Dowell v. Oklahoma City Board of Education Petition for a Writ of Certiorari to the US Court of Appeals for the Tenth Circuit

    IN THE

(totrt nf the llnxttb States
October Term, 1969 

No.................

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

and
STEPHEN S. SANGER, JR., on behalf of himself and 

all others similarly situated,
Petitioners,

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

and
JENNY MOTT Me WILLIAMS, a minor, and DAVID JOHNSON 

McWILLIAMS, a minor, who sue by WILLIAM ROBERT 
Me WILLIAMS, their father and next friend, on behalf of 
themselves and all others similarly situated.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT

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

10 Columbus Circle 
New York, New York 10019

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

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

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

2401 First National Building 
Oklahoma City, Oklahoma 73102

Attorneys for Petitioners
Sanger, et al.



I N D E X

Citations to Opinions Below .......... ........... ..... .......... . 2

Jurisdiction ...................... ........ ........................................... 3

Questions Presented ....................... .............. -....... -.........  3

Constitutional Provisions and Statutes Involved  ...... 4

Statement of the Case .......... ................. - ......................  6

A. Introduction   ........... ............... ..... -................  6

B. Proceedings During 1961-1962 Before Statu­
tory Three Judge District Court ....................... 8

C. The Case in 1963-1964 ........................ ...............  10

D. The Case in 1965-1968 ........................................  11

E. The Case in 1969 ............. ................ —~ ------  12

R easons for Granting  th e  W rit ............................... — 14

1. The decision of the court below is in conflict
with applicable decisions of this Court ...... ..— 14

2. The case presents a federal question of ob­
vious national importance ..................................  22

3. The court below has so far departed from the
accepted and usual course of judicial proceed­
ings as to call for an exercise of this Court’s 
power of supervision .... ................ .....................  25

4. A  judge of the panel below was disqualified
under the provisions of 28 U.S.C. §47 because 
he had previously heard and decided issues in­
volved in the cause as a member of a statutory 
three-judge district court .......................... .......  27

PAGE

Conclusion 31



11

PAGE

A ppendix—

Oral Opinion of District Court dated July 29, 1969 la

Order and Decree of District Court dated August 
1, 1969, with Exhibits....... .......................... ......... ......  11a

Opinion of Court of Appeals dated August 5, 1969 23a

Opinion of District Court dated August 8, 1969.....  25a

Order and Decree dated August 8, 1969 ................  33a

Order and Decree of District Court dated August 
13, 1969 ...... .......... ........ ...............................................  35a

Order on Motion to Stay of District Court dated 
August 14, 1969 .............................. ...... .......... .........  36a

Opinion and Order of Court of Appeals dated 
August 27, 1969 .......................... ..................... ...........  38a

Mandate of August 27, 1969 ................................ .....  43a

Order by Mr. Justice Brennan dated September,
1969 ............ ................ ................. ......... ............ ..........  44a

Order Dissolving Three-Judge Court...... .......... .....  45a

Pretrial Order and Stipulations ..............................  49a

T able of Cases :

Alexander v. Holmes County Board of Education, not 
yet reported, Opinion of Mr. Justice Brennan in 
Chambers (September 5, 1969) .................................. 23,24

American Construction Co. v. Jacksonville T. & K. W. 
Railway Co., 148 U.S. 372 (1893) ................... .... ....... . 29

Board of Education of Oklahoma City Public Schools 
v. Dowell, 375 F.2d 158 (10th Cir. 1967), cert, denied,
387 U.S. 931 (1967) ......................... ........................2,12, 20



Ill

Bradley v. School Board, 382 U.S. 103 (1965) ...............  15
Brown v. Board of Education, 347 U.S. 483 (1954) .......  14,

22, 23, 24
Brown v. Board of Education, 349 U.S. 294 (1955) .....14,15

Calhoun v. Lattimer, 377 U.S. 263 (1964) ......................  15

Davis v. Board of School Commissioners of Mobile 
County, 393 F.2d 690 (5th Cir. 1968) ..... .....................  22

Dowell v. School Board of Oklahoma City Public
Schools, 219 F. Supp. 427 (W.D. Okla, 1963) ...............2, 6,

10,11, 27
Dowell v. School Board of Oklahoma City Public 

Schools, 244 F. Supp. 971 (W.D. Okla. 1965) .......2,11,12

Goss v. Board of Education, 373 U.S. 683 (1963) .......  15
Green v. County School Board, 391 U.S. 430 (1968) ....16, 20,

21, 22, 23
Griffin v. County School Board, 377 U.S. 218 ...............  15

Henry v. Clarksdale Municipal Separate School Dis­
trict, 409 F.2d 682 (5th Cir. 1969) ..............................  22

Keyes v. School District No. 1, Denver, Colo. (D. Colo.,
Civ. No. C-1499, August 17, 1969) .......................17,18,26

Louisiana v. United States, 380 U.S. 145 (1965) ........... 22

Monroe v. Board of Commissioners, 391 U.S. 450 (1968) 21
Moore v. Tangipahoa Parish School Board, ------  F.

Supp.------ (E.D. La., C.A. No. 15556, July 2,1969) .... 17
Moran v. Dillingham, 174 U.S. 153 (1899) ....... ..... ..... 29, 31

PAGE

Offutt v. United States, 348 U.S. 11 30



IV

Railway Mail Association v. Corsi, 326 U.S. 88 ...............  20
Re Murchison, 349 U.S. 133 ..............................................  30
Rexford v. Brunswick-Balke-Collender Co., 228 U.S.

339 (1913) ....................................................................... 29, 30
Rogers v. Paul, 382 U.S. 198 (1965) ......... ..................... . 15

School District No. 1, Denver, Colo., et al. v. Wilfred 
Keyes, et al., 10th Cir. No. 432-69 (August 27, 1969) 15

Shelley v. Kraemer, 334 U.S. 1 (1948) ........................... 20

Turner v. Memphis, 369 U.S. 350 (1962) .....................31, 32

United States v. Emholt, 105 U.S. 414 (1882) ..............  29
United States v. Greenwood Municipal Separate School

District, 406 F.2d 1086 (5th Cir. 1969) ___________ _ 22
United States v. Jefferson County Board of Education,

372 F.2d 836 (5th Cir. 1966), affirmed on rehearing 
en banc, 380 F.2d 385 (5th Cir. 1967), cert, denied,
389 U.S. 840 (1967) ........ ........... ............ .........................  17

United States v. School District 151 of Cook County,
111., 404 F.2d 1125 (7th Cir. 1968) ..............................  17

Wanner v. County School Board of Arlington County,
Va., 357 F.2d 452 (4th Cir. 1956) ...................... ...... . 20

Watson v. City of Memphis, 373 U.S. 529 (1963) ____ 15
William Cramp & Sons Ship & Engine Bldg Co. v. 

International Curtis Marine Turbine Co., 228 U.S.
645 (1913) ......................................................... 27,29,30,31

PAGE

S ta t u t e s :

Civil Rights Act of 1964, Title VI .............. .................... 8, 23

Civil Rights Act of 1964, Section 407(a)(2), 42 U.S.C.
§ 2000c-6, 78 Stat. 248 .......................................... 4,13,17,18



V

Judiciary Act of 1891 (26 Stat. L. 827, chap. 517, U.S.

PAGE

Comp. Stat. 1901) ............................................................  31

28 U.S.C. § 47 (Act of June 25, 1948, c. 646, 62 Stat.
872) ................. ...................................-............ 4, 5, 6, 8, 27, 31

28 U.S.C. §1254(1) .....................................-.......................3,32

28 U.S.C. §1343(3) .......... ................................................ . 6

42 U.S.C. §§ 1981, 1983 .....................................................  6

Oth eb  S ta t u t e s :

88 Cong. Eec. 13820 (1964) ..............................................18,19

New York Times, September 13, 1969 (Late City 
Edition) ...........................................................................  25



I n the

Ihtpratt? (Emrrt rtf t e  In tu it ^tatr'ii
October Term, 1969 

N o .------

R obert L. D ow ell , an infant, who sues by A. L. D ow ell , 
his father and next friend, et al.,

and

S teph en  S. S anger, J r ., on  b eh a lf o f  h im self and 
all others s im ilarly  situated,

Petitioners,
v.

T h e  B oard of E ducation  oe th e  O k lah o m a  City  
P ublic S chools, et al.,

and

J e n n y  M ott M cW illiam s , a minor, and D avid J ohnson  
M cW illiam s , a minor who sue by W illiam  E obert 
M cW illiam s , their father and next friend, on behalf 
of themselves and all others similarly situated.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT

Petitioners pray that a writ of certiorari issue to review 
the judgment of the United States Court of Appeals for 
the Tenth Circuit, entered in the above-entitled case on 
August 27, 1969.



2

Citations to Opinions Below

The oral opinion of the district judge on July 29, 1969, 
is unreported and is printed in the appendix hereto, infra 
p. la. The order of the Court of Appeals of August 5, 
1969 (R. 5), is not yet reported and is printed in the ap­
pendix hereto, infra p. 23a. The district court’s opinion 
of August 8, 1969, in response to the remand is unreported 
and is printed in the appendix hereto, infra p. 25a. The dis­
trict court order of August 14, 1969, denying a stay pending 
appeal is unreported and is printed in the appendix p. 36a, 
infra. The Court of Appeals opinion of August 27, 1969, 
is not yet reported and is printed in the appendix p. 38a, 
infra. The order of September 3, 1969, by Mr. Justice 
Brennan reinstating the District Court order pending cer­
tiorari is unreported and set forth infra at p. 44a.

Earlier proceedings in this case are reported as follows:

1. An Order Dissolving Three-Judge Court, of July 10, 
1962 is unreported and reprinted in the appendix p. 45a, 
infra.

2. District court opinion of July 11, 1963, reported at 
219 F. Supp. 427 (W.D. Okla. 1963).

3. District court opinion of September 7, 1965, reported 
at 244 F. Supp. 971 (W.D. Okla. 1965).

4. Court of Appeals opinion of January 23, 1967, re­
ported at 375 F.2d 158 (10th Cir. 1967), certiorari denied, 
387 U.S. 931 (1967).



3

Jurisdiction

The judgment of the United States Court of Appeals for 
the Tenth Circuit was entered on August 27, 1969 (R. 10; 
p. 43a, infra). The jurisdiction of this Court is invoked 
under 28 U.S.C. section 1254(1).

Questions Presented

1. Whether Negro pupils have been denied Fourteenth 
Amendment rights to attend desegregated public schools 
where:

The Oklahoma City school system, which was completely 
segregated as required by state laws, has since 1963 been 
ordered to convert to a desegregated system under the 
continuing jurisdiction of the district court; and

The district court concluded after hearing evidence in 
July 1969 that the school board’s desegregation plan should 
be amended at the start of the 1969-70 term to enlarge the 
geographical areas served by two schools to reassign more 
white students to those schools; and

On the application of intervening white parents for a 
stay pending appeal, the court of appeals, without a record 
of the proceedings below or briefs on the merits, summarily 
vacated the district court order for 1969-70 without any 
determination that it erred in fact or law or abused its dis­
cretion; and

The appellate decision held that: (a) courts should re­
quire desegregation only “with all reasonable dispatch” 
and not immediately; and (b) it was appropriate, when 
deciding whether to grant a delay, to balance claims of 
those seeking desegregation against white intervenors’ 
claim of “ the constitutional right not to be transported to



4

another school solely by reason of their race and to achieve 
a racial balance in the community.”

2. Whether the Court below was organized in violation 
of the prohibitions of 28 U.S.C. §47 in that a member of 
the court of appeals panel previously heard and decided 
issues in this same case concerning the adequacy of the 
school board’s desegregation plans as a member of a statu­
tory three judge district court in 1962.

Constitutional Provisions and Statutes Involved

1. This case involves the Equal Protection and Due 
Process Clauses of the Fourteenth Amendment to the Con­
stitution of the United States.

2. This case involves section 407(a)(2) of the Civil 
Eights Act of 1964, 42 U.S.C. §2000c-6(a), 78 Stat. 248, 
which provides:

§2000c—6. Civil actions by the Attorney General—com­
plaint; certification; notice to school board or college 
authority; institution of civil action; relief requested; 
jurisdiction; transportation of pupils to achieve racial 
balance; judicial power to insure compliance with con­
stitutional standards; impleading additional parties as 
defendants

(a) Whenever the Attorney General receives a com­
plaint in writing—

(1) signed by a parent or group of parents to the 
effect that his or their minor children, as members 
of a class of persons similarly situated, are being 
deprived by a school board of the equal protection 
of the laws, or

(2) signed by an individual, or his parent, to the 
effect that he has been denied admission to or not



5

and the Attorney General believes the complaint is 
meritorious and certifies that the signer or signers of 
such complaint are unable, in his judgment, to initiate 
and maintain appropriate legal proceedings for relief 
and that the institution of an action will materially 
further the orderly achievement of desegregation in 
public education, the Attorney General is authorized, 
after giving notice of such complaint to the appropriate 
school board or college authority and after certify­
ing that he is satisfied that such board or authority has 
had a reasonable time to adjust the conditions alleged 
in such complaint, to institute for or in the name of the 
United States a civil action in any appropriate district 
court of the United States against such parties and 
for such relief as may be appropriate, and such court 
shall have and shall exercise jurisdiction of proceed­
ings instituted pursuant to this section, provided that 
nothing herein shall empower any official or court of 
the United States to issue any order seeking to achieve 
a racial balance in any school by requiring the trans­
portation of pupils or students from one school to 
another or one school district to another in order to 
achieve such racial balance, or otherwise enlarge the 
existing power of the court to insure compliance with 
constitutional standards. The Attorney General may 
implead as defendants such additional parties as are 
or become necessary to the grant of effective relief 
hereunder. 3

permitted to continue in attendance at a public col­
lege by reason of race, color, religion, or national
origin.

3. This case also involves 28 U.S.C. §47 (Act of June 
25, 1948, c.646, 62 Stat. 872.) :



6

§47. Disqualification of trial judge to hear appeal

No judge shall hear or determine an appeal from the 
decision of a case or issue tried by him.

Statement of the Case

A. Introduction.

This case involves the desegregation of the public schools 
of Oklahoma City, Oklahoma. This class action was filed 
October 9, 1961, by petitioner, Dr. A. L. Dowell, a Negro 
parent.1 Other Negroes intervened supporting the suit,2 3 
and more recently the Sanger group of plaintiff-intervenors, 
who join this petition, were added to the case representing 
white parents supporting the desegregation of the schools. 
The respondents are both the elected 5 member Board of 
Education of the Oklahoma City Public Schools, and the 
McWilliams family, a white family residing in the Belle Isle 
section who intervened representing a class opposed to 
desegregation plans affecting their neighborhood.3

The present posture of the case is quite unusual. Peti­
tioners seek review of an order of the Court of Appeals 
for the Tenth Circuit of August 27, 1969, which summarily

1 Jurisdiction in the district court was predicated on 28 U.S.C. 
§1343(3) and 42 U.S.C. §§1981, 1983 and the Due Process and 
Equal Protection Clauses of the Fourteenth Amendment.

