Board of Ed. of Oklahoma City v. Dowell - Oral Argument

Argument of Ronald L. Day

Chief Justice Rehnquist: We'll hear argument first this morning in Number 89-1080, the Board of Education of Oklahoma City Public Schools v. Robert L. Dowell.

Mr. Day.

Mr. Day: Mr. Chief Justice, and may it please the Court:

This case involves a formerly de jure school system which eliminated unlawful discrimination through sustained good faith compliance with the compulsory desegregation decree and then 8 years subsequent to the achievement of unitary status was persuaded by intervening demographic forces and legitimate educational considerations to curtail compulsory busing in grades 1 through 4 only and reassign those pupils to their neighborhood schools.

Because there are neighborhoods in Oklahoma City which are not integrated, 11 of 64 elementary schools at that time became predominantly black.

The respondents challenged the racial disproportionate impact of the plan, and this chapter of the litigation was opened.

This case presents what is perhaps the most important unresolved question in the area of desegregation; that is, what is the effect of a binding declaration that a formerly de jure school system has achieved unitary status.

Unknown Speaker: Mr. Day, how do you define unitary status?

Mr. Day: I define unitary status, Justice Blackmun, as the Court did, the unanimous Court in Swann and Spangler; that is, it's a school district that has dismantled the dual school system and eliminated unlawful discrimination, including the vestiges of unlawful discrimination, to the extent practical.

Unknown Speaker: Do you think that's what the Court meant when it used that term?

Mr. Day: Yes, sir, I do.

Unknown Speaker: No question about it?

Mr. Day: No question about it, because the '77 record demonstrates, Justice Blackmun, that respondents' attorney or plaintiffs' attorney took the position at that time that jurisdiction could not be relinquished until all the vestiges of discrimination had been eliminated, and of course, the district court did relinquish jurisdiction.

Unknown Speaker: Mr. Day, did the district court in 1977 assume that the plan would remain in effect in making its unitariness binding?

Mr. Day: I believe in 1977 Judge Bohanon did comment that he did not foresee that his order would result in the dismantlement of the plan.

However, I do not believe that that was an order which had the effect of compelling the board to continue to follow the plan.

For example--

Unknown Speaker: Well, do you think that a school district reaches that unitary status as soon as the desegregation plan is in effect?

Mr. Day: --No.

No, Justice O'Connor.

Although a... the implementation of a plan will create a race-neutral method of student assignment, Green clearly indicates that there must be a period of good faith and sustained compliance, and I do believe that's necessary.

In Oklahoma City we had 13 years of that.

Unknown Speaker: Well, do you think that in 1978, for example, in this case that the school distinct would have been free to reintroduce neighborhood schools?

Mr. Day: Yes.

It is our position that the finding of unitarian--

Unknown Speaker: As of that time?

Mr. Day: --Yes.

Unknown Speaker: And the result apparently would be to, in many of the schools, return it to the conditions that existed when the lawsuit began so many years ago; is that right?

Mr. Day: No, I believe that's incorrect, Justice O'Connor.

First of all, the unitary finding represents that the dual school system has been dismantled and that the vestiges of elimination have been eliminated.

I would point out that in 1985 Judge Bohanon expressed no surprise when the board did change the plan, and that his intent is reflected through that order.

I would also point out that when this case was filed in 1961 we had a true dual system, and all six of the Green factors were discriminatory in Oklahoma City.

Presently, the only similarity is the composition of the student body, and this Court has repeatedly stated that the Constitution does not guarantee any particular degree of racial balance or mixing.

Unknown Speaker: I take it that part of the definition of a unitary system is a plan that's operated over some period of time in the unitary status, is it not?

It's not something that's either achieved or not achieved at one particular moment that we can--

Mr. Day: That is correct, Justice.

Unknown Speaker: --And does that mean that perceptions are important, perceptions of the community, perception of the students?

Mr. Day: Yes, it does.

In--

Unknown Speaker: So this case is in part about perceptions?

Mr. Day: --Yes, it is.

In Keys the Court stated that the attitudes of administrators and members of the community are relevant in determining if segregation has been eliminated, so that's precisely correct.

Unknown Speaker: Mr. Day, may I ask you... I'm sorry, did I... may I ask you a question about... that always puzzled me about this case?

As I understand it, at the time the district judge made the finding of unitariness, he did not vacate the outstanding decree?

Mr. Day: That is correct.

Unknown Speaker: Was the school board, therefore, still bound by the decree?

Mr. Day: It is our position that they were not.

Unknown Speaker: That he in effect vacated the decree?

Mr. Day: That that was his intent, yes, Justice Stevens.

