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

Decision Date06 October 1989
Docket NumberNo. 89,O,No. 88-1067,89,88-1067
Citation890 F.2d 1483
Parties57 Ed. Law Rep. 685 Robert L. DOWELL, an infant under the age of 14 years of age, 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, 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, who 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, and Cindy Hendrickson, a minor, who sue by Donna P. Hendrickson, as mother and next friend of each of said minors; and Donna P. Hendrickson, Individually, and 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; and Mrs. A.J. Danzie, for themselves and all others similarly situated, Intervenors.
CourtU.S. Court of Appeals — Tenth Circuit

Norman J. Chachkin (Julius L. Chambers and Janell M. Byrd, New York City, Lewis Barber, Jr. of Barber and Traviolia, Oklahoma City, Okl., and John W. Walker and Lazar M. Palnick of John W. Walker, P.A., Little Rock, Ark., with him on the briefs), New York City, for appellants.

Ronald L. Day of Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, Okl., for appellees.

Wm. Bradford Reynolds, Asst. Atty. Gen., David K. Flynn and Mark L. Gross, Dept. of Justice, on the briefs for the U.S. as amicus curiae.

Before SEYMOUR, MOORE and BALDOCK, Circuit Judges.

MOORE, Circuit Judge.

Since its genesis, this litigation has sought to eradicate the effects of an official policy of racial segregation in the public schools of Oklahoma City, Oklahoma, and assure that each child enrolled in an Oklahoma City school enjoys the same right to a public education. We are now at a crossroad in the substantive and procedural life of this case and must decide whether, after our last remand, the district court followed the correct path, terminating its prior decree and finding a new student assignment plan implemented under that decree constitutional. Dowell v. Board of Educ. of Okla. City Pub. Schools, 677 F.Supp. 1503 (W.D.Okla.1987). We approach this case not so much as one dealing with desegregation, but as one dealing with the proper application of the federal law on injunctive remedies. We believe that the law in this area is unambiguous, and simply because the roots of the matter lie in school desegregation, there is no reason to depart from the longstanding principles which form the structure of that law. Upon our review, we conclude the trial court did not follow the proper path and reverse the judgment dissolving the 1972 injunctive decree. We remand the case for modification of the decree consistent with this order.

I. Background

We have previously summarized the history of this case, Dowell v. Board of Educ. of Okla. City, 795 F.2d 1516, 1517, n. 1 (10th Cir.), cert. denied, 479 U.S. 938, 107 S.Ct. 420, 93 L.Ed.2d 370 (1986), tracing its metamorphosis from filing in 1961 to the generation of an equitable remedy in 1972. Dowell v. Board of Educ. of Okla. City Pub. Schools, 338 F.Supp. 1256 (W.D.Okla.1972). In 1986, when last before us, plaintiffs urged review of the district court's refusal to reopen the case to consider their petition for enforcement of the court's prior injunctive decree. The motion to reopen was triggered by the implementation of a new student assignment plan in 1984.

Until that time, defendants, the Board of Education of the Oklahoma City Public Schools, school officials, and individual board members, (the Board or defendants) operated the Oklahoma City School District (the District) under the Finger Plan, a court ordered desegregation plan prepared by Dr. John A. Finger, Jr., a Professor of Education at Rhode Island College and authority on issues of school desegregation. 1 Under the Finger Plan, attendance zones were redesigned so that high schools and middle schools enrolled black and white students. Black elementary students in grades 1 through 4 were bused to previously all white elementary schools while majority black elementary schools were converted into 5th-year centers with enhanced curricula. Black fifth graders then attended the 5th-year center in their neighborhood, while white fifth graders were bused for the first time into black neighborhoods to attend class. Excepted from the Finger Plan were certain schools enrolling grades K-5, which were designated "stand alone." These schools were located in neighborhoods that were racially balanced. Kindergarten children attended their neighborhood elementary school unless their parents chose to send them to another school to join a sibling or be closer to the parent's workplace. Aside from minor alterations necessitated, for example, by a school's closing, the Board maintained the District under the Finger Plan's basic techniques of pairing, clustering, and compulsory busing, even after the district court declared the District unitary and terminated the case. Dowell v. School Bd. of Okla. City Pub. Schools, No. CIV-9452, slip op. (W.D.Okla. Jan. 18, 1977).

Seven years later, the Board adopted a new student assignment plan, the Student Reassignment Plan, (the Plan), which was implemented for the 1984-85 school year. The Plan eliminated compulsory busing in grades 1 through 4 and reassigned elementary students to their neighborhood schools. A "majority to minority" transfer option (M & M) was retained to permit elementary students assigned to a school in which they were in the majority race to transfer to one in which the student would be in the minority. Fifth-year centers would remain throughout the District and, like the middle schools and high schools, would continue to maintain racial balance through busing. The Plan created the position of an "equity officer" assisted by an equity committee to monitor all schools to insure the equality of facilities, equipment, supplies, books, and instructors. Dowell v. Board of Educ. of Okla. City Pub. Schools, 606 F.Supp. 1548, 1552 (W.D.Okla.1985). The Plan professed to maintain integrated teaching staffs in line with the District's affirmative action goal. As a consequence of the Plan, eleven of the District's sixty-four elementary schools enrolled 90%+ black children. Twenty-one elementary schools 2 became 90%+ white and non-black minorities. 3 Thirty-two elementary schools remained racially mixed.

In February 1985, plaintiffs filed a motion to intervene and reopen the case claiming the Board unilaterally abandoned the Finger Plan. Although the record indicated the subsequent hearing was limited to "the question of whether this case shall be reopened and the applicants allowed to intervene shall be tried and disposed of," Dowell, 795 F.2d at 1523 (emphasis omitted), the district court received evidence on the constitutionality of the Plan and disposed of all of the substantive issues defendants raised. The district court concluded the Plan was constitutional and found no special circumstances justifying relief under Fed.R.Civ.P. 60(b) to support reopening. Dowell, 606 F.Supp. at 1557.

We reversed, holding the court abused its discretion in failing to reopen the case and prematurely reached the merits of the Plan's constitutionality without permitting plaintiffs the opportunity to support their petition for enforcement of the mandatory injunction which the court had never dissolved or modified. Dowell, 795 F.2d at 1523. Key to our disposition was the reassertion of the parties' burden of proof under Fed.R.Civ.P. 60(b). 4 We stated that on remand, the plaintiffs, beneficiaries of the original injunction, only have the burden of showing the court's mandatory order has been violated. "The defendants, who essentially claim that the injunction should be amended to accommodate neighborhood elementary schools, must present evidence that changed conditions require modification or that the facts or law no longer require the enforcement of the [1972] order." Id. (citation omitted) (emphasis added). Nothing in this disposition touched on the underlying constitutional issues. "[O]ur holding should not be construed as addressing, even implicitly, the ultimate issue of the constitutionality of the defendants' new school attendance plan." Id. at 1523. Remand was confined to a determination of "whether the original mandatory order will be enforced or whether and to what extent it should be modified." Id. 5

During the eight-day hearing on these remand instructions, defendants 6 introduced a golconda of testimony and exhibits to establish their position that substantial demographic changes in the District rendered the Finger Plan inequitable and oppressive. The inequity, the Board maintained, surfaced primarily in the burgeoning number of schools that qualified for stand-alone status, thus necessitating that black children...

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