Amicus Curiae Brief — Board of Ed. of Oklahoma City Public Schools v. Dowell

No. 89-1080

IN Till

Suprevie Court of the United

October Term, 1990

THE BOARD OF EDUCATION OF OKLAHOMA CITY PUBLIC

SCHOOLS, INDEPENDENT SCHOOL DISTRICT NO. 89.

OKLAHOMA COUNTY, OKLAHOMA.

Petitioner,

V.

ROBERT L. DOWELL er ail..

Respondents

On Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

BRIEF OF THE AMERICAN JEWISH COMMITTEE, THE

ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION

FUND, THE NATIONAL COUNCIL OF LA RAZA, THE

PUERTO RICAN LEGAL DEFENSE AND EDUCATION

FUND, THE UNITARIAN UNIVERSALIST ASSOCIATION

AND THE YWCA OF THE U.S.A. AS AMICI CURIAE IN

SUPPORT OF RESPONDENTS

SAMUEL RABINOVI

Counsel of Record

RICHARD T. FOLTIN

lhe American Jewish Committee

165 East 56th Street

New York, New York 10022

(212) 751-4000

Of Counsel 4tiornevs for Amici Curiae

WILLIAM B. DuFFy, JR

BURNS & LEVINSON

125 Summer Street

Boston, Massachusetts 02110

RUBEN FRANCO

PUERTO RICAN LEGAL DEFENS!

AND EDUCATION FUND

99 Hudson Street

New York, New York 10013

STANLEY MARK

ASIAN AMERICAN LEGAL DEFENSI

AND EDUCATION FUND

99 Hudson Street

New York, New York 10013

supreme Gout U.S,

EILED

JUN 25 Woe

E. SPANIOL. JR,

QUESTION PRESENTED

Whether a school district with a history of de jure

segregation may unilaterally abandon a court-ordered

desegregation plan for elementary school students while

residential segregation caused in part by past unlawful

state action ensures that inner-city neighborhood schools

would be virtually all-black.

STATEMENT OF INTEREST

The American Jewish Committee, founded in 1906,

seeks to protect the security and constitutional rights of

Jews in America through the preservation of the rights

of all Americans. We have been concerned with the

inequities of segregated schooling since the late 1940’s,

when we sponsored research on the effects of de jure

segregation. This research was later cited by the US.

Supreme Court in Brown v. Board of Education, 347 U.S.

483, 494 n.11 (1954). AJC was amicus curiae in both

Brown and Keyes v. School District No. 1, 413 U.S. 189

(1973), and we view the instant case as critical to the

preservation of the principles established in those cases.

The Asian American Legal Defense and Education

Fund is a national civil rights organization that ad-

dresses the critical problems facing Asian Americans.

Our civil rights priorities include anti-Asian Violence,

Immigrant Rights, Voting Rights, Labor and

Employment Rights, and Redress for Japanese

Americans incarcerated in camps during World War II.

The Oklahoma City school system has yet to uproot the

vestiges of de jure segregation and achieve a unitary

school system. Continuing desegregation efforts in edu-

cation must be maintained to achieve equal opportunity

in education for minority Americans who, like African

il

Americans, were compelled to attend segregated schools.

Gong Lum v. Rice, 275 U.S. 78 (1927).

The National Council of La Raza is a non-profit,

tax-exempt corporation dedicated to improving life op-

portunities for the more than 20 million Hispanics in the

United States. NCLR represents over 120 affiliates,

which are community-based organizations serving the

Hispanic community in 32 states and the District of

Columbia. As a long time advocate of Hispanics’ rights

to equal educational opportunities, we oppose the weak-

ening of the hard-won remedial procedures currently in

place which work to resolve long-standing educational

discrimination.

The Puerto Rican Legal Defense and Education

Fund, Inc. (PRLDEF) is a national civil rights organiza-

tion representing Puerto Rican and other Latinos.

PRLDEF is and has been counsel to the Latino commu-

nity in a number of school desegregation cases in the

Northeast. The issue presented in this case is vital to the

continued success of several ongoing desegregation ef-

forts and the provision of quality education.

The Unitarian Universalist Association is a reli-

gious organization consisting of over 1000 member

churches and 100,000 members located throughout the

country. It intervenes in cases where racial justice con-

cerns and principles are importantly at issue.

The YWCA of the U.S.A. is a national membership

organization whose mission is the elimination of racism

and the empowerment of women. As adopted by its na-

tional convention, the YWCA supports “measures to as-

sure the full compliance and vigorous enforcement of

laws requiring desegregation of the public schools.”

ili

TABLE OF CONTENTS

Question Presented ....................00005.

Statement of Interest ........................

MED, co ccc ccncccccccccccccess

Gtatementefthe Case ........... cc ccc cece.

Summary of Argument ........... Sa aia a

Argument

I THE OKLAHOMA CITY SCHOOL

SYSTEM HAS NOT ACHIEVED

TE sccceccccccsccsscces:

A.

Green And Its Progeny Require That

A Formerly Segregated School

District Completely Remedy Its Past

Constitutional Violation ...... itee ds

The Difficulty Of Proving Anew That

Actions With A Segregative Effect

Result From A _ Discriminatory

Purpose Requires That School Boards

Meet Exacting Standards Prior To

The Termination Of Court

ec eccces

A School Board Must Show, By Clear

And Convincing Evidence, That The

Constitutional Violation Has Been

Completely Remedied ..............

A District Is Not Unitary So Long As

Residential Segregation Due To Past

Discriminatory State Action Causes

Neighborhood Schools To Be

Predominantly Of One Race ........

II

III

iv

E. A School System That Is Temporarily

Operating In A Unitary Fashion Has

Not Necessarily Achieved Unitary

ME Utds on cnyaadaeha cduuseve eke.

PETITIONER HAS NOT

DEMONSTRATED THAT THE

INJUNCTION HAS FULFILLED ITS

PURPOSE SUFFICIENTLY TO ALLOW

ITS DISSOLUTION .....................

A. Petitioner Is Required To Show At

Minimum That It Has Eliminated

The Harm That Led To The

Injunction, And That There Is No

Significant Risk That This Harm Will

| PESTER SE SOs | ae A

B. Public Policy Requires That Courts

Not Dissolve An Injunction Without

The Consent Of The Prevailing Party

Unless The Injunction Has Fully

Accomplished Its Purpose ..........

C. The Present State Of Segregation In

Housing And Education In

Oklahoma City Indicates That The

Foregoing Standards Have Not Been

See. Nedehuccaxcduccanan oe

AGGRESSIVE DESEGREGATION

EFFORTS ARE REQUIRED IF INNER-

CITY MINORITY CHILDREN ARE TO

HAVE ACCESS_ TO EQUAL

EDUCATIONAL OPPORTUNITIES ......

14

14

16

A. Modern Research Has Shown That,

Over The Long Term, School

Desegregation Helps To Break The

Cycle Of Racial Isolation In The Lives

Of Minority Students And In Our

Society As A Whole .................

B. School Desegregation Improves Minority

Student Academic Achievement .....

REF OS Pere aE nee AE

Cases:

vi

TABLE OF AUTHORITIES

Page

Blonder-Tongue Laboratories v. University

Foundation, 402 U.S. 313(1971) ...... 16

Bradley v. Milliken, 484 F.2d. 215 (6th Cir.