2 See, e.g., 219 P. Supp. at 429.
3 Others who intervened or sought to do so, but are not involved 

in the recent proceedings are:
(a) The Hendrickson family, a white parents class which 

has not participated in recent proceedings; and
(b) The Verity and Danzie classes unsuccessfully applied 

for intervention in August 1969 after the hearing below and 
orders of the trial court were entered. Permission was denied 
on the ground that intervention was too late. On appeal to 
the Tenth Circuit, the denial of intervention was affirmed by 
order entered August 27, 1969. (10th Cir. Nos. 433-69 and 
434-69.)



7

vacated an order entered in the District Court for the 
Western District of Oklahoma on August 13, 1969. The 
trial judge’s order approved and required implementation 
of amendments to the district’s desegregation plan when 
school opened on September 2, 1969. The McWilliams in- 
tervenors, but not the school board, promptly appealed to 
the Tenth Circuit and sought a stay pending appeal. Acting- 
on the stay application, the Tenth Circuit instead summa­
rily vacated the trial court order insofar as it required 
amendments to the desegregation plan for 1969-70. Then, 
on petitioners’ application, Mr. Justice Brennan, as Acting 
Circuit Justice, reinstated the district court order of Au­
gust 13, 1969, pending disposition of a timely certiorari 
petition to be filed within 15 days.4

The school system has thus begun the 1969-70 term in 
accordance with the district court’s requirements. During 
the stay application in the court of appeals, and before 
the Circuit Justice, the school board took no part. Be­
latedly, on the 30th day after the August 13 order (and 
after that order had been vacated by the court of appeals 
and then reinstated pending certiorari), the school board 
on September 12, 1969, filed a notice of appeal from the 
August 13 order.5 6

The Tenth Circuit order of August 27 was the second 
time that court vacated the trial judge’s order during the 
month of August. On August 5, 1969, on an earlier stay

4 Mr. Justice Brennan’s order was dated September 3, 1969. On
August 29, 1969, Mr. Justice Brennan had entered a temporary 
order reinstating the trial judge’s requirement until the McWil­
liams intervenors could file an opposition to the application.

6 On September 12, the school board also noticed appeal from a 
September 11, 1969, order of the trial judge refusing to grant the 
board an extension of time for filing a long-range desegregation 
plan ordered for November 1, 1969, as to secondary schools, but 
granting such a request for elementary schools.



8

application by the McWilliams intervenors, the Tenth Cir­
cuit vacated the trial court order and remanded for recon­
sideration of whether the Civil Rights Act of 1964 barred 
the trial court integration order first entered on August 1, 
1969. As noted above, when the trial court reaffirmed its 
prior action on August 13, the court of appeals then en­
tered its order of August 27, 1969.

Because of this unusual course of proceedings the record 
in the court of appeals includes only papers filed in sup­
port of the McWilliams group’s two stay applications. No 
record certified by the district court clerk in accordance 
with the Federal Rules of Appellate Procedure has yet 
been filed in the Tenth Circuit. Thus, the court of appeals 
had only a fragmentary record which omits essential evi­
dence, pleadings and orders.

In order to deal with the issues now presented, it will be 
necessary to review the prior proceedings from the incep­
tion of the case in 1961.

B. Proceedings During 1961-1962 Before Statutory 
Three judge District Court.

Petitioners’ argument, infra pp. 27-31, that Judge Murrah 
was disqualified under 28 U.S.C. § 47 to hear the case below 
requires a description of the prior proceedings in which 
Judge Murrah acted as a member of the trial court. The 
action was commenced October 9, 1961. On October 11, 
1961, Chief Judge A. P. Murrah designated a statutory 
three-judge district court as requested by the complaint 
which sought injunctions to restrain the enforcement of 
Oklahoma laws requiring school segregation. Circuit Judge 
Murrah and District Judges Bohanon and Daugherty were 
designated to hear the case. A pre-trial order dated Jan­
uary 26, 1962, framed the issues; it is set out in its entirety 
in the appendix hereto, infra pp. 49a to 60a. Briefly sum­



9

marized, the order indicated that the invalidity of the state 
segregation laws was admitted by the board, and that the 
dispute centered on whether the board was unconstitu­
tionally applying the laws governing the assignment of 
pupils. Plaintiffs contended that the board continued to 
operate segregated schools, while the board said that it 
had adopted a good faith desegregation plan which was 
reasonable and should be approved by the trial court. (See 
infra pp. 57a to 59a.)

Although doubtful of its jurisdiction, the three-judge 
court convened and held an evidentiary hearing on the 
merits on April 3, 1962; Judge Murrah presided. On July 
10, 1962, the three-judge court was dissolved. It granted 
no relief hut did refer the matter to Judge Bohanon as 
resident judge. But in the July 1962, order (reprinted in 
appendix, infra pp. 45a to 48a), the three-judge court con­
cluded on the merits that:

The real question posed by the pleadings is the 
application by defendants of Section 4-22 of Title 70, 
Oklahoma Statutes Annotated. Plaintiff admits that 
this section is Constitutional on its face, hut contends 
that it is unconstitutionally applied. (45a, infra)

*  #  *

Section 4-22, Title 70, Oklahoma Statutes Annotated, 
authorizes Board of Education “ to designate the 
schools to he attended by the children of the District. 
(46a,infra)

*  *  #

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

Under the pleadings and evidence the Court is of 
the opinion that there is no justiciable controversy pre­



1 0

sented as to any of the constitutional or statutory pro­
visions set out in the plaintiff’s first amended com­
plaint, and there remained only for determination the 
question relating to defendant’s application of the 
above mentioned statute. There was no evidence to 
show that the unconstitutional provisions of the Okla­
homa Constitution and the unconstitutional statutes of 
Oklahoma relating to segregation of the races in public 
schools have been used and there is no controversy 
with respect thereto and nothing to strike down. Under 
the pleading's there was only the issue as to defend­
ant’s application of Section 4-22 Title 70, Oklahoma 
Statutes Annotated. This issue is a factual one and 
does not address itself to a three-Judge Court.

It further appears from the evidence that there has 
been no order made or promulgated by the defendants 
acting under the above statute, within the purview of 
28 U.S. Code Section 2281, which the plaintiff presents 
or points out to be unconstitutional by discriminating 
against the plaintiff and his class by reason of race or 
coler. (47a, infra)

Thus the court sustained the school board’s defense, al­
though it did reassign the case to the resident judge for 
further proceedings. After the complaint was again 
amended, the plaintiffs finally got an injunction as described 
below.

C. The Case in 1963-1964.

In 1963, the district court ruled that the defendant school 
board’s minority to majority student transfer policy was 
designed to perpetuate and encourage segregation and was 
not a good faith effort to integrate the schools as required 
by the Supreme Court. 219 F. Supp. 427. The board was 
enjoined from discriminating and was ordered to file within



1 1

90 days a complete and comprehensive plan for the inte­
gration of the Oklahoma City public school system, both 
as to students and faculty. 219 F. Supp. 427, 447-448.

In January of 1964, the school board tiled with the court 
a “policy statement regarding integration of the Oklahoma 
City public schools.” 244 F. Supp. 972. Thereafter, a hear­
ing was had upon the Policy Statement after which the 
court noted that “the evidence was substantially the same 
as had been offered to the court prior to the opinion of 
July, 1963” (ibid.). The court directed the board to employ 
a team of experts, independent of any local sentiment, to 
make a survey of the problem as it related to the integra­
tion of the school system. 244 F. Supp. 972, 973. The board 
rejected the request and thereafter, at the court’s invita­
tion, plaintiffs responded favorably and a team of three 
“well qualified” experts were appinted by the court and 
directed to make the study and to report to the court, ibid.

D. The Case in 1965-1968.

The report was prepared and filed with the court. In 
approving the report, the court stated that the experts’ 
recommendation of pairing four white and black schools— 
Harding with Northeast and Classen with Central—was 
reasonable and educationally sound. 244 F. Supp. 971. The 
court concluded that its continuing contact with the case for 
four years demonstrated 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 the 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. 971, 981.

The court noted that the suggested action as outlined by 
the experts (majority to minority transfer plan, pairing



1 2

of the schools, faculty integration) was a good start, “hut 
it of and in itself cannot and will not he the full solution 
of the problem. Further study, planning, and action is 
and will he necessary.” 244 F. Supp. 971, 982. The court 
of appeals affirmed and this Court denied the board’s peti­
tion for certiorari. Board of Education of Oklahoma City 
Public Schools v. Dowell, 375 F.2d 158 (10th Cir. 1967), 
cert, denied, 387 U.S. 931 (May 29, 1967).

After appeal, the board prepared a plan which incorpo­
rated the recommendations of the experts, with major im­
plementation scheduled for the school year 1968-69. They 
were admonished by the court that it was their duty to 
further investigate, study and take further action to fur­
ther desegregate and integrate the total Oklahoma City 
public school system, as well as to improve their plan.

E. The Case in 1969.

On June 12, 1969, the board, in compliance with the 
court’s charge, filed “A  Plan for Desegregation and Inte­
gration of Oklahoma City Public Schools—1969-70.” A 
hearing was held on the plan and after three days of tes­
timony, arguments and briefs, the board’s June plan was 
rejected by the court.6

The court specifically found that in two of the schools 
it had ordered paired in 1965 there was developing a racial 
identification of those schools as being Negro (pp. 5a.-6a, 
infra). In order to correct this situation and prevent fur­
ther “ deterioration,” the court required the board to devise

6 Remarks from the bench, July 29, 1969— “Now I don’t say 
that the School Board and Superintendent are not acting in good 
faith, but that the Plan is not a good faith plan because it doesn’t 
do anything but let the situation stand as it is.” (Appendix 5a 
infra.)



13

a new plan similar to the so-called Wheat Plan presented 
at the trial, and also to file a long-range desegregation plan 
by November 1, 1969 (p. 6a, infra). The board responded 
affirmatively and presented a plan which, in effect, enlarged 
the attendant boundaries of the paired schools (pp. 20a-21a, 
infra). The court approved the new plan and entered its 
order accordingly (p. 11a, infra).

The McWilliams family represents a class of white fami­
lies affected by the changed school zones. Under the prior 
plan children in the Belle Isle area attended Taft Junior 
High (about 3.1 miles)7 and Northwest-Classen Senior 
High (2.8 miles). The new plan now in effect zones 
them to attend Harding Junior High (3.4 miles) and 
Northeast High School (5.3 miles). In accord with state 
law, all pupils living more than 1% miles from school are 
given free transportation.

The defendant intervenors, representing an all-white 
area affected by the boundary change, filed notice of appeal 
on August 1, 1969, and moved for a stay of the district 
court’s ruling. The court of appeals promptly granted 
intervenors a hearing* and on the same day issued an order 
vacating the decision of Judge Bohanon and remanding the 
case for consideration of the applicability of section 407 
(a) (2) of the 1964 Civil Rights Act “and to fashion its order 
accordingly” (p. 23a, infra). On August 8, 1969, Judge 
Bohanon responded to the circuit court’s order stating that 
“ The trial court did study and carefully consider this stat­
ute” (p. 26a, infra) and on August 13, 1969, reentered his 
prior order approving the board’s plan and requiring the 
presentation of a comprehensive system-wide plan of de­
segregation by November 1,1969 (p. 35a, infra).

7 The distances given are estimated distances measured from 
Belle Isle school; see the map included in the record in this Court.



14

Again, on August 14, 1965, after Judge Bohanon denied 
their motion of a stay, defendant intervenors appealed to 
the court of appeals seeking to have the district court order 
stayed or for other appropriate relief. On August 27, 1969, 
the Court of Appeals for the Tenth Circuit vacated the 
August 13 order (p. 38a, infra).

On August 29, 1969, Mr. Justice Brennan, on application 
of petitioners, vacated the order of the court of appeals 
pending briefs from the defendant intervenors by Septem­
ber 2, 1969. On September 3, after filing of briefs by de­
fendant intervenors, Mr. Justice Brennan continued his 
order in effect pending disposition of a petition for cer­
tiorari to be filed within fifteen days (p. 44a, infra).

REASONS FOR GRANTING THE W RIT

1. The decision of the court below is in conflict with 
applicable decisions of this Court.

The case presents important questions relating to the 
timing of public school desegregation in accordance with 
this Court’s decisions in Brown v. Board of Education, 
347 U.S. 483 (1954) {Brorm  I), 349 U.S. 294 (1955) 
(Brown II). It has been in litigation since 1961. In July, 
1969, the district court ordered that certain amendments 
to the school desegregation plan take effect at the start 
of the 1969-70 school term. The trial judge declined to 
stay this requirement pending an appeal taken by inter­
vening white parents ruling that the Constitution “ requires 
the immediate execution of the school board plan” (ap­
pendix infra, p. 36a). In an unusual proceeding, the court 
of appeals, while considering a motion for a stay pend­
ing appeal, entered an order which summarily vacated 
the district court requirement for an amendment to the 
desegregation plan during the 1969-70 school year. The



15

court of appeals order had the effect of postponing in­
definitely implementation of changes of the dsegregation 
plan which were found to be necessary by a district judge 
who had been exercising continuing supervision and juris­
diction over the desegregation of the Oklahoma public 
school system since 1961.

As we indicate more fully below, the court of appeals 
opinion does not state that it found any error of fact 
or law in the proceedings below, or that the trial court 
had abused its discretion. Rather, the court of appeals 
opinion was, in essence, a decision on the proper timing 
for desegregation. We believe that the court of appeals 
applied an erroneous standard in judging the timing ques­
tion. The Tenth Circuit opinion stated the trial .court 
had the power to see that the school system was desegre­
gated only “with all reasonable dispatch.” (Appendix p. 
40a, infra.) In another case decided the same day the 
Tenth Circuit said that constitutional principles demanded 
only “ that desegregation be accomplished with all con­
venient speed” School District No. 1, Denver, Colo., et al. 
v. Wilfred Keyes, et al,, 10th Cir. No. 432-69 (August 27, 
1969).

In 1955, this Court directed the making of a “prompt 
and reasonable start” toward full desegregation and re­
quired that it be carried out with “all deliberate speed.” 
Brown v. Board of Education, 349 IT.S. 294 (1955). More 
recently, the Court has stated that “the time for mere 
‘deliberate speed’ has run out.” Griffin v. County School- 
Board, 377 U.8. 218, 234.8 The Court has held that “ the 
burden on a school board today is to come forward with 
a plan that promises realistically to work, and promises

8 See also, Watson v. City of Memphis, 373 TJ.S. 526, 529 (1963) ; 
Goss v. Board of Education, 373 U.S. 683, 689 (1963) ; Bradley v. 
School Board, 382 U.S. 103 (1965) ; Rogers v. Paul, 382 U.S. 198 
(1965); Calhoun v. Lattimer, 377 U.S. 263 (1964).



