Opposition Brief — Board of Education of the Oklahoma City Public Schools, Independent District No. 89 v. Dowell

No. 86-326

IN THE

\

Supreme Court of the United States

Octoser Term, 1986

Tue Boarp or Epucation oF THE OxLaHoMa City PuBLic

Scuoots, InpepenpeNT District No. 89, OKLAHOMA

County, OxtaHoma, a Public Body Corporate,

Petitioner,

v.

Rosert L. Dowetu, e# al.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

BRIEF IN OPPOSITION TO CERTIORARI

Juuius L. CHAMBERS* Lewis BARBER, JR.

James M. Nasri, III Barber/Traviolia

NapoLeon B. WILLIAMs, JR. 1528 N.E. 28rd Street

THEODORE M. SHAaw Oklahoma City, Oklahoma 73111

NorMan J. CHACHKIN (405) 424-5201

99 Hudson Street

16th Floor JOHN W. WALKER

1723 Broadway

Little Rock, Arkansas 72206

(501) 374-3758

New York, New York 10013

(212) 219-1900

*Counsel of Record

Attorneys for Respondents

Counter-Statement of

Question Presented

In the circumstances of this case, the

questions sought to be raised by petitioner

simply do not arise on this record. The

judgment below is not based upon resolution

of those questions. Rather, the only issue

which this Court could appropriately decide

were it to grant review at this stage of

the proceedings is:

Should members of a class. on

whose behalf a mandatory injunct-

ion has been issued be permitted

to reopen the litigation to seek

enforcement of their rights upon

a showing "that the defendants

, abandoned [compliance with the

decree] without court approval"

(Pet. App. 13a)?

TABLE OF CONTENTS

Counter-Statement of Questions

Presented

Statement

History of Litigation

Termination of Jurisdiction

Current Proceedings

The Decision on Appeal

REASONS FOR DENYING THE WRIT ........-.-.

i. The Judgment Below Rests Upon

Rulings On Issues Other Than The

Questions Presented In The Petition,

Which The School Board Does Not

Contest And Which Were Correctly

Decided By The Court Of Appeals ......

ll. The Substantive Questions The

Board Seeks To Have Determined

Are Already Raised In Riddick,

A Case In Which There Was A

Full And Complete Evidentiary

Hearing And In Which There Are

No Procedural Issues Clouding

Their Resolution By This Court

ltt. On The Particular Facts Of This

Case, If This Court Were To Reach

The Merits It Would Be Required

To Hold The Use Of The Board's

Pupil Assignment Plan Impermis-

Ne an ay ne ee Le

ee a ex n ee ee ebb es ee ehees

a ies Wile x tone Kee eeheecwersia ates

Order dated March 13, 1985... ..cccccccoee

eee

Page

29

34

la

la

Table of Cases

Page

Belcher v. Stengel, 429 U.S. 118 (1976)........ 18

Brown v. Board of Education, 349 U.S.

(. Eb, 9 APP PTTTTTCTeReTeTTEETETELieer ei 3

Buchanan v. Warley, 245 U.S. 60 (1917)........ 4

City of Richmond v. Deans, 281 U.S.

| eee PET Tere TELE T PT ce 4

Dowell v. Board of Education, 219 F.Supp.

ae Gsees Gs TUR es Kees vb ctecccnwosss 3, 4,3

Dowell v. Board of Education, 244 F.Supp.

OFt Ceres Geile TOE ce wneseecseccesess 4,5,32

Dowell v. Board of Education, 338 F.Supp.

1256 (W.D. Okla.), aff'd. 465 F.2d

1012 (10th Cir.), cert. denied, 409

SS ee TTT TTT TTT TTT TTT 6,9, 13

Dowell v. Board of Education, No.

CiV-9452 (W.D. Okla. June 3, 1974),

aff'd. No. 74-1415 (10th Cir. Jan. 28,

1975), cert. denied, 423 U.S. 824

ber rere Te TT ee Te P TE eT Te i

Goss v. Board of Educ. of Knoxville,

ce lk a UL er ey rere 4

Jones v. State Board of Education, 397

OF Bs rere rr errre rT TT Terry Terre re 19

- iv -

Keyes v. School District No.1, Denver,

SUS Wilks TD CPR we be 60000 d ck vee ven cee 30

Pasadena City Board of Education v.

Spangier, S27 U.S. SBS (ISP) occ. cvccvcsesas 29

Riddick v. School Board of Norfolk,

784 F.2d 521 (4th Cir. 1986),

petition for cert. filed; 54 U.S.L.W.