1973), rev'd, 418 U.S. 717(1974) ....... 5

Brown v. Bd. of Educ., 347 U.S. 483 (1954)

IEE a eee Me ea Rl 7, 20

Brown v. Bd. of Educ., 349 U.S. 298 (1955)

gree ret 15

Bruszewski v. U.S., 181 F.2d. 419 (3rd Cir.

i ec 16

Columbus Bd. of Educ. v. Penick, 443 U.S.

TRS SIRE Rae eae 4,7

Cooper v. Aaron, 358 U.S. 1(1958) ......... 19

Cruzan v. Missouri, 58 U.S.L.W. 4916 (1990) 6,9

Davis v. Bd. of School Comm’rs of Mobile

County, 402 U.S. 33(1971)............

’ 4,5

Dayton Bd. of Educ. v. Brinkman, 443 U.S.

526 (1979) (Dayton IT) ................ 5, 10, 12

Dowell v. School Bd. of Oklahoma City, 219

F. Supp. 427 (W.D. Okla. 1963) ........ 11, 23

Dowell v. School Bd. of Oklahoma City, 244

F. Supp. 971 (W.D. Okla. 1965), affd,

375 F.2d 158 (10th Cir. 1967), cert.

denied, 387 U.S. 931 (1967) ........... 23

Dowell v. School Bd. of Oklahoma City, 338 :

F. Supp. 1256 (W.D. Okla. 1972), affd,

465 F.2d 1012 (10th Cir. 1972), cert.

denied, 409 U.S. 1041 ................ 18

Dowell v. School Bd. of Oklahoma City, 465

F.2d. 1012 (10th Cir. 1972), cert. denied,

RN cs i 17

Dowell v. School Bd. of Oklahoma City, No.

CIV-9452 (W.D. Okla. 1977) .......... 14

vl

Dowell v. School Bd. of Oklahoma Ciiy, 795

F.2d. 1516 (10th Cir. 1986), cert. denied,

I a eee es 14

Dowell v. School Bd. of Oklahoma City, 677

F. Supp. 1503 (W.D. Okla. 1987), rev’d,

890 F.2d 1483 (10th Cir. 1989), cert.

granted, 108 L.Ed 2d 761(1990) ....... 18

Dowell v. School Bd. of Oklahoma City, 890

F.2d. 1483 (10th Cir. 1989), cert.

granted, 108 L.Ed 2d 761(1990) ....... 16

Federated Department Stores v. Motie, 452

EE Ae ee 16, 17

Georgia State Conference of Branches of

NAACP v. Georgia, 775 F.2d. 1403

I a ae Se 13, 14

Green v. County School Bd., 391 U.S. 430

dk i 4,5, 9, 13, 19

Griffin v. County School Bd. of Prince

Edward County, 377 U.S. 218 (1964) ... 19

Hunter v. Underwood, 471 U.S. 222 (1985) .. 7

Jacksonville Branch, NAACP v. Duval

County, 883 F.2d. 945 (11th Cir. 1989) 9,10

Keyes v. School District No. 1, 413 U.S. 189,

Ne ie ee tee on oS 12, 12, 20

Lee v. Tuscaloosa City School Sys., 576 F.2d

SO (Gti Caw. 1976) ... 2... ccc ccccccces 12

Milliken v. Bradley, 418 U.S. 717 (1974)

a 26

Milliken v. Bradley, 433 U.S. 267 (1977)

ED ovo nccnccscewenwenenns 4, 10, 24

Morgan v. Nucci, 831 F.2d. 313 (1st Cir.

DY siedcheecndeh Kon canaceedsaaks 5, 9, 10

North Carolina Bd. of Educ. v. Swann, 402

I, ie ce oe a 19

Palmer v. Thompson, 403 U.S. 217 (1971) ... 7

Pasadena City Bd. of Educ. v. Spangler, 427

I ee 17

Reed v. Allen, 286 U.S. 191(1932) .......... 17

Riddick v. School Bd. of City of Norfolk ,784

F.2d. 521, cert. denied, 519 U.S. 938

GE 45645640 0dbbaekdneds de ckcc sans 23

Ross v. Houston Independent School Dist.,

699 F.2d 218 (5th Cir. 1983) ........... 9, 10, 12

Santosky v. Kramer, 455 U.S. 745 (1982) .... 9

Swann v. Charlotte-Mecklenberg Bd. of

Educ., 402 U.S. 1(1971)... 2, 4, 5, 7, 11, 13, 17, 20

U.S. v. Bd. of School Comm'rs, 573 F.2d 400

(7th Cir. 1978), cert. denied 439 U.S.

Me dedcdsdddecksadewedelueneckscc.. 7

U.S. v. Lawrence County School Dist., 799

F.2d 1031 (5th Cir. 1986) ............. 12

U.S. v. Overton, 834 F.2d 1171 (5th Cir. 1987) 12

U.S. v. Swift., 286 U.S. 106 (1932) ........ 8, 15, 16, 19

U.S. v. United Shoe Machinery, 391 U.S. 244

RE dccGebli da iiee ea auouee 15

Washington v. Davis, 426 U.S. 229 (1976) ... 5

Wright v. City of Emporia, 407 U.S. 451

PC Gceeh cariweteueetoCl edie as 7,19

The Equal Protection Clause of

Amendment XIV .................. 6

Other Authorities:

Appendix, Social Segregation and

Residential Segregation: A Social

Science Statement, Brief of

Respondents in Columbus Bd. of

Educ. v. Penick, 443 US. 449

ivethiixctiveunnd 11, 12, 21, 22, 23, 24, 25

J. Braddock et al., A Long-Term View of

School Desegregation: Some Recent

Studies of Graduates as Adults, 66

Phi Delta Kappan 259 (1984) ......... 21, 22

ix

J. Braddock and J. McPartland, Socio-

Pyschological Processes That

Perpetuate Racial Segregation, 19 J. of

Black Studies 267(1989) ............ 21, 22

J. Braddock and J. McPartland, How

Minorities Continue to Be Excluded

From Equal Employment

Opportunity: Research on Labor

Market and Institutional Barriers, 43

J. of Social Issues 5 (1987) ........... 21, 22

Committee on the Status of Black

Americans, A Common Destiny:

Blacks and American Society

Er ncn alg RE 22, 25, 26

R. Crain et al., Finding Niches:

Desegregated Students Sixteen Years

Later (final draft report 1989) ........ 21, 26

R. Crain and R. Mahard, Desegregation

and Black Achievement: A Review of

the Research, 42 Law & Contemp.

Probs., Summer 1978, at 17 .......... 24

F. Furstenberg et al., Race Differences in

the Timing of Adolescent Intercourse,

52 American Sociological Review 511

ARSE ae ae i ney eer 26

W. Hawley, The New Mythology of School

Desegregation, 42 Law and Contemp.

Probs., Autumn 1978, at214 ......... 20

National Institute of Education, School

Desegregation and Black

Achievement (1984) ................. 24, 25

D. Pearce et al., The Effect of School

Desegregation on the Rate of

Residential Desegregation in Large

Cities (Presented at the Annual

Meeting of The American Sociological

Association, San Antonio

ER eC AGRE Ri pt ths 11, 12, 22, 23, 24

U.S. Civil Rights Commission, Racial

Isolation in the Public Schools (1967)

U.S. Office of Education, Equality of

Educational Opportunity (1966)

21

In the Supreme Court of the United

States

October Term, 1990

No. 89-1080

THE BOARD OF EDUCATION OF OKLAHOMA CITY

PUBLIC SCHOOLS, INDEPENDENT SCHOOL

DISTRICT NO. 89, OKLAHOMA COUNTY,

OKLAHOMA,

Petitioner,

v.

