).

The language from the 1967 opinion upon which the board relies 
is the last sentence of a paragraph in which this Court stated 
that a "neighborhood school attendance plan" would not be condemned 
if it did not "further" or "perpetuate racial discrimination." 
Understood in the context of the full paragraph, the sentence 
merely reflects the wholly uncontroversial notion that a "neighbor­
hood school" plan with a majority-to-minority transfer provision 
is not per se unconstitutional under Goss v. Board of Education. 
373 U.S. 683 (1963).

8Every case must turn on its facts. In Spangler v. Pasadena 
City Board of Education. 611 F.2d 1239 (9th Cir. 1979), relied 
upon by both the school board and the government, the court direc­
ted termination of the case in light of the "substantial compliance 
with existing valid court orders," 611 F.2d at 1240. But the 
school system in that case had not dismantled its desegregation 
plan, and, in addition, there had never been any findings that 
school officials' discriminatory practices had created neighborhood 
residential segregation in Pasadena. See Spangler v. Pasadena 
City Board of Education. 311 F. Supp. 501, 512-13 (C.D. Cal. 1970). 
For this reason, now-Justice Kennedy's comments in his concurring 
opinion about the permissibility of "neighborhood schools" in 
Pasadena do not control the result in the present case.

5



Both the school board and the government would have this Court 
substitute, for the careful examination of the facts required under 
Swift9 and Jan-dal10. a legal approach that elevates form over sub­
stance and excuses wholesale resegregation. Both these parties 
assert that the 1977 finding of "unitariness" permits the school 
board to abandon the pupil assignment approach imposed by the 1972 
decree, irrespective of the results. Brief for Appellees, at 30; 
Amicus Brief, at 16.11 This Court should adhere to its previous

9United States v. Swift & Company. 286 U.S. 106 (1932); see 
Brief for Appellants at 29-33.

10Securities and Exchange Commission v. Jan-dal Oil & gas, 
Inc. , 433 F.2d 304 (10th Cir. 1970); see Brief for Appellants at
29-31 & n.33.

i:i-The government does try to harmonize its argument with this 
Court's endorsement of the Swift-Jan-dal approach:

While this Court, in its earlier decision in 
this case, refused to hold that the 1977 uni­
tariness finding automatically justified dis­
missal, . . . [i]n our view, a proper finding 
of unitariness, like the one in this case,
. . . necessarily establishes that circumstan­
ces are different from those existing at the 
time of the original violation. Thus, a proper 
finding of unitariness is a finding that "the 
dangers prevented by the injunction 'have 
become attenuated to a shadow,'" justifying 
dismissal.

(Amicus Brief at 16 [emphasis in original].) This is merely a 
cosmetic change; the argument is the same as that which this Court 
rejected in 1986:

According to the government, the defendants 
could not be compelled to follow the Finger 
Plan once the court determined the district 
was unitary. We find the contention without 
merit.

795 F .2d at 1520.

6



determination that there must be a "full determination of whether
and to what extent [plaintiffs'] previously decreed rights have 
been jeopardized by the defendants' actions subsequent to the entry 
of the mandatory decree." 795 F.2d at 1522.12

12The only case to have held that a "unitariness" finding 
permits dismantling of a court-ordered assignment plan and sub­
stantial resegregation of the schools is Riddick v. School Board 
of Norfolk. 784 F.2d 521 (4th Cir.), cert, denied. 107 S. Ct. 486 
(1986), with which this Court expressed its disagreement in 1986, 
795 F .2d at 1520 n.3.

As we explained in our opening Brief (at 13-14 n.13), the 
First Circuit in Morgan v. Nucci. 831 F.2d 313 (1st Cir. 1987), 
was not required to and did not decide whether a court must vacate 
injunctive decrees and permit abandonment of a desegregation plan 
upon the attainment of "unitariness." Similarly, none of the 
Eleventh Circuit rulings cited by the government (Amicus Brief 
at 16 n.5) presented this question. In United States v. Board of 
Education of Jackson County. 794 F.2d 1541, 1543 (11th Cir. 1986), 
that Court rejected the interpretation of its decisions in Young­
blood and Lee v. Macon County urged by the government and stated: 
"That school districts have become unitary, however, does not 
inevitably require the courts to vacate the orders upon which the 
parties have relied in reaching that state."

In their briefs here, the school board and the government cite 
United States v. Overton. 834 F.2d 1171 (5th Cir. 1987). The 
discussion of the effect of a "unitariness" finding in Overton. 
however, is dictum. Once the panel there concluded that the con­
sent decree in the case was "unenforceable" because it "expired 
by its own terms," 834 F.2d at 1174, there was no need to consider 
any other issue.