We--

Unknown Speaker: Well, but if the decree had remained in effect, it is clear, is it not, that the return to neighborhood schools for the younger children was a violation of the decree?

Mr. Day: --Yes, that would be correct.

However, I would hasten to point out that on an evidentiary hearing, there could be circumstances where that decree could be modified--

Unknown Speaker: I understand, and it had a provision in it to go in and ask for a modification.

But it also said in so many words, as I understand it, that you will not deviate from whatever the name of the plan was without the prior approval of the court?

Mr. Day: --Yes.

Unknown Speaker: So that one of the questions, I guess, is whether the decree was still in effect?

Mr. Day: Well, we do not believe it was.

First, I believe that language was intended to apply to the board during the remedial phase of the case when unitary status was being achieved.

Unknown Speaker: Well, it doesn't say that, though.

It just says it does not have a termination point within the terms of the decree itself.

Mr. Day: That's correct.

May I also state that our position is based on the rationale adopted by the Fourth Circuit in RIddick and the Fifth Circuit in Overton.

In each of those cases, unitary status, coupled with court disengagement, was found sufficient to return total control to the board, and in neither of those cases did the district court dissolve the decree.

Those jurisdictions believed that the achievement of unitary status coupled with court disengagement has the effect of rendering the decree inoperable, and that is the... that is the understanding of the Oklahoma City Board when they implemented this plan.

It was also the understanding of Judge Bohanon at that time.

Unknown Speaker: Do you know why he didn't go ahead and vacate the decree when he made the finding?

Mr. Day: I don't believe he thought it was necessary.

In a subsequent opinion, he did state that in both 1985 and 1987 that when he found the district unitary in 1977 he certainly intended to return full control to the board of education at that time.

There was no question about that, and he certainly intended to say that this district was, indeed, a true unitary district which had dismantled the dual system and eliminated the vestiges of discrimination.

Unknown Speaker: But does the fact that the schools became identifiably... or would become identifiably black in some neighborhoods under the student reassignment plan... does that mean that the Finger Plan didn't work?

Mr. Day: No.

Your question, Justice Kennedy, is the fact that there are certain neighborhoods that are not integrated, does that mean the Finger Plan didn't work?

Unknown Speaker: Yes.

Mr. Day: No, I don't think so.

The fact that certain neighborhoods in Oklahoma City are not integrated is as a result of a phenomenon over which this board of education, and no board of education, has control.

We're speaking of a condition of residential segregation.

Unknown Speaker: Well, there was a finding in an earller decree, wasn't there, that residential segregation was in part caused by the de jure violation?

Mr. Day: I don't believe that is correct, Justice Kennedy.

What Judge Bohanon did find was that when the neighborhood school policy was superimposed over nonintegrated neighborhoods, coupled with the illegal minority-to-majority transfer policy, that this had the effect in some cases of creating schools which were segregated, not neighborhoods.

In fact, Judge Bohanon, in 1970, in an opinion, clearly stated that the Oklahoma City Board of Education had done nothing to cause or contribute to residential segregation in Oklahoma City.

The issue presented by this case is perhaps the most important unresolved question in the area of desegregation law.

That is, what is the effect of a binding declaration that a formerly de jure school system has achieved unitary status?

According to respondents, it means very little, if anything, for in their view a unitary school district is obligated to continue to labor under the governance of a desegregation decree and maintain racial balance until all the neighborhoods in a community are unitary.

Based on fundamental principles previously announced by this Court in the desegregation context, we believe that unitarianist must mean that the constitutional violation has been eliminated, and therefore control over the schools should be returned to the board of education.

We believe that it means the desegregation decree should be lifted, and at that time the school board should be returned to the same status as any other school board, thereby being governed by traditional equal protection principles.

Now, the unitarianist finding in Oklahoma City came 16 years after this suit was filed.

Although the case was filed in 1961, and the school board first used busing as an aid to integration in 1965, it was not until 1 year after Swann that a comprehensive plan was implemented.

In 1972, Judge Bohanon ordered the school board to implement the Finger Plan, which employed the techniques of pairing, clustering, and massive cross-town busing to integrate all the schools in Oklahoma City.

The board of education appealed that order, and the circuit affirmed.

Thus, under the rationale of Spangler, it became the law of this case that the Finger Plan constituted a race-neutral and constitutional method of pupil assignment.

In 1977, Judge Bohanon, pursuant to a motion by the board, entered his order terminating the case.

That order did find that the school district had achieved unitariness after 16 years and terminated all further jurisdiction in the case.

Unknown Speaker: May I question the... I'm sorry.

