Board of Education of Oklahoma City Pub. Sch. v. Dowell, 8523.

• Decision Date: 29 May 1967
• Docket Number: No. 8523.,8523.
• Citation: 375 F.2d 158
• Parties: The BOARD OF EDUCATION OF the OKLAHOMA CITY PUBLIC SCHOOLS, INDEPENDENT DISTRICT NO. 89, OKLAHOMA COUNTY, 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 and Foster Estes, Members of the Board of Education of Oklahoma City Schools, Independent District No. 89, Oklahoma County, Oklahoma, and their Successors in Office, Appellants, v. Robert L. DOWELL and Vivian C. Dowell, Infants, by A. L. Dowell, their Father and Next Friend, Edwina Houston Helton, a Minor, by her Mother, Gloria Burse, and Gary Russell, a Minor, by his Father, George Russell, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

375 F.2d 158 (1967)

The BOARD OF EDUCATION OF the OKLAHOMA CITY PUBLIC SCHOOLS, INDEPENDENT DISTRICT NO. 89, OKLAHOMA COUNTY, 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 and Foster Estes, Members of the Board of Education of Oklahoma City Schools, Independent District No. 89, Oklahoma County, Oklahoma, and their Successors in Office, Appellants, v. Robert L. DOWELL and Vivian C. Dowell, Infants, by A. L. Dowell, their Father and Next Friend, Edwina Houston Helton, a Minor, by her Mother, Gloria Burse, and Gary Russell, a Minor, by his Father, George Russell, Appellees.

No. 8523.

United States Court of Appeals Tenth Circuit.

January 23, 1967.

Rehearing Denied March 15, 1967.

Certiorari Denied May 29, 1967.

COPYRIGHT MATERIAL OMITTED

Coleman Hayes, of Monnet, Hayes, Bullis, Grubb & Thompson, Oklahoma City, Okl., for appellants.

Robert D. Looney, Oklahoma City, Okl., for amicus curiae, Harding High School Parents Teachers Assn.

Submitted on brief by Wheeler, Parsons, & Wheeler, Oklahoma City, Okl., for amicus curiae, Oklahoma Education Assn.

Jack Greenberg, New York City (James M. Nabrit, III, New York City, and U. Simpson Tate, Wewoka, Okl., on the brief) for appellees.

Before LEWIS, BREITENSTEIN and HILL, Circuit Judges.

Certiorari Denied May 29, 1967. See 87 S.Ct. 2054.

HILL, Circuit Judge.

This appeal is from an order enjoining appellants to do certain enumerated administrative acts in order to effectuate racial desegregation in the public school system of Oklahoma City, Oklahoma.

The action was commenced in October, 1961, in the Western District of Oklahoma as a class action seeking equitable relief to enjoin the Board of Education of the Oklahoma City Public Schools and the other named defendants from "operating a qualified bi-racial school system * * *", from "maintaining a dual scheme, pattern or implied agreement or understanding of school zone lines based upon race or color", from maintaining "a minority to majority" system of pupil transfers and from continuing other racial discriminatory practices within the school system. A three-judge court was requested and convened because of the alleged unconstitutionality of certain state statutes pertaining to the Oklahoma system of education. It was determined, after a pretrial, that the controverted issues left in the case did not require a three-judge court. Such court was dissolved and the case returned to the originally assigned judge.

The case proceeded to trial before one of the district judges, with the following issues involved: The validity of existing pupil transfer plan and the alleged racial discrimination resulting therefrom; racial discrimination in the assignment of teachers and other employees of the defendant school board; racial discrimination in the fixing of school attendance boundary lines; and the broad issue of racial segregation generally in the operation of the school system.

After an evidentiary hearing on July 11, 1963, the trial court rendered its first opinion.¹ There the pupil transfer plan, then being followed and under attack in the litigation, was held invalid under Goss v. Board of Education, 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632. A general finding, following specific findings of fact, was made that the board had not acted in good faith in its efforts to "integrate" the schools of the city but the court denied relief to some individual plaintiffs claiming personal discrimination because of lack of proof. One important aspect here of that order was the direction from the court to the school board to prepare and file with the court, within nintey days, a complete and comprehensive plan for the "integration" of the entire Oklahoma City School system and the court retained jurisdiction of the case to assure compliance with the decree.²