3811 (U.S. May 2B, TEBE) .ccvcscsss 22,25, 26, 28

Shelley v. Kraemer, 334 U.S. 1 (1948)......... 4

Smith v. Butler, 366 U.S. 161 (1961).......... 19

Swann v. Charlotte-Mecklenburg Bd. of

Educ., 902 U.B. 0. CUR cen cccncencs 4,6,29, 31

aieta

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1986

THE BOARD OF EDUCATION OF THE OKLAHOMA CITY

PUBLIC SCHOOLS, INDEPENDENT DISTRICT NO.

89, OKLAHOMA COUNTY, OKLAHOMA, a Public

Body Corporate,

Petitioner,

Vv.

ROBERT L. DOWELL, et al.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

BRIEF IN OPPOSITION TO CERTIORARI

Statement

Respondents are members of the class

of black school children on whose behalf

this school desegregation lawsuit was

originally commenced. They sought’ to

intervene and to reopen the litigation, in

order to obtain enforcement of the mandat-

ory injunction which the original plain-

tiffs had secured for their benefit. The

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injunction had never been vacated or

withdrawn even though the federal district

court had relinquished active supervisory

jurisdiction of the lawsuit.

The district court set the matter down

for a hearing "at which time the question

of whether this case shall be reopened and

the applicants allowed to intervene shall

be tried and disposed of." At the conclu-

Sion of the hearing the court not only

denied the motion to reopen but purported

to rule on the underlying substantive

question whether the injunction should

remain in effect.

The Court of Appeals held that respon-

dents should have been permitted to reopen

the case and that the trial court's ruling

on the merits was premature, since respon-

dents had no adequate notice of the scope

of the hearing and were consequently denied

the opportunity to present all relevant

proof. Accordingly, the Court of Appeals

remanded for further evidentiary proceedi-

ngs while emphasizing that it was not

"addressing, even implicitly, the ultimate

issue oe te o™” Cee Aw. 15a.)

History of Litigation

From the time of Oklahoma's admission

to the Union in 1907 until well after Brown

v. Board of Education, 349 U.S. 294 (1955),

the public schools of Oklahoma City were

operated on the basis of complete and man-

datory racial segregation as directed by

the state's constitution and laws.

Dowell,+ 219 F. Supp. 427, 431-34 (W.D.

Okla. 1963). This lawsuit was initiated in

1961 because the dual system of education

remained in place at that time. Following

an evidentiary hearing, the district court

in 1963 found that residential patterns in

Oklahoma City were highly segregated by

lcitations to earlier reported

opinions in this action are identified

Simply as "Dowell."

race because of state law,? enforcement of

restrictive covenants, ? and the long

standing practice of school segregation.4

Accordingly, the court found, when the

school board in 1955 drew geographic (non-

overlapping) zone lines for each school,

the traditionally black schools “remained

virtually 100% Negro."°

2Dowell, 244 F. Supp. 971, 975 (W.D.

Okla. 1965); cf. Buchanan v. Warley, 245

U.S. 60 (1917); City of Richmond v. Deans,

281 U.S. 704 (1930).

3pDowell, 219 F. Supp. at 433, 244 F.

Supp. at 975; cf. Shelley v. Kraemer, 334

U.S. 1 (1948).

4powell, 219 F. Supp. at 433-34; 244

F. Supp. at 975, 976. See, e.g., Swann v.

Charlotte-Mecklenburg Bd. of Educ., 402 U.S.

1, 20-21 (1971) (influence of school segre-

gation policies upon residential segrega-

tion); Tr. 88-89 (same [testimony of school

board member Dr. Clyde Muse})

“Dowell, 244 F. Supp. at 975. The board

also established a minority-to-majority

transfer policy which operated to maintain

segregation. Id. at 434-35, 440-41, 244 F.

Supp. at 997; see Goss v. Board of Educ. of

Knoxville, 373 U.S. 683 (1963).

In 1963 the district court directed

the school board to prepare and submit "a

complete and comprehensive plan for the

integration of the Oklahoma City school

system," Dowell, 219 F. Supp. at 447-48.

Tt teck nearly a decade of further liti-

gation before such a plan was prepared and

implemented. © When that occurred, in 1972,

6The school board's initial submission

"“professe[d] adherence to a neighborhood

school policy based on ‘logically

consistent geographical areas,'" 244 F.

Supp. at 976, which the district court

found to “lea[{d] inexorably to continued

school segregation" because of the

officially induced segregated residential

patterns of Oklahoma City. Id.