You mentioned the timing going back to '61, but is it not true that in '72, when he imposed the plan, he found that up until that date the board had been recalcitrant and deliberately refused to carry out the mandate of desegregation, so isn't the relevant period from 1972 to 1977?

Maybe that's enough.

But isn't that--

Mr. Day: Justice Stevens, you're exactly correct.

He did find that during the 1960's he was dealing with a recalcitrant board.

That's not to say, however, that the board did not make some accomplishments towards dismantling the dual system.

Unknown Speaker: --But they were totally unpersuasive to him, as of 1972?

Mr. Day: That's right, but the prior opinions in the case demonstrate that, for example, there was integration in sporting activities, extracurricular activities.

Unknown Speaker: Right.

Mr. Day: In other words, that some of the Green factors were being impacted prior to '72.

But I would agree with you that it wasn't until 1972 that a comprehensive plan was implemented to dismantle the dual system.

After the school board was found unitary in 1977, it elected to voluntarily continue to follow the plan, and it did that for 8 more years until a committee study revealed that demographic changes had rendered the plan inequitable at the elementary level.

It was at that time that the board decided to implement the neighborhood school plan for grades 1 through 4 only.

It does, to this day, continue to bus students in grades 5 through 12.

Judge Bohanon, who by the way has lived with this case since its inception, found that this plan was adopted by the board for legitimate, nondiscriminatory purposes.

First, to reduce the busing burdens on young black children on Oklahoma City.

Second, to stop the threat of school closures in the black community.

Third, to increase the level of parental and community involvement in the public schools, which had been lacking.

And finally, to give these youngsters more time to participate in extracurricular activities.

Now, Judge Bohanon acknowledged that in the 1960's, as you pointed out, Justice Stevens, this board was recalcitrant, and he butted heads with the board.

But in his recent decisions he has clearly pointed out that the present board of education, and the board that was in power when his plan was implemented, was a totally different board with totally different attitudes.

His findings must be given due deference.

He's lived with this case since 1961.

He is most familiar with the on-the-spot conditions in this case, and his findings, on this record, must be given due consideration.

I would also point out that Judge Bohanon noted that in Oklahoma City the manner in which pupils are assigned to schools is no longer determined by race.

Rather, it's determined on the race-neutral method of where the children live, and Judge Bohanon felt that it was very important that this school board had implemented a transfer policy... it's called a majority-to-minority transfer policy... which allowed any student in a school which was racially identifiable to transfer to a school which was more integrated, and the School District picks up the cost of transportation in those circumstances.

So today, in Oklahoma City, no child is compelled to attend school by virtue of race, and the important thing today is that parents of all races have a choice.

Judge Bohanon also found that the school board had maintained its unitary status from 1977 to date.

In this case, we had three findings of unitariness: one in 1977, one in 1985, and another in 1987, all made by Judge Bohanon based on the circumstances in Oklahoma City.

Unknown Speaker: Mr. Day, do you understand that unitarianist means both that there no continuing discrimination and that the vestiges of past discrimination have been eliminated?

Mr. Day: Yes.

To the--

Unknown Speaker: Or is it rather that unitarianist means you are now running a system in which there is no discrimination, but there may or may not be the vestiges of past discrimination?

Mr. Day: --It is our position, Justice Scalia, that once unitary status is achieved, it signifies that unlawful discrimination has been eliminated and the vestiges have been eliminated to the extent practical.

That was the standard set forth in the Alexander case.

We also believe that, since the remedy must be related to the constitutional violation, that a district court is obligated in the first instance, when it formulates the decree, to identify the vestiges so they may be eradicated.

Unknown Speaker: How is the school board injured by being required to continue to operate the schools in conformity to the United States Constitution?

Mr. Day: The question was how was the board injured?

Justice Marshall, we don't... we believe that if this plan remained in effect--

Unknown Speaker: xxx the Constitution, do you?

Mr. Day: --With all due respect, Justice Marshall, they do intend and do comply with the Constitution.

They made this change, and I think this is a very--

Unknown Speaker: Well, how are they harmed by it?

Mr. Day: --Well, they weren't harmed so much, but the young black students were.

You see--

Unknown Speaker: Well, are they a party to this suit?

Mr. Day: --Yes.

They made this--

Unknown Speaker: Are they are party to this suit?

Mr. Day: --The young black children?

Unknown Speaker: Yes.

Mr. Day: Yes, sir, they are.

They are the plaintiffs and respondents.

Unknown Speaker: Yes.

Well, I'm talking about the school board.

The school board is required to follow the Constitution--

Mr. Day: Yes, sir.

Unknown Speaker: --And that's all they're required to do.

Mr. Day: Yes, sir.

