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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1991
- **Citation:** 498 U.S. 237

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0700%3A19. Public record. Not legal advice.