Moreover, the Overton panel's suggestion that this Court 
misconstrued Lee v. Macon County Board of Education. 584 F.2d 78 
(5th Cir. 1978), see 795 F.2d at 1520 n.4, is not persuasive. 
The Overton panel says:

We did observe in Lee v. Macon County that a 
unitary district is "bound to take no actions 
which would reinstitute a dual school system" 
and that school districts should maintain 
unitary status once achieved. [footnote omit­
ted. ] In doing so, however, we relied upon 
the Supreme Court's observation that "in the 
absence of a showing that either the school 
authorities or some other agency of the State

7



has deliberately attempted to fix or alter 
. . . the racial composition of the schools,
further intervention by a district court should 
not be necessary. 11/

11/ Swann v. Charlotte-Mecklenburg Board of 
Educ. . 402 U.S. 1, 32, 91 S.Ct. 1267, 1284,
28 L.Ed.2d 554 (1971)(emphasis supplied).

Overton. 834 F.2d at 1175 (ellipsis and emphasis by Overton panel). 
However, Lee's citation is to 4 02 U.S. at 21, where the Supreme 
Court discussed the impact of discriminatory school practices upon 
segregated residential patterns and stated that

[i]n devising remedies where legally imposed 
segregation has been established, it is the 
responsibility of local authorities and dis­
trict courts to see to it that future school 
construction and abandonment are not used and 
do not serve to perpetuate or re-establish 
the dual system.

Moreover, the Swann language (4 02 U.S. at 32) to which the 
Overton panel refers in its opinion does not enunciate the rule 
that any post-decree relief must be based upon a new showing of 
intentionally discriminatory actions. Without the ellipsis, the 
Supreme Court's statement is that "in the absence of a showing 
that either the school authorities or some other agency of the 
State has deliberately attempted to fix or alter demographic pat­
terns to affect the racial composition of the schools, further 
intervention by a district court should not be necessary" (language 
omitted by Overton panel highlighted). The Supreme Court's admoni­
tion appears at the conclusion of a paragraph discussing the ap­
propriate response of a federal district court to changes in the 
schools' racial composition resulting from demographic change 
unaccompanied by any school district actions. There is nothing 
in the context surrounding the statement which suggests that the 
Court was prescribing a general doctrine about the scope of remed­
ial authority, particularly one which would tie a federal court's 
hands in the face of school district actions that dismantled a 
student assignment plan which the court had previously ordered 
into effect.

We submit that this Court's prior assessment of the holding 
in Lee was correct, and that the law of the Fifth Circuit has not 
been altered by the Overton panel's dictum.

8



Ill
Appellees Distort or

Misstate the Record Evidence in this Case

Appellees1 Brief contains numerous instances of factual mis­
statements, inaccuracies, or distortion of appellants' legal con­
tentions. Although most of these do not have dispositive weight 
in this proceeding, we cannot allow appellees' assertions to go 
unchallenged. Accordingly, we deal with some significant examples 
in this section.

1. Appellees state (Brief, at 27), as did the district court 
(Mem. Op. 34; 677 F. Supp. at 1517),13 that plaintiffs' expert
witness Dr. Mary Lee Taylor testified as to her "opinion that the 
board did not adopt the [1985] plan with discriminatory intent." 
The relevant questions and responses from the transcript of tes­
timony (Tr. 1238) are set out below:

Q. Based upon your educational background and 
your experience and your review of the 
facts in this case, you don't feel that 
the Oklahoma City Board of Education 
adopted this neighborhood plan with the 
intent to discriminate against blacks, 
do you?

A. I have no evidence of that at all. I 
did not mean to suggest it.

Q. Well, in fact, when you gave us your 
deposition approximately one month ago 
under oath you told us that you found 
no evidence of intentional race discrimi­
nation; isn't that true? 13

13The trial judge's Memorandum Opinion is taken, virtually 
verbatim, from the school board's proposed Findings of Fact and 
Conclusions of Law.

9



A. I probably said I knew of no evidence.
I stand by that. I know of no evidence 
of intentional —  of intent to discrimi­
nate by the current school board.

Dr. Taylor thus expressed no opinion on whether the school board 
acted with discriminatory intent? she merely stated that she knew 
of no evidence indicating that this was the case. This is hardly 
surprising, since (as a reading of her entire testimony, Tr. 12 09- 
55, will indicate) Dr. Taylor was not asked by plaintiffs to deter­
mine, nor presented as a witness on the question of, discriminatory 
intent.