1 6

realistically to work now.” Green v. County School Board, 
391 U.8. 430, 439.

The action of the court of appeals in delaying- a portion 
of the Oklahoma City desegregation plan for another year 
cannot pass muster by any of the standards enunciated 
by this Court since Brown, None of the reasons men­
tioned by the court of appeals for delaying desegregation 
are supportable under this Court’s decisions. The basic 
reasoning of the court below was that it preferred to 
decide the legal issues presented at a later time in the 
context of the comprehensive plan for desegregation which 
the trial court had ordered the school board to present 
by November 1, 1969, “ so that the whole matter, with all 
its legal implications, may be considered by this Court in 
one case.” The court of appeals said that it was balancing 
the interests of those who sought desegregation against 
the interests of “those who now assert the constitutional 
right not to be transported to another school solely by 
reason of their race and to achieve racial balance in the 
community.” In other words, the court of appeals ruling 
was based on a balancing of equities between those who 
seek vindication of their rights under the Brown deci­
sion and the intervening white parents who opposed the 
desegregation arrangements which changed the school at­
tendance areas for their neighborhood.

The McWilliams intervenors presented no substantial 
legal question which would justify the delay of the de­
segregation plan. The essence of their objection and argu­
ment is :

1. that the dsegregation plan by enlarging the at­
tendance areas for the Harding and Northeast schools 
to include their neighborhood requires their children 
to be transported by bus to attend different schools 
than those previously serving them;



17

2. that this action was taken because of race to 
send white pupils to the Harding and Northeast 
schools and thus achieve a racial balance at those 
schools ;

3. that this action by the school board violates 
their constitutional rights under the Fourteenth Amen- 
ment; and

4. that this action is in conflict with section 
407(a)(2) of the Civil Rights Act of 1964 (42 U.S.C. 
§2000c-b).

The district judge wrote an opinion dated August 8, 
1969 (appendix p. 25a, infra), about the claim of viola­
tion of the Civil Rights Act, in response to a prior re­
mand from the court of appeals asking that the district 
judge consider this question. The trial judge ruled that 
section 407(a)(2) was inapplicable to the situation in 
this case. In its most recent opinion, the court of appeals 
acknowledged that this view of the trial court “may well 
be right.” (Appendix p. 41a, infra.) I f  that is so, the 
statutory issue certainly is not substantial enough to 
justify the delay.

The statutory argument of the intervenors involving 
section 407(a)(2) has been considered and uniformly re­
jected by the Courts of Appeals for the Fifth and Seventh 
Circuits and by district judges in Louisiana and Colorado. 
United States v. Jefferson County Board of Education, 
372 F.2d 836, 880 (5th Cir. 1966), affirmed on rehearing 
en banc, 380 F.2d 385 (5th Cir. 1967), cert, denied, 389 
IT.S. 840 (1967); United States v. School District 151 of 
Cook County, 111., 404 F.2d 1125, 1130 (7th Cir. 1968); 
Moore v. Tangipahoa Parish School Board (E.D. La., 
C.A. No. 15556, July 2, 1969); Keyes v. School District 
No. 1, Denver, Colo. (D. Colo., Civ. No. C-1499, August



18

17, 1969). The proviso in section 407(a)(2) says that 
“nothing herein shall empower any . . . court of the United 
States to issue any order seeking to achieve a racial 
balance in any school by requiring the transportation of 
pupils . . or otherwise enlarge the existing power of 
the court to insure compliance with constitutional stan­
dards.” All of these courts which have considered the 
matter have concluded—as the plain language indicates 

that nothing in section 407(a)(2) limits or decreases 
the power of the courts to grant equitable relief to remedy 
unconstitutional racial segregation.9 The legislative his­
tory also shows the proviso was intended to be neutral 
on the constitutional issues about achieving so-called racial 
balance in the schools and that the solution should be 
worked out by local officials and the courts. Espousing 
this view, the floor manager of the bill, Senator Humphrey 
said that obviously this provision could not affect the 
courts’ determination concerning racial imbalance and pos­
sible corrective measures because this would depend upon 
the courts’ interpretation of the Fourteenth Amendment.10

9 For example, Judge Doyle in Keyes v. School District No. 1, 
supra, stated that:

“ The language of the proviso indicates that its purpose was 
to prevent the implication that Section 407(a) enlarged the 
powers of the federal courts. The proviso states that the Sec­
tion grants a court no power to order transportation to 
achieve racial balance, nor does the Section ‘otherwise enlarge 
the existing power of the court to insure compliance with 
constitutional standards.’ The equitable powers of the courts 
in directing compliance with constitutional mandates exist 
independent of the 1964 Civil Rights Act. United States v. 
Jefferson County Bd. of Educ., 372 F.2d 836, 880 (7th Cir. 
1966). The proviso merely explains that Section 407(a) is 
not to be construed to enlarge the powers of the courts; it 
does not limit those powers.”

10 88 Cong. Rec. 13820-21 (1964), remarks by Senator Humphrey: 
“ In some instances courts have decided that racial imbalances
may constitute a denial of equal protection of the laws. 
Balaian v. Rubin, 32 U.S.L.W. 2465; Blocker v. Board of 
Education, 32 U.S.L.W. 2465; Jackson v. Pasadena School



19

The McWilliams interveners’ constitutional arguments 
are equally insubstantial. Their argument rests on the 
theory that they, as white students whose attendance areas 
were changed, are being transported from one school to 
another because of their race, and thus in violation of their 
constitutional right. This argument has no merit because 
obviously every corrective measure designed to disestablish 
the formerly segregated system and convert the system 
into a nonracial system is in some sense predicated on race. 
School systems could not be desegregated if school boards 
were forbidden to consider race in making pupil assign­
ments. There is no constitutional right to be segregated. 
White students and parents have no constitutional right to 
demand that desegregation plans leave their school assign­
ments unchanged and that Negro pupils be the only ones

Board, 382 F.2d 878. On the other hand, relief has been 
denied on the grounds that school racial imbalance resulting 
from de facto segregation is not per se unconstitutional. Bell 
v. City of Gary, 324 F.2d 309, certiorari denied, 32 XJ.S.L.W. 
3384. Some communities are attempting to correct racial im­
balances by the transporting of children; others refuse to do 
so. The purpose of the pending Dirk sen-Mansfield-Humphrey- 
Kuchel substitute is to make clear that the resolution of these 
problems is to be left where it is now, namely, in the hands 
of local school officials and the courts. This bill is made 
neutral on the resolution of these problems by the language 
of title IV. It is to be used as the vehicle to require trans­
portation to correct racial imbalances; it is not to be used 
as an excuse for local officials to refuse to carry out their 
obligations. Obviously this provision could not affect a court’s 
determination concerning racial imbalance and possible cor­
rective measures; this is dependent upon the court’s interpre­
tation of the 14th amendment.

As floor manager of this legislation, I wish to note the in­
tention of those who sought to deal with the vexing problem 
of de facto segregation through the language contained in 
Dirksen substitute amendment.” (Emphasis added.)

See also the remark by Senator Saltonstall stating that “the 
whole purpose of the substitute amendment is to see that the courts 
will not be given, by this law, any more power on the question of 
busing and the question of racial imbalance, than they have at the 
present time.” 88 Cong. Rec. 13821 (1964).



2 0

shifted to new schools. “ The Constitution confers upon no 
individual the right to demand action by the State which 
results in the denial of the equal protection of the laws to 
other individuals.” 11 The school board and the district 
court plainly have not only the power but the duty to design 
a desegregation plan that rearranges school attendance 
zones, so as to proceed in “ the dismantling of well-en­
trenched dual systems.” Green v. County School Board, 391 
U.S. 430, 437 (1968). The board is “charged with the af­
firmative duty to take whatever steps might he necessary 
to convert to a unitary system in which racial discrimina­
tion would be eliminated root and branch.” (Id. at 437-438; 
emphasis added).

“To use the Fourteenth Amendment as a sword against 
such State power would stultify that amendment.” Railway 
Mail Association v. Corsi, 326 XJ.S. 88, 98 (Mr. Justice 
Frankfurter concurring). Similar arguments have been 
rejected by another panel of the court of appeals in this 
Oklahoma City case as well as by the Fourth Circuit. See 
Board of Education of the Oklahoma City Public Schools v. 
Dowell, 375 F.2d 158, 169-70 (10th Cir. 1967) (Judge Lewis 
concurring) ; Wanner v. County School Board of Arlington 
County, Va,, 357 F.2d 452, 454 (4th Cir. 1956).

The court below did not indicate that it thought the 
trial judge had erred in rejecting the intervenors’ constitu­
tional claim. The appellate opinion indicated that the trial 
court:

[M]ay also be correct in the apparent belief that the 
traditional neighborhood concept must yield to the 
overriding power of the court to fashion an adequate 
remedy for desegregation and integration of the Okla­

11 Shelley v. Kraemer, 334 U.S. 1, 22 (1948).



2 1

homa City schools. Nothing we shall say or do here 
is intended to repudiate or derogate from the court’s 
power to fully integrate the Oklahoma City School sys­
tem. But the remedy is drastic and has been applied 
sparingly and reluctantly. Surely no one will say that 
it is not fraught with constitutional complexities. In 
any event, this panel of the court is divided and in 
doubt. (Appendix p. 41a.)

Petitioners submit that the trial judge’s action in enlarg­
ing attendance areas for the two schools presents no serious 
constitutional questions. Judge Bohanon’s order that the 
school zones be changed did not in terms require that pupils 
be transported. Under local law pupils are furnished trans­
portation when they must travel more than a mile and 
a half to school. The McWilliams class is entitled to free 
bus rides under either the old or the new zones. The real 
difference is that Judge Bohanon’s order requires them to 
go to schools that were roughly half Negro and half white.12

The obligation of the district court in examining the 
board’s geographic zone plan was to “fashion steps which 
promise realistically to convert promptly to a system with­
out a ‘white’ school and a ‘Negro’ school, but just schools.” 
Monroe v. Board of Commissioners, 391 U.S. 450, 459-460 
(1968), quoting from Green v. County School Board, 391 
U.S. 430, 442 (1968). This pragmatic approach of the Green 
and Monroe cases, supra, was applied by the trial judge 
after a three day hearing involving expert testimony and 
proposals. The court ordered a simple zoning change, 
advocated by the experts, and the details of which were 
devised by the school officials themselves. This judgment 
cannot be upset based on appeals to abstractions like a

12 The school board’s stated objective was that Harding and 
Northeast be about 70% white and 30% Negro (p. 19a, infra).



“ neighborhood school concept,” where the trial judge has 
simply devised a reasonable change of school zone lines 
to disestablish segregation. Nor does it matter that the 
zones now being changed were designed earlier as part of 
an approved desegregation plan. As this Court noted in 
Monroe, supra at 459, it will condemn any system that 
“ operates as a device to allow resegregation of the races.” 
“■ ■ ■ [Gjeographie zoning, like any other attendance plan 
. . .  is acceptable only if it tends to disestablish rather than 
reinforce the dual system of segregated schools.” United 
States v. Greenwood Municipal Separate School District, 
406 F.2d 1086, 1093 (5th Cir. 1969); Davis v. Board of 
School Commissioners of Mobile County, 393 F.2d 690, 694 
(5th Cir. 1968); Henry v. Clarksdale Municipal Separate 
School District, 409 F.2d 682 (5th Cir. 1969).

This Court has affirmed the equitable powers of the dis­
trict court to fashion remedies sufficient to eliminate the 
discriminatory effects of the past. Green v. County School 
Board, 391 U.S. 430, 438 (1968); cf. Louisiana v. United 
States, 380 U.S. 145, 154 (1965).

2. The ease presents a federal question of obvious 
national importance.

This case involves the proper standards to be applied in 
determining if the constitutional right of Negro students 
to a desegregated education may be postponed, or indeed, 
whether there may be any possible acceptable justification 
for postponement 15 years after Brown v. Board of Educa­
tion, 347 U.S. 483 (1954). The question of the proper stand­
ards to be used now, in 1969, in determining when school 
districts must desegregate to comply with their constitu­
tional obligations is an issue which is constantly before the 
lower federal courts. It also presents a question which is 
constantly presented to the Executive Branch of the na­



23

tional government, particularly the Department of Health, 
Education, and Welfare, which has the responsibility under 
Title VI of the Civil Rights Act of 1964 to assure that 
federal funds are not used to support unconstitutional seg­
regation. Mr. Justice Black has pointed out in a recent 
opinion as a Circuit Justice, in chambers, that:

Brown I  was decided 15 years ago, but in Mississippi 
as well as in some other States the decision has not 
been completely enforced, and there are many schools 
in those States which are still either “white” or “Ne­
gro” schools and many that are still oM-white or all- 
Negro. This has resulted in large part from the fact 
that in Brown II the Court declared this unconstitu­
tional denial of equal protection should be remedied 
not immediately, but only “with all deliberate speed.” 
Federal courts have ever since struggled with the 
phrase “ all deliberate speed.” Unfortunately, this 
struggle has not eliminated dual school systems, and 
I am of the opinion that so long as that phrase is a 
relevant factor they will never be eliminated. “All 
deliberate speed” has turned out to be only a soft 
euphemism for delay. (Alexander v. Holmes County 
Board of Education, not yet reported; opinion of Mr. 
Justice Black in Chambers, September 5, 1969.)

Petitioners submit that upholding the decision below 
would inevitably lead to a slowdown in the substantial 
national progress toward compliance with the Brown deci­
sion which has begun since this Court’s decision in Green 
v. County School Board of Netv Kent County, Va., 391 U.S. 
430 (1968). It is important to the continuation of that 
progress that this Court make it unmistakeably clear what 
standards control the timing of desegregation now that 15 
years have passed since Brown I. We urge that the appro-



24

prlate rule is the one stated by Mr. Justice Black in Alex­
ander v. Holmes County Board of Education, supra, where 
he stated:

It has been 15 years since we declared in the two 
Brown cases that a law which prevents a child from 
going to a public school because of his color violates 
the Equal Protection Clause. As this record conclu­
sively shows, there are many places still in this coun­
try where the schools are either “white” or “Negro” 
and not just schools for all children as the Constitution 
requires. In my opinion there is no reason why such 
a wholesale deprivation of constitutional rights should 
be tolerated another minute. I fear that this long 
denial of constitutional rights is due in large part to 
the phrase “with all deliberate speed.” I would do 
away with that phrase completely.

