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

• Decision Date: 26 June 1986
• Docket Number: No. 85-1886,85-1886
• Citation: 795 F.2d 1516
• Parties: , 33 Ed. Law Rep. 1033 Robert L. DOWELL, an infant under the age of 14 years, who sues by A.L. DOWELL, his father as next friend, Plaintiff-Appellant, Vivial C. Dowell, a minor, by her father, A.L. Dowell, as next friend, et al., Intervening Plaintiffs-Appellants, Stephen S. Sanger, Jr., on behalf of himself and all others similarly situated, et al., Intervening Plaintiffs, and Yvonne Monet Elliot and Donnoil S. Elliot, both minor children, By and Through their parent and guardian, Donald R. Elliot, et al., Applicants in Intervention-Appellants, v. The BOARD OF EDUCATION of the OKLAHOMA CITY PUBLIC SCHOOLS, INDEPENDENT DISTRICT NO. 89, Oklahoma County, Oklahoma, a Public Body Corporate, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1516

795 F.2d 1516

55 USLW 2033, 33 Ed. Law Rep. 1033

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

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

Plaintiff-Appellant,

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

next friend, et al., Intervening Plaintiffs-Appellants,

Stephen S. Sanger, Jr., on behalf of himself and all others

similarly situated, et al., Intervening Plaintiffs,

and

Yvonne Monet Elliot and Donnoil S. Elliot, both minor children, By and Through their parent and guardian, Donald R. Elliot, et al., Applicants in Intervention-Appellants, v. The BOARD OF EDUCATION of the OKLAHOMA CITY PUBLIC SCHOOLS,

INDEPENDENT DISTRICT NO. 89, Oklahoma County,

Oklahoma, a Public Body Corporate, et

al., Defendants-Appellees.

No. 85-1886.

United States Court of Appeals, Tenth Circuit.

June 26, 1986.

Theodore M. Shaw (Julius LeVonne Chambers and Napoleon B. Williams, Jr., with him on briefs), New York City, John W. Walker, Little Rock, Ark., and Lewis Barber, Jr., of Barber/Traviolia, Oklahoma City, Okl., for plaintiffs and applicants in intervention-appellants.

Ronald L. Day of Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, Okl., for The Bd. of Educ. of the Oklahoma City Public Schools, Independent Dist. No. 89, Oklahoma County, defendant-appellee.

William Bradford Reynolds, Asst. Atty. Gen., Walter W. Barnett, Mark L. Gross, and Michael Carvin, Attys., Dept. of Justice, Washington, D.C., filed an amicus curiae brief for the U.S of America.

Before MOORE and ANDERSON, Circuit Judges, and JOHNSON, District Judge. ^*

JOHN P. MOORE, Circuit Judge.

This appeal is the latest chapter in the odyssey of the desegregation of the public school system in Oklahoma City, Oklahoma. After many years of litigation, in 1977 the trial court found that the school district had achieved unitariness and entered an order terminating the court's active supervision of the case. The parties are now before this court after an unsuccessful attempt to enjoin the school district from altering the attendance plan previously mandated by the district court. The district court, in part relying on its 1977 termination order, not only denied the petitioners' motion to reopen the case, but also decided the issue of the constitutionality of the new attendance plan. Dowell v. School Board of Oklahoma City Public Schools, 606 F.Supp. 1548 (W.D.Okla.1985). In this appeal, we address only the precise question of whether the trial court erred in denying the motion to reopen. We hold, under the facts present here, that the court erred and remand for additional factual determinations.

I.

This case was filed in 1961, and the history of the litigation is extensive. ¹ In the ensuing years, the parties struggled through the difficult task of desegregating the public schools, each proffering plans to accomplish that goal. Finally, after finding the district had "emasculate[d]" a previously approved plan, the district court ordered the implementation of the so-called "Finger Plan." Dowell v. School Board of Oklahoma City Public Schools, 338 F.Supp. 1256, 1263 (W.D.Okla.), aff'd, 465 F.2d 1012 (10th Cir.), cert. denied, 409 U.S. 1041, 93 S.Ct. 526, 34 L.Ed.2d 490, (1972). That plan, which was instituted during the 1972-1973 school year, restructured attendance zones for high schools and middle schools so that each level enrolled black and white students. At the elementary level, all schools with a majority of black pupils became fifth grade centers which provided enhanced curricula. All elementary schools with a majority of white students were converted to serve grades one through four. Generally, the white students continued to attend neighborhood schools while black students in grades one through four were bused to classes. When white students reached the fifth grade, they were bused to the fifth grade centers, while black fifth graders attended the centers in their neighborhoods. Schools which were located in integrated areas qualified as "stand alone schools," and the students in grades one through five remained in their own neighborhoods.

