United States v. BOARD OF ED., IND. SD NO. 1, TULSA CO., OKL.

• Citation: 459 F.2d 720
• Decision Date: 05 May 1972
• Docket Number: No. 71-1767 and 71-1768.,71-1767 and 71-1768.
• Parties: UNITED STATES of America, Appellant, Aaron Lee Smith et al., Intervenor-Appellants, v. BOARD OF EDUCATION, INDEPENDENT SCHOOL DISTRICT NO. 1, TULSA COUNTY, OKLAHOMA, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

459 F.2d 720 (1972)

UNITED STATES of America, Appellant, Aaron Lee Smith et al., Intervenor-Appellants, v. BOARD OF EDUCATION, INDEPENDENT SCHOOL DISTRICT NO. 1, TULSA COUNTY, OKLAHOMA, et al., Appellees.

Nos. 71-1767 and 71-1768.

United States Court of Appeals, Tenth Circuit.

May 5, 1972.

David L. Norman, Asst. Atty. Gen., Civil Rights Div., Dept. of Justice, Washington, D. C. (Brian K. Landsberg and Bernard H. Shapiro, Dept. of Justice, Washington, D. C., with him on the brief), for appellant.

Sylvia Drew, New York City (Jack Greenberg, James M. Nabritt, III, and Norman Chachkin, New York City, Goodwin, Waldo E. Jones, Sr., Tulsa, Okl., and John W. Walker, Little Rock, Ark., with her on the brief), for intervenor-appellants.

David L. Fist, Tulsa, Okl. (C. H. Rosenstein, Tulsa, Okl., with him on the brief), for appellees.

Before LEWIS, Chief Judge, and HILL and SETH, Circuit Judges.

LEWIS, Chief Judge.

This action to desegregate the public schools of Tulsa, Oklahoma was brought by the United States in July 1968 under section 407(a) of the 1964 Civil Rights Act, 42 U.S.C. § 2000c-6. The district court dismissed the complaint after a full trial on the merits and appeal was taken to this court. We concluded from the record in that appeal that the policies and practices of the defendant school district constituted a subtle but effective system of state-imposed and state-preserved racial segregation. We therefore reversed and remanded the cause to the district court with orders that the defendant school district begin immediately to effect the disestablishment of the segregated school system in Tulsa. Our opinion in that appeal, reported 429 F.2d 1253, contains a description of the factual context in which this litigation arose, detailing the racial composition of specific schools in the district and the segregated conditions in the district as a whole. It is not necessary to repeat those facts here, and we incorporate by reference the factual description contained in our prior opinion.

On remand to the district court, the United States and the school district reached agreement on all issues except student assignment in the elementary schools. Under the agreement, faculty members are to be assigned to achieve a ratio of black to white teachers in each school equal to the ratio in the system as a whole. The transfer policies have been redesigned to eliminate transfers that promote segregation. A majority to minority transfer policy has been established that provides transferees free transportation where necessary and admission to closest schools on a priority basis. The agreement also provides that all future school construction will be done in a manner calculated affirmatively to promote the maintenance of a unitary school system free from racial discrimination. The school district agrees to file annual reports with the court and opposing counsel giving information as to racial composition of students and faculty in each school, a list of transfers including the race of transferees and reasons for transfer, and plans for school construction.

The question of student assignment on the secondary level was resolved by the adoption of plans of desegregation for junior and senior high schools. The desegregation plan for junior high schools closed two schools, all-black Carver Junior High and predominately white Lowell Junior High. The attendance boundaries of the remaining schools were redrawn so that no junior high school in the district had a student enrollment of more than 33 percent black. The desegregation plan for senior high schools created a Metro Learning Center at formerly all-black Washington High School to operate in conjunction with the regular high school until the 1973-74 school year when Mason High School will be completed. At that time the physical facilities at Washington High will be used entirely for the Metro Learning Center enrolling 800 to 1,000 students on an integrated basis. The black student enrollment in the remaining high schools will be from 7 to 22 percent.

On the issue of desegregation of the elementary schools the parties were unable to agree. The district court held an evidentiary hearing on the matter and ruled that five of the nine black elementary schools were de facto segregated, their segregated status resulting not by discriminatory state action but by population movements. The court concluded that it was judicially unnecessary to order change in the five de facto schools because no wrong had been committed by the state. The court ruled the four remaining schools to be de jure segregated and ordered the school district to desegregate them. The school district subsequently submitted a plan to which the United States agreed, fully desegregating each of the four schools.

The United States appeals from the portion of the judgment ruling that five of the elementary schools are de facto segregated. The intervening-appellants likewise disagree with the district court's finding with regard to the de facto schools. In addition, they ask this court to reverse the district court's judgment approving the plan for student assignment on the junior high and senior high school levels. They argue that the student assignment plan on the secondary level places a disproportionate share of the burden of desegregation on the black community.

The five elementary schools determined by the court to be de facto segregated are Burroughs (85.5% black), Emerson (91.3% black), Frost (99.4% black), Hawthorne (95.9% black), and Whitman (96.7% black). Three of the five schools, Burroughs, Emerson, and Whitman, were operating as all-white schools in all-white neighborhoods at the time of Brown v. Board of Education (Brown I), 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 in 1954. Whitman opened as an all-white school in 1961. Frost opened in 1966 with one white student and 458 black students.

The story of the change in racial composition of the four formerly all-white schools is a familiar one. Changes in housing laws removing racial restrictions on residential property allowed blacks to move into the white neighborhoods surrounding the well-defined black areas to which they had formerly been restricted. This outward movement of blacks, combined with the familiar "white flight" has converted many white residential areas into all-black neighborhoods with a corresponding effect on the schools. Burroughs was built in 1925 and operated as an all-white school until 1957 when it enrolled its first black students; by 1962 Burroughs was all black. Emerson was built in 1913 and enrolled eleven black students for the first time in 1955 and by 1963 was 83% black. Hawthorne enrolled six black students in 1961 and was 87% black by 1967. Whitman opened as an all-white school in 1961, enrolled four black students the following year, and by 1970 it had become 95% black.

Frost is the only one of the five de facto segregated schools which has been predominately black from its beginning. Before the school was constructed, surveys of the projected attendance area indicated enrollment...