In the fact of the resistance in some places to compliance 
with Brown which must be recognized as a fact of our 
national life such a rule would not instantly bring about 
nationwide compliance. But it would unequivocally deny 
legality to continued failure to complete desegregation. 
If it is not clear already that the law does not sanction any 
further delay in desegregation, then it is indispensable 
that this be made clear. Otherwise, the opponents of 
Brown will successfully erode the principle of the case by 
their deeade-and-a-half tactic of delay, and more delay. 
No more judges or executive officials—from school board 
members to the Secretary of Health, Education, and Wel­
fare, or the Attorney General of the United States—should 
be left with any doubt whatever that the time for desegre­
gation is really now and not later after “problems”—which 
are always a concomitant of any dynamic educational 
system-—are solved.



25

On September 12, 1969, the United States Commission 
on Civil Rights issued a unanimous statement13 which 
shows quite clearly the crucial nature of the problem in­
volved here:

While progress has been slow, the motion has been 
forward and this is certainly no time to create the im­
pression that we are turning back, but a time for 
pressing forward with vigor. This is certainly no time 
for giving aid and comfort, even unintentially, to the 
laggards while penalizing those who have made com­
mendable efforts to follow the law, even while disagree­
ing with it. If anything, this is the time to say that 
time is running out on us as a nation.

In a word, what we need most at this juncture of our 
history is a great positive statement regarding this 
central and crucial national problem, where once and 
for all our actions clearly would match the promises 
of our Constitution and Bill of Rights.

3. The court below has so far departed from  the accepted 
and usual course of judicial proceedings as to call 
for an exercise o f this Court’s power o f supervision.

The court of appeals had before it a request for a stay 
pending appeal. The court acted expeditiously to consider 
the stay request, recognizing the imminence of the beginning 
of the school term. However, instead of granting a stay 
pending appeal, the court vacated the district court judg­
ment entirely. By this action the court recognized that 
the disposition of that stay request, in effect, would deter­
mine the outcome of the litigation for the 1969-70 school 
year. However, since the court of appeals did not have a 
record of the proceedings in the court below, or briefs 
from the parties arguing the merits, its opinion did not

13 The statement is reprinted in New York Times, September 13, 
1969, p. .28 (Late City Edition).



2 6

state any conclusion on the merits of the constitutional 
arguments advanced by the intervening white parents who 
brought the appeal. Rather, as we have noted above, the 
court stated that the district judge’s decision might well 
be correct on the statutory and constitutional issues pre­
sented. Thus, this litigation presents the anomalous result 
that the trial judge’s decision was reversed even though the 
court of appeals acknowledged that it might well be cor­
rect.

It is submitted that this extraordinary action by the 
court is so unusual as to call for the exercise of this Court’s 
supervisory powers. In the companion case involving the 
Denver, Colorado public schools, where the court of ap­
peals granted only a stay pending appeal, Mr. Justice 
Brennan vacated the stay as “ improvident” because the 
Tenth Circuit acknowledged that the district court’s judg­
ment “may be correct.” Keyes v. School District No. 1, 
Denver, Colo, not yet reported (Mr. Justice Brennan as 
Acting Circuit Justice, August 29, 1969). If, as we be­
lieve, Mr. Brennan was correct, in ruling that a stay was 
improvident in such circumstances, it seems a fortiori 
correct that summary reversal of the district court would 
be improvident in the same circumstances.

Judge Bohanon concluded, against a background of pa­
tient consideration over nearly eight years of litigation 
and after hearing testimony for three days, briefs and 
argument, that the amended desegregation plan for the 
Oklahoma City public schools should be implemented forth­
with at the start of the 1969-70 school term. Fortunately, 
that direction has been carried out due to the order of 
Mr. Justice Brennan reinstating the district court order. 
The court of appeals order vacating Judge Bohanon’s 
order without any assertion that his decision was in error 
is plainly insupportable. The order of the district court



27

carried with it a presumption of validity which the court 
of appeals has not questioned. In that situation, the 
judgment of the court of appeals was plainly contrary to 
the usual course of judicial proceedings and merits review 
here.

4. A judge of the panel below was disqualified under 
the provisions of 28 U.S.C. § 47 because he had 
previously heard and decided issues involved in the 
cause as a member of a statutory three-judge dis­
trict court.

It is respectfully submitted that the presiding judge of 
the court below, Chief Judge A. P. Murrah of the United 
States Conrt of Appeals for the Tenth Circuit was dis­
qualified to participate in the decision below by 28 U.S.C. 
§47 which provides that “ No judge shall hear or determine 
an appeal from the decision of a case or issue tried by him.” 
This Court has said that where a court is organized in vio­
lation of this statute “ . . .  it plainly results that an error 
of so grave a character, and involving considerations of 
public importance, was committed, as to cause it to he our 
duty to allow the writ of certiorari . . . ” (William Cramp 
& Sons Ship & Engine Bldg. Co. v. International Curtis 
Marine Turbine Co., 228 U.S. 645, 650 (1913)).

This action was commenced in October 1961 and was 
initially heard by a three-judge court composed of Circuit 
Judge Murrah and District Judges Bohanon and Daugh­
erty. “ On the 3rd day of April, 1962, the three-Judge 
Court, duly assembled, did hear testimony and evidence 
concerning this action. Thereafter, and on the 10th day of 
July, 1962, the Court entered its order dissolving the three- 
Judge Court. . . .” 14 The matters heard and decided by

14 The three-judge proceedings are described in this manner in 
a subsequent opinion by Judge Bohanon. Dowell v. School Board 
of Oklahoma City Public Schools, 219 F, Supp. 427, 429 (W.D. 
Okla. 1963).



28

the three-judge court are indicated by a pre-trial order 
of January 26, 1962 (Appendix infra p. 49a) and by the 
order of the three-judge court (Appendix infra p. 45a). 
In that proceeding the matter went to trial on plaintiffs’ 
contention that the defendants “ continued to operate and 
are now operating segregated schools” and the claim that 
a state law authorizing the board to “ designate the schools 
to be attended by the children of the district” was uncon­
stitutional as applied (Appendix infra p. 57a). The cause 
went to trial on the school board’s contention that the issue 
was “whether or not the defendants have adopted a plan 
which is a good faith attempt to comply with the said 
decisions on desegregation as rapidly as possible, all things 
being considered” and their “ contention . . . that the plan 
adopted by the Defendant District is such reasonable plan 
which entitles it to be approved by this Court . . . ” (Ap­
pendix infra p. 59a). The order of the three-judge court 
noted these contentions of the parties (Appendix infra p. 
45a), concluded that the “ plaintiffs’ evidence failed to show 
that the above mentioned statute is or was unconstitution­
ally applied by the defendants” (see infra p. 47a), ruled 
that there were no further questions for the three-judge 
court and reassigned the matter to Judge Bohanon for 
further proceedings (infra p. 47a).15 16

It is quite plain under this Court’s decisions that Judge 
Murrah’s participation in hearing and directing that the 
school board’s pupil assignment policies were a sufficient 
desegregation plan disqualifies him from hearing such an

15 The action of the three-judge court directly affected the timing
of desegregation in Oklahoma City. The trial on the merits before 
the three judges was held April 3, 1962. Its opinion denying 
plaintiff’s relief and referring the matter to a single judge "was 
issued July 10, 1962. Thus, when plaintiffs finally obtained an 
order for desegregation from a single judge a year later in July 
1963, the desegregation order did not take effect until another 
school year had passed.



29

issue on a later appeal. A  judge who has once heard the 
cause on its merits in the trial court is disqualified from 
hearing an appeal “in the same cause, which involves in 
any degree matter upon which he had occasion to pass in 
the lower court.” (Emphasis added.) Moran v. Dillingham, 
174 U.S. 153, 157 (1899); Rexford  v. Brunswick-Balke- 
Collender Co., 228 U.S. 339 (1913); Wm. Cramp £  Sons
S. <& E. B. Co. v. International Curtis Marine Turbine 
Co., 228 U.S. 645 (1913); American Construction Co., v. 
Jacksonville T. & K. W. Railway Co., 148 U.S. 372, 387 
(1893); cf. United States v. Emholt, 105 U.S. 414 (1882). 
Admittedly, the school board’s particular practices which 
were before the district court in 1969 are not the same 
as those before the three-judge court in 1962. Conditions 
have changed during and because of the litigation. But 
the basic issues are still the same as they were then, in­
cluding whether the board is really complying with its 
duty under Brown, how fast desegregation must proceed, 
whether the schools have been fully desegregated or more 
must be done, whether the board has affirmative obliga­
tions to change the segregated patterns. At any rate, the 
test employed by this Court in construing section 47 is 
a strict one. Section 47 is “not restricted to the case of 
a judge’s sitting on a direct appeal from his own decree, 
or upon a single question” (Moran, supra, 174 U.S. at 
157). “A  judge who has sat at the hearing below of a 
whole cause at any stage thereof is undoubtedly disquali­
fied to sit in the circuit court of appeals at the hearing of 
the whole cause at the same or at any later stage” (ibid.).

Judge Murrah’s disqualification under section 47 is not 
affected by the fact that petitioners below made no ob­
jection to his participation in the consideration of the 
motion for a stay in the court below. The matter of dis­
qualification was not raised or discussed by anyone below. 
This was perfectly understandable in the circumstances



30

of the case.16 But under this Court’s unanimous and long­
standing decisions failure to object to this statutory dis­
qualification does not make a difference, for even the 
parties’ “consent to the judge’s participation in its de­
cision can make no difference.” Rexford v. Brunswick- 
B alke-C ollender Co., supra, 228 TT.S. at 344; Wm. Cramp 
& Sons S. & E .B .  Co. v. International Curtis Marine Tur­
bine Co., supra, 228 U.S. at 650.

The rule expressed in section 47 is quite strict. The 
Court has called it “comprehensive and inflexible” (Wm. 
Cramp d  Sons, etc., supra, 228 U.S. at 650). Indeed, the 
Court has thought such disqualifiations so important that 
it has said that a disqualified judge’s participation means 
that the “ court of appeals which passed upon the case was 
virtually no court at all, because not organized in con­
formity to law” (id. at 228 U.S. 652). As Mr. Justice Black 
wrote for the Court in a different, but related context in 
Re Murchison, 349 U.S. 133, 136:

Such a stringent rule may sometimes bar trial by 
judges who have no actual bias and who would do 
their very best to weigh the scales of justice equally 
between contending parties. But to perform its high 
function in the best way “justice must satisfy the 
appearance of justice.” Offutt v. United States, 348 
U.S. 11.

None of petitioners’ present attorneys participated in the 
three-judge court hearing in 1962. Petitioners’ attorney at that 
time, John Green, Esq. of Oklahoma City, subsequently became an 
Assistant United States Attorney. (See 219 F. Supp. at 428.) 
The hearing before the court below, in which J udge Murrah par­
ticipated. was conducted as an emergency matter on short notice. 
The similarity of the issues involved now and those involved at 
the 1962 hearing before Judge Murrah only came to the notice of 
petitioners’ counsel during the preparation of this petition. It 
should be noted that Judge Murrah also participated in court of 
appeals orders entered in this case on July 21, 1969 and on 
August 5, 1969.



31

Section 47 descends from a similar prohibition enacted 
by the Congress in the judiciary act of 1891 (26 Stat. at 
L. 827, chap. 517, U. S. Comp. Stat. 1901, p. 548). “ The 
intention of Congress . . . manifestly was to require that 
court to be constituted of judges uncommitted and unin­
fluenced by having expressed or formed an opinion in 
the court of the first instance.” Moran v. Dillingham, 174 
U.S. 153, 156-157 (1899). Judge Murrah expressed a view 
in the July 10, 1962, order that the school board had not 
engaged in racially discriminatory assignments of pupils. 
He should not have participated in an appeal involving 
that same question.

CONCLUSION

It is respectfully submitted that the petition for writ 
of certiorari should be granted and that the judgment of 
the court of appeals should be reversed and the order of 
the district court reinstated.

We urge that the Court do more than simply quash the 
judgment of the court of appeals and remand for further 
proceedings before a properly constituted court as was 
done in Moran v. Dillingham, 174 U.S. 153, 158 (1899), and 
Wm. Cramp & Sons S. d  E. B. Co. v. International Curtis 
Marine Turbine Co., 228 U.S. 645, 650-652 (1913). The 
equities require that the district court’s order of August 
13, 1969, be kept in effect- and that the status quo, as it 
exists under Mr. Justice Brennan’s stay injunction, be pre­
served. Equity also requires that the case be disposed of 
with the least possible delay. Turner v. Memphis, 369 U.S. 
350, 353-354 (1962), suggests an appropriate disposition to 
avoid such delay. Here, as in Turner, there is “no reason 
why disposition of the case should await decision by the 
Court of Appeals.” Turner, supra, 369 U.S. at 353. To



32

expedite the litigation, this petition may be treated as one 
prior to judgment in the court of appeals (28 U.S.C. §1254 
(1)) and the case remanded to the district court to carry 
out the further steps contemplated by the August 13, 1969, 
order. Here, as in Turner, supra at 354, the litigation 
should be “disposed of as expeditiously as is consistent 
with proper judicial administration.”

Respectfully submitted,

J ack  Greenberg

J ames M. N abrit, III
N orman J . C h a c h k in  

10 Columbus Circle 
New York, New York 10019

J ohn  W . W alker

1820 West 13th Street 
Little Rock, Arkansas 72202

A rchibald B. H ill , J b .
401 North Durland
Oklahoma, City, Oklahoma 73104

Attorneys for Petitioners Dowell, et al.

Calvin  W . H endrickson

2401 First National Building 
Oklahoma City, Oklahoma 73102

Attorney for Petitioner Sanger, et al.



APPENDIX



(Title Omitted)

P roceedings 

July 29, 1969

Oral Opinion of District Court dated July 29 , 1969

The Court: Well, has everyone said what they wanted 
to say on this subject matter and on this problem?

First, I would like to say that I do appreciate the work, 
the hard work and skillful work, that has been put into the 
problem before the Court by attorneys on both sides. The 
Court knows, as has been said, that the feeling in these 
matters becomes very high, very tense and very positive 
in different people.

To some, it gets to where it’s almost such a feeling of 
life and death; but really, it’s just another lawsuit, so far 
as the Court is concerned.

But I do appreciate the briefs, I do appreciate the sug­
gested findings of fact. They are helpful. They are very 
helpful to me, just like your arguments have been helpful; 
but when you put your findings of fact in writing and read 
it, you then can analyze it in the quietness of your library.

Then I should like to say to the School Board that I have 
heard the School Board members, each one and all, testify 
in this case, and I am impressed with the sincerity and with 
the dedication to duty and your desire to perform your duty 
for the benefit of the school children, for the benefit of this 
city, this state and this nation.

I know you have worked hard. You are men experienced 
in business, and some of you have some knowledge now of 
exactly what the law is in these matters. You have known 
generally what the facts were for a long time; but the Court 
feels that this School Board is as good as any other school

la



2a

board in the matter of the average run of school boards and 
their work and their visions of their duty.