The trial court repeatedly allowed the

school board additional time to submit an

effective desegregation plan. See Dowell,

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

modified and aff'd, 375 F.2d 158 (10th

Cir.), sgexrt. denied, 367 U.S. 931 (1967);

396 U.S. 269 (1969) (reversing delay in

implementing interim secondary plan); 307

F. Supp. 583 (W.D. Okla. 1970), aff'd, 430

F.2d 865 (10th Cir. 1970) (approving

secondary plan). In 1972, finding that the

school board had failed to carry out its

secondary plan and refused to submit an

effective plan for its elementary schools,

the district court ordered the im-

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the school board and "its members, agents,

servants, employees, present and future,"

were specifically enjoined to "implement

and place into effect [a plan] which

embodies the principles and suggestions

contained in the Plaintiffs' Plan," and

they were also prohibited from "alter[ing]

or deviat{ing] from the New Plan without

the prior approval and permission of the

court." Dowell, 338 F. Supp. at 1273 para.

plementation of a plan drafted by the

plaintiffs' expert witness, Dr. John A.

Finger, see Swann, 402 U.S. at 8-9.

Dowell, 338 F. Supp. 1256 (W.D. Okla.),

ati'é, #65 F.2a@ i012 (16th Gir.), Gert.

denied, 409 U.S. 1041 (1972).

The "Finger Plan" retained the board's

post-Brown attendance zones for elementary

schools but clustered each traditionally

black school with a group of predominantly

white schools, restructuring the grades to

achieve integration. (Tr. 263, 278).

Elementary zones were somewhat similarly

grouped into feeder patterns for the

various junior high and high schools to de-

segregate them. Dowell, 338 F. Supp. at

1267-68.

2.3.8." That injunction has never been

vacated.

Termination of Jurisdiction

Over the next five years the litigat-

ion continued to be quite active. The

docket entries reflect that during this

period of time, the district court approved

seven board-proposed modifications of the

plan and denied three requests. 8

7The district court's order recited

that "[ijJt is not intended that the school

authorities be placed in a ‘strait jacket'

in the administration of the plan, but it

is essential that the court be informed of

any proposed departure from the sanctioned

program." 338 F. Supp. at 1273 para. 3.

8mMost of the changes involved altera-

tion of feeder patterns or closure of

schools; school attendance areas have re-

mained basically the same up to the present

time (Tr. 336 [testimony of school board

president]). The trial judge also required

the board to reassign principals in order

to mitigate the racial identifiability of

the two high schools enrolling the highest

proportions of black students, Dowell, No.

CIV-9452 (W.D. Okla. June 3, 1974), aff'd,

No. 74-1415 (10th Cir. Jan. 28, 1975), cert.

denied, 423 U.S. 824 (1975), and warned the

- JF «

On January 1&, 1977 the district court

disposed of a June 2, 1975 "Motion to Close

Case" filed by the school board.? It

relinquished jurisdiction over the case

because:

the Court does not foresee that

the termination of its jurisdict-

ion will result in the dismantle-

ment of the [Finger] Plan or any

affirmative action by the

defendant to undermine the

unitary system so slowly and

painfully accomplished over the

16 years during which this cause

has been pending before the

Court. 1°

board in 1974 that he "w[ould] not look with

favor upon further proposals casting dis-

proportionate burdens on the black community."

9The court held a hearing on the motion

on November 18, 1975.

10The court's order further stated:

- « « The Court believes that the

present members and their succes-

sors on the Board will now and in

the future continue to follow the

constitutional desegregation re-

quirements.

Now sensitized to the constitu-

tional implications of its conduct

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However, the January 18, 1977 order did not

vacate the 1972 permanent'=§ injunction;

consequently plaintiffs did not appeal.11l

and with a new awareness of its

responsibility to citizens of all

races, the Board is entitled to

pursue in good faith its legitimate

policies without the continuing

constitutional supervision of this

COUrGs 2%

(The entire Order of January 18, 1977 is

reprinted at Pet. App. 35a-36a.)

The court also dissolved the bi~racial

committee whose members it had appointed

since 1972 and which had been the source of

a number of modifications to the plan, inclu-

ding the reassignment of high school princi-

pals, see supra note 8

liphe trial court had earlier dismissed

the action sua sponte "to have a cooling

period" so that "the schools were permitted

to operate during the 1970-71 school year

without the stress of litigation," see Dow-

ell, 338 F. Supp. at 1258 n.1, but it vacated

that dismissal some eight months later, id.,

fashioning further remedial orders when it

learned that the school board had reneged

on its commitment and obligation to implement

the previously approved plan. See supra

note 6.

