Dowell v. BOARD OF EDUCATION OF OKLAHOMA CITY PUB. SCH.

• Decision Date: 04 December 1972
• Citation: 465 F.2d 1012
• Parties: Robert L. DOWELL, etc., et al., Plaintiffs-Appellees, v. The BOARD OF EDUCATION OF THE OKLAHOMA CITY PUBLIC SCHOOLS, etc., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

465 F.2d 1012 (1972)

Robert L. DOWELL, etc., et al., Plaintiffs-Appellees, v. The BOARD OF EDUCATION OF THE OKLAHOMA CITY PUBLIC SCHOOLS, etc., et al., Defendants-Appellants.

United States Court of Appeals, Tenth Circuit.

August 4, 1972.

Certiorari Denied December 4, 1972.

J. Harry Johnson, Oklahoma City, Okl., for defendants-appellants.

John W. Walker, of Walker, Kaplan & Mays, P. A., Little Rock, Ark. (Archibald B. Hill, Oklahoma City, Okl., and Jack Greenberg, James M. Nabrit III, and R. Sylvia Drew, New York City, with him on the brief), for plaintiffs-appellees.

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

Certiorari Denied December 4, 1972. See 93 S.Ct. 526.

PER CURIAM.

Approximately ten years ago, proceedings were commenced to desegregate the public schools in Oklahoma City. The schools were then found to be operated as a dual school system remaining after the abolition of the Oklahoma law requiring such a system. The cases which have been decided during the intervening years include Dowell v. School Board of Oklahoma City Public Schools, D.C., 219 F.Supp. 427; Dowell v. School Board etc., D.C., 244 F.Supp. 971; Dowell v. Board of Education etc., D.C., 307 F.Supp. 583; Board of Education of Oklahoma City Public Schools etc. v. Dowell, 10 Cir., 375 F.2d 158; Dowell v. Board of Education etc., 10 Cir., 430 F.2d 865; Dowell v. Board of Education, No. 71-1456, Tenth Circuit, August 30, 1971 (unpublished order).

In the last proceedings concerning the Oklahoma City public schools in this court, we ordered that the trial court hold hearings to determine the effectiveness of the plans which had theretofore been approved for the junior and senior high schools, and also to consider the effectiveness of a plan for the elementary schools. The trial court was directed to make whatever modifications that appeared necessary or to adopt additional plans to accomplish the desegregation of the Oklahoma City public schools.

The trial court held extensive hearings on the indicated subjects and found that the Cluster Plan which had theretofore been approved by the trial court and by this court was totally ineffective as it had been administered by the school board, 338 F.Supp. 1256. The trial court adopted a new plan for the desegregation of the junior and senior high schools and elementary schools, and ordered it put into effect. The school board has taken this appeal from the trial court's order.

The positions taken by the parties in the trial court were briefly as follows: The school board asserted that the Cluster Plan, as it was being administered, was effective and also sufficient to meet the constitutional requirements. The board refused to come forth with any substantially different plans or with any substantial modifications of the Cluster Plan. In short, the school board stood on the plan that was then in effect as to the junior and senior high schools, and a plan for the elementary schools which provided for some part-time interchange of students. The school board also recommended a consultant to study the desegregation problem in the Oklahoma City schools and to make a report for the consideration of the court. This expert was appointed by the court, together with an additional consultant also recommended by the school board. These experts presented their report. This report was opposed by the school board. The plan was considered by the court together with other suggestions.

The plaintiffs presented to the trial court a detailed plan for desegregation which had been prepared by a consultant engaged by them, Dr. John A. Finger. This plan was ultimately approved by the court and incorporated in its order for desegregation. The plan became known as the Finger Plan.

The court in its memorandum carefully considered and evaluated the effectiveness of the Cluster Plan theretofore in effect and indicated that in its opinion the school board had made unauthorized changes in the plan and had administered it in a way which rendered it ineffective and had changes it to be a freedom of choice plan. The court found in regard to the senior high schools: "It does not work and will not work to desegregate the schools." As to the junior high schools the court said of the plan: "The School Board has no other plan to integrate the junior high schools and it is clear that the present plan will not change the racial identity of a single school." As to the elementary schools, the plan before the court was one put into operation by the school board and which had not theretofore been considered by the court. Of this plan the court said:

"It cannot even be described as a good-faith gesture toward constitutional requirements. The `experiences\' no doubt are enjoyed by the children and may perhaps be worthwhile, but the dual system of the School District remains unaffected. The constitutional mandate is not for integrated `experiences,\' but for a desegregated school system."

The trial court in its consideration of the Consultants' Plan found that it had been rejected vigorously by the school board, and said: "The Consultants Plan now stands without a sponsor denounced by friend and foe alike." The court then continued and accepted the school board's objections to the difficulties in administering the plan and found it to be "neither feasible nor workable."

The court then considered the plan proposed by the plaintiffs' consultant, Dr. Finger, considered the objections of the board, and found the plan to be a...