ROBERT L. DOWELL, et ai.,

Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the Tenth Circuit

BRIEF OF THE AMERICAN JEWISH COMMITTEE,

THE ASIAN AMERICAN LEGAL DEFENSE AND

EDUCATION FUND, THE NATIONAL COUNCIL OF

LA RAZA, THE PUERTO RICAN LEGAL DEF&NSE

AND EDUCATION FUND, THE UNITARIAN

UNIVERSALIST ASSOCIATION AND THE YWCA OF

THE U.S.A. AS AMICI CURIAE IN SUPPORT OF

RESPONDENTS

STATEMENT OF THE CASE

Amici adopt the factual presentation set forth in the

Respondents’ Statement of the Case.

This brief is submitted with the consent of the

parties.

SUMMARY OF ARGUMENT

Any discussion of when a formerly segregated

school district is to be declared “unitary” must begin with

this Court’s long-standing requirement that dual school

systems be eliminated “root and branch,” which entails

the elimination of “all vestiges” of past de jure

segregation. Courts must be hesitant to abandon super-

vision of school districts because of the extreme difficulty

that future plaintiffs will have in proving that future

school segregation results from the school board

“deliberately attempt[ing] . . . to affect the racial composi-

tion of the schocis.” Swann v. Charlotte-Mecklenberg Bd.

of Educ., 402 U.S. 1, 32 (1971). A school district can, there-

fore, only achieve unitary status if the school board

demonstrates by clear and convincing evidence that it

has faithfully complied with the desegregation order,

that it has taken no recent actions with segregative in-

tent, and that all significant vestiges of past segregation

have been eliminated.

In this case, inner-city neighborhood schools which

are more than 90% black are the resu!t of a continuing

pattern of residential segregation. The segregated

character of Oklahoma City schools thus is a significant

vestige of the previous governmental policy of racial

separation and precludes a finding of unitary status.

The trial court’s use of the term “unitary” in its 1977

ruling did not indicate a finding of unitary status, but

rather that continuing compliance with the de-

segregation order was successfully causing the district

to operate in a non-discriminatory manner.

This Court has consistently held that school deseg-

regation cases are governed by traditional equitable

principles. Under these principles, an injunction cannot

be dissolved against the will of the prevailing party un-

less it has fully accomplished its purpose and no

3

significant risk remains that the injury that required the

injunction wili recur. Moreover, these standards serve

the same concerns of fairness and judicial efficiency that

have led this Court to announce a policy of “rigorous

application of res judicata.” The state of residential seg-

regation in Oklahoma City and the drastic resegregation

of schools under the neighborhood attendance plan indi-

cate both that the plaintiffs have thus far achieved only

partial relief, and that the risk of reversion to separate

and unequal schools is still present.

Extensive study of desegregation has produced a

stable consensus among social scientists: desegregation

has important long- and short-term benefits to minority

students and to our society as a whole, without harm to

‘ the education of white students. Despite the efforts of op-

ponents of complete desegregation to show that desegre-

gation is either impracticable, ineffective or counter-pro-

ductive, social scientists now recognize its important

long-term remedial effects. Desegregation measurably

improves racial tolerance in all parts of our society; it al-

lows minority students to break the cycle of segregation

that otherwise limits them to isolated, second-class lives;

and it speeds the process of residential integration. Over

the short term, desegregation achieves its immediate

aim of improving the education of minority students,

provided it begins by first grade — as it did in Oklahoma

City before petitioner unilaterally abandoned the deseg-

regation plan.

ARGUMENT

I THE OKLAHOMA CITY SCHOOL SYSTEM

HAS NOT ACHIEVED UNITARY STATUS

A. Green And Its Progeny Require That A

Formerly Segregated School District Completely Remedy

Its Past Constitutional Violation.

The U.S. Supreme Court has consistently insisted

that half-way remedies for de jure segregation are not

acceptable. Segregationists’ hopes that school districts

could constitutionally tolerate the vestiges of segregation

ended with Green v. County School Bd., 391 U.S. 430

(1968), which declared that school systems are “clearly

charged with the affirmative duty to take whatever steps

might be necessary to convert to a unitary system in

which racial discrimination has been eliminated root

and branch.” Id. at 437-38.

Subsequent decisions of this Court have reaffirmed

that standard. Thus, Davis v. Bd. of School Comm'rs of

Mobile County, 402 U.S. 33 (1971), demanded that “school

authorities .. . make every effort to achieve the greatest

possible degree of actual desegregation, taking into ac-

count the practicalities of the situation.” Jd. at 37.

Milliken v. Bradley, 433 U.S. 267 (1977) (Milliken II), ex-

plicitly referred to the elimination of “all vestiges of state-

imposed segregation,” id. at 290, quoting Swann vu.

Charlotte-Mecklenberg Bd. of Educ., 402 U.S. 1, 15 (1971)

(emphasis added), while Columbus Bd. of Educ. v.

Penick, 443 U.S. 449 (1979), cited Swann and Green for the

proposition that remedial efforts are necessary “until it

is clear that state-imposed segregation has been

completely removed.” Id. at 459, quoting Swann, 402 U.S.

at 13 and Green, 391 U.S. at 439 (emphasis added).

The reference to the “practicalities of the situation”

in Davis in no way dilutes this standard. Rather, the

Court recognized that, because an injunction must serve

a remedial purpose, district courts need not seek total

desegregation where local geographic or demographic

conditions doom that attempt to failure. See Morgan uv.

Nucci, 831 F.2d 313, 320 (1st Cir. 1987) (exempting part of

Boston from a desegregation plan due to its geographical

isolation); Bradley v. Milliken , 484 F.2d 215, 245 (6th Cir.

1973), rev'd on other grounds, 418 U.S. 717 (1974) (finding

that the large minority population of Detroit precluded a

Detroit-only remedy).

B. The Difficulty Of Proving Anew That Actions

With A Segregative Effect Result From A Discriminatory

Purpose Requires That School Boards Meet Exacting

Standards Prior To The Termination Of Court

Supervision.

Before a formerly segregated school system

achieves unitary status, there is a rebuttable presump-

tion that actions with segregative results were taken

with discriminatory intent. “(T]he Board has a ‘heavy

burden’ of showing that actions that increased or con-

tinued the effects of the dual system serve important and

legitimate ends.” Dayton Bd. of Educ. v. Brinkman, 443

U.S. 526, 538 (1979) (Dayton II), quoting Green, 391 U.S. at

439. In contrast, after a system becomes unitary, plain-

tiffs may only win further relief by showing that the

school board “deliberately attempted .. . to affect the ra-

cial composition of the schools.” Swann, 402 U.S. at 32.

This heavier burden reflects the general rule, set out in

Washington v. Davis, 426 U.S. 229 (1976), that a state ac-

tion is not unconstitutional merely because it weighs

disproportionately on one group. This Court’s adoption

of heightened scrutiny of school districts so long as

6

vestiges of de jure segregation remain is necessary to

protect the rights of minority students. It reflects both a

justifiable caution that districts with a history of de jure

segregation will have a tendency towards future dis-

criminatory actions and a recognition of the difficulty of

meeting the discriminatory intent standard.

Given the discriminatory intent standard, a prema-

ture finding of unitary status creates an unacceptable

risk that minority students will suffer a wrong without a

remedy. So long as no evidence of discriminatory intent

appears in a public record, minority parents may have

no basis to challenge facially neutral school board poli-

cies that result in their children attending neighborhood

schools that are 99% black and educationally inferior.