Current Proceedings

As the court and the parties anticipa-

ted, the plan remained in effect after

1977. In 1984, purportedly concerned by

the interrelationship between the "stand

alone school" feature of the original

Finger Plant? and a school board policy on

school closings,!* the board appointed a

12The plan recommended that schools

serving attendance zones (the same zones

drawn by the board in 1955, see supra text

at n.5 & note 8) which became residentially

integrated should no longer participate in

the system of grouping and grade restruc-

turing but should serve all elementary stu-

dents living in their zones.

13~he school board has adopted minimum

enrollment requirements for elementary

schools to remain open. Since 1972, the

attendance areas of about a dozen formerly

white schools have become sufficiently

mixed residentially so that the schools

qualified for "stand alone" status, see

Supra note 12. As white students from

these schools were removed, enrollment in

the formerly all-black schools (which

served only a single grade under the plan)

was most drastically affected and, under

the board's closing policy, the schools in

were in danger of being shut.

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committee of its members to study possible

changes in the elementary school assignment

It is not the "stand alone" feature of

the Finger Plan that "many years later

proved inequitable due to intervening

demographic changes in Oklahoma City" (Pet.

3 n.1). Threatened school closings in the

black community resulted from the board's

minimum enrollment policy (to which it

decided it wished to adhere) rather than

from the Finger Plan (which the board

decided it wished to change).

Moreover, the plan distributed the

burdens of desegregation inequitably from

the very start: Dr. Finger would have

preferred to have had the formerly black

elementary schools each house two grades,

not one, but based on the existing

elementary attendance zones he could not

match school capacities with this grade

division (Tr. 296-97) and he lacked the

data necessary to redraw the lines (Tr.

263, #278). Dr. Finger recognized the

inequity and had expected Oklahoma City

school authorities to have eliminated the

inequity long before 1984 (Tr. 293). Con-

trary to Pet. 5 n.5, however, Dr. Finger

supported "less bussing [sic] of young

blacks" only "to the extent possible"

"without resegregating the schools" (Tr.

297, 298) and he saw no danger to health or

safety of Oklahoma City school children of

any age in the pupil transportation

necessitated by an adequate plan of

desegregation such as the one he had

devised (see Tr. 291, 197-99).

- ll =

plan to address the concerns. 14 The

committee recommended, and the board

adopted (without seeking court approval as

required by the permanent injunction, see

supra note 7 & accompanying text) a

modified student assignment scheme which

dismantled the elementary school groupings

and reinstituted the old "neighborhood

school" zone lines for all grade K-4

facilities.

The board's own projections

demonstrated that this new plan does more

14~he black board member who initiated

the action was disturbed by the busing in-

equity and the potential black school clos-

ings (Tr. 33-35, 39-40, 49). Although he,

like Dr. Finger, would have supported

alterations which more evenly distributed

busing burdens among black and white

students (Tr. 40, 64-65, 274, 277-78), the

committee considered such a plan only "[{ijn

our conversation . . . so far as the

committee. Insofar as that being a

proposal to the board, no" (Tr. 41). The

committee flatly rejected any such approach

because, "facing reality" (id.), it feared

white flight to suburban districts or

private schools (Tr. 41-43).

- 12 =

than create "some racially identifiable

schools" (Pet. 7) (emphasis supplied).

Eleven K-4 schools were expected to be more

than 95% black; of these, all but twol?

were all black or virtually all black in

1971-72 prior to implementation of the

Finger Plan. 16 Compare Dowell, 338 F.

Supp. at 1260 n.3 with Dex 22, p- 2.

Fifteen other schocls would be less than

10% black. Id.

Respondents, black pupils attending

Oklahoma City public schools, on February

19, 1985 sought to intervene in this

l5one of these two, King, was not oper-

ated in 1971-72. The other is North Highland

elementary. Four other elementary schools

that were virtually all-black in 1971-72

have been closed (Culbertson, Dunbar, Edison

and Harmony) while three have become inte-

grated fifth grade centers (Green Pastures,

Page and Woodson).

16The eleven schools are Creston Hills,

Dewey, Edwards, Garden Oaks, King, Lincoln,

Longf2llow, North Highland, Parker, Polk,

and Truman.

