Dowell by Dowell v. Board of Educ. of Oklahoma City Public Schools, Independent Dist. No. 89, Oklahoma City, Okl.

• Decision Date: 04 November 1993
• Docket Number: O,92-6046,No. 89,Nos. 91-6407,89,s. 91-6407
• Citation: 8 F.3d 1501
• Parties: 87 Ed. Law Rep. 67 Robert L. DOWELL, an infant under the age of 14 years who sues by A.L. DOWELL, his father as next friend, Plaintiff-Appellant, Vivian C. Dowell, a minor, by her father A.L. Dowell, as next friend; Edwina Houston Shelton, a minor, by her mother, Gloria Burse; Gary Russell, a minor, by his father, George Russell; Stephen S. Sanger, on behalf of himself and all others similarly situated; Yvonne Monet Elliot and Donnoil S. Elliot, minors, by their father Donald Elliot; Diallo K. McClarty, a minor, by his mother Donna R. McClarty; Donna Chaffin and Floyd Edmun, minors, by their mother Glenda Edmun; Chelle Luper Wilson, a minor, by her mother Clara Luper; Donna R. Johnson, Sharon R. Johnson, Kevin R. Johnson and Jerry D. Johnson, minors, by their mother Betty R. Walker; Lee Maur B. Edwards, a minor, by his mother Elrosa Edwards; Nina Hamilton, a minor, by her father Leonard Hamilton; Jamie Davis, a minor, by his mother Etta T. Davis; Romand Roach, a minor, by his mother Cornelia Roach, on behalf of themselves and all other similarly situated black children and parents or guardians of black children, Plaintiffs-Intervenors-Appellants, v. The BOARD OF EDUCATION OF the OKLAHOMA CITY PUBLIC SCHOOLS, INDEPENDENT DISTRICT NO. 89, OKLAHOMA CITY, OKLAHOMA, a Public Body Corporate; Jack F. Parker, Superintendent of the Oklahoma City, Oklahoma Public Schools; M.J. Burr, Assistant Superintendent of the Oklahoma City, Oklahoma Public Schools; Melvin P. Rogers; Phil C. Bennett; William F. Lott; Mrs. Warren F. Welch; Foster Estes, Members of the Board of Education of Oklahoma City Schools, Independent Districtklahoma County, Oklahoma; William C. Haller, County Superintendent of Schools of Oklahoma County, Oklahoma, Defendants-Appellees, Jenny Mott McWilliams, a minor, and David Johnson McWilliams, a minor, sue by William Robert McWilliams, their father and next friend, on behalf of themselves and all others similarly situated; Renee Hendrickson, a minor, Bradford Hen
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1501

8 F.3d 1501

87 Ed. Law Rep. 67

Robert L. DOWELL, an infant under the age of 14 years who

sues by A.L. DOWELL, his father as next friend,

Plaintiff-Appellant,

Vivian C. Dowell, a minor, by her father A.L. Dowell, as

next friend; Edwina Houston Shelton, a minor, by her

mother, Gloria Burse; Gary Russell, a minor, by his father,

George Russell; Stephen S. Sanger, on behalf of himself and

all others similarly situated; Yvonne Monet Elliot and

Donnoil S. Elliot, minors, by their father Donald Elliot;

Diallo K. McClarty, a minor, by his mother Donna R.

McClarty; Donna Chaffin and Floyd Edmun, minors, by their

mother Glenda Edmun; Chelle Luper Wilson, a minor, by her

mother Clara Luper; Donna R. Johnson, Sharon R. Johnson,

Kevin R. Johnson and Jerry D. Johnson, minors, by their

mother Betty R. Walker; Lee Maur B. Edwards, a minor, by

his mother Elrosa Edwards; Nina Hamilton, a minor, by her

father Leonard Hamilton; Jamie Davis, a minor, by his

mother Etta T. Davis; Romand Roach, a minor, by his mother

Cornelia Roach, on behalf of themselves and all other

similarly situated black children and parents or guardians of black children, Plaintiffs-Intervenors-Appellants, v. The BOARD OF EDUCATION OF the OKLAHOMA CITY PUBLIC SCHOOLS,

