Dowell v. Board of Education of Oklahoma City Pub. Sch., 191-70

• Decision Date: 29 July 1970
• Docket Number: 541-69,No. 191-70,542-69 and 435-69.,191-70
• Citation: 430 F.2d 865
• Parties: Robert L. DOWELL et al., Plaintiffs-Appellees, v. The BOARD OF EDUCATION OF the OKLAHOMA CITY PUBLIC SCHOOLS et al., Defendants-Appellees, and Rebecca Diane Baker et al., Intervening Plaintiffs-Appellants. Robert L. DOWELL et al., Plaintiffs-Appellees, v. The BOARD OF EDUCATION OF the OKLAHOMA CITY PUBLIC SCHOOLS et al., Defendants-Appellants, Stephen S. Sanger, Jr., et al., Intervening Plaintiffs, Jenny Mott McWilliams et al., Intervening Defendants. Robert L. DOWELL et al., Plaintiffs, v. The BOARD OF EDUCATION OF the OKLAHOMA CITY PUBLIC SCHOOLS et al., Defendants, and Stephen S. Sanger, Jr., et al., Intervening Plaintiffs, Jenny Mott McWilliams et al., Intervening Defendants-Appellants, Roy Hendrickson et al., Intervening Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

430 F.2d 865 (1970)

Robert L. DOWELL et al., Plaintiffs-Appellees, v. The BOARD OF EDUCATION OF the OKLAHOMA CITY PUBLIC SCHOOLS et al., Defendants-Appellees, and Rebecca Diane Baker et al., Intervening Plaintiffs-Appellants.

Robert L. DOWELL et al., Plaintiffs-Appellees, v. The BOARD OF EDUCATION OF the OKLAHOMA CITY PUBLIC SCHOOLS et al., Defendants-Appellants, Stephen S. Sanger, Jr., et al., Intervening Plaintiffs, Jenny Mott McWilliams et al., Intervening Defendants.

Robert L. DOWELL et al., Plaintiffs, v. The BOARD OF EDUCATION OF the OKLAHOMA CITY PUBLIC SCHOOLS et al., Defendants, and Stephen S. Sanger, Jr., et al., Intervening Plaintiffs, Jenny Mott McWilliams et al., Intervening Defendants-Appellants, Roy Hendrickson et al., Intervening Defendants.

Nos. 191-70, 541-69, 542-69 and 435-69.

United States Court of Appeals, Tenth Circuit.

July 29, 1970.

J. Howard Edmondson and Joe Cannon, Oklahoma City, Okl., for appellants Rebecca Diane Baker and others.

J. Harry Johnson, Oklahoma City, Okl., for appellee Bd. of Ed. of Oklahoma City Public Schools and others.

John W. Walker, of Walker, Rotenberry, Kaplan, Lavey & Hollingsworth, Little Rock, Ark. (Archibald Hill, Jr., Oklahoma City, Okl., and Jack Greenberg, James M. Nabrit, III, and Sylvia Drew, New York City, with him on the brief), for appellees Robert L. Dowell and others.

Leslie L. Conner, Oklahoma City, Okl. (Harry Johnson, and James M. Little, Oklahoma City, Okl., with him on brief), for appellants Bd. of Ed. of the Oklahoma City Public Schools and others.

John W. Walker, of Walker, Rotenberry, Kaplan, Lavey & Hollingsworth, Little Rock, Ark., for appellees Robert L. Dowell and others, and Calvin W. Hendrickson, Oklahoma City, Okl. for appellee-intervenor, Stephen S. Sanger, Jr. (Jack Greenberg, James M. Nebrit, III, Norman J. Chachkin, New York City, and Archibald B. Hill, Jr., Oklahoma City, Okl., with them on the brief).

C. Harold Thweatt, Oklahoma City, Okl. (Norman E. Reynolds, George S. Guysi, and George F. Short, Oklahoma City, Okl., with him on the brief), for intervening defendants-appellants Jenny Mott McWilliams and others.

David L. Norman, Deputy Asst. Atty. Gen. (Jerris Leonard, Asst. Atty. Gen., Brian K. Landsberg, David B. Gregory, Joseph B. Scott, Attys., Civil Rights Division, U. S. Dept. of Justice, and Nathan G. Graham, U. S. Atty., with him on the brief), for the United States as amicus curiae.

Before BREITENSTEIN, HILL, and SETH, Circuit Judges.

PER CURIAM.

These appeals represent a continuation of the proceedings seeking to desegregate the Oklahoma City schools. This opinion considers principally the appeal in Case No. 191-70, which concerns a proposed system-wide desegregation plan for the junior and senior high schools which was approved by the trial court.

There are also several other appeals pending before this court which concern portions of previous plans of limited application to the same schools. These are also decided by this opinion.