- 13-

action, to reopen the case, and to obtain

preliminary injunctive relief to enforce

the earlier orders.17 The district court

on March 13, 1985 set the matter down for .

an evidentiary hearing "at which time the

question of whether this case shall be re-

opened and the applicants allowed to inter-

vene shall be tried and disposed of ."i8

Following the hearing,19 the court denied

17In the conclusion to their motion,

respondents asked the district court "to

allow their intervention, to allow them to

file an intervenors complaint, and there-

after, .. . to set an early hearing on the

merits of the controversy raised herein."

18the Order is reprinted infra pp. la-

2a.

19petitioner is simply incorrect in

stating that there was "extensive discovery

on the merits" (Pet. 11n.12). On April 8,

1985, the date originally scheduled for the

hearing (which on March 27 had been delayed

one week), respondents were able to take

the deposition of the school superintendent,

board president, the board member who pro-

posed the change, and a school system staff

member. Petitioner deposed Dr. Finger on

April 13, 1985.

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the motion to reopen the case and, although

the issue had not been identified in the

scheduling order, the court went on to sus-

tain the constitutionality of the student

reassignment plan (Pet. App. 16a-34a).

Respondents appealed. The Tenth Circuit

reversed and remanded (Pet. App. la-15a).

The Decision on Appeal

The Court of Appeals held that respon-

dents had established grounds for allowing

the suit to be reopened by demonstrating

that "the defendants abandoned the Finger

Plan without court approval" which they

were required to seek by a _ permanent

injunction that had never been vacated or

modified (Pet. App. 13a). The Court also

reviewed the record and concluded that the

trial court had failed to give respondents

notice that the April, 1985 hearing would

deal with the underlying merits of the

- 15 -

controversy and had limited the proof which

respondents could offer (Pet. App. 14a).

The reviewing court recognized that

the district judge had, in his 1977 order

relinquishing jurisdiction, used iethiaiiia

which described Oklahoma City as having

"Slowly and painfully accomplished" a "uni-

tary system" (see Pet. App. 7a, 12a) and

also that the trial court could decide, on

a proper motion, to modify or terminate its

injunctive orders (Pet. App. lla). Neither

circumstance, it held, authorized the

school board to bypass the court, however.

It thus remanded the matter to allow the

trial court to determine, after an

evidentiary hearing, "whether the original

mandatory order will be enforced or whether

and to what extent it should be modified"

(Pet. App. 15a).

- 16 =

entice

REASONS FOR DENYING THE WRIT

I

The Judgment Below Rests’ Upon

Rulings On Issues Other Than The

Questions Presented In The Peti-

tion, Which The School Board Does

Not Contest And Which Were Cor-

rectly Decided By The Court Of

Appeals

In light of the unusual procedural

setting of this case, described above, it

is a wholly inappropriate vehicle for

deciding the questions which the _ school

board seeks to present to this Court. The

judgment below rests entirely upon two key

determinations by the Court of Appeals

which petitioner has not asked this Court

to review: (a) the district court erred in

denying the motion to reopen the suit (Pet.

App. 13a); (b) the district court erred in

deciding the merits of the new student

assignment plan because it had not given

respondents adequate notice that the

hearing was to cover that issue, and

- 17 =

respondents did not have an opportunity to

offer all their relevant proof on that

subject (Pet. App. 12a, 14a).

The Court of Appeals explicitly did

not decide whether the board's new pupil

assignment plan was constitutional but re-

manded for a hearing after the case was

formally reopened: “Our holding should not

be construed as addressing, even implicit-

ly, the ultimate issue of the constitution-

ality of the defendants' new school

attendance plan" (Pet. App. 15a). Since

this Court reviews judgments, and not

opinions, the broadly phrased "Questions

Presented" in the Petition logically could

have no bearing upon the Court's decision

whether or not to affirm the ruling below,

if it were to grant the writ. See, e.g.,

Belcher Vv. Stengel, 429 U.S. 118

(1976) (dismissing writ as improvidently

- 18 -

granted) ; Jones Vv. State Board of

Education, 397 U.S. 31 (1970) (same); Smith

v. Butler, 366 U.S. 161 (1961) (same).

Petitioner apparently does not contest

the Court of Appeals' "procedural" determi-

nations, for it has not included them among

the Questions Presented which it seeks to

raise. Thus, we repeat, petitioner has

conceded the grounds upon which the lower

court's judgment rests. Although the board

appears to advance some sort of "waiver"

argument to justify overlooking the

dispositive procedural rulings of the court

below, see Pet. 11 n.12, the facts belie

this contention. 29 Indeed, respondents'

20The trial court did not "inquir[e]

if there was a question as to which side

had the burden of proof" (Pet. 11n.12). He

simply asked, "Have you lawyers decided who

should take the lead or who should put on

your proof first?" Counsel for respondents

replied, “We haven't, Your Honor, but we're

prepared to start first" (Tr. 6). There

was no discussion of the "burden of proof."