2. We noted in our opening Brief (at 10-12) that following 
adoption of the K-4 "neighborhood" plan, the racial identifiability 
of elementary schools increased not only as a result of the re­
creation of ten schools virtually all-black in student population, 
but also as a result of a corresponding disproportionate increase 
in black faculty assigned to those schools. Appellees have respon­
ded as follows:

In their brief, plaintiffs set forth a table 
comparing the percent of black faculty at 
selected elementary schools in school year 
1972-73, with that of the last three school 
years [footnote omitted]. While it is true 
that the percent of black teachers at these 
schools was lower in 1972-73 than during the 
last three years, plaintiffs overlook the fact 
that the percent of black faculty district­
wide has steadily increased since school year 
1972-73. Thus, the alleged disparity plain­
tiffs point to did not result from board action 
assigning a higher percent of black faculty 
to these schools. Rather, the illusion created 
bv plaintiffs resulted from the board's good 
faith actions in steadily increasing the per­
cent of its black teachers district-wide in 
direct proportion with the increase of the

10



black student population over the same period 
of time.

Brief for Appellees, at 31-32 (emphasis supplied). The board's 
explanation misstates the facts to suggest that the increase in 
black faculty at the black schools was caused simply by increased 
system-wide hiring of blacks and not by the school system's author­
izing the disproportionate assignment of black faculty at schools 
with high black student enrollments.

As shown by Plaintiffs' Exhibit 48,14 in the 1972-73 school 
year the faculty racial composition of 82 elementary schools in 
Oklahoma City ranged from 13% black to 44% black; the "average" 
black faculty proportion in that year was 21% black, which is a 
rough approximation of the composition of the total pool of elemen­
tary teachers in the district that year. In the three school years 
prior to the decision below, while representation of blacks in 
the pool of elementary school teachers has increased slightly,15

14Exhibit 48 is cited in our brief as the source of the table, 
Brief for Appellants at 12, and it can be found in the Addendum 
to Brief for Appellants fExhibitsl at pp. 212-15.

15As noted in the text, the "average % black" figure in PI. 
Ex. 48, Addendum at 215, is merely an approximation of the overall 
racial composition of the pool. Appellants have calculated the 
exact proportions from Defendants' Exhibit No. 201. They are as 
follows:

This is a modest increase since 1972-73 but it hardly provides an 
explanation for the clear trend toward increasingly racially ident­

Year % Black Elementary Teachers
1984- 85
1985- 86
1986- 87

26.7 %
25.8 % 
29.2 %

11



the range of faculty proportions among a smaller number of schools 
has increased dramatically: 69 schools ranged from 8% to 63% black 
in 1984-85, 65 schools ranged from 0% black to 65% black in 1985- 
86, and 64 schools were between 0% and 70% black in 1986-87. As 
demonstrated cogently by Plaintiffs' Exhibits 50, 52 and 54 (Adden­
dum at 216-21) —  the schools at the high end of the range each 
year are, for the most part, the schools with the highest propor­
tions of black students.

3. At pp. 5-7 of their Brief, Appellees take issue with our 
assertion that the Oklahoma City school district has "returned 
(thus far, in grades 1-4 only) to the same mechanism of pupil 
assignment utilized prior to 1972" (Brief for Appellants at 22). 
According to appellees, we have "apparently overlooked" the fact 
that "the [neighborhood school] mechanism of pupil assignment 
utilized prior to 1972 was also tainted with an unconstitutional 
characteristic . . .  a transfer policy 'designed to perpetuate 
and encourage segregation.' " (Brief for Appellees at 5-6 [foot­
note omitted].)

The "minority-to-majority" transfer policy to which Appellees 
refer was enjoined by the district court in 1963 and thus was not 
a part of the system's method of pupil assignment between that date 
and 1972. See Dowell. 219 F. Supp. at 447. Nevertheless, the 
district court held in 1965 that

ifiable faculties at heavily black schools over the last several 
school years.

12



where the cessation of assignment and 
transfer policies based solely on race is 
insufficient to bring about more than token 
change in the segregated system, the Board 
must devise affirmative action reasonably 
purposed to effectuate the desegregation 
goal. . . .
This Court, based on its continuing contact 
with this case for almost four years, 
concludes that the defendant Board has failed 
to eliminate the major elements of a 
segregated school system, and thereby 
continued to inflict both the educational and 
psychological harm on plaintiffs and the 
members of their class which the Supreme 
Court in the Brown case found a violation of 
their constitutional rights.

244 F. Supp. at 979, 981. See also 338 F. Supp. at 1270, 1271 
(Board policy designed to protect "neighborhood schools" and keep 
desegregation voluntary; Board has failed to erase the racial 
identity of schools). Thus, the district court's 1972 decree was 
necessitated by the ineffectiveness of the board's "neighborhood 
school" assignment policy as a desegregation measure, not its 
pre-1963 racial transfer policy.

4. Appellees assert (Brief at 10) that "the plaintiffs stip­
ulated that if the trial court determined that dissolution or 
modification of the decree was warranted, then the constitution­
ality of the school board's new plan was a legal issue which the 
court had to decide." Apparently the school board seeks to read 
into the standard Pretrial Order required by the local rules some 
sort of concession by plaintiffs that the board's legal theory is 
correct. The Final Pretrial Order, however, merely states as 
follows (at p. 3):

13



F. Legal Issues:
The primary legal issues presented in the 

current posture of the case are:
. . . 2. If such dissolution or modifica­

tion [of the 197 2 decree] is warranted, is 
the school board's 1985 plan constitutional?