Already in this case, for example, the Board adopted a

facially neutral plan for teacher transfers that caused

substantial resegregation of the faculty. Dowell v. School

Bd. of Oklahoma City, 890 F.2d 1483, 1500 (10th Cir. 1989),

cert. granted, 108 L.Ed 2d 761 (1990). While a voluntary

affirmative action plan ended the resegregation (after

this litigation had begun), petitioner could take other

“neutral” actions in the future to the disadvantage of

minority students. For instance, the Board could reseg-

regate grades 5-12 through a “neighborhood schools”

plan or abolish the equity committee that ensures that

inner-city schools do not become inferior.

It may be that when black and white students at-

tend the same schools, courts need no longer fear that

school districts will treat minority students inequitably,

because the Equal Protection Clause “requires the demo-

cratic majority to accept for themselves and their loved

ones what they impose on you and me.” Cruzan uv.

Missouri, 58 U.S.L.W. 4916, 4926 (1990) (Scalia, J., concur-

ring). In areas where schools remain highly segregated,

however, that requirement provides no protection,

because policies which allow minority-dominated

schools to deteriorate do not affect the children of the

white majority. Given the deplorable state of allegedly

“separate but equal” schools for blacks in the pre-Brown

era, a fear that significant inequities could again emerge

is justified.

The Court has often recognized the difficulty of

proving discriminatory intent in multi-member gov-

ernment bodies. See, e.g., Hunter v. Underwood, 471 U.S.

222, 228 (1985); Wright v. City of Emporia, 407 U.S. 451, 462

(1972). This burden is compounded by several factors

present in the case at bar. First, the day has long passed

when racism is likely to be explicit in the record, as in

Hunter, 471 U.S. at 229-31, and Palmer v. Thompson, 403

U.S. 217, 250-51 (1971) (White, J., dissenting). “(I)]n an age

when it is unfashionable for state officials to openly ex-

press racial hostility, direct evidence of overt bigotry will

be impossible to find.” U.S. v. Bd. of School Comm'rs, 573

F.2d 400, 412 (7th Cir. 1978), cert. denied, 439 U.S. 824.

This is especially true for school boards previously under

court supervision, which are keenly aware that their

public records may be scrutinized in a search for invidi-

ous intent.

Second, prior school desegregation plaintiffs have

been able to base their cases on the existence of a duai

school system as of this Court’s decision in Brown v. Bd.

of Educ., 347 U.S. 483 (1954) (Brown I), because school

boards had an “affirmative duty” to remedy the past

constitutional violation. Columbus, 443 U.S. at 458-59.

This rule, critical to desegregation efforts in many cities,

no longer applies after a finding of unitary status, which

indicates that the board has indeed fulfilled that obliga-

tion. Thereafter, efforts to demonstrate illegal segrega-

tion become far more difficult than they had been in the

past.

Third, this Court has recognized the number and

complexity of factors that a school board must consider

regarding school construction and student assignments.

Swann, 402 U.S. at 20. In this context, a school board

may often be able to advance plausible, non-invidious

justifications to conceal discriminatory actions.

Finally, in this age of extensive discovery, out-of-

town experts and lengthy trials, a suit seeking to prove

segregative intent is tremendously costly. Future plain-

tiffs, particularly in small rural school districts, will

have great difficulty obtaining the funds to support an at-

tempt to meet this standard.

Petitioner is wrong when it seeks to reassure this

Court that, should the School Board take any future ac-

tion with an intent to disadvantage the minority com-

munity, respondents will easily be able to prove an un-

constitutional purpose. Brief of Petitioner at 31-32. As

the Court has stated in another context, “[t/he difficulty

of ferreting out these evils . . . supplies an additional rea-

son why we should leave the defendants where we find

them [with the injunction in place].” U.S. v. Swift,, 286

U.S. 106, 119 (1932).' Therefore, a school district with a

history of discrimination must meet highly rigorous

standards before it can be found to have achieved true

unitary status and be released from judicial supervision.

C. A School Board Must Show, By Clear And

Convincing Evidence, That The Constitutional Violation

Has Been Completely Kemedied.

In a hearing to determine whether a school district

has achieved unitary status, the error costs are not

equal. Should the trial court erroneously find that the

desegregation plan is still necessary, little harm will re-

sult. The court will continue supervision, the present in-

junction will remain in effect so long as the court is

convinced it has not become inequitable, and the board

! For this and other reasons discussed below, there is a heavy

burden upon a party who seeks dissolution of a permanent injunction.

See Point II, p. 14 infra.

will be able to demonstrate its achievement of unitary

status at some point in the future. A finding of unitary

status, on the other hand, terminates the case and puts

the plaintiffs back at square one, where they cannot gain

any relief absent a fresh showing of discriminatory

intent.

This Court has noted that when a court must

choose between maintaining the status quo and taking

an irreversible step, it is appropriate to require the party

seeking a permanent change to prove its case by clear

and convincing evidence. Cruzan, 58 U.S.L.W. at 4921;

Santosky v. Kramer, 455 U.S. 745, 759 (1982). By that same

reasoning, the “clear and convincing” evidence standard

should be applied to a school board seeking a

determination that it has achieved unitary status.

Ever since this Court’s decision in Green, the term

“unitary” has expressed the goal of school desegregation

plans. While the term has never been precisely defined,

prior desegregation cases suggest that a school district

seeking to end court supervision must pass each of three

distinct tests. First, it must have been in good faith com-

pliance with the desegregation order for a substantial

number of years. ‘Since prolonged de jure segregation

has been shown to have dramatic long-term effects on

the social order of a region, even the most aggressive de-

segregation plan cannot effect a complete remedy in a

brief period of time. The full cooperation of the board is

indispensable for a successful transition to unitary sta-

tus, and “reduces the possibility that a school system’s

compliance with court orders is but a temporary consti-

tutional ritual.” Morgan, 831 F.2d at 321. Several circuits

have adopted this requirement. See Ross v. Houston

Independent School Dist., 699 F.2d 218, 225 (5th Cir. 1983);

Morgan, 831 F.2d at 321 (1st Cir.); Jacksonville Branch,

NAACP v. Duval County, 883 F.2d 945, 952 (11th Cir.

1989).

A second requirement is that the board show that it

10

has taken no recent action from which segregative intent

can be inferred. Thus, if, at the hearing regarding

whether the district has achieved unitary status, the

plaintiffs show that recent board decisions have had seg-

regative effects, the board should bear the burden of prov-

ing an absence of discriminatory purpose. The ability of

a school board to make this showing, or the lack of any

evidence of resegregation, would be strong corroborating

evidence that the board has the good faith required by

Ross, Morgan and Duval County. Further, this re-

quirement is necessary for reasons of judicial efficiency,

for any resegregation caused by the board may be the

basis of future litigation to prove that intentional segre-

gation has recurred. More generally, this standard is

consistent with Dayton II’s imposition of a “heavy

burden” on the school board to justify actions that con-

tinue the effects of the dual system. Dayton II, 443 US. at

538.