- 19 =

counsel explicitly confirmed their

understanding of what issues were to be

tried and decided at the conclusion of the

hearing, after the close of proof but

before the district court had ruled:

MR. SHAW: I just wanted to

confirm my understanding, that

this is a hearing on a motion to

reopen the case.

Similarly, while the court did ask res-

pondents' counsel, when it was announced

that respondents would not present any fur-

ther evidence, "I take it that you're satis-

fied you've had a fair hearing" (Tr. 303),

there was no basis for interpreting this

question as manifesting the court's view of

either the burden of proof or of the under-

lying substantive question. When respon-

dents' counsel assented, the court neither

announced a ruling nor invited an oral motion

by the school board for judgment in its fa-

vor. He said merely: "Then, let the record

show the intervenors or Applicants fer Inter-

vention now rest their case" (id.).

Finally, it is of course of no signifi-

cance that respondents' counsel did not argue

with the trial court's extemporaneous com-

ments during the hearing, particularly in

light of its narrow scope as set forth in

the March 13, 1985 scheduling order, see

supra text at n.18.

- 20 -

THE COURT: It's for an

evidentiary hearing to see

whether or not the Court will

reopen it or not. ([Tr. 450.]

* * *

MR. SHAW: As I understand it,

the hearing that we're here for,

for the last two days, is while

that question is raised, the

question presented to the Court

now is whether we prepared enough

evidence to show that ‘the case

should be reopened.

THE COURT: Well, I think you're

probably right about that. (Tr.

451-52. ]

Thus, there can be no blinking the

fact that the district court unexpectedly

decided the underlying substantive question

(the permissibility of the board's new

student assignment plan) and denied

respondents a fair opportunity to challenge

that plan in a full evidentiary hearing.?@1

To be sure, the Court of Appeals'

opinion discusses the district court's 1977

order and also expresses disagreement with

the opinion of the Court of Appeals for the

Fourth Circuit in Riddick v. School Board

Of Norfolk, 784 F.2d 521 (4th Cir. 1986),

pet. for cert. filed, 54 U.S.L.W. 3811

(U.S. May 29, 1986). However, the Tenth

Circuit's holding was a limited one: that

the motion to reopen should have been

granted and respondents given an

opportunity, with adequate notice, to put

2lthe Court of Appeals! conclusion that

respondents' presentation of evidence was

curtailed and restricted (Pet. App. 12a,

14a) is also well supported on this record.

See, e.g., Tr. 164 (evidence of similarity

between justifications given by board for

new plan and justifications offered in 1972

for plan rejected by court not "helpful to

me"), 270-71 (availability of less segrega-

tive alternatives to address inequities by

modifying Finger Plan not relevant because

Finger Plan "is over, done and complied

with").

« OF «

€

on their proof. That holding rests upon

the Court of Appeals' fundamental deter-

mination that the provisions of the

permanent injunction in this case remained

in effect in 1984 and justified the effort

by parties for whose benefit it was origin-

ally entered to reopen the lawsuit on the

ground that the injunction had been diso-

beyed.

If the Court were to grant review at

this time, therefore, it would be unlikely

to reach and decide the Questions Presented

in the Petition, because it would lcgically

consider first -- and affirm -- the Tenth

Circuit's determination that respondents

were denied their day in court on those is-

sues. Moreover, the Court traditionally

decides broad constitutional questions only

upon a fully developec factual record,

which is lacking in this case for the same

reason. Finally, review at this stage of

- 23 -

the proceedings would at the very least be

premature since the Court of Appeals leaves

to the district court in the first instance

the decision whether "the original

mandatory order will be enforced" (Pet.

App. 15a).

II

The Substantive Questions The

Board Seeks To Have Determined

Are Already Raised In Riddick, A

Case In Which There Was A Full

And Complete Evidentiary Hearing

And In Which There Are No Pro-

cedural Issues Clouding Their

Resolution By This Court

This matter involves, even in the view

of the petitioner,?2 no substantive issue

which is not already presented to the Court

22see, e.g., Pet. 13 ("Because the need

for a decision by this Court is beyond se-

rious dispute, the only significant issues

are whether the Court should grant both peti-

tions, or only one, and if only one, which

it should be").