INDEPENDENT DISTRICT NO. 89, OKLAHOMA CITY, OKLAHOMA, a

Public Body Corporate; Jack F. Parker, Superintendent of

the Oklahoma City, Oklahoma Public Schools; M.J. Burr,

Assistant Superintendent of the Oklahoma City, Oklahoma

Public Schools; Melvin P. Rogers; Phil C. Bennett;

William F. Lott; Mrs. Warren F. Welch; Foster Estes,

Members of the Board of Education of Oklahoma City Schools,

Independent District No. 89, Oklahoma County, Oklahoma;

William C. Haller, County Superintendent of Schools of

Oklahoma County, Oklahoma, Defendants-Appellees,

Jenny Mott McWilliams, a minor, and David Johnson

McWilliams, a minor, sue by William Robert McWilliams, their

father and next friend, on behalf of themselves and all

others similarly situated; Renee Hendrickson, a minor,

Bradford Hendrickson, a minor, Teresa Hendrickson, a minor,

Cindy Hendrickson, a minor, who sues by Donna P.

Hendrickson, as mother and next friend of each of said

minors, and Donna P. Hendrickson, individually, for

themselves and all others similarly situated,

Defendants-Intervenors-Appellees,

David Webster Verity, a minor by and through his next

friend, George L. Verity; George L. Verity, and Ellen

Verity, for themselves and all others similarly situated;

Taejemo Danzie, a minor, by and through Mrs. A.J. Danzie,

her next friend; Mrs. A.J. Danzie, for themselves and all

others similarly situated, Intervenors.

Nos. 91-6407, 92-6046.

United States Court of Appeals, Tenth Circuit.

Nov. 4, 1993.

Janell M. Byrd, Washington, DC (Lewis Barber, Jr. of Barber & Marshall, Oklahoma City, OK, Julius L. Chambers and Norman J. Chachkin, New York City, and John W. Walker, Little Rock, AR, with her on the brief), for plaintiffs-appellants.

Charles J. Cooper (Micheal W. Kirk, also of Shaw, Pittman, Potts & Trowbridge, Washington, DC, and Laurie W. Jones of Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, OK, with him on the brief), for defendants-appellees.

Before LOGAN, McWILLIAMS, and SEYMOUR, Circuit Judges.

LOGAN, Circuit Judge.

Plaintiffs, Oklahoma City schoolchildren and their parents, appeal the district court's termination of the decree requiring defendant Oklahoma City Board of Education ¹ to adopt and implement a comprehensive desegregation plan, and its dismissal of the case.

The facts and procedural history of this case have been discussed extensively in prior opinions of this court and the district court. See Dowell v. Board of Educ., 890 F.2d 1483 (10th Cir.1989), rev'd 498 U.S. 237, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991); ² Dowell v. Board of Educ., 795 F.2d 1516 (10th Cir.), cert. denied, 479 U.S. 938, 107 S.Ct. 420, 93 L.Ed.2d 370 (1986); Dowell v. Board of Educ., 778 F.Supp. 1144 (W.D.Okla.1991); Dowell v. Board of Educ., 677 F.Supp. 1503 (W.D.Okla.1987); Dowell v. Board of Educ., 606 F.Supp. 1548 (W.D.Okla.1985). This effort began in 1961 when plaintiffs filed suit in the Western District of Oklahoma, seeking equitable relief against defendant for operating a state-compelled dual educational system. Despite the district court's 1963 finding that defendant had intentionally segregated its schools, Dowell v. School Bd., 219 F.Supp. 427 (W.D.Okla.1963), it was not until 1972 that defendant was finally required to implement the desegregation decree (the Finger Plan), Dowell v. Board of Educ., 338 F.Supp. 1256 (W.D.Okla.1972), the modification of which is now before us.

