Board of Ed. of Ind. Sch. Dist. 89, Okla. County v. York, 134-70.

Decision Date29 July 1970
Docket NumberNo. 134-70.,134-70.
PartiesBOARD OF EDUCATION OF INDEPENDENT SCHOOL DISTRICT 89, OKLAHOMA COUNTY, Plaintiff-Appellee, v. Raymond P. YORK and Yvonne J. York, Defendants-Appellants.
CourtU.S. Court of Appeals — Tenth Circuit

J. Harry Johnson, Oklahoma City, Okl. (Leslie L. Conner, Oklahoma City, Okl., on the brief) for plaintiff-appellee.

Clyde J. Watts, Oklahoma City, Okl. (Donald N. Bykerk, Oklahoma City, Okl., on the brief) for plaintiff-appellee. lants.

Before BREITENSTEIN, HILL and SETH, Circuit Judges.

BREITENSTEIN, Circuit Judge.

This appeal relates to another episode in the litigation over the desegregation of the Oklahoma City public schools. The district court entered a preliminary injunction requiring the appellants to send their 14-year old son to Harding school and none other in the public school system. The appellants violated the order and were cited for contempt. After an evidentiary hearing, the district court made the injunction permanent, found the appellants guilty of violating the preliminary injunction, and sentenced them to fine and imprisonment. On this appeal they attack both the validity of the injunctive orders and their contempt sentences.

On August 13, 1969, the federal district court in the case of Dowell v. Board of Education approved a School Board plan changing the attendance area for the Harding school during the 1969-1970 school year so as to include the residence of the appellants and their son. We vacated that order and Justice Brennan stayed our order. The Supreme Court on December 15 granted certiorari, vacated our order, and remanded the case. 396 U.S. 269, 90 S.Ct. 415, 24 L.Ed.2d 414. The August 13 district court order has remained in effect during the 1969-1970 school year.

Before the boundary change the appellants were in the attendance area of Taft school. After the change they insisted on sending their son to Taft. The Board notified them in writing that after the end of the first quarter, November 7, 1969, the unauthorized enrollment of their son at Taft had to be terminated. The appellants persisted in sending the boy to Taft. The Board then brought a suit in federal court for an injunction. The preliminary injunction was issued on January 14, 1970, and in addition to the matters mentioned it ordered the United States Marshal to determine if the boy attempted to attend Taft and, if he did so, to take him into custody, hold him during school hours, and then return him to his parents.

On January 15 and 16 the mother escorted the boy to Taft and he attended classes. On January 19 the two of them were intercepted by a deputy United States Marshal on the Taft school grounds and the boy was taken into custody as directed in the preliminary injunction and later released to his parents. On January 23, after a hearing, the court made the injunction permanent and found the parents in contempt.

The spectacle of a United States Marshal taking a 14-year old boy into custody for attempting to attend school does not appeal to us. Neither does the conduct of the mother in flaunting the orders of a federal court by producing an incident where the presence of representatives of the news media indicates action for publicity purposes. We have here an isolated occurrence which we believe could and should have been handled by the School Board without seeking the aid of the court. The recalcitrance of one family hardly poses a threat to the duty, power, and ability of the School Board to carry out the federal court decree.

Be that as it may, the federal court granted a preliminary injunction and the appellants violated it. In Dunn v. United States, 10 Cir., 388 F.2d 511, we considered a situation wherein counsel for a litigant was held guilty of contempt for violation of a temporary restraining order. We held the temporary restraining order invalid in Hyde Construction Company v. Koehring Company, 10 Cir., 388 F.2d 501, cert. denied 391 U.S. 905, 88 S.Ct. 1654, 20 L.Ed.2d 419. We also said that the invalidity of that order did not destroy the contempt conviction because the court had jurisdiction of the subject matter and the person and "its orders must be obeyed until reversed for error by orderly review." 388 F.2d at 513. In the case at bar, the parents did not seek review of the preliminary injunction. They chose to violate it. Accordingly, they were in contempt if the federal district court had jurisdiction.

The appellants insist that the district court lacked subject-matter jurisdiction. No good purpose would be served by any review of the many cases holding that segregated public education is a denial of equal protection and that federal courts have the duty and responsibility to prevent such discrimination. The history of the Oklahoma City school litigation has been detailed elsewhere and need not be repeated. It suffices to say that after our decision in Board of Education of Oklahoma City Public Schools v. Dowell, 10 Cir., 375 F.2d 158, cert. denied 387 U.S. 931, 87 S.Ct. 2054, 18 L.Ed.2d 993, approving the pairing of certain schools to prevent segregation, the district court found that changed conditions would not produce the desired result and ordered the School Board to give further consideration to the matter. The School Board proposed a plan which made the boundary changes with which we are concerned and the court approved the plan. In so acting the court had subject-matter jurisdiction. That jurisdiction carries over to actions necessary and proper to effectuate the judgment entered.

Appellants say that the boundary changes are local administrative orders made under 70 O.S.A. § 4-22 and that the federal court has no jurisdiction with regard thereto. The argument overlooks the fact that the School Board is under a duty to obey the Constitution, U.S.Const. Art. VI, cl. 2, and the order of the district court. It has a federal right "to be free from direct and deliberate interference with the performance of the constitutionally imposed duty." Brewer v. Hoxie School District No. 46, 8 Cir., 238 F.2d 91, 99. Cf. Bohlander v. Independent School District Number One of Tulsa County, Oklahoma, 10 Cir., 420 F.2d 693, 694. The right arises under the Constitution and is within the jurisdictional grant of 28 U.S.C. § 1331. We note in passing that no question is raised over the jurisdictional amount, and that the district court expressly found that it was present.

So far as the merits of the injunctive orders are concerned, the appellants make a collateral attack on the validity of the district court orders in the underlying case. It is not necessary to discuss again those orders. The order approving the Board's plan for boundary changes was valid and effective during the 1969-1970 school year. Only one aspect thereof need be mentioned. The appellants contest the orders on the ground that they are not a proper exercise of jurisdiction by the district court. The injunction was "necessary and appropriate" in the aid of the court's jurisdiction over the underlying segregation problems. See the ...

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