- 24 -

in Riddick (No. 85-1962). Often this Court

benefits from reviewing more than one case

presenting similar issues, since nuances

and subtleties may be revealed. That

possibility is absent here, however,

because the instant matter is clouded by

the dispositive procedural ruling upon

which the judgment below rests, as we have

described in Point I.

The petitioner's exhortations come

down to the proposition that in its view,

the Fourth Circuit was right and the Tenth

Circuit was wrong (see Pet. 14), a matter

which, by definition, the Court can decide

adequately in Riddick.

It is certainly far from clear that

the Court's consideration and analysis of

the legal issues will be materially

assisted by having "briefs and arguments of

two sets of counsel." No legal argument is

Suggested in the Oklahoma City Petition

- 25 -

which the school board in Riddick has not

already advanced. The Petition demon-

strates, however, that in its zeal to bring

this case to this Court on the bootstraps

of Riddick, the Oklahoma City board has not

only ignored the actual basis for the Court

of Appeals' judgment but also has palpably

misstated or exaggerated the record in

significant respects. 23 For this reason, a

23For example, petitioner asserts that

"(tjhe Board's action adopting the [student

reassignment] plan was supported by a 'ma-

jority of the community' (T. 32), including

the black community. (T. 432-436)." There

is no discussion whatsoever of the subject

on page 32 of the transcript. As to the

testimony of Dr. Tommy B. White, which in-

cludes pages 432-36 of the hearing trans-

cript, the relevant portions are as follows:

Q You made a statement that the

majority of the community supports

this plan, did you not?

A Yes, sir.

Q The majority of what community

supports this plan?

A The community that was -- actu-

ally, what happens is that the or-

- 26 -

————

ganization decided that it would

petition our community and the

petition will demonstrate that

the community does in fact --

Q My question is: The majority

of what community?

A The community that we canvassed.

Q Is this canvas already comple-

ted?

A No, it certainly is not comple-

ted. [Tr. 433-34.]

Similarly, petitioner incorrectly at-

tempts to suggest that respondents were not

surprised by the trial court's ruling on the

substantive merits despite the March 13,

1985 order limiting the scope of the hearing,

see supra notes 20, 21 & accompanying text.

Its facile statement that the new plan "did

result in the creation of some racially iden-

tifiable elementary schools," although

"(tjhere are no [100%] one-race schools as

a result of the plan" (Pet. 7, 8) obscures

the dramatic resegregation worked by the

student reassignment plan (compare supra

text at nn.15, 16) and indicates that the

school board does not appreciate the serious-

ness of the Fourteenth Amendment rights at

stake in desegregation cases. As the dis-

trict court stated at an earlier stage of

this case: "The Superintendent of Schools

takes the incomprehensible view that. .

a school loses its racial identity when one

member of the opposite race is enrolled."

- 97 -

eV;

brief on the merits from this petitioner

would have to be scrutinized with extra

caution.

Riddick frames the issues squarely;

this case simply does not, and the writ

should be denied.

338 F. Supp. at 1270 n.14.

- 28 -

IIil

On The Particular Facts Of This

Case, If This Court Were To Reach

The Merits It Would Be Required

To Hold The Use Of The Board's

Pupil Reassignment Plan Impermis-

sible

There is another reason to deny the

writ. If the decision below were a ruling

on the substantive merits of the board's

pupil reassignment plan, and if it were

properly presented to this Court for

review, application of established law to

the particular facts of this case would

compel the conclusion that use of the plan

is impermissible.

In Swann vy. Charlotte-Mecklenburg

Board of Education, 402 U.S. 1, 16, 31-32

(1971) and Pasadena City Board of Education

v. Spangler, 427 U.S. 424, 434-35 (1976),

this Court emphasized that the remedial

orders of federal courts in school

desegregation cases should be limited to

- 29 -

a a ne

correcting the effects of unlawful actions

by school authorities and that they may be

directed only at current conditions of

segregation attributable to the intentional

acts of state officials. See Keyes v.

School District No. 1, Denver, 413 U.S.

189, 211 (1973) ("at some point in time the

relationship between past segregative acts

and present segregation may become _ so

attenuated as to be incapable of supporting

a finding of de jure segregation warranting

judicial intervention").