Now that brings the Court to the matter of the court it­
self. The Court has been with this case since it was filed, 
and it was filed and fell on my docket by lot. At that time 
the case was challenging the constitution of various sections 
of the Oklahoma statutes, saying they are unconstitutional 
and that the School Board was using these unconstitutional 
statutes to perform an unconstitutional duty. That’s where 
the case started out.

From a three Judge court it simmered down to a one 
Judge court and then the Court began to hear some evi­
dence.

Shortly an order was made which the Board then com­
plied with. It was so positive that they should comply with 
the earliest and first order; and then the question came for 
a long range program.

The Court got no cooperation from the then School Board, 
and the Court ordered, as you all know, an independent 
investigation and a plan submitted, which was submitted.

The Court considered the plan, heard evidence on it, and 
adopted it.

Now that plan was appealed. That was in ’65, I believe, 
July or September. Two long years passed before that 
case was returned to this Court, and three years before 
it actually got into operation by the School Board. It was 
affirmed by the Circuit Court of Appeals and was affirmed 
in effect by denial of a writ of certiorari by the Supreme 
Court.

Now it goes without saying that when the Supreme Court 
hands down an opinion, that is the law of the case, that is 
the law of the land.

Circuit Courts write opinions and Circuit Courts dis­
agree, and when disagreed Circuit Courts get to the Su­

Oral Opinion of District Court dated July 29, 1969



3a

preme Court, the Supreme Court then decides which of the 
Circuit Courts is right and then that becomes the law of the 
land.

I was amazed at Mr. Short’s brief, which is a very fine 
brief, Mr. Smith’s and Mr. Johnson’s. Mr. Johnson’s brief 
doesn’t cite a single Supreme Court decision, not one. Mr. 
Short refers to the Green, the Rainey and the Monroe, but 
you take a different view from what the court says.

Other than those reviews or references to the Supreme 
Court, yours are all Circuit Court opinions.

Now this Court is bound and the School Board is bound 
and the duty by law is upon the School Board, not on this 
Court, to form a plan that is effective and will do the work 
that is required or expected, and the law requires.

Now in the Dowell case, which is our case and which is 
the law on this School Board, in that case this Court ordered 
change of attendance school boundaries. That’s your “pair.”

That was affirmed by the Circuit, that was affirmed by the 
Supreme Court, and that is the law we are “ saddled” with 
or “married” to, or controls us; and when the intervenors 
here for the defendants say that it’s unconstitutional, I say 
that that has been put to rest by the Dowell case. In this 
case it is the law of this case, and change of boundary lines 
•was there approved.

There had to a change of boundary lines, or else Hard­
ing would not have received students from other districts. 
Northeast would not have received students from other 
districts; and the same thing applies to Central and Classen.

So there is no question but what under all the law, this 
Court has no alternative, no other duty, looks for no other 
alternative and will follow no other duty than to enforce 
the law as I know it to be.

Oral Opinion of District Court dated July 29, 1969



4a

It’s not whether I like it or not, whether I would have 
written the law as they did or not; but in the 1965 opinion 
and order of this Court, I only followed the Brown cases 
and other Supreme Court cases. It wasn’t my law, but it 
was the law of our country. I twas the law of our nation.

As I have said, the responsibility to formulate the plan 
is upon this School Board now and always. This Court has 
no right to try to run the School Board and is not going to 
undertake it, but this Court does have a right and a duty to 
see that you do, if you do not. That’s the law.

It kind of reminds me of when we are here trying law­
suits with jurors in the box and we have a jury. The jury 
goes out, they come back and say, “Well, we’ve got a hung 
jury, Judge. We can’t agree on anything. We want to be 
excused.”

The Court says, as we have since the old Allen rule that 
goes back to 1890 when the Judge said, “Well, you haven’t 
worked long enough. You haven’t worked hard enough. 
You haven’t tried hard enough to get together and decide 
this case.”

So long as the Court doesn’t tell the jury exactly what to 
do, the rule is all right. The jury goes out and they work 
some more and finally they bring in a verdict.

In that case, the Supreme Court said, in the Allen case, 
that for the Court to do some prodding is all right, just so 
the Court doesn’t order or dictate what the jury should do. 
They must be free agents to do what they think should be 
done.

That’s hardly the case here. The duty is upon the School 
Board to return or to prepare and follow a plan of desegre­
gation. I can’t tell you what the plan is. I can’t tell you 
what it should be. I don’t know.

Oral Opinion of District Court dated July 29, 1969



5a

But it’s your authority, as you know if you don’t want 
to hire authorities, you’ve got a wonderful staff out there, 
you’ve got wonderful help down at Norman to help you 
out, you’ve got a wonderful opportunity to go to Health, 
Education and Welfare.

I am told that the Health, Education and Welfare will 
not disturb or bother or interfere with any case that’s in 
court unless the Board asks them to come in and help, and 
then of course they will come. There’s a story in the paper 
today where Health, Education and Welfare stepped in 
down in Louisiana and they are helping the School Board 
on a plan. That could be a great help to you. You are at 
liberty to get help wherever you want to.

Well now, then, the Court comes down to what the Court 
is going to do, what the Court says.

I have to say to this group of fine Board members that 
the May 30, 1969 Plan is not a plan in good faith.

Now I don’t say that the School Board and Superinten­
dent are not acting in good faith, but that the Plan is not a 
good faith plan because it doesn’t do anything but let the 
situation stand as it is.

(Addressing Mr. Estes, a member of the School Board) 
Wait until I get through Mr. Estes.

Now then, you have a situation that is unwholesome: 
Harding and Northeast.

It’s not this Court’s fault because when this Plan was 
made in 1965, the order was made in ’65, if the School Board 
had taken the order and put it into effect that year, your 
ratio would have been pretty close—we don’t know what it 
was—but it would have been pretty close to 90-10; but three 
years later you had, as has been argued and the evidence 
shows and you all know, you had “white flight” to the point 
that you now just have partially white of what it would

Oral Opinion of District Court dated July 29, 1969



6a

liave been; and if yon permit this situation to continue, it 
will further continue to deteriorate.

I am convinced of that and I so hold and find.
The Court finds and holds that the Wheat Plan, tempo­

rary as it is, partial as it is, has good merit and it is worthy 
of your consideration.

The Court holds and finds that this School Board must, 
within a period between now and October 30th, prepare and 
submit to the people a long range integration-desegregation 
plan.

The Court holds and finds that thereafter the plan will be 
heard and it will be determined what to be done about it.

Now the Court is reluctant now, always lias been and al­
ways will be, to order this governing body who represents 
some 75,000 young children, who spend some 23-25 million 
dollars—I am going to ask you, as I talked to you about in 
the Allen instruction, I am going to ask you if you don’t 
think that you could go to your quarters wherever they are, 
today, tomorrow or next day, talk this over without the 
interference of any lawyer, without the interference of the 
patrons? If necessary, I ’ll order that the patrons stay away 
and the lawyers stay away.

See if you can’t bring in or authorize a plan that will put 
the Wheat Plan into operation, ’69-70 school year; and 
those other things, whatever they might be.

I f  you did that, the Court would gladly approve it and 
then we could be on our way.

Today is Tuesday. Let me ask you, do any of the School 
Board members have any objection, now that you have 
heard all this evidence, you have heard all the law, do you 
have any objection to going into your offices, wherever they 
are, reconsidering and seeing if you can’t come out with 
something in the neighborhood of the Wheat Plan?

Oral Opinion of District Court dated July 29, 1969



What do you say, Dr. Hill?
Dr. Virgil Hill: Your Honor, I called a meeting for 7 :30 

this evening. We plan to spend as much time as necessary. 
We would appreciate lack of interference from the public. 
This does retard our effort and introduces an emotional 
element perhaps we don’t need.

We certainly have made provisions to get together as 
quickly as possible to discuss your remarks, the evidence we 
have heard here, what we hope we can come up with.

The Court: How do you feel about it, Mr. Eogers?
Mr. Eogers: I think that’s the thing we should do, get 

together immediately.
The Court: How do you feel, Mr. Lott? You may keep 

your seat.
Mr. L ott: I am. ready to go ahead.
The Court: Mr. Estes, how do you feel? Do you feel 

like you can work together?
Mr. Estes: Well, I have for eight: years, your Honor, 

tried to satisfy the taxpayers and to provide an education 
for the boys and girls regardless of race, sir, and I will, 
as long as I am a member of the Oklahoma City Board of 
Education, I  will continue to do so, s ir ; and I will cer­
tainly cooperate and try to come up with a plan.

I thought we had come up with a reasonable plan, sir. 
I thought we had come up with a plan that would work if 
we could get cooperation, sir. I don’t know what we can do. 
There have been many people who have criticized us in 
what we are trying to do, but no one has ever come up with 
a plan that will work.

We don’t know, sir, that this plan won’t work. It hasn’t 
been decided. I will continue to do what I can with respect 
to the court and respect to my duty as an elected official 
of the Board of Education.

Oral Opinion of District Court dated July 29, 1969



8a

The Court: Thank you, Mr. Estes.
Let me say this to you as a thought of the Court. In your 

eighteen point program which I have read and re-read, and 
very carefully read, there are very laudable ideas, thoughts 
and policies.

You ask for the aid of the Chamber of Commerce, the 
aid of the churches, the aid of the City Council and the 
Legislature. Did it ever occur to you that I as a citizen, 
the Chamber of Commerce or anybody—we can’t help you 
until we know what you want done. You’ve got to lead off, 
first foot forward with a plan; and you are going to find 
that a lot of people don’t like it.

A  lot of people don’t like what I do, and I ’ve done it; 
but my duty and your duty are alike. If they don’t like it, 
so far as you are concerned, they will just not reelect you. 
So far as I am concerned, I don’t know what it’s going to do.

But here’s the point: the law is upon this School Board 
to desegregate these schools. It’s not on the Court. You 
can’t put that on the Court. I ’m not going to let you do it. 
That’s your responsibility.

But the Court will approve anything you put in that is 
reasonable and workable and in good faith.

Well, I ’ve probably talked too much. What do you have 
to say, Mr. Yinger? Do you think this is a good suggestion 
on the part of the Court?

Mr. Yinger: Yes, sir. We are putting a burden on our 
staff if we delay any further for September. I think that 
it’s necessary that we, if we can’t come up with something 
this evening, I don’t think we have many alternatives, that 
then I would say that any further delay would be sufficient 
that our staff and Dr. Lillard, it would be very difficult 
to implement that plan.

Oral Opinion of District Court dated July 29, 1969



9a

Your Honor, I would like to make one further statement.
Dr. Lillard has taken much criticism, there has been much 

criticism leveled at him for his failure to lead this Board; 
and 1 might say that it has dawned on me as a member 
of this Board that we are the policy making branch of this 
system and he is our administrative officer, and I feel that 
this Board should in no way try in any way to bring Dr. 
Lillard into anything that is before this Court; and I would 
like to say that he follows what we say to do.

The Court: Well, you are so true. Lillard, he’s your 
“hired help,” but he is, under the general working of 
things, expected to lead your, lead you into a plan and 
augment and carry out the plan.

All right, now then, here is what I ’d like to say.
You meet tonight. I don’t want to rush you. I am not 

going to rush you as long as it isn’t necessary. But you 
meet tonight and I ’ll ask Mr. Johnson to file with the Clerk 
on Thursday what the plan might be.

If it is satisfactory, you can expect this Court to approve 
it, if it reasonably complies with the Wheat Plan with 
reference to—I am now talking only about Harding and 
Northeast because Classen and Central are out of it at this 
time.

You file that, and without further evidence, without fur­
ther argument of anyone, the Court will either approve 
or disaffirm if it’s not a proper thing, if it isn’t workable 
and doesn’t get at the problem of desegregating and inte­
grating these schools as the Suprme Court has said that 
it shall be.

Then the Court will then have to, of course, shoulder up 
to the Court’s responsibility of doing what the authorities, 
the Supreme Court has said this Court shall and must do.

Does anyone have anything further to say?

Oral Opinion of District Court dated July 29, 1969



10a

Mr. Walker: Your Honor, we have one additional item 
to present to the Court which has been presented in our 
proposed findings of fact, and that is this:

We respectfully pray that the complaint of the defen­
dants be dismissed, the defendant intervenors dismissed. 
They merely stand before the Court as citizens of the com­
munity who have children who attend the schools, who do 
not want their children to be in racially balanced schools.

The Court: Let me say this to you, Mr. Walker. That 
come tomorrow or day after tomorrow—tomorrow is Wed­
nesday, Thursday—come Thursday, if for any reason the 
Court has got to make any kind of order, the Court will 
take your motion into consideration; that is, any kind of 
order with reference to desegregation and integration, but 
right now the Court is interested in seeing if the School 
Board will not get on the road to integrate and desegregate 
these schools, and then prepare a final plan within the time 
heretofore allotted.

Mr. Walker: Thank you, your Honor.
Mr. Thweatt: May it please the Court, may I be heard 

just one second!
Your Honor has used the analogy of a Judge instructing 

a jury as being analogous to saying, “ Gentlemen, go back 
and consider the problem further.”

I think the School Board doesn’t really appreciate what 
the problem is. I would ask your Honor to instruct them 
definitely what the Court means by “desegregation,” what 
the Court means by “integrate.” Are they the same term, 
or are they different terms!

The Court: Well, hte Court is not going to bother to 
answer you.

Will you recess court, please.

(The proceedings are adjourned.)

Oral Opinion of District Court dated July 29, 1969



11a

Order and Decree of District Court 
dated August 1, 1969

[T itle O m itted ]

The Defendant Board having filed its plan and supple­
ment thereto for the further desegregation and integration 
of the Oklahoma City Public School System, said plan and 
supplement thereto, Exhibit 1 May 30, 1969 plan, and 
Exhibit 2 filed August 1, 1969, each attached to this Order 
and Decree and made a part hereof, the Court having care­
fully considered and examined the same, the Court is of 
the opinion said two plans, treated as one, should in all 
things be approved.

I t i s , t h e r e f o r e , o r d e r e d , a d j u d g e d  a n d  d e c r e e d  as 
follows:

1. The plan and supplemental plan, Exhibits 1 and 2 
treated as one plan attached hereto for further desegregat­
ing and integrating the public school system of Oklahoma 
City as submitted by the Board of Education of the Okla­
homa City Public Schools, defendant, be and the same are 
hereby approved, and it is ordered and decreed that said 
plans, treated as one, be put into force and effect for the 
school year 1969-1970.

2. It is further decreed by the Court that the defendant 
Board of Education of the Oklahoma City Public Schools 
prepare and file with the Clerk of this Court on or before 
November 1, 1969, a full, comprehensive plan for the com­
plete desegregation and integration of the Oklahoma City 
Public School System as to students, faculty and employees 
of all grades, employed by the Oklahoma City School 
District.



12a

Order and Decree of District Court 
dated August 1, 1969

3. The request in attorney’s Motion relating to members 
Foster Estes and William Lott has been carefully con­
sidered and denied.