Third, the school board must demonstrate that the

school board is “clean of every residue of past official dis-

crimination.” Ross, 699 F.2d at 225. This should not be

confused with an unrealistic requirement that the board

eliminate every minute vestige of prior discrimination,

such as a slightly disproportionate presence of minority

groups in some schools. It is clearly impossible to

eliminate every vestige, and an attempt to do so would

lead to the imposition of desegregation efforts long after

they have ceased to generate remedial benefits... However,

the continued presence of significant vestiges of

segregation is plainly at odds with this Court’s re-

quirement that school boards eliminate “all vestiges of

state-imposed segregation.” Milliken II, 433 U.S. at 290

(emphasis added).

These standards are quite similar to those advo

cated by petitioner, amicus United States, and neutral

amici Council of the Great City Schools et al. Brief of

Petitioner at 16-18; Brief of the United States at 23-25;

Brief of the Council of the Great City Schools et al. at 13-

11

14. Our quarrel is not with the standards espoused by

those parties, but rather with the lax application that

petitioner and the United States suggest.

D. A District Is Not Unitary So Long As Residential

Segregation Due To Past Discriminatory State Action

Causes Neighborhood Schools To Be Predominantly Of

One Race.

No one has disputed the trial judge’s early finding

that, prior to the intervention of the district court, “the

[segregated] residential pattern .. . in the Oklahoma City

school district ha[d] been set by law for a period in excess

of fifty years.” Dowell v. School Bd. of Oklahoma City, 219

F. Supp. 427, 433 (W.D. Okla. 1963). This Court has long

recognized the influence that de jure school segregation,

and school board policy in general, can have on residen-

tial patterns, and vice versa. Swann, 402 U.S. at 20-21;

Keyes v. School District No. 1, 413 U.S. 189, 211-12 (1973).

Many sociological studies have confirmed this view. See,

e.g., D. Pearce et al., The Effect of School Desegregation

on the Rate of Residential Desegregation in Large Cities

(Presented at the Annual Meeting of The American

Sociological Association, San Antonio 1984);? Appendix,

Social Segregation and Residential Segregation: A Social

Science Statement, Brief of Respondents in Columbus Bd.

of Educ. v. Penick, at 6a-9a (hereinafter cited as

“Columbus Appendix”).®

Modern research has established that residential

segregation persists long after the contributory segrega-

tive state action has ended. See Columbus Appendix at

2 Since this document is not yet publicly aveilable, a revised

draft has been lodged with the Clerk for the convenience of the Court.

3 The Columbus Appendix, signed by 38 social scientists from 27

separate institutions, summarizes the state of social science knowledge

regarding school and residential segregation as of 1979.

12

5a, 16a-17a; Pearce et al. at 1. Petitioner's own expert

witness, Dr. William Clark, acknowledged this fact, ad-

mitting that, once an area is predominantly Afro-

American, it will remain such for many years because

white families are strongly disinclined to move in. TR at

105-07.‘ Further, this Court recognized the long term vi-

ability of residential segregation in Dayton II, where it

stated that, although a facially neutral neighborhood

school policy was in effect, “[gliven intentionally segre-

gated schools in 1954, .. . the Court of Appeals was quite

right in holding . . . that the system-wide nature of the

violation furnished prima facie proof that current segre-

gation in the Dayton schools was caused at least in part

by prior intentionally segregative official acts.” Dayton

II, 443 U.S. at 537.

The Fifth Circuit has repeatedly cautioned against

hasty findings of unitary status while residential segre-

gation continues to cause neighborhood schools to be al-

most exclusively minority. Even where an original de-

segregation order was entered in 1969, the Fifth Circuit

found, seventeen years later, that residential segregation

remained “a vestige of past segregative practices by the

Board.” U.S. v. Lawrence County School Dist., 799 F.2d

1031, 1043-44 (5th Cir. 1986). Therefore, the Fifth Circuit

has held, the existence of “virtually one-race schools... .

is inconsistent with the achievement of unitary status,”

Lee v. Tuscaloosa City School Sys., 576 F.2d 39, 41 (5th Cir.

1978), and that a district seeking unitary status “must

demonstrate .. . that ‘current segregation is in no way

the result of [its] past segregative actions.’” Ross, 6$9

F.2d at 225, quoting Keyes, 413 U.S. at 211 n.17; Lawrence

County, 799 F.2d at 1044.5

Given the uncontested fact that in this case severe

* References to the Trial Record are abbreviated as TR.

5 U.S. v. Overton, 834 F.2d 1171 (5th Cir. 1987), is not to the

contrary, as that panel of the Fifth Circuit gave preclusive effect to a

past, unappealed dismissal of the case. The panel did not, therefore,

review the basis for the finding of unitary status.

13

residential segregation persists in the same area in

which it was created, petitioner could not and did not

make this essential showing. The Tenth Circuit prop-

erly set aside the district court’s finding to the contrary

as clearly erroneous.

E. A School System That Is Temporarily Operating

In A Unitary Fashion Has Not Necessarily Achieved

Unitary Status.

Some judges have used the term “unitary” to de-

scribe a school district which, due to the implementation

of a mandatory desegregation, is operating in a non-dis-

criminatory fashion. A finding to that effect indicates

that the continuing presence of the injunction acts as a

complete remedy. At this point, the court is justified in

terminating its active supervision of the case, and the

plaintiffs may not contest the remedy as inadequate.

A school district which is operating in a unitary

fashion through continued enforcement of a court order

is quite different, however, from a district which would

operate in a non-discriminatory fashion even if all de-

segregation efforts were immediately halted. The

Eleventh Circuit has distinguished these two situations:

Some confusion has been generated by the

failure to adequately distinguish the definition of a

“unitary” school system from that of a school dis-

trict which has achieved “unitary status.” .. . [A]

unitary school system is one which has not oper-

ated segregated schools as proscribed by cases such

as Swann and Green for a period of several years.

A school system which has achieved unitary status

is one which is not only unitary but has eliminated

the vestiges of its prior discrimination and has been

adjudicated as such through proper judicial

procedures.

14

Georgia State Conference of Branches of NAACP v.

Georgia, 775 F.2d 1403, 1413 n.12 (11th Cir. 1985).

The terms of the 1977 decree terminating jurisdic-

tion over this case indicate that the district court did not

find that the Oklahoma City school system had achieved

unitary status. Rather, the finding was merely that,

fourteen years after the court found that the Board was

operating a dual system, the system was finally operat-

ing in a unitary fashion, so the court could end its active

supervision. The decree did not dissolve the injunction,

and explicitly stated the district court’s understanding

that “termination of its jurisdiction will [not] result in

the dismantlement of the plan.” Dowell v. School Bd. of

Oklahoma City, No. C{V-9452, slip op. at 1 (W.D. Okla.

1977), quoted in Dowell v. School Bd. of Oklahoma City,

795 F.2d 1516, 1519 (10th Cir. 1986), cert. denied, 479 U.S.

938.°

Il PETITIONER HAS NOT DEMONSTRATED

THAT THE INJUNCTION HAS FULFILLED

ITS PURPOSE SUFFICIENTLY TO ALLOW

ITS DISSOLUTION

A. Petitioner Is Required To Show At Minimum

That It Has Eliminated The Harm That Led To The

Injunction, And That There Is No Significant Risk That

This Harm Will Recur.

§ Since this issue is important only to the parties in this case,

resolution of whether or not that decree indicated a finding of what

this Court understands to be unitary status, and its preclusive effect, if

any, may best be left to the Tenth Circuit on remand, after this Court

has supplied that circuit with a precise definition of unitary status.

This suggestion is echoed by amicus United States. Brief of the United

States at 21-22.