The Finger Plan, instituted during the 1972-73 school year, restructured Oklahoma City's attendance zones to create racial balance at all grade levels except kindergarten. It adopted a feeder system for the high schools and middle schools, so that student assignments were based on the elementary school attendance zone in which the student resided. Desegregation of the elementary grades was accomplished by converting all schools with primarily white students to serve only grades one through four, and converting all schools with primarily black students into fifth-year centers with enhanced facilities and curricula. In grades one through four, black students were bused to schools in white residential areas and white students attended their neighborhood schools. White fifth graders were bused to fifth-year centers located in black residential areas, and black fifth graders attended the centers in their neighborhoods. Kindergarteners attended their neighborhood schools or any other school their parents found more convenient. Schools located in racially balanced neighborhoods were accorded "stand-alone" status, and enrolled grades kindergarten through fifth. No elementary school students in an integrated attendance zone were bused in or out.

Defendant sought to close this case in 1975, claiming that it had eliminated all vestiges of de jure segregation in its schools and that it was operating a unitary system. The district court entered a finding of unitariness in January 1977, but did not vacate or modify its 1972 decree mandating implementation of the Finger Plan. Dowell, No. CIV-9452, slip. op. (W.D.Okla. Jan. 18, 1977). This order was not appealed. However, defendant continued to operate its schools in conformity with the Finger Plan until 1985. At that time, defendant abandoned the elementary school portion of the Finger Plan and introduced the student reassignment plan (SRP).

Under the SRP, instituted in the 1985-86 school year and still in effect, defendant returned to neighborhood schools for kindergarten through fourth grade. Fifth-year centers are located throughout the district, rather than just in black residential areas, but busing continues for all students above the fourth grade. ³ Furthermore, the SRP created an equity officer and committee to monitor the quality of facilities, equipment, supplies, and instructors throughout the school system and to recommend other means of integrating racially identifiable elementary schools. Finally, the SRP includes a majority-to-minority transfer policy, so that elementary students assigned to schools where their race is in the majority can transfer to a school in which their race is in the minority. Transportation is provided.

Defendant's stated purpose in implementing these changes was to address demographic shifts in Oklahoma City and the long term consequences of the Finger Plan, which was originally designed for a school district that was only twenty percent minority. ⁴ Although defendant appears not to have adhered strictly to the stand-alone feature of the Finger Plan, at the beginning of 1985 there were thirteen schools being considered for stand-alone status. If all of these stand-alone schools had been created, travel for black children in grades one through four living in the northeast quadrant of the city would have become more burdensome. In addition, these stand-alone schools, which enrolled fifth graders, would have decreased the number of children attending the enriched fifth-year centers, causing school closures in black neighborhoods and curricular inequities for fifth graders at stand-alone schools. Defendant was also concerned about decreased parental participation, which it attributed to the absence of neighborhood schools. Plaintiffs object to the SRP because it dramatically increased the number of elementary schools that were more than ninety percent black or more than ninety percent non-black.

Thus, in response to defendant's abandonment of the Finger Plan, plaintiffs moved to reopen the case to challenge the constitutional validity of the SRP. After a two-day hearing the district court denied the motion to reopen, concluding that the 1977 finding of unitariness was res judicata, that the school district was still unitary as of 1985, and that neighborhood schools are not in and of themselves unconstitutional. This court reversed and remanded, holding that the district court erred in failing to reopen the case and in reaching the merits of the SRP's constitutionality without permitting plaintiffs the opportunity to present evidence. Dowell, 795 F.2d 1516. We concluded that although the 1977 finding of unitariness was binding, the order terminating active supervision of the case did not dissolve the mandatory injunction. Id. at 1520-21. On remand, the district court was to determine "whether the original mandatory order will be enforced or whether and to what extent it should be modified." Id. at 1523.

Thereafter, in 1987 the district court held an eight-day hearing on the merits of the SRP. Under instructions from this court, the burden was on the defendant to "present evidence that changed conditions require modification or that the facts or law no longer require the enforcement of the order." Id. Defendant produced evidence that the Finger Plan had become oppressive,...