Dowell v. Oklahoma City Board of Education Reply Brief for Appellants
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May 16, 1988

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Brief Collection, LDF Court Filings. Dowell v. Oklahoma City Board of Education Reply Brief for Appellants, 1988. a2e7161f-b09a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/f3847a95-126e-4d5d-b0a4-e5bab89333c9/dowell-v-oklahoma-city-board-of-education-reply-brief-for-appellants. Accessed May 23, 2025.
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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