The conditions which existed at the commencement of this litigation in the Oklahoma City schools as related to segregation are described in the trial court's opinions in Dowell v. School Board of Oklahoma City Public Schools, D.C., 219 F.Supp. 427, and in 244 F. Supp. 971. The basic principles to be applied are described in our opinion in Board of Education of Oklahoma City Public Schools v. Dowell, 375 F.2d 158 (10th Cir.), wherein we stated:

"Because of the refusal of the board to take prompt substantial and affirmative action after the entering of the court\'s decree, without further action by the court the aggrieved plaintiffs, even with a favorable decree from the court, were helpless in their efforts to protect their court-pronounced Constitutional rights. Under these circumstances it was the duty of the trial court to take appropriate action to the end that its equitable decree be made effective."

The Supreme Court in its per curiam opinion handed down in Dowell v. Board of Education, 396 U.S. 269, 90 S.Ct. 415, 24 L.Ed.2d 414, assumed or held, in granting immediate relief, that the Oklahoma City school system was unconstitutionally segregated. The Court there said: "The burden on a school board is to desegregate an unconstitutional dual system at once."

Appeal in No. 191-70:

The Board of Education of the Oklahoma City Public Schools presented what is described as a comprehensive plan for the desegregation of the junior and senior high schools to be effective for the 1970-1971 school year. This is referred to as the "Cluster Plan." This Plan, by reason of its system-wide scope and the nature of the changes suggested, is designed to meet the conditions in changing neighborhoods which previous fragmented proposals were designed to meet, and to so provide relief under the great variety of conditions that exist in the Oklahoma City school system.

The Cluster Plan is an innovation both as a method for desegregation and as to educational techniques. In the Plan itself as proposed by the School Board appears the following partial statement of its aims and structure:

"The basic plan combines elements of many different concepts: the neighborhood schools, the specialized centers, the educational park, and modular scheduling; in addition, it provides for maximum utilization of both facilities and personnel.

"Under this plan, each secondary school will serve in a dual capacity. It will be a home-base school for students within its attendance area and will serve as a specialized center for a specified curricular area. For example, one school could serve as a Social Studies Center, another as a Science Center, another as a Math Center. Each school, in its role as home-base, will offer some elective courses and such activities as physical education, athletics, and music to its resident students; in its role as a specialized Center, it will offer a full range of courses in that curriculum area to students from several attendance areas, including its own.

"To minimize the problems of access and transportation, the high schools will be divided into two clusters. Cluster A will comprise Capitol Hill, Douglass, Grant, and Southeast High Schools; Cluster B, Classen, Marshall, Northeast, Northwest Classen, Dunjee, and Star-Spencer. Within each cluster, individual schools will serve as home-base schools for students in their own attendance areas and as specialized schools for students from all schools within that cluster. The two exceptions will be Dunjee and Star-Spencer which, because of their removed location, will serve only as home-base schools. This division into two clusters simplifies the logistics of the arrangement and also offers a health balance in each cluster of racial, cultural, and economic groups.

* * * * * *

"Students will spend varying amounts of time each week in each of the Centers, though not less than half the school day at any one Center. The exact amount will be determined on the basis of each student\'s needs and requirements. Modular scheduling, a tested and accepted means for meeting individual needs through class periods of varying lengths and different methodologies, will add an extra dimension of flexibility. The student whose primary area of interest is the same as that of his home-base school\'s specialization will spend the major portion of his time there; others may spend only a limited period each day at the home-base, the rest at various other Centers."

The Plan continues with the Board's description of the substantial improvements in the general educational process for all schools which can result from the operation of the Plan. As to desegregation, the Board in the Plan says: "The general structure of this plan will ensure a positive and constructive desegregation, regardless of the wide variation in individual scheduling."

The plaintiffs Dowell et al. did not appeal from the trial court's approval of the Board's Plan. In this appeal they have not endorsed the Plan but as appellees urge that it should be tried. The attack on the Plan is instead presented by a group of intervenors, the Baker group, who sought intervention at a relatively late stage in the desegregation proceedings.

The challenge of the Plan in the trial court and as made by the appellants in this court does not persuade us that it departs from the mandate of the Supreme Court in Green v. New Kent County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716; Monroe v. Board of Commissioners, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733; Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19, and United States v. Montgomery County Board of Education, 395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263, or in the earlier decisions of the Court. It would serve no useful purpose to here again discuss these authorities or the history of the issues all of which are elsewhere fully considered and described. It is instead sufficient to hold that the proposed Plan of the Board of Education of the Oklahoma City Public Schools, filed on November 6, 1969, and supplemented on January 12, 1970, conforms to the requirements laid down by the Supreme Court.

It is of course apparent that the real and ultimate issue in any case such as this is the actual effectiveness of the plan proposed. This is difficult to predict in this instance since the Plan here presented is a virtually untried method and one departing widely from customary school attendance and scheduling practices. However, the record before us demonstrates that as the Plan is proposed in general terms it is an acceptable one for the effective and immediate desegregation of the junior and senior high schools. As a method or device for desegregation, the approval of the Plan by the trial court was well within its jurisdiction and discretion.

The group of individuals, appellants herein,...