— | ern eee ee

—- -e, —= —

oe 7

15

Since Brown v. Bd. of Educ., 349 U.S. 298 (1955)

(Brown II), this Court has consistently held that deseg-

regation orders, like all injunctions, are governed by tra-

ditional equitable principles. Brown II, 349 U.S. at 300.

Thus, in considering the standard for dissolution of

these injunctions without the consent of the prevailing

party, Brown II indicates that the starting point is this

Court’s prior decision in Swift. Although Swift con-

cerned the continued effect of an antitrust injunction, not

a school desegregation plan, there are several principles

emanating from Swift that are generally applicable.

First, Swift makes clear that equitable decrees, like

all other results of litigation, are entitled to strong res

judicata effect. At a minimum, “Swift holds that [an

injunction] may not be changed in the interests of the de-

fendants if the purposes of the litigation as incorporated

in the decree . . . have not been fully achieved.” U.S. v.

United Shoe Machinery, 391 U.S. 244, 248 (1968)

(emphasis in original). The defendants may not attack

the injunction collaterally after it becomes final. “The

injunction, whether right or wrong, is not subject to im-

peachment in its application to conditions that existed at

its making.” Swift, 286 U.S. at 119.

Second, Swift was explicitly concerned with the risk

that the circumstances that required the injunction

would recur if it were dissolved. “The inquiry for us is

whether the changes [in circumstances] are so impor-

tant that dangers, once substantial, have become attenu-

ated to a shadow.” Jd. While the requirement that the

danger of recurrence be “attenuated to a shadow” may

seem an unduly harsh standard to impose on a public

body, a court certainly is not justified in dissolving an in-

junction if a significant risk remains that inner-city

schools will revert to their former separate and unequal

status.

To be sure, Swift recognizes that unforeseen cir-

cumstances can make the most carefully considered

16

injunction inequitable. Should this occur, the proper re-

course for the court is to modify the injunction so it may

better accomplish its purpose, not to dissolve it prema-

turely, unless that is the only way to remedy the inequity.

Since some aspects of the present injunction may have

become inequitable, the Tenth Circuit properly re-

manded the case to the trial court to consider if modifica-

tion is appropriate. Dowell, 890 F.2d at 1505-06.

In sum, Swift teaches that a court is justified in

dissolving an injunction only if the injunction has fully

accomplished its purpose and no significant risk re-

mains that the injuries that led to its imposition will re-

cur. No such showings have been made by petitioner.

B. Public Policy Requires That Courts Not Dissolve

An Injunction Without The Consent Of The Prevailing

Party Unless The Injunction Has Fully Accomplished

Its Purpose.

The doctrine of res judicata promotes fairness by

ensuring that parties who have had a full opportunity to

litigate an issue are bound by the result, Federated

Department Stores v. Motie, 452 U.S. 394, 401 (1981), and

conserves judicial resources by decreeing an end to liti-

gation. Blonder-Tongue Laboratories v. University

Foundation, 402 U.S. 313, 324-25 (1971), quoting

Bruszewski v. U.S., 181 F.2d 419, 421 (3rd Cir. 1950);

Federated Department Stores, 452 U.S. at 401-02.

Consequently, this Court has adopted a policy of

“rigorous application of res judicata.” Id. at 400.

The concern about fairness is particularly strong in

this case, as the defendants are essentially demanding

the right to re-litigate the extent of the injunction. This

Court has frequently stated its unqualified opposition to

allowing parties to re-litigate, even in cases where the

original judgment was wrong. Id. at 398-99. If petitioner

17

felt that the terms of the 1972 injunction would cause it to

last too long, it should have sought a time limitation on

direct appeal. There is no evidence that petitioner did so,

and the Tenth Circuit’s opinion on the appeal from the

1972 order, Dowell v. School Bd. of Oklahoma City, 465

F.2d 1012 (10th Cir. 1972), cert. denied, 409 U.S. 1041, does

not discuss the issue. Having failed to raise this issue on

direct appeal, petitioner is therefore barred from

asserting it now. Reed v. Allen, 286 U.S. 191, 198-99 (1932);

Federated Department Stores, 452 U.S. at 400.’

The adoption of permissive standards for the disso-

lution of an injunction would create an unnecessary

burden on judicial resources. If a civil rights injunction

is subject to dissolution once its purposes have been

“substantially” achieved, enjoined parties could repeat-

edly return to court to argue that they are now “close

enough.” Similarly, if this Court allows dissolution de-

spite significant risks of a recurrence of the injuries that

created the need for an injunction, the groundwork

would be laid for future litigation over whether a consti-

tutional violation has recurred.

Maintaining rigorous standards for the dissolution

of an injunction, by contrast, provides the certainty that

parties need to order their affairs without repeated resort

to the courts to clarify their rights and obligations.

Courts would only be involved on the rare occasion that

circumstances have changed to such a degree that the

injunction has become inequitable, or when the injunc-

tion has been so successful that it may be dissolved. In

this case, for instance, the desegregation plan was in

place for eight years without the parties going to court

once.

” Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 437

(1976), is not to the contrary. There, the intervening decision by this

Court in Swann was found to have created a sufficient change in the

legal climate to justify a modification of the injunction even though it

was not appealed. Spangler, 427 U.S. at 437-38. No such change in

the law or facts has occurred in this case.

18

C. The Present State Of Segregation In Housing

And Education In Oklahoma City Indicates That The

Foregoing Standards Hzve Not Been Met.

In this case, petitioner has shown neither compiete

achievement of the purposes of the injunction nor the

absence of a significant risk of a recurrence of separate

and unequal schools. In Oklahoma City, children in the

area once served by all-black schools now attend schools

more than 96% black, while 13 formerly all-white schools

are once again more than 80% white. Compare Dowell,

338 F. Supp. 1256 at 1260 (W.D. Okla. 1972), aff'd, 465 F.2d

1012 (10th Cir. 1972), cert. denied, 409 U.S. 1041, with

Dowell v. School Bd. of Oklahoma City, 677 F. Supp.1503,

1509-10 (W.D. Okla. 1987), rev’d, 890 F.2d 1483 (10th Cir.

1989), cert. granted, 108 L.Ed 2d 761 (1990). Under the pre-

sent “neighborhood schools” policy, 40% of the Afro-

American students in grades 1-4 in Oklahoma City are

attending schools that are 90% black. Plaintiff's exhibits

26, 27. Thus, dissolution of the injunction would mean

that, after proving that the defendants engaged in per-

vasive constitutional violations with major detrimental

impact on the Afro-American community in Oklahoma

City, the plaintiffs did not achieve the elimination of the

vestiges of that illegal action. Rather, they accomplished

only a suspension of its effects for twelve years. This

kind of hollow victory would discourage the victims of

discrimination from seeking to vindicate their rights.

Afro-American students are once again in 90%

black classes in the same buildings where the white ma-

jority isolated their parents with inferior educational op-

portunities. Given the insulation of the children of the

white majority from deterioration of the virtually all-

black schools, the difficulty of proving discriminatory

intent, and the sad history in this country of district after

district neglecting the education of minority youth, there

is a clear risk of reversion to separate and unequal

et 6 Se Ty oe

19

schools. Equitable injunctions cannot be dissolved in the

presence of such a risk. “Whether the defendants would

resume that practice . . . we do not know... . [Their

position] carries with it an opportunity for abuse that is

not to be ignored when the opportunity is proved to have

been utilized in the past.” Swift, 286 U.S. at 116.