Pursuant to the order, the board filed what it called a "Program of Compliance with Court's Order". This statement by the board asserted it had established the school attendance boundaries by using only two criteria: (1) That they represent logically consistent geographical areas that support the concept of neighborhood schools and (2) that there be as efficient as possible utilization of the building facilities available. The board stated that under no circumstances would it consider the race of the residents of an area in the school district either in the establishment or the adjustment of attendance area boundaries but that "Basically pupils will attend the schools which serve the attendance areas in which they reside." The board stated that it would no longer make special transfers on a racial minority to majority basis but would continue to grant transfers to enable a student to transfer out of his "neighborhood" school to another school where the transfer: (1) Would enable the student to take a course not available in his attendance area and the course "is important to the total education" of the student; (2) would enable members of the same family to go to school together; (3) would allow a student to complete the highest grade in a school he has been attending; or (4) for "other valid, good-faith reasons which justify approval." The board stated that "in no case will these reasons be based in whole or in part on race." The board asserted in general terms its intention to integrate faculty personnel extra-curricular activities, committee work, and "all types and kinds of activities involving student participation."

A hearing was held on August 8, 1963, upon the sufficiency of the plan filed by the board. After this hearing, the court instructed the board to file a new policy statement. On January 14, 1964, this statement was filed. In general terms, it reiterated the policies contained in the earlier plan filed with the court. After another hearing on this policy statement, the court found that while the board had presented "a very fine plan", there remained "doubt in the heart of the Negro pupils as to the good faith operation of the plan." The court thereupon requested the board to employ competent and unbiased experts, independent of local sentiment, to make a survey of the "integration problem" as it related to the Oklahoma City public schools. The board declined the request, on grounds that it would be an unnecessary and unjustifiable expense and that the board itself was more qualified to assess local problems and was more sensitive to local needs. The court then invited the plaintiffs to present for its consideration the names of three experts in the field of "school integration". In due time, the plaintiffs moved the court to appoint Dr. William R. Carmack of Norman, Oklahoma, Dr. Willard B. Spaulding of San Francisco, California, and Dr. Earl A. McGovern of New Rochelle, New York,³ to undertake a broad study of the Oklahoma City public schools and recommend to the court "a desegregation plan which will accord with the letter and spirit of Brown v. Board of Education, 347 U.S. 483 74 S.Ct. 686, 98 L.Ed. 873 (1954)." On June 1, 1964, the motion was granted and an appropriate order entered.

Before considering the report of the three experts, a brief recital of the history of race segregator in the Oklahoma City schools is appropriate. School segregation of the races was written into the State Constitution. Separate but like school accommodations were required. State statutes implementing the Constitutional provision provided: For complete separation of the races in the public schools; school boards had to be composed exclusively of members of the white race; segregation was compelled in private educational institutions; and, any school official who permitted a child to attend school with members of the other race or any student who attended school with members of the other race was guilty of a misdemeanor. A pattern of racial segregation in housing was strictly adhered to with restrictive covenants in general use for many years. The Negro residents of the city had lived through the years mostly in the east and southeast portions of the city, thus the all-Negro schools were located in that part of the city. This was the situation when the Supreme Court handed down the Brown decision.

In 1955, following Brown, the board enunciated a policy statement, by which school attendance boundaries were drawn and the "minority to majority" pupil transfer plan was announced.⁴ The school system then began operation on the "neighborhood school attendance policy" with a feeder school plan. Attendance lines were drawn around the existing school buildings, taking into consideration student capacities of the buildings and natural boundaries such as rivers, highways and railroad lines and shifts in population. The feeder plan required students graduating from their particular elementary school to attend a designated junior high school and junior high school graduates to attend designated high schools. The minority to majority pupil transfer plan then permitted any student, who was enrolled in a school where his race was in the minority, to transfer to a school where his race was in a majority, provided space was available in the latter.

The record reflects very little actual desegregation of the school system between 1955 and the filing of this case. During that six year period segregation of pupils in the system had only been reduced from total segregation in 1955 to 88.3 percent in 1961. Total segregation still existed as to faculty members, administrative employees and all other supporting personnel within the system. Between the school years 1959-60 to 1964-65 the total number of all-white schools had increased from 73 to 81, the total number of all-Negro schools had increased from 12 to 14 and the total number of integrated schools from 7 to 12....