On the facts of the instant lawsuit,

these prerequisites are clearly met. The

connection between the virtually all-black

enrollment of eleven K-4 elementary schools

under the board's 1985 assignment plan, and

the historic, de jure unconstitutional con-

- 30 =

duct of Oklahoma public authorities, is un-

questioned. 24

As described in the Statement, supra,

the district court has made explicit

findings in this litigation that the highly

segregated residential patterns in Oklahoma

City, including the overwhelmingly black

northeast quadrant, result from generations

of official policy -- and that mandated

school segregation contributed

significantly to these patterns. See supra

text at nn.2-5. Because of this extensive,

governmentally induced residential segrega-

244s the unanimous Court observed in

Swann, 402 U.S. at 28:

"Racially neutral" ["neighborhood

school"] assignment plans proposed

by school authorities toa district

court may be inadequate; such plans

may fail to counteract the contin-

uing effects of past school segre-

gation resulting from discrimina-

tory location of school sites or

distortion of school sizes in order

to achieve or maintain an artifi-

cial racial separation.

- 3l1-

tion, when the school board established

"neighborhood school" geographic zone lines

in 1955, the traditionally black schools

remained virtually all black. Dowell, 244

F. Supp. at 975, 976, 980. The Finger Plan

was designed to overcome this barrier to

the elimination of the dual system. 2°?

The record also establishes that, be-

cause the Finger Plan was based on grouping

and grade restructuring at the elementary

school level and recombination into feeder

patterns at the secondary level,2© zone

lines in Oklahoma City have remained

basically unchanged since long prior to

1972. Under the board's 1985 plan, these

25The school board's expert witness,

Dr. George Hencerson, testified at the hear-

ing that both in 1972 and in 1985 it was not

possible to disestablish racially identifi-

able schools in Oklahoma City "if you're

concerned with the racial mix" because of

this residential segregation (Tr. 388-89).

26see Supra note 6.

- 32 -

same, longstanding "neighborhood school"

zone lines became re-operative for purposes

of school assignment of pupils in grades K

through 4:

Q But the School Board knew that

it would be creating racially

identifiable schools, even if we

use your very generous definition

of 90 percent?

A No, we did not create those

schools. Those neighborhood

boundaries are the same

neighborhood boundaries as have

existed for years. People have

chosen to live wherever they

live, so that the racial -- if

they're racially identifiable,

that was not created by this

Board. [Tr. 336 (board presi-

dent) .]

These zone lines today perpetuate Oklahoma

City's traditionally all-black elementary

schools,*’ as they did prior to 1972.

Thus, the pupil segregation in the K-4

schools under the board's 1985 plan is the

continuing vestige of Oklahoma City's long-

27See supra notes 15, 16 & accompanying

text. \

- 33-

maintained policies of racial discrimi-

nation and segregation.

Conclusion

For the foregoing reasons, respondents

respectfully pray that the writ be denied.

Respectfully submitted,

\

JULIUS L. CHAMBERS* LEWIS BARBER, JR.

JAMES M. NABRIT, III Barber/Traviolia

NAPOLEON B. WILLIAMS, 1528 N.E. 23d St.

JR. Oklahoma City, OK

THEODORE M. SHAW 73122

NORMAN J. CHACHKIN (405) 424-5201

99 Hudson Street

16th Floor JOHN W. WALKER

New York, NY 10013 1723 Broadway

(212) 219-1900 Little Rock, AR

72206

(501) 374-3758

Attorneys for Respondents

*Counsel of Record

- 34 -

APPENDIX

FILED March 13, 1985

Francis C. Bonsiepo

Clerk, U.S. District

Court

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

ROBERT L. DOWELL, et al.

Plaintiffs,

No. CIV-9452

vs.

BOARD OF EDUCATION OF THE

OKLAHOMA CITY PUBLIC

SCHOOLS, et al.

Defendants.

ee ee ee ee ee ee ee ee ee

ORDER

The court has carefully reviewed the

Motion to Intervene, To Reopen Case And For

Further Relief, and the Memorandum in

support thereof, filed by the applicants

for intervention on February 19, 1985.

Likewise, the court has received and

carefully reviewed Defendants' Response to

Motion to Reopen Case and has concluded

that before the court can make any ruling

-ia.*

with respect to the applicants' motion the

court should conduct an evidentiary

hearing. The court, therefore, concludes

that the motion to intervene and reopen and

the defendants' response join the issues,

and the matters in them are set for

evidentiary hearing at 10:00 a.m., April 8,

1985, at which time the question of whether

this case shall be reopened and the

applicants allowed to intervene shall be

tried and disposed of.

IT IS SO ORDERED.

Dated this 13th day of March, 1985.

s/ Luther Bohannon

UNITED STATES DISTRICT JUDGE

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