This Court retains jurisdiction to assure compliance with 
this Decree, or until the further Order of the Court.

Dated this 1st day of August, 1969.

/ s /  L u th er  B ohanou

United States District Judge



13a

(Report of Defendants of Plan for Further Desegregation and 
Integration of the Oklahoma City School System 

in the 1969-70 School Year)

[T itle Om itted ]

The Defendants hereby report to the Court and ask to 
be heard thereon their Plan for further desegregation and 
integration of the Oklahoma City School System in the 
1969-70 school year, which Plan is attached hereto as 
Exhibit A hereof.

Exhibit 1 Attached to Order and Decree

J. H arry J ohnson

2105 First National Building 
Oklahoma City, Oklahoma 73102 

Attorney for Defendants

June, 1969



14a

Exhibit 1 Attached to Order and Decree (Cont’d)

(A Plan for Desegregation and Integration of 
Oklahoma City Public Schools— 1969-70 

Adopted as a Policy, Friday, May 30, 1969)

The Oklahoma City Board of Education recognizes its 
responsibility to prepare students to live in a technological 
and pluralistic society.

The Oklahoma City Board of Education reaffirms its 
commitment to desegregate and integrate the total Okla­
homa City Public School System.

The efforts of the past years provide a firm basis on 
which to build and take additional positive steps. The 
overall climate among patrons and students is conducive 
toward further progress.

A  goal of the Oklahoma City Board of Education is to 
provide an early, effective integration experience for an 
increasing number of students.

This school system is an island providing integrated stu­
dent bodies and staffs among otherwise nonintegrated 
school districts. This makes the taks of the Oklahoma City 
schools more difficult.

The interim report of the Committee on Equality of Edu­
cational Opportunity, with numerous suggestions by groups 
and individuals, received careful consideration by the Okla­
homa City Board of Education. Appreciation is expressed 
to all for their efforts on behalf of the school district.

No one plan, or a series of plans, is a final solution to 
this most complex problem. Continued study is a necessity. 
The total community must be involved including the state, 
county, city, civic organizations, Chambers of Commerce, 
churches and other groups and individuals. The task is not 
the sole responsibility of the school system.



15a

Plans considered by the Oklahoma City Board of Educa­
tion must be educationally sound and economically feasible. 
The purpose is to provide equality of educational oppor­
tunity and a quality educational program for all pupils.

No one announcement can include all details. Additional 
details will emerge later.

Steps to be taken by the Oklahoma City Board of Edu­
cation are:

(1) Maintaining order and discipline as necessary in­
gredients for a quality education.

(2) The strict enforcement of regular attendance of all 
students.

(3) The strict enforcement of the policy of the attend­
ance of students according to their legal residence.

(4) The establishment of a school for students requiring 
special programs and services other than special education. 
Disruptive students not benefiting by attendance at a reg­
ular school will be assigned to this school.

(5) Support of open-housing ordinances which will per­
mit integration to occur at a neighborhood level.

(6) Continued efforts to prevent the concentration of 
multiple housing units which would concentrate large num­
bers of the minority race in the Northeast section of Okla­
homa City.

(7) Request a policy statement form the Oklohama Edu­
cation Association, and the Oklahoma City Classroom 
Teachers Association concerning their commitment and in­
volvement in the desegregation and integration of the 
schools.

Exhibit 1 Attached to Order and Decree (Coni’d)



16a

(8) Sponsor legislation providing for a seven-member 
Board of Education. Board members would represent seven 
rather than four geographical areas of the school district. 
The at-large position would be abolished. Terms wrould be 
five years in length. Election of members would be at large. 
The intent would be to provide for greater community par­
ticipation on the Oklahoma City Board of Education and 
representation of the minority races.

(9) Bequest of the Oklahoma State Legislative Council 
that consideration be given to rewriting the State School 
Laws which relate to the transfer of pupils.

(10) Bequest the Oklahoma County Superintendent of 
Schools to cease granting legal transfers from the Okla­
homa City Public Schools.

(11) Communicate regularly with the superintendents of 
neighboring school districts asking they not accept legal 
transfers or tuition pupils from the Oklahoma City Public 
Schools.

(12) Bequest the Oklahoma County Medical Society to 
ask their members to be extremely judicious in issuing 
school transfer medical certificates.

(13) Work with institutions of higher learning in the 
development of teacher education programs which will 
prepare more effective teachers.

a. Teacher corps programs to prepare students to 
teach in the inner city area. Seven team leaders 
and thirty-five interns to be assigned to Capitol 
Hill Junior, Central, Harding, Kennedy, and

Exhibit 1 Attached to Order and Decree (Cont’d)



17a

Moon. Forty percent of each week will be spent 
in working in the community.

b. Teacher corps utilize the staff and patrons of the 
schools to work with patron groups concerning 
problems of integration and quality education.

(14) All staffs, including Central Office, to represent 
more than one race effective September, 1969.

(15) Continued in-service education for teachers work­
ing with culturally deprived pupils, integrated staffs and 
student bodies. Continued utilization of Title IV  of the 
Civil Rights Act and other sources of funds.

(16) Strengthen the curriculum by closing small ele­
mentary schools. Combine Wright and Spencer attendance 
areas with pupils attending Spencer Elementary. Combine 
the University Heights attendance area with Horace Mann, 
Nichols Hills and Belle Isle. This is consistent with past 
action of closing Carver, Washington, and Walnut Grove 
Elementary Schools.

(17) The development and utilization of multi-ethnic 
instructional materials.

(18) Cease charging pupil fares on existing transporta­
tion routes and provide transportation within the rules and 
regulations of the State Department of Education.

Majority to Minority Transfers

An active program to explain the advantages of the 
transfer to all pupils and patrons.

Following the example set by the patrons of Wilson and 
Lincoln, have the patrons of Belle Isle, Buchanan, Burbank,

Exhibit 1 Attached to Order and Decree (Cont’d)



18a

Cleveland, Kaiser, Linwood, Mayfair, Monroe, Sequoyah, 
Emerson, Garfield, Davis, Shields Heights, Taft, Webster, 
Southeast, Grant, and other schools desiring to participate, 
to actively recruit Majority to Minority transfers from 
Dewey, Edison, Harmony, Longfellow, Polk, Lincoln, Cul­
bertson, Truman, Harding, Kennedy, Moon, and Northeast. 
Each patron group would work with a specific elementary 
or secondary attendance area. Patron of goodwill can 
show that the method will achieve results. Early utilization 
of the Majority to Minority transfer can continue through 
the secondary years. Additional staff will assist in recruit­
ing volunteers for the Majority to Minority transfers.

Class size, advantages of the physical plant, curricula 
offerings can be used as inducements for pupils from 
Northwest, Grant, Marshall, and other high schools, to 
transfer to Northeast and Douglass.

Paired Schools

With the phasing out of forty-one Northeast seniors 
from Harmony, Edison, and Dewey (south of 30th Street), 
no new pupils from this area will be assigned to Northeast.

Close Harding and Northeast to transfers from black 
students.

Assign all 1969-70 sophomores from Millwood to North­
east.

Continue Longfellow pupils to Eisenhower Junior High 
School.

Work toward a goal of a pupil-teacher ratio of 22-1 in 
the paired schools.

Recruit 250 Majority to Minority (Black) transfers from 
Northeast to other high schools.

Recruit 200 Majority to Minority (black) transfers from 
Harding to other junior high schools.

Exhibit 1 Attached to Order and Decree (Cont’d)



19a

Work toward a goal of 70-30, white to black, ratio for 
1969-70 at Harding-Northeast.

The assistance of the black and white communities is 
required to implement the Majority to Minority transfer 
policy. Consideration will be given to the conversion of 
the Harding-Northeast schools to middle or magnet schools 
if the recruitment program is not successful.

Continued efforts to upgrade the curriculum and provide 
challenging programs for all pupils. Efforts will be made 
to provide magnet programs or courses to attract pupils 
city wide. Schools within a school where children can be 
grouped to their differing needs and talents.

Provide an expanded intramural and sports program.
Continue the utilization of paraprofessionals to relieve 

teachers of some nonteaching chores.
Recruit outstanding teachers desiring to work in these 

schools.
A beautification campaign for the campuses of the four 

schools.
Establishment of joint advisory committees composed of 

staff, patrons and pupils within the schools.
The Oklahoma City Board of Education believes that 

boundary changes suggested by The Committee in an at­
tempt to achieve racial balance are not feasible at this 
time.

Considering some pupils have been in two schools the 
past two years, moving them again may only intensify the 
problem in terms of intermediate and long-range objectives.

The Oklahoma City Board of Education has consistently 
expressed, and desires to maintain, its position of being 
opposed to the mandatory, or forced, busing of pupils: 
that is, requiring pupils to be transported from their 
neighborhood school to attend another school.

A status report of the integration program will be re­
viewed with the Federal Court.

Exhibit 1 Attached to Order and Decree (Cont’d)



20a

(Supplement to Plan for Further Desegregation and 
Integration of the Oklahoma City School System 

in the 1969-70 School Year)

Acting in response to instructions of the Court in Case 
No. Civil-9452 of the United States District Court of the 
Yi e stern District of Oklahoma, to extend the boundary 
lines of the attendance areas of Harding Junior High 
School and Northeast High School in conformity with pro­
posals of Willis J. Wheat, the Oklahoma City School Board 
has drafted the following Section, designated, “Boundary 
Changes, which will be added to and be a part of the 
Plan for further desegregation and integration of the Okla­
homa City School System in the 1969-70 school year, which 
Plan was adopted by the Oklahoma City School Board 
May 30, 1969, and filed in the aforesaid Court case June 12, 
1969. This new Section will supercede and replace the first 
two paragraphs of Page 4 of the May 30, 1969, Plan, re­
lating to boundary changes, which are deleted from the 
Plan because of their inconsistencies and conflict with the 
new Section. The new boundary lines of the Harding- 
Northeast attendance areas will be shown in the official 
publication of “Boundaries of the Oklahoma City Public 
School District.”

Boundary Changes

The attendance areas of Harding and Northeast will be 
extended to include the following: All of the attendance 
areas of Monroe Elementary School, Belle Isle Elementary 
School, and Burbank Elementary School, and those por­
tions of the attendance areas of West Nichols Hills Ele-

Exhibit 2 Attached to Order and Decree



21a

Exhibit 2 Attached to Order and Decree (Cont’d)

mentary School and Nichols Hills Elementary School which 
lie south of Wilshire Boulevard; as such attendance areas 
were designated in the 1968-69 school year.

The following Section designated “Pupils of Longfellow 
Area in 10th and 11th Grades” will be added to and be a 
part of the aforesaid May 30, 1969 Plan.

Pupils of Longfellow Area in 10th and 11th Grades

Pupils residing in the Longfellow Elementary School 
Attendance Area who are in the 10th and 11th grades in 
the 1969-70 school year will be assigned to Northwest 
Classen High School.



22a

(Report of Adoption of Supplement to Plan for Further 
Desegregation and Integration of the Oklahoma City 

School System in the 1969-70 School Year)

[ t i t l e  o m i t t e d ]

Submitted herewith, for approval of the Court, is a 
Supplement to the Defendant’s Plan for Further Desegre- 
tion and Integration of the Oklahoma City School System 
in the 1969-70 School Year, which Plan was adopted by 
the Oklahoma City School Board May 30, 1969, and tiled 
herein June 12, 1969. The Supplement was approved by 
the Oklahoma City School Board, by a majority vote of its 
members.

School Board Members Foster Estes and William F. Lott 
request the Court to reconsider its decision announced July
29, 1969, and to approve, without the Supplement, the May
30, 1969, Plan.

The School Board requests that the Court order the 
Board to implement the Supplement, together with the 
May 30, 1969, Plan, as a single Plan; or the May 30, 1969, 
Plan; or another Plan.

/ s /  J . H arry J ohnson

Attorney for the Defendants

Exhibit 2 Attached to Order and Decree (Cont’d)



23a

[ t i t l e  o m i t t e d ]

This matter came on for consideration on motion of 
intervening defendants under Rule 8(a), F.R.A.P., for stay 
of an order of the District Court for the Western District 
of Oklahoma, approving a plan of the Oklahoma City School 
Board for further desegregation and integration of the 
Oklahoma City School system pursuant to Board of Edu­
cation of Oklahoma City Public Schools v. Dowell, 375 F.2d 
158.

It appears from the pleadings before the Court and 
statements of counsel that the approved plan involves cer­
tain school boundary changes which, if carried into effect, 
will necessitate the transportation of students from one 
school attendance area to another, in order to achieve a 
racial balance. It does not appear from the Court’s order 
or from the approved plan of implementation that any 
consideration was given to the proviso in Section 407 (a) 
2, Title 4, of the Civil Rights Act of 1964, which seems 
to limit the power of the Court “ to issue any order seeking 
to achieve a racial balance in any school by requiring the 
transportation of pupils or students from one school to 
another . . .  in order to achieve such racial balance or 
otherwise enlarge the existing power of the Court to in­
sure compliance with Constitutional standards.”

This Court is in doubt concerning the applicability of 
this limitation on the power of the Court to this case, and 
inasmuch as it does not appear that the trial court gave 
consideration to the applicability of the proviso in the 
order approving the plan, it seems appropriate to vacate 
the order approving the plan to afford the Court an oppor­
tunity to consider the applicability of the Section and to 
fashion its order accordingly.

Opinion of Court of Appeals dated August 5, 1969



24a

Opinion of Court of Appeals dated August 5,1969

This Court expresses no view concerning the application 
of the limitation to the order entered but reserves judg­
ment until the matter is first considered and decided in the 
trial court.

I t  IS  SO ORDEBED.



25a

[ t i t l e  o m i t t e d ]

[R esponse]

The Court has received an Order from the Court of Ap­
peals (10 C.A.) dated August 5, 1969, and in response 
thereto has carefully reviewed the entire file in this case, 
the documents on file, and has carefully considered the evi­
dence offered at the trial of this case, and in compliance 
with said order the Court responds and orders as follows:

In order to fully clarify the Court’s prior Order in this 
case and to fully advise the Court of Appeals, it is neces­
sary to review this case in part. It is not the Court’s 
intention to file a Brief, but only to review what neces­
sarily confronted the Court in this case and what it neces­
sarily decided.

In Brown v. Board of Education, of Topeka,1 the Su­
preme Court held that segregation in the public schools 
denies Negro children the equal protection of the laws 
guaranteed by the Fourteenth Amendment; and in Brown 
v. Board of Education,2 3 the Court ordered desegregation 
of the public schools “ with all deliberate speed,” and placed 
upon the school authorities the primary responsibility for 
solving the various local school problems required to im­
plement the governing Constitutional principles, and as 
said in Green v. County School Board,2

“ to fashion steps which promise realistically to convert 
promptly to a system without ‘white’ schools and ‘Ne­
gro’ schools, but just schools.”