Ill AGGRESSIVE DESEGREGATION EFFORTS

ARE REQUIRED IF INNER CITY MINORITY

CHILDREN ARE TO HAVE ACCESS TO

EQUAL EDUCATIONAL OPPORTUNITIES

A. Modern Research Has Shown That, Over The

Long Term, School Desegregation Helps To Break The

Cycle Of Racial Isolation In The Lives Of Minority

Students And In Our Society As A Whole.

Ever since school desegregation was first mandated

in Brown I, few areas of constitutional law have provoked

as much controversy and resistance. This Court has

been forced to strike down various techniques developed

by state authorities to undermine the goals of de-

segregation. See, e.g., Cooper v. Aaron, 358 U.S. 1 (1958)

(state denial of this Court’s authority); Griffin v. County

School Bd. of Prince Edward County, 377 U.S. 218 (1964)

(“privatization” of public schools); Green (“freedom of

choice” plan that perpetuated 100% segregation); Wright

(subdivision of school district to isolate predominantly

white area from a desegregation plan); North Carolina

Bd. of Educ. v. Swann, 402 U.S. 43 (1971) (state anti-busing

law). For a partial list of similar cases in the lower

courts, see Green, 391 U.S. at 423 n.1.

After Swann and its companion cases established

that desegregation was constitutionally required to the

maximum extent practicable, opponents of desegrega-

20

tion have continually sought to show that desegregation

is impracticable and serves no remedial purpose.* This

argument is premised on the notion that a neighborhood

school policy is better for minority students than a de-

segregation plan, even in cities with pronounced resi-

dential segregation.

But, starting with Brown I, this Court rejected the

argument that separate can be equal. The Brown I court

recognized that for minority students, “[separation] from

others of yimilar age and qualifications solely because of

their race generates a feeling of inferiority as to their

status in the community that may affect their hearts and

minds in a way unlikely ever to be undone.” Brown I, 347

U.S. at 494. This statement applies with only slightly less

force to cities where an official policy of segregation is no

longer present. Keyes, 413 U.S. at 229-30 (Powell, J.,

concurring in part and dissenting in part).

To support its conclusion, the Brown Court cited a

series of preliminary studies that demonstrated that

segregated education offers black students inferior op-

portunities. Brown I, 347 U.S. at 494n.11.° The great

weight of modern research reaffirms this view. This re-

sult does not in any way stem from a belief that minority

children cannot learn without sitting next to white chil-

dren. Rather, the dominant factors are the presence of

children of a higher socioeconomic status, U.S. Office of

Education, Equality of Educational Opportunity at 22

(1966),'° as well as the tendency of children of both races

8 For a discussion of early efforts to discredit desegregation, see

W. Hawley, The New Mythology of School Desegregation, 42 Law &

Contemp. Probs., Autumn 1978, at 214. In this case, the argument is

made in the Brief of Landmark Legal Foundation as Amicus Curiae in

Support of Petitioner. However, the studies cited by that brief do not

support Landmark’s view thet desegregation plans like the one aban-

doned by petitioner serve no educational purpose. See note 16 infra.

® Some of the research cited by the Court was originally spon-

sored by amicus American Jewish Committee.

'°This study, written by Dr. James Coleman at the request of

Congress, is commonly known as the Coleman Report.

)

{

:

:

;

i

;

;

21

who learn in an integrated environment to stop perpetu-

ating the patterns of racial segregation and prejudice so

prevalent in all aspects of our society. J. Braddock et al.,

A Long-Term View of School Desegregation: Some

Recent Studies of Graduates as Adults, 66 Phi Delta

Kappan 259, 262 (1984)."

Most importantly, school desegregation helps to

break the cycle of segregation that continues to permeate

our society. Minority students who live in highly segre-

gated communities and attend schools that are almost

exclusively minority have little contact with other ele-

ments of the society during their youth. They therefore

lack both the confidence that they can succeed in inte-

grated situations and the understanding of the majority

culture that results from an integrated education.

Braddock et al. at 262; J. Braddock and J. McPartland,

Socio-Pyschological Processes That Perpetuate Racial

Segregation, 19 J. of Black Studies 267, 285-86 (1989)

(hereinafter cited as “Braddock and McPartland I”).

Consequently, they are far more likely than desegregated

students to attend a segregated college (if they attend one

at all), to live in a segregated neighborhood, and to have

few whil. friends and co-workers. Braddock et al. at 260-

62. See also Columbus Appendix at 12a-13a; U.S. Civil

Rights Commission, Racial Isolation in the Public

Schools at 114 (1967). A recent study of graduates in a

unique controlled experiment in Hartford, Connecticut

confirmed these findings. R. Crain et al., Finding

Niches: Desegregated Students Sixteen Years Later

(draft final report 1989), at 28, 78.”

Desegregation improves minority employment op-

portunities. Since most employers rely heavily on in-

formal social networks to fill jobs, J. Braddock and J.

1! This article is a summary of 10 studies involving the work of

eight social scientists.

12 Since this document is not yet publicly available, a copy has

been lodged with the Clerk for the convenience of the Court.

22

McPartland, How Minorities Continue to Be Excluded

From Equal Employment Opportunity: Research on

Labor Market and Institutional Barriers, 43 J. of Social

Issues 5, 7 (1987), minority citizens are significantly less

likely to be considered for jobs by white employers if, due

to a segregated education, they are isolated from social

contact with whites. Jd. at 9. Studies have also shown

that white employers are more likely to hire a minority

applicant from a desegregated high school than one

from a segregated, inner-city high school. /d. at 19.

Since most predominantly minority jobs have less pres-

tige and pay lower salaries than other jobs, segregated

schooling therefore perpetuates the economic inferiority

of minority citizens. Braddock and McPartland I at 278.

Desegregation also has important effects on white

citizens. Despite occasional racial conflicts, studies have

shown that, overall, the contacts they and their children

have with minority groups in schools lead to greater

racial tolerance and understanding among whites,

Braddock et al. at 262, and make them more likely to live

in integrated neighborhoods and have black friends.

Columbus Appendix at 12a-13a. Desegregation has no

adverse effect on white academic achievement. Id. at

21a; Committee on the Status of Black Americans, A

Common Destiny: Blacks and American Society at 374

(1989).

Further, just as segregative school policies can lead

to residential segregation, school desegregation produces

the opposite effect, encouraging integrated neigh-

borhoods. Columbus Appendix at 9a; Pearce et al. at 19.

When a desegregation plan prevents any schools from

being identified as a “white” school or a “black” school,

white parents cannot move to a segregated neighborhood

in order to send their children to a predominantly white

school. Jd. at 2-3. Further, school desegregation allows

minority families more mobility, because it ensures that

theirs will not be the first non-white faces seen in a

neighborhood. Id. at 2

—

Ni AY sald OO oe

23

Recent studies have confirmed that the integrative

effect of desegregation is dramatic. A survey of 25 cities

found that the extent of residential desegregation was

closely related to the extent of school desegregation. /d.

at 19. Overall, the rate of residential desegregation was

nine times greater in cities with school desegregation

plans than in cities without them. Id.

Unfortunately, absent continued school desegrega-

tion efforts, these findings cast strong doubt on the long-

term viability of the integrated neighborhoods in

Okiahoma City that arose while the Finger plan was in

effect. If the elementary schools of Oklahoma City con-

tinue to be run on a neighborhood basis, the trend to-

wards residential integration will slow and may well re-

verse itself as parents once again are able to control the

racial composition of their children’s school.'® This

precise effect was noted by the District Judge earlier in

this case: “[I)nflexible adherence to the neighborhood

school policy . . . serves to maintain and extend school

segregation by extending areas of all Negro housing,

destroying in the process already integrated neighbor-

hoods and thereby increasing the number of segregated

schools.” Dowell v. School Bd. of Oklahoma City, 244 F.

