Dowell v. School Board of Oklahoma City Public Schools, Civ. No. 9452.

• Decision Date: 11 July 1963
• Docket Number: Civ. No. 9452.
• Citation: 219 F. Supp. 427
• Court: U.S. District Court — Western District of Oklahoma
• Parties: Robert L. DOWELL, an infant, who sues by A. L. Dowell, his father and next of friend, Plaintiff, v. The SCHOOL BOARD OF the OKLAHOMA CITY PUBLIC SCHOOLS, et al., Defendants.

219 F. Supp. 427

Robert L. DOWELL, an infant, who sues by A. L. Dowell, his father and next of friend, Plaintiff, v. The SCHOOL BOARD OF the OKLAHOMA CITY PUBLIC SCHOOLS, et al., Defendants.

Civ. No. 9452.

United States District Court W. D. Oklahoma.

July 11, 1963.

U. Simpson Tate, Wewoka, Okl., and E. Melvin Porter, Oklahoma City, Okl., for plaintiff. John Green, Oklahoma City, Okl. (now Asst. U. S. Atty.), was originally one of attorneys for plaintiff.

Walter A. Lybrand and Max G. Morgan, Oklahoma City, Okl., for defendants.

BOHANON, District Judge.

The plaintiff, Robert L. Dowell, a Negro minor, brings this action through his father and next of friend, Dr. A. L. Dowell, alleging that they, and the members of the class of persons whom they represent who are similarly situated because of their race and color, are members of the Negro race as defined by Article XIII, Section 3, Constitution of Oklahoma, and Title 70, Oklahoma Statutes, Section 5-2, Oklahoma School Code. That the Board of Education is a body corporate, made so by the laws of Oklahoma, Title 70, O.S. Section 4-5. The jurisdiction of the Court is invoked pursuant to the provisions of Title 28 United States Code Section 1343(3), being a suit in equity authorized by law, Title 42 United States Code Section 1983, and is being brought to redress the deprivation under color of law, statutes, regulations, customs and usages of a state of rights, privileges and immunities secured by the Constitution and the laws of the United States. Further jurisdiction of the Court is invoked by Title 28 United States Code Sections 2281 and 2284, being a civil action for a permanent injunction to enjoin and restrain the enforcement, operation and execution of state statutes by restraining and permanently enjoining the defendants respectively as Superintendent and Assistant Superintendent, Members of the School Board of Oklahoma City, and agents of the State of Oklahoma, from enforcing such statutes and from promulgating or enforcing any order made by them, or any of them, pursuant thereto. The rights sought to be secured by this action are the rights guaranteed by due process and equal protection clause of the 14th Amendment, Section 1, of the United States Constitution and rights protected by the provisions of Title 42 of the United States Code Sections 1981 and 1983, and the plaintiffs have been and are now and are threatened to be denied rights by the state as are enjoyed by white citizens similarly situated. That a statutory three-Judge Court be assembled and that upon the trial hereof the Court issue an order, judgment and decree that will declare the provisions of Section 5, Article I, Constitution of Oklahoma, and statutes requiring segregation, unconstitutional and void. That the defendants, and each of them, be permanently enjoined and restrained from operating and maintaining a dual, biracial system of racially segregated schools, and from promulgating, issuing and enforcing against this minor plaintiff and any member of the class of persons he represents who are similarly situated because of race or color, any rule or regulation that will deny him or them the right to admission to public schools within the defendant school district on the same basis as if they were members of the white race.

To this charge the defendants specifically deny that any act of any defendant toward or in connection with the minor plaintiff or any other pupil has been done on a discriminatory basis of race or color, contrary to the provisions of the Constitution or the laws of the United States, or that the defendants, or either of them, have acted under any unlawful policy, practice, custom or usage of making assignments to schools within defendants' school district or any thing to or in regard to any pupil for the purpose of resorting, instituting or perpetuating the unlawful practice of racial segregation in the schools under the control of the defendants or unlawfully deny any pupil any right because of said pupil's race or color. That the defendants agree that the Oklahoma Constitutional provisions and statutory provisions complained of by the plaintiff are unconstitutional and void and that the defendants have not operated under the provisions thereof, and deny that under the facts and the law the convening of a three-Judge Court as prayed for by the plaintiffs is proper.