1 347 U.S. 483 (May 17, 1954).
2 349 U.S. 294 (May 31, 1955).
3 391 U.S. 430 (May 27, 1968).

Opinion of District Court dated August 8, 1969

( “ Response” )



26a

and the Supreme Court decisions, supra, further placed 
upon the District Court, the obligation to assess the effec­
tiveness of plans submitted by the local school authorities.

It was, therefore, incumbent upon this Court to deter­
mine whether the plan submitted by the Oklahoma City 
School District, and as amended, entitled “Report of De­
fendant’s Plan for Further Desegregation and Integration 
of the Oklahoma City School System in the Year 1969-70 
School Year” and “Report of Adoption of Supplement to 
Plan for Further Desegregation and Integration of the 
Oklahoma City School System in the Year 1969-70 School 
Year” was a good faith plan, and if so, to approve it, and 
if not to disapprove it.

Circuit Court Order

The Court of Appeals said in its Order of August 5,1969:

“ * * # and inasmuch as it does not appear that the trial 
court gave consideration to the applicability of the pro­
viso in the order approving the plan * * * ” (Title 42 
U.S.C.A. Sec. 2000c-6, Civil Rights Act, 1964)

In this, the Court of Appeals is all wrong, and it is not so. 
The Trial Court did study and carefully consider this 
statute.

In 1963 when the Trial Court requested the Oklahoma 
City School Board to submit for the benefit of the public 
and of the Court a good faith plan for desegregation, the 
then Board declined to do so.

Thereafter, the Court appointed three experts who sub­
mitted to the Court and to the public a partial desegrega­
tion plan which the Court found to be submitted in good 
faith, and it was adopted by the Court and ordered put 
into execution.

Opinion of District Court dated August 8, 1969



27a

This plan, submitted by the experts, provided for changes 
in the attendance school district boundary lines and for 
bussing, to put the plan into effect as a step toward deseg­
regation of the public schools.

The Court out of precaution, however, not believing the 
Civil Eights Act in anywise applied to the desegregation 
plan but because the plan was submitted on order of the 
Court, the Court said in its Order of September, 1965:

“And it is therefore ordered that no inference may 
be drawn from this Order that transportation by pub­
lic school buses is indicated or inferred.”

The Court of Appeals in affirming this Court’s Septem­
ber, 1965, Order said:

“ The Court ordered transfer plan placed no bussing 
requirement upon the school system.”

On May 30, 1969, the School Board filed, for the benefit 
of the public and this Court, its plan for further desegre­
gation of the school system, and on July 29, 1969, the 
Court held the plan not a good faith desegregation plan 
and requested the School Board to reconsider in the light 
of three days’ testimony they had heard, and in the light 
of counsels’ argument on the law, all in open court, and 
thereafter on August 1, 1969, for the first time in 15 years 
the defendant School Board filed, together with its amend­
ment, referred to above, a good faith desegregation plan.

The May 30 and August 1, 1969, plans combine to make 
one complete plan showing on its face to be a plan to de­
segregate the schools as required by Brown 1, Brown 11, 
Green, Rang and Monroe decisions and many others. The 
plan was approved by the Court as being one for the de­
segregation of the school system and as being a satisfactory

Opinion of District Court dated August 8, 1969



28a

one to further the dismantling of state-imposed segregation 
and the state-imposed dual school system prevailing in Ok­
lahoma since statehood. The Court in approving the plan 
submitted did so with the belief and hope that the plan 
would be a forward step toward disestablishing state-im­
posed segregation as required in Green, supra.

Oklahoma State Policy on Bussing 
70 O.S.A. 9-1

Oklahoma City Board, of Education 
Policy on Bussing

In 1921 and later in 1961 the Oklahoma Legislature pro­
vided for the bussing of pupils or students to any assigned 
school where the travel distance was more than one and 
one-half miles.

The Oklahoma City School District has followed the State 
policy as enunciated by the State Legislature, and has in 
many places for many years provided bussing for pupils 
and students to their assigned schools.

The plan of May 30, 1969, and as supplemented by the 
amended plan of August 1, 1969, by point No. 18 provides:

“ Cease charging pupil fares on existing transporta­
tion routes and provide transportation within the rules 
and regulations of the State Department of Education.”

Point No. 18, supra, of the School Board Plan submitted 
to, and approved by the Court, referring to bussing was 
not a plan with reference to forced bussing, but was in 
compliance with the State policy and School Board policy 
and was an aid in desegregation and, incidentally, an aid 
in preventing resegregation in Harding Junior High 
School and Northeast High School.

Opinion of District Court dated August 8, 1969



29a

Civil Rights Act 1964 
Title 42 U.8.C.A., 2000-6

The Court of Appeals said in its recent order that the 
Civil Eights Act, above, seems to limit the power of the 
Court.

The Civil Rights Act of 1964, above, contains many pro­
visions for the relief of abuses to the Negro, and Congress 
in its effort to aid the Courts in the problem of desegrega­
tion provided that the Commissioner of Education have 
power to aid all states in their school desegregation prob­
lems as required in Brown 1 and 11 and gave to the Com­
missioner authority to work with and aid the school boards, 
especially in all states which had from time immemorial 
maintained de jure segregated schools, (southern states 
including Oklahoma). In the Act, Congress provided that 
in cases where parents of children complained of unequal 
protection of the law in school matters, the Attorney Gen­
eral of the United States was authorized to investigate 
such complaints, determine if the complaints were true, 
and Congress said:

“ The Attorney General is authorized, after giving 
notice of such complaint to the appropriate school 
board * * * and after certifying that he is satisfied 
that such board * * * has had a reasonable time to 
adjust the conditions alleged in such complaint, to in­
stitute for or in the name of the United States a civil 
action in any appropriate district court of the United 
States against such parties and for such relief as may 
be appropriate, and such court shall have and shall 
exercise jurisdiction of proceedings instituted pursu­
ant to this section, provided that nothing herein* shall

Opinion of District Court dated August 8, 1969

Emphasis supplied.



30a

empower any official or court of the United States to 
issue any order seeking to achieve a racial balance in 
any school by requiring the transportation of pupils 
or students from one school to another * * * to achieve 
such racial balance * * The words official or court 
of the United States, no doubt, means an official of the 
United States and a court of the United States.)

Nowhere does this Act limit in any way any desegrega­
tion plan of any school board, nor does the Act in any way 
restrict or limit the District Courts in approval of any 
plan of any school board in its effort to comply with the 
law requiring desegregation.

On the other hand, it is quite apparent that it was the 
desire of Congress that local school boards would take 
the necessary steps to effectively and truly desegregate 
the schools.

Furthermore, the transportation referred to in the de­
fendant School Board’s plan, point 18, supra, is not solely 
its own policy, but based upon and authorized by the laws 
of the State of Oklahoma.

This Court was at all times, prior to and during the 
trial of this case, fully aware of, and did in fact consider the 
Civil Bights Act of 1964, Title 42, Sec. 2000c-6, and the 
Court concluded that the proviso contained in the Civil 
Bights Act relating to transportation of pupils was not 
applicable in this case. The Court further concluded that 
the Civil Bights Act, supra, did not and does not prohibit 
the State of Oklahoma or the Oklahoma City School Dis­
trict, defendant herein, from providing transportation for 
students within the district, consistent with clause 18 of 
the plan submitted, above quoted, and as authorized by 
Oklahoma Statute 70 O.S.A., Sec. 9-1. It cannot be said

Opinion of District Court dated August 8, 1969



31a

that this Act of the legislature was enacted in contempla­
tion of racial problems.

The Court further took into consideration in approving 
the plan submitted that there is no law which prohibits 
the school officials from changing and rearranging school 
attendance areas, boundaries, or changing school attend­
ance areas as relates to children in various grades in the 
public schools, even if changed for the avowed purpose 
of dismantling state-imposed segregation, and if in order to 
accomplish this purpose, the school district elects to fur­
nish transportation for the children, this does not violate 
any Federal Law, including the Civil Eights Act.

The argument that the School Board plan, “would force 
bussing to overcome racial imbalance,” is ridiculous and 
without merit. It would not be forced bussing because 
students have a right to attend their boundary attendance 
school by their own transportation, to-wit: walking, car 
pool, parent transportation, or any other method they 
choose to use. The School Board furnishes transportation 
only if requested and desired by the pupils, students and 
parents. Likewise, there is no merit in the argument that 
race may not be taken itno account for purposes of deseg­
regation of state-imposed segregation in the schools. In 
some instances, as in this case, there is no way of undoing 
the effects of past state-imposed discrimination and segre­
gation except by taking race into account. Board of Public 
Instruction of Duvall County v. Braxton, 402 F.2d 900 (5th 
C.A.) (Aug. 29, 1968).

In United States v. School District 151 of Cook County, 
Illinois, 404 F.2d 1125 (Jan. 27, 1969), the Court said at 
page 1130:

“ The Constitution forbids the enforcement by the 
Illinois School District of segregation of Negroes from

Opinion of District Court dated, August 8, 1969



32a

Whites merely because they are Negroes. The congres­
sional withholding of the power of courts in Section 
2000c-6 (Civil Eights Act) cannot be interpreted to 
frustrate the constitutional prohibition. The order here 
does not direct that a mere imbalance of Negro and 
White pupils be corrected. It is based on findings of 
unconstitutional, purposeful segregation of Negroes, 
and it directs defendants to adopt a plan to eliminate 
segregation and refrain from the unlawful conduct that 
produced it.”

and at page 1135 the Court said:
“ Consideration of racial factors in undoing uncon­

stitutional segregation are permissible. Wanner v. 
County School Bd., 357 F.2d 452 (4th Cir. 1966).”

Inasmuch as the Court of Appeals has by its Order 
vacated this Court’s Order and Decree dated August 1,1969, 
and called for the above statement from this Court, the 
Court now enters its Decree as directed by the Court of 
Appeals.

Dated this 8th day of August, 1969.

, / s /  L u th er  B ohanon

United States District Judge

Opinion of District Court dated August 8, 1969



33a

[Title Omitted]

O r d e r  a n d  D e c r e e

In keeping with the order of the appellate court, “to 
fashion its order accordingly,” this Decree is entered:

The defendant, the Board of Education of the Oklahoma 
City Public Schools, Independent School District No. 89, 
Oklahoma County, Oklahoma, a public body corporate, hav­
ing filed herein its plan for the further desegregation of 
the Oklahoma City School System, this Court has carefully 
considered and re-examined said plan for, and to become 
effective for the school year 1969-70. This Court having 
considered all of the evidence, facts, argument of counsel 
and the applicable law to this case is of the opinion that 
said plan in all things should be approved.

This Court, at the suggestion of the appellate court, has 
reviewed and reconsidered the Civil Bights Act of 1964, 
public law 88-352, Title 4, Sec. 407, 78 Stat. 248, 42 U.S.C.A. 
2000e-6, and is of the opinion that it does not apply to 
this case.

It is thereeore, ordered, adjudged and decreed as fol­
lows:

1. The plan for the further desegregating the public 
school system of Oklahoma City as submitted by the Board 
of Education of the Oklahoma City Public Schools, defen­
dant herein, be, and the same is hereby in all respects 
approved.

2. It is further decreed by the Court that the defendant 
Board of Education of the Oklahoma City Public Schools 
prepare on or before November 1, 1969, for the benefit of

Order and Decree dated August 8 , 1969



34a

the public and for this Court’s consideration a full, com­
prehension plan for the complete desegragation of the Okla­
homa City School System as to students, faculty and em­
ployees of all grades employed by said defendant district.

Dated this 8th day of August, 1969.

/ s /  L u th er  B ohawoh

United States District Judge

Order and Decree dated August 8, 1969



35a

[Title Omitted]

O r d e r  a n d  D e c r e e

The Tenth Circuit Court of Appeals having issued its 
Mandate in this case which was filed with the Clerk of this 
Court on this day, the Order set out in the Mandate is 
identical to the Order received by this Court on August 7, 
1969, and this Court having filed its Response and its Order 
as directed by the Appellate Court “ to fashion its Order 
accordingly,”

It is therefore, ordered, adjudged and decreed as fol­
lows:

1. The plan for the further desegregating the public 
school system of Oklahoma City as submitted by the Board 
of Education of the Oklahoma City Public Schools, defen­
dant herein, be, and the same is hereby in all respects 
approved.

2. It is further decreed by the Court that the defen­
dant Board of Education of the Oklahoma City Public 
Schools prepare on or before November 1, 1969, for the 
benefit of the public and for this Court’s consideration a 
full, comprehensive plan for the complete desegregation 
of the Oklahoma City School System as to students, faculty 
and employees of all grades employed by said defendant 
district.

Dated this 13th day of August, 1969.

/ s /  L u t h e r  B o h a n o n

United States District Judge

Order and Decree dated August 13, 1969



36a

[Title Omitted]

Order on M otion to S tay

The Court, having very carefully studied the Motion of 
the protestants to stay the desegregation plan of the Okla­
homa City School System, concludes as follows:

1. The Constitution of the United States requires the 
immediate execution of the School Board plan.

2. The protestants are without an appealable interest, 
and their Constitutional rights are not affected by the exe­
cution of the School Board plan.

3. The protestants admittedly represent only a small 
fragment of the total Oklahoma City school population and 
should not be permitted to thwart the overall plan that 
affects so many non-protesting patrons.

4. The protestants do not truly represent a true class 
of the school students inasmuch as there are no Negroes in 
the class purportedly represented by the protestants.

5. The Board of Education of the Oklahoma City School 
District is the only true party representing all of the school 
children of the district and is the true party in interest, 
and this Board, as a governmental agency of the State of 
Oklahoma, has proposed, on behalf of all of the affected 
school children, the desegregation plan approved by the 
Court. 70 O.S.A. 4-22.

6. The record discloses that the execution of the School 
Board desegregation plan will work a hardship and incon­

Order on Motion to Stay of District Court
dated August 14, 1969



37a

venience on some students and some parents, however, 
such hardship and inconvenience does not present a Con­
stitutional question. The School Board obviously took these 
matters into consideration.

7. A failure to execute the desegregation plan of the 
Oklahoma City School Board would violate the Constitu­
tional rights of the Negro student by continuing the con­
demned and unconstitutional State-imposed segregation of 
the past.

It i s , t h e r e f o r e , o r d e r e d  a n d  d e c r e e d  that the Motion for 
Saty of the execution of the Oklahoma City School Board 
plan of desegregation be, and the same is hereby denied.