In June 1975, the school board moved to close the case on the ground that it had "eliminated all vestiges of State-imposed racial discrimination in its school system, and [that it was] ... operating a unitary school system." Although the motion was contested, the court terminated active supervision of the case because it found the Finger Plan had achieved its objective. Dowell v. School Board of Oklahoma City Public Schools, No. CIV-9452, slip op. (W.D.Okla. Jan. 18, 1977). See Dowell, 606 F.Supp. at 1551 (quoting the unpublished order in part). The order was not appealed. The 1977 order did not vacate or modify the 1972 order mandating implementation of the Finger Plan.

In February 1985, the plaintiffs sought to reopen the case, claiming the school board unilaterally abandoned the Finger Plan and instituted a new plan for school attendance. The Student Reassignment Plan, which has already been implemented, eliminates compulsory busing of black students in grades one through four and reinstitutes neighborhood elementary schools for these grades. Free transportation is provided to children in the racial majority in any school who choose to transfer to a school in which they will be in the minority. The racial balance of fifth grade centers, middle schools, and high schools is maintained through mandatory busing. As a result of this plan, thirty-three of the district's sixty-four elementary schools are attended by students who are ninety percent, or more, of one race.

The district court denied the motion to reopen. ² The court held that the Student Reassignment Plan was not constitutionally infirm and, therefore, no "special circumstances" were present that would justify reopening the case. Dowell, 606 F.Supp. at 1557. The court concluded as a matter of law: (1) The principles of res judicata and collateral estoppel prohibit the plaintiffs from challenging the court's 1977 finding that the school system was unitary. (2) The 1985 school district displays all indicia of unitariness. (3) Neighborhood schools, when impartially maintained and administered, are not unconstitutional. Moreover, the existence of racially identifiable schools, without a showing of discriminatory intent, is not unconstitutional. (4) The Student Reassignment Plan is not discriminatory and was not established with discriminatory intent.

On appeal, the plaintiffs contend the trial court erred in arriving at these conclusions without reopening the case and without giving them an adequate opportunity to present evidence on the substantive issues. We agree and hold that, while the principles of res judicata may apply in school desegregation cases, a past finding of unitariness, by itself, does not bar renewed litigation upon a mandatory injunction. Moreover, when it is alleged that significant changes have been made in a court-ordered school attendance plan, any party for whose benefit the plan was adopted has a right to be heard on the issue of whether the changes will affect the unitariness of the system. In such circumstances, it is not necessary for the party seeking enforcement of the injunction to prove the changes were motivated by a discriminatory intent. Accordingly, we conclude the trial court erred in not reopening the case.

II.

A.

Any analysis of the legal principles governing this case must start with the procedural framework in which it was postured when the plaintiffs sought to reopen. When the defendant board adopted the Student Reassignment Plan, the 1972 order approving the Finger Plan and ordering its immediate implementation still governed the parties. That order was in the nature of a mandatory injunction, and the effect of that order was not altered by the 1977 order terminating the court's active supervision of the case.

Perhaps the members of the present school board acted upon the belief that the 1972 order was no longer effective; if so, their belief was unwarranted. Indeed, the 1972 order specifically provided:

The Defendant School Board and the individual members thereof, both present and future, together with the Superintendent of Schools, shall implement and place [the Finger Plan] into effect....

The Defendant School Board shall not alter or deviate from the [Finger Plan] ... without the prior approval and permission of the court. If the Defendant is uncertain concerning the meaning or intent of the plan, it should apply to the court for interpretation and clarification.

Dowell, 338 F.Supp. at 1273 (emphasis added).

Nothing in the 1977 order tempered the 1972 mandatory injunction. In fact, the 1977 order states:

The Court has concluded that ... [the Finger Plan] was indeed a Plan that worked and that substantial compliance with the constitutional requirements has been achieved. The School Board, under the oversight of the Court, has operated the Plan properly, and the Court does not foresee that the termination of its jurisdiction will result in the dismantlement of the Plan or any affirmative action by the defendant to undermine the unitary system so slowly and painfully accomplished over the 16 years during which the cause has been pending before the Court.

... The Court believes that the present members and their successors on the Board will now and in the future continue to follow the constitutional desegregation requirements.

Dowell, No. CIV-9452, slip op. at 1 (W.D.Okla. Jan. 18, 1977) (emphasis added).

In light of these statements reinforcing the importance of the remedial injunction and the lack of any specific or implied alteration of that remedy, we must conclude the court intended the 1972 order to retain its vitality and prospective effect. Therefore, the competing interests of both parties must be assessed first within the penumbra of the outstanding 1972 order. To do otherwise renders all of what has occurred since 1961 moot and mocks the painful...