Judge A. P. Murrah, Chief Judge of the United States Court of Appeals, Tenth Circuit, on the 11th day of October, 1961, did constitute a three-Judge Court composed of Chief Judge A. P. Murrah, of the Tenth Circuit Court of Appeals, the Honorable Luther Bohanon, and the Honorable Fred Daugherty, Judges of the Eastern, Western and Northern Districts of the State of Oklahoma.

On the 3rd day of April, 1962, the three-Judge Court, duly assembled, did hear testimony and evidence concerning this action. Thereafter, and on the 10th day of July, 1962, the Court entered its Order Dissolving the three-Judge Court, saying:

"The real question posed by the pleadings is the application by the defendant of Section 4-22 of Title 70, Oklahoma Statutes. The plaintiff admits that this section is constitutional on its face but contends that it is unconstitutionally applied. To which the defendant states that all actions taken by them are under the authority of this statute only and that it is not being and has not been unconstitutionally applied. The evidence shows that the plaintiff comes from a dependent school district where there is no high school, into the defendants' school district, and made his election to attend Douglass High School. After attending Douglass High School for one year, he then made application to be transferred from Douglass High School to Northeast High School because a course of study offered at Northeast High School was not available at Douglass High School, and this transfer was permitted on the condition that the plaintiff enroll in the course of study and diligently pursue the same. The evidence failed to show that the above mentioned statute is or was unconstitutionally applied by the defendants."

Saying further:

"It is always the duty of any Court to inquire into its jurisdiction * * and in view of what has been set forth this Court holds that it is without jurisdiction, and is of the opinion that the subject matter of this lawsuit is properly one for determination by one Judge. The case having been originally assigned to Honorable Luther Bohanon, District Judge, it is hereby re-assigned to him for further proceedings, and this three-Judge statutory Court is hereby dissolved."

The records disclose that numerous motions were filed by the parties, hearings and pretrial conferences conducted, and the Court granted other persons the right to intervene, namely, Edwina Houston and Gary Russell, and on the 6th day of March, 1963, a final Pretrial Order was made, wherein the issues to be tried were defined generally as follows:

1. PLAINTIFFS' ISSUES AND CONTENTIONS shall be:

I. That defendants have adopted and are enforcing a student transfer policy that discriminates against plaintiffs and the class of persons that they represent on the basis of their race.

II. That Negro pupils who seek transfers from the Douglass High School to other high schools within the Oklahoma City School District meet and are faced with conditions and limitations that are not met and faced by white pupils within the school district who seek transfers to the same school or schools from the attendance area in which they live.

III. That the plaintiffs Robert L. Dowell and Vivian Dowell, his sister, and Edwina Houston and Gary Russell, were discriminated against unlawfully by having had to meet and face these conditions and limitations, when they sought to transfer from one school to another.

IV. That Negro pupils meet and are faced with a different set of conditions and limitations when they seek to transfer from a school in which their race is in the minority to one where their race is in the majority than they meet and face when they seek to transfer from a school in which their race is in the majority to one where their race is in the minority.

V. That principals, teachers, clerical, administrative, supervisory, custodial and maintenance employees are assigned to buildings and class rooms on the basis of their race and the race of the students that constitute the majority of the student body of the school or schools to which assignments are made.

VI. That the Douglass High School attendance area has been gerrymandered so as to include a disproportionate number of Negro high school pupils, and to include a "feeder" Junior High School and all or most of the elementary schools at which Negro children constitute a racial majority in the attendance area.

2. PATTERNS OF RACIAL DISCRIMINATION as evidence of the practice:

I. Inequities in transfer policy as applied;

II. The number of segregated school buildings with completely racially segregated faculty, staff and student bodies;

III. The number of Negro children attending schools with integrated faculties, staffs and student bodies;

IV. The extent of racial segregation in curricular and extra-curricular activities;

V. The practice of operating racially segregated school busses over the same or substantially the same routes.

VI. That the defendant board of education has no plan for the furtherance of integration or desegregation.

3. DEFENDANTS' ISSUES AND CONTENTIONS SHALL BE:

I. STIPULATION: On Policy —

"It is stipulated and agreed by and between the parties hereto by their respective counsel that it is the policy of the Board of Education of the Oklahoma City Public Schools, Independent School District No. 89, Oklahoma County, Oklahoma, that it is the policy of the said school board to consider, pass upon and to practically always grant the applications of parents for the transfer of their children from schools where the children's race is in the minority to a

...