Bated this 14th day of August, 1969.
Judgment Entered in Civil Docket on

Aug 14 1969
J osephine P. G ore Deputy

/ s /  L u th er  B ohanon

United States District Judge

Order on Motion to Stay of District Court
dated August 14, 1969



38a

M emorandum  and Order on M otion to S tay

The immediate and pressing matter before us is whether 
we shall stay an order of the District Court, formally ap­
proving another court-prompted step in the process of 
desegregating and integrating the Oklahoma City School 
System. The order is a sequel to one sustained in this case 
in 375Fd 2nd 158. On that appeal, we sustained the court’s 
finding that the Oklahoma City School System had been 
totally segregated by force of state law since its inception 
and that the Board had failed to heed the mandate of the 
Supreme Court in Brown vs. Board of Education, 347 U.S. 
483, “ to take such proceedings and enter such orders and 
decrees * * * as are necessary and proper to admit to 
public schools on a racially non-discriminatory basis with 
all deliberate speed * * * ” .

As originally cast this suit by Dowell, a negro repre­
senting his race and class, sought transfer from a pre­
dominately negro school to which he was assigned to a 
predominately white school in another attendance area.

Dowell contended, and the trial court held, that the trans­
fer was denied solely because of his race. The trial court 
condemned the prevailing minority-to-majority transfer and 
gerrymandering policies of the school board as unconsti­
tutional and void, and ordered the Board to file with the 
Clerk of the Court all pertinent information used or 
adopted in the formation of certain named school atten­
dance areas to the end that the court may determine 
whether they were created in good faith or intended to per­
petuate segregation. Jurisdiction was retained to assure 
full and complete compliance. See Dowell vs. School Board, 
219 F. Supp. 427.

Opinion and Order of Court of Appeals
dated August 27, 1969



39a

The next remedial step, reported in 244 F. Supp. 971, re­
quired the School Board to pair and consolidate four differ­
ent attendance areas, with each school housing different 
grades, and to inaugurate a volunteer majority-to-minority 
transfer policy, space permitting.

We affirmed this order and emphasized the equitable 
powers of the trial court to fashion a remedy which would 
completely disestablish segregation in the Oklahoma City 
school system and establish in its place an integrated non- 
racial educational system. We thought this could be done 
without condemning or striking down the convenient neigh­
borhood school attendance concept, provided such atten­
dance formula was not used as “ a mask # * to perpetuate
racial discrimination” .

The order now under attack is a further step in the de- 
segregatory process. The effect of this order is to extend 
the attendance boundary lines so as to bring additional 
attendance areas, hence additional pubils, into the previ­
ously consolidated attendance areas. The result is that 
students in these areas will be required to attend schools 
other than those in their neighborhood which they would 
normally attend. The affected class of students was per­
mitted to intervene to assert their interests.

The intervening classes contend that the last boundary 
changes require them to be transported from one atten­
dance area to another attendance area for the sole and 
only purpose of achieving a racial balance in violation of 
declared congressional policy and without any showing that 
it bears any reasonable relationship to equal educational 
opportunities in an environment of equal respect and dig­
nity under law. They assert their constitutional right not 
to be transported from their neighborhood schools to

Opinion and Order of Court of Appeals
Dated August 27, 1969



40a

another school 4 or 5 miles away solely because of their 
race. They seem to suggest that no one has a constitutional 
right to a remedy against the equal right of others.

The School Board has the first positive duty to eradicate 
the state-imposed or sanctioned biracial educational system, 
and to replace it with a unitary non-racial system. Indeed, 
it is publicly committed “to desegregate and integrate the 
total Oklahoma City Public School system” . The trial 
judge has the undoubted power to see that it is done with 
all reasonable dispatch. When the Board falters he must 
improvise the appropriate remedial measures. It is not 
the province nor the disposition of this court to interfere 
with the trial court’s considered judgment concerning the 
remedial measures to be taken in cases like this. The trial 
judge’s judgment is entitled to great respect and weight 
and we will interfere only to the extent necessary to deter­
mine whether the remedial measures taken are within stat­
utory and constitutional limits.

The Civil Rights Act of 1964 (§401 (b)) defines “ desegre­
gation” to mean the assignment of students to public 
schools without regard to race or color, religion or national 
origin, but that does not mean the assignment of students 
to public schools in order to overcome racial imbalance. 
An Section 407(a) of the same Act provides in effect that 
in a suit instituted by the Attorney General in the name 
of the United States, to redress violations of the Civil 
Rights Act, the Court exercising appropriate jurisdiction 
shall not be empowered to “issue any order seeking to 
achieve racial balance in any school by requiring the trans­
portation of pupils or students from one school to another 
* * * in order to achieve such racial balance * * V ’

On remand to the trial court to determine the applicabil­

Opinion and Order of Court of Appeals
Dated August 27, 1969



41a

ity of this Act, the court was sure that the Act was in­
applicable to a suit like ours by a private person to redress 
the deprivation of the constitutional right to educational 
equality. The court may well be right. It may also be cor­
rect in the apparent belief that the traditional neighbor­
hood concept must yield to the overriding power of the 
court to fashion an adequate remedy for desegregation and 
integration of the Oklahoma City schools. Nothing we shall 
say or do here is intended to repudiate or derogate from 
the court’s power to fully integrate the Oklahoma City 
School system. But the remedy is drastic and has been 
applied sparingly and reluctantly. Surely no one will say 
that it is not fraught with constitutional complexities. In 
any event, this panel of the court is divided and in doubt. 
It is not uncommon for questions of transcendent import­
ance like this to be heard and decided by the wdiole court. 
Since this order was entered, and apparently after this ap­
peal was taken, two additional classes—one white and one 
negro—have sought intervention, claiming that the supple­
mental plan would require cross-transportation of races 
from one school attendance area—contiguous and non-con- 
tiguous—into another attendance area.

An appeal has been taken from the order denying inter­
vention. The contention is that they are constitutionally 
entitled to be left alone in the absence of a clear showing 
that cross-transportation of the races is essential to the 
integration process. Then, too, the trial court’s challenged 
order approving the plan significantly requires the School 
Board to “Prepare and file with the Clerk of the Court on 
or before November 1, 1969, a full, comprehensive plan for 
the complete desegregation and integration of the Okla­
homa City Public School system as to students, faculty and

Opinion and Order of Court of Appeals
Dated August 27, 1969



42a

employees of all grades # # Any such plan may very 
well invade other interests not now affected by the supple­
mental order.

Each remedial step affects the interest and rights of ad­
ditional persons. Their right to be heard is fundamental 
and undeniable. Their interest is not represented by the 
School Board, which has taken no appeal. This litigation 
does not lend itself to piecemeal consideration and disposi­
tion, though the ultimate relief may be afforded step-by-step.

It is also important to note that substantially the same 
questions are presented under variant facts in No. 432-69, 
School District No. 1, Denver, Colorado, et al vs. Wilfred 
Keyes, et al. We have considered the two cases together in 
order to reach some fundamentally consistent decision. This 
brings us to the conviction that this litigation should be 
presented and decided on the basis of the full and compre­
hensive plan for complete desegregation and integration of 
the Oklahoma City Schools, which the court has ordered 
submitted to it on or before November 1, 1969. In this 
manner, and only in this manner, can we be assured that 
the interest of all persons affected by the integration orders 
can be represented at the trial level and here. We think it 
inappropriate to decide the questions presented here at 
this stage of the proceedings when the judgment may ad­
judicate litigable interests not now before the court.

The questions whether the stay should be granted pend­
ing the determination of the total plan for integration in­
volves the balancing of the interest of those who assert 
deprivation of equal educational opportunities and equal 
respect and dignity under law against those who now assert 
the constitutional right not to be transported to another 
school solely by reason of their race and to achieve a racial

Opinion and Order of Court of Appeals
Dated August 27, 1969



43a

balance in the community. On balance, it seems appropriate 
and in the public interest to grant this stay to afford the 
trial court an opportunity to consider the full and compre­
hensive plan for the desegregation and integration of the 
Oklahoma City school system so that the whole matter, with 
all its legal implications, may be considered by this court in 
one case. The parties may be assured that any appeal to 
this court will be procedurely expedited and timely con­
sidered.

The order of the court is vacated and the ease is re­
manded to the trial court for consideration and adoption 
of a full and comprehensive plan for the complete desegre­
gation and integration of the Oklahoma City School system 
as contemplated in the court’s order of August 13, 1969.

The mandate shall issue forthwith.

Opinion and Order of Court of Appeals
Dated August 27, 1969

Mandate

On August 27, 1969, the mandate of the United States 
Court of Appeals for the Tenth Circuit, in accordance with 
the order of said court, was issued to the United States 
District Court for the Western District of Oklahoma.



[Title Omitted]

O r d e r

U pon furth er  consideration of the motion submitted by 
the applicants to vacate the order of the United States Court 
of Appeals for the Tenth Circuit issued in this case on 
August 27, and to reinstate the order of the United States 
District Court for the Western District of Oklahoma issued 
on August 13, and of the opposition thereto,

I t is ordered that my order of August 29 is superseded 
and the order of the United States Court of Appeals for the 
Tenth Circuit is vacated and the order of the United States 
District Court for the Western District of Oklahoma is re­
instated provided a petition for a writ of certiorari is filed 
by the applicants within fifteen (15) days from the date 
of this order. Should such a petition be so timely filed, this 
order is to remain in effect pending this Court’s action on 
the petition. In the event the petition for a writ of certiorari 
is denied, this order is to terminate automatically. Should 
the petition for a writ of certiorari be granted, this order is 
to continue in effect pending the issuance of the judgment 
of this Court.

Order by Mr. Justice Brennan dated September 2, 1969

Dated this 3 day 
of September, 1969.

, / s /  W iuliam  J. B rennan  
Acting Circuit Justice



45a

(Piled July 10, 1962)
Order D issolving T hree-J udge C ourt

[Title Omitted]

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

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

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

Order Dissolving Three-Judge Court



46a

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

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

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

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

Order Dissolving Three-Judge Court



47a

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

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

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

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

It is always the duty of any Court to inquire into its 
jurisdiction, and in view of what has been above set forth 
this Court holds that it is without jurisdiction, and is of 
the opinion that the subject matter of this suit is properly 
one for determination by one Judge. The case having 
been originally assigned to Honorable Luther Bohanon, 
District Judge, it is hereby reassigned to him for further

Order Dissolving Three-Judge Court



48a

proeedings, and this three-judge statutory Court is hereby 
dissolved.

E ntered this 10 day of July, 1962.

/ s /  A lfred P. M urrah

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

/ s /  L u th er  B ohanon

United States District Judge

/ s /  F red D augherty

United States District Judge

Order Dissolving Three-Judge Court



49a

[Title Omitted]

A dmitted  F acts

It is agreed that the defendant, Independent School Dis­
trict No. 89 of Oklahoma County, is an independent school 
district existing under the laws of the State of Oklahoma; 
that at the time of filing this action Otto F. Thompson, 
Phil C. Bennett, William F. Lott, Eloise Welch (otherwise 
known as Mrs. Warren F. Welch), and Luke F. Skaggs, 
Jr., were all of the members of the Board of the Defendant 
School District; that since the filing of this action Foster 
Estes has succeeded Luke F. Skaggs, Jr., as member of 
said Board and has been by the order of this Court sub­
stituted as a defendant in the stead of said Skaggs; that 
Jack F. Parker is Superintendent of the Schools of the 
Defendant School District and that M. J. Burr is Assistant 
Superintendent of such schools.

It is agreed that the plaintiffs are a father and minor 
son, citizens of the United States and the State of Okla­
homa, and that they are members of the Negro race; that 
the minor plaintiff resides with his parents in a school 
district adjoining the Defendant Independent School Dis­
trict No. 89 of Oklahoma County (last named school dis­
trict 89 is mentioned hereinafter as Defendant School Dis­
trict) ; that the school district of the residence of the plain­
tiff does not, but the Defendant School District does offer 
courses of instruction above the 8th grade level; that the 
minor plaintiff is a pupil of the 10th grade; that the minor 
plaintiff made application to the County Superintendent of 
Schools of Oklahoma County that such minor plaintiff be 
transferred from his home school district to the defendant 
school district for the reason that the home district of the

Pretrial Order and Stipidations



50a

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

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

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

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

Pretrial Order and Stipulations



51a

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

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

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

Pretrial Order and Stipulations

S tipulations

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

1 .

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



52a

Pretrial Order and Stipulations

2.

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

3.

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

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

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

4.

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

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



53a

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

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

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

(3.) This provision hereafter treated.

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

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

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

Pretrial Order and Stipulations



54a

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

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

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

Pretrial Order and Stipulations



55a

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

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

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

Pretrial Order and Stipulations



56a

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

(12.) Declare Section 5-11, of Title 70, Oklahoma Stat­
utes, transfer of pupils. “When any school district having 
both white and colored children of school age does not 
maintain schools for both races, the county superintendent 
of schools shall transfer the children of the race for which 
a school is not maintained to a school of their own color 
in another district when the same can be done with the 
consent of their parents, guardians or custodians, or with­
out such consent when such children can be transferred 
without compelling them to walk more than one and one- 
half miles to attend such school; provided, that such chil­
dren may be required to travel more than one and one- 
half (1%) miles when proper provision is made for the 
transportation of such children, and the consent of the 
parents, guardian or custodian of any child being required 
to travel more than one and one-half (1%) miles shall 
not be required when such transportation is furnished.” As 
amended Laws 1955, p. 424, Sec. 18, to be unconstitutional 
and void;

Pretrial Order and Stipulations

5.

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



57a

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

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

P lain tiffs ’ P rincipal  I ssue 

(Item 3, Above Referred To)

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

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

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

P lain tiffs ’ P roof

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

Pretrial Order and Stipulations



58a

Alex H. Higdon, Superintendent of Schools, 
Oklahoma County;

M. J. Burr, Assistant Superintendent of Defendant 
Schools;

Nora Belle Oringdorff.

Plaintiffs’ witnesses expected to testify with reference 
to the specific alleged grievances:

T. P. Cherry, Oklahoma City;

M. 0. McDaniels, Douglass High School;

F. D. Moon, former Principal, Douglass High School;

Ira D. Hall, Page Elementary School;

Mrs. Ruby Fleming, Woodson Elementary School;

B. V. Watkins, Dunbar Elementary School;

William Johnson, Creston Hills Elementary School;

Mrs. Mary Moulder, Principal, Truman Elementary 
School;

Delbert Burnett, Culbertson Elementary School;

Mrs. Hazel Kibler, Lincoln Elementary School; 

Lederle Scott;

Mrs. Etoise Flenoid, Oklahoma City;

John Flenoid, Oklahoma City;

Gloria Burse.

Plaintiffs reserve the right to submit to defendants any 
witnesses plaintiffs may desire to use ten days before trial.

Pretrial Order and Stipulations



59a

Pretrial Order and Stipulations 

D efendants ’ P roof

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

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

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

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

T rial D ate

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



Pretrial Order and Stipulations 

E xh ib its

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

Dated this 26th day of January, 1962.

L u th er  B ohanqn

Luther Bohanon, U. S. District Judge

A pproved :
J ohn  E. Green

For the Plaintiff

W. A. L ybrand

Bor the Defendant.



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