This recitation merely reflects the legal contentions advanced by
the school board. (See Pretrial Order, Appendix III, Defendant1s
Contentions. at 3.)

5. Appellees' Brief states (at 38):
While it is true that between 1960 and 1980 
the east inner-city area remained predominately 
black, the evidence demonstrated there was a 
quite substantial decrease in the number of 
blacks choosing to live in this area. In 1960, 
for example, 84% of all blacks residing in 
the entire Oklahoma City metropolitan area 
lived in the east inner-city tracts. By 1980, 
however, only 16.8% of the entire black popu­
lation in the metropolitan area lived in these 
tracts. (Def. Ex. 5D)

The phrasing of this excerpt, and the labelling of Defendants' 
Exhibit 5D, leave the impression that the comparison being made 
encompasses the entire northeast quadrant. However, the census 
tracts which are the subject of the comparison were selected by 
the board's witness Dr. Clark to represent the area which he regar­
ded as the most heavily racially concentrated in 1950 (Tr. 66) ; 
they did not cover the entire "northeast quadrant" or "east inner- 
city area" (Tr. 93 [Clark]). This group of tracts did not include 
the attendance areas of all of the virtually all-black elementary 
schools in Oklahoma City that existed at the time the 1972 decree 
(Tr. 93-94 [Clark]) ; in general, the black population in the north­

14



east quadrant tracts which were omitted from Dr. Clark's analysis 
increased, rather than declined, in the decades he studied (Tr.
94) .

Two additional points should be made. First, Dr. Clark iden­
tified "developments of institutions in the area, the freeway 
system, and now the Broadway extension . . . requir[ing] the 
clearing of residential use in that region" as being responsible 
for the decrease in population in the original set of tracts (Tr. 
68) .16 Second, the black population forced to relocate by these 
developments remained heavily concentrated in census tracts within 
the northeast quadrant that are served by most of the elementary 
schools that are more than 90% black under the 1985 plan (Tr. 1134- 
35 [Rabin]).

6. Finally, the school board criticizes this Court's 1986 
description of the results under the 1985 "neighborhood school" 
plan as creating 33 schools that are 90% or more one-race (Brief 
for Appellees, at 39, citing 795 F.2d at 1518). As we noted in 
our opening Brief (at 10 n.10), prior to the hearing below the 
school system had never provided information to the district court 
or to the parties that identified students by race except as 
"Black" or "Other." The fact is that, in a dramatic change from 
the situation between 1972 and 1985, under the K-4 "neighborhood

16As plaintiffs' expert witness Dr. Rabin put it, "there was 
a lot of public action. I mean, in tracts —  the highway had 
enormous impacts in 29 and 38. . . . There was urban renewal in 
26, 29 and 30. People did not simply get up and move. . . . many, 
many people were moved" (Tr. 1154).

15



school" plan, a large number of elementary schools in the 
district currently have only a token representation of black 
pupils (see Def. Ex. 63 rAppellees' Addendum1. 64).

For the reasons set forth above as well as those given in 
our opening Brief, appellants repeat their prayer that the 
judgment below, dissolving the 1972 injunctive decree and taxing 
costs against plaintiffs, should be reversed, and the case should 
be remanded with instructions to the district court to require 
the school board to comply with its 1972 decree, as modified in 
accordance with plaintiffs' request so as to eliminate the 
"stand-alone" school feature and to impose equitable burden 
sharing among both black and white elementary school students.

Conclusion

Respectfully submitted

Barber/Traviolia 
1523 M.E. 23rd Street 
Oklahoma City, Oklahoma 73111 
(405) 424-5201

JULIUS L. CHAMBERS 
NORMAN J. CHACHKIN 
JANELL M. BYRD

JOHN W. WALKER
LAZAR M. PALNICK

John W. Walker, P.A.
1723 Broadway
Little Rock, Arkansas 72206 
(501) 374-3758

99 Hudson Street, 16th
floor

New York, New York 10013 
(212) 219-1900

Attorneys for Appellants

16



CERTIFICATE OF SERVICE

I hereby certify that on this 16th day of May, 1988, I served
two copies of the Reply Brief for Appellants upon counsel for the
appellees herein and for the United States, by depositing same 
in the United States mail, first class postage prepaid, addressed
as follows:

Ronald L. Day, Esq.
Laurie W. Jones, Esq.
Fenton, Fenton, Smith, Reneau & Moon 
One Leadership Square, Suite 800 
211 North Robinson 
Oklahoma City, Oklahoma 73102
Mark L. Gross, Esq.
United States Department of Justice 
Washington, D.C. 20530

17