Unknown Speaker: And they object to that?

Mr. Day: No, sir.

Unknown Speaker: Well, what is--

Mr. Day: They believe that because in 1977 there were increased busing burdens on young minority children, that a change was necessary.

They would still be busing in grades 1 through 4 today if that plan had not become oppressive at that level.

All parties in this--

Unknown Speaker: --What assurance do I have that the school board will continue to operate pursuant to this order?

Mr. Day: --You have the assurance of the Equal Protection Clause of the Fourteenth Amendment and traditional--

Unknown Speaker: Well, that's what--

Mr. Day: --Traditional--

Unknown Speaker: --That's what the order says, but if you take the order away, what assurance do I have that the school board will continue to follow the Constitution?

Mr. Day: --Well, when they achieve unitary status, they are governed by traditional equal protection principles.

In other words, they may not take any action which is taken with intent to discriminate on the basis of race, and if they do, the Fourteenth Amendment authorizes Federal courts to again receive jurisdiction and remedy that violation.

Unknown Speaker: You'll have to file a new lawsuit.

Mr. Day: Yes, sir.

Thank you.

Unknown Speaker: General Starr.

Argument of Kenneth W. Starr

Mr. Starr: Mr. Chief Justice, and may it please the Court:

Over a generation ago this Court handed down its landmark decisions in Brown v. Board of Education.

In its second decision in that case, the Court made clear that the Federal courts are duty bound to employ their broad, remedial powers to vindicate the rights of school children guaranteed by the equal protection clause.

Now 35 years after Brown II, literally hundreds of school districts across the country continue to operate under Federal court decrees, many of which were entered in the late 1960's and the early 1970's.

Indeed, the United States is a party to almost 500 such cases across the Nation.

Throughout this long process of desegregation, this Court and the lower Federal courts have proceeded on the basis of an assumption.

The assumption is that Federal judicial power terminates when it has achieved its purpose, and that purpose is when a previously unconstitutional dual system has been dismantled.

That assumption, we believe, is sound.

It was an assumption expressly contemplated in Brown II itself, where the Court spoke of the process of federal court supervision being a transitional one.

And this much seems to us clear, notwithstanding the court of appeals' view to the contrary.

But the court of appeals' error, with all respect, which seems clear enough, should not obscure the real difficulty that is confronting the lower courts in these cases; and that is, as the questions this morning have suggested, when has a unitary system been achieved?

That threshold question is one that we believe deserves to be answered for the benefit of those hundreds of school districts and for the guidance of the courts of appeals and United States district courts.

In our view, this Court's decision over 20 years ago in Green v. County School Board points the way most clearly.

There, the Court, speaking through Justice Brennan, looked to the six components of a school system ranging from student assignment and faculty hiring and staff hiring to physical facilities, extracurricular activities, and transportation to see whether racial discrimination has been eradicated root and branch from the system.

How does a system come into compliance with the Green factors?

In our view, the principal way is by the good-faith compliance with a desegregation plan that has after all been put in place for the very purpose of achieving unitariness, of effecting a dismantling of the dual system.

Unknown Speaker: Well, General Starr, how does a school district eliminate the last vestiges of discrimination when residential segregation remains a reality and when at some point in the past the segregated schools may have contributed to that residential segregation?

How do you deal with that?

It seems to me that may be the crux of the problem.

Mr. Starr: Justice O'Connor, I think Green itself suggests that factors such as residential segregation cannot in any meaningful sense be considered a vestige once... once there has been good-faith compliance with a desegregation plan.

We look to the components of the school system over which a school board and school authorities have control.

For obvious reasons, as this Court has noted in Swann, as it noted more emphatically in Spangler, the school board has no realistic control over where people determine to live.

Unknown Speaker: Does that mean the vestige can never be eliminated or that it's not a vestige?

Mr. Starr: I believe the latter.

I believe that once there has been a desegregation plan that has been operating on the short side for 3 years... the Fifth Circuit's decision in the Youngblood case suggests that as a minimum... once that has been in effect for a substantial period of time, then, yes, I think that the board has done all that it realistically can as long as it does not violate the Constitution by any action outside the plan that might in fact contribute.

Unknown Speaker: Mr. Starr, what did the busing in the period 1972-1988 accomplish?

Mr. Starr: It certainly accomplished the dismantling of a school assignment or student assignment plan that was infected with invidious racial discrimination.

It took down, in effect, the signs over school doors that labeled schools on racial grounds.

It also, by virtue of other factors as well, contributed to what the district judge found to be very substantial residential integration.

But there are--

Unknown Speaker: And yet, we have 11 schools that will become black again, and they're the same schools that were black before.