Supp. 97i, 976-77 (W.D. Okla. 1965), affd, 375 F.2d 158

(10th Cir. 1967), cert. denied, 387 U.S. 931 (1967); see also

Dowell, 219 F. Supp. at 434. The destabilizing effect of

“neighborhood school” plans has been noted in the litera-

ture. Columbus Appendix at 8a-9a; Pearce et al. at 2-3,

18-19.

B. School Desegregation Improves Minority

Student Academic Achievement.

13 Although school desegregation for younger students has been

halted for five years in Oklahoma City and Norfolk, Va., Riddick v.

School Bd. of City of Norfolk, 784 F.2d. 521, cert. denied, 519 U.S. 938

(1986), the data to test this theory will not be available until the results

of the 1990 census are published.

2A

The positive short-term effects of school desegrega-

tion have also been amply verified by a series of conclu-

sive studies. An analysis of the results of 73 studies re-

vealed that the academic achievement of minority stu-

dents who are desegregated by first grade rises substan-

tially. Columbus Appendix at 23a-24a."* In sharp con-

trast, however, students who are desegregated in later

years show no improvement in achievement. Jd. As

noted above, white student achievement is not affected.

These findings, supported by other data, see id. at

24a, are attributable to the segregated social patterns that

children quickly develop during years of segregated

education."® Jd. at 23a-24a. For the same reasons that

graduates of segregated schools have difficulty integrat-

ing into society as a whole, students who begin their

schooling in segregated environments remain isolated

from children of other races when they are later placed

in the same classroom. This Court has recognized the

cultural barriers t!.at arise when children who are edu-

cated in isolation are thrust into an integrated setting.

Milliken II, 433 U.S. at 287-88. Therefore, Oklahoma

City’s decision to postpone integration until grade five is

not a mere minor delay, but rather a decision that is

bound to have major negative repercussions on the over-

all success of desegregation.'®

4 This study was subsequently published as R. Crain and R.

Mahard, Desegregation and Black Achievement: A Review of the

Research, 42 Law & Contemp. Probs., Summer 1978, at 17.

15 These findings were challenged at trial, based on papers ap-

pearing in National Institute of Education, School Desegregation and

Black Achievement (1984). These papers, never published in a refer-

eed journal, TR at 995, 997, analyzed a subset of 19 of the 93 studies

and found that desegregation had no effect on academic achievement.

However, all but one of the studies in this subset concerned districts in

which desegregetion occurred after several years of segregated edu-

cation. TR at 996. Thus, the findings of those studies do not in any

way conflict with the results reported in Crain and Mahard. Id.

16 Amicus Landmark Legal Foundation seeks to show that de-

segregation has no educational benefits. Landmark, however, cites

a Nae —

y+)

Finally, desegregation has been shown to help

only two scientific studies to support that claim. Neither of these cita-

tions is persuasive.

Landmark cites School Desegregation and Black Achievement,

note 15 supra, for the proposition that “desegregation has small posi-

tive effects on black student achievement in reading and no effects on

black achievement in math.” Landmark Brief at 16. However, as dis-

cussed in note 15 supra, all but one of the groups of students analyzed

in this study were desegregated after years of segregated schooling.

Thus, as was pointed out five years earlier in the Columbus Appendix,

no gains in black student achievement were to be expected. Columbus

Appendix, at 23a-24a. The results of the cited study therefore do not

apply to a desegregation plan that begins in first grade, as the plan in

Oklahoma City did until that crucial feature was unilaterally aban-

doned by petitioner.

Landmark relies on A Common Destiny to support two addi-

tional assertions. First, it states that “[djespite nearly three decades of

forced busing, ‘there remains a persistent and large gap’ between black

and white [achievement],” Landmark Brief at 15-16, quoting A

Common Destiny at 378. Second, it claims that studies reported in A

Common Destiny have shown both that desegregation harms black

aspirations and that “blacks in non-integrated schools have higher self-

esteem than blacks in integrated schools”. Landmark Brief at 16, citing

A Common Destiny at 373-74. Both citations to this report, prepared

by a distinguished panel of 22 experts from 20 different institutions

under the auspices of the National Research Council, are taken

selectively out of context and in fact are contrary to the explicit con-

clusions of A Common Destiny. While A Common Destiny did note

the presence of a black/white achievement gap, it found that “over a

relatively short period from 1970 to 1980, the gap between average

performance of white and black school children narrowed

appreciably.” Jd. at 351. School desegregation was identified as a

“contributing factor” in this accomplishment. Jd. at 350.

Regarding the psychological effects of desegregation, A

Common Destiny concluded that “findings on the self-esteem and ed-

ucational aspirations of black children in desegregated schools are so

diverse that overall generalizations are not warranted.” Jd. at 373.

Overall, the authors found that school desegregation “modestly im-

proves black performance (particularly reading)” and that “when sev-

eral key conditions are met, intergroup attitudes and relations improve

after schools are desegregated.” Id. at 379. It is therefore puzzling

why Landmark believes that A Common Destiny supports its conclu-

sion that desegregation “detracts from the educational mission.”

Landmark Brief at 10.

26

break the recurring tragic pattern of teenage girls be-

coming pregnant and terminating their education, leav-

ing them as unwed, unprepared and uneducated moth-

ers. Research has shown that desegregated female stu-

dents tend to delay their first sexual experiences, F.

Furstenberg et al., Race Differences in the Timing of

Adolescent Intercourse, 52 American Sociological

Review 511, 515 (1987), and become teenage mothers less

often. Crain et al. at 28-29, 77.

Taken as a whole, the research cited herein reveals

two critical facts. First, the effects of school segregation

on minority students and on the residential complexion

of a city are dramatic, and may well provide a partial ex-

planation for some of the discrepancies between white

and minority citizens in this country. Second, continu-

ing desegregation efforts have important beneficial ef-

fects, and remain an essential part of the remedy for past

segregation. Thus, school desegregation has been

proven to successfully remedy illegal past de jure segre-

gation while promoting the “central educational function

of the schools.” Milliken v. Bradley, 418 U.S. 717, 764 (1974)

(Milliken I) (White, J., dissenting) (emphasis in

original). While local control of school districts remains

an important consideration, it must give way to the need

to provide a complete remedy for the past constitutional

violations in Oklahoma City.

27

CONCLUSION

For the foregoing reasons, we urge this court to

affirm the decision of the Tenth Circuit in its entirety.

Dated: July 23, 1990

Respectfully submitted,

SAMUEL RABINOVE

Counsel of Record

RICHARD T. FOLTIN

The American Jewish Committee

165 East 56th Street

New York, New York 10022

(212) 751-4000

Attorneys for Amici Curiae*

Of Counsel:

WILLIAM B. DUFFY, JR.

Burns & Levinson

125 Summer Street

Boston, MA 02110

RUBEN FRANCO

Puerto Rican Legal Defense and Education Fund

99 Hudson Street

New York, NY 10013

STANLEY MARK

Asian American Legal Defense and Education Fund

99 Hudson St et

New York, NY 10013

* The substantial contribution to this brief of Mr. Robert Ziff,

Corne|l| Law School class of 1992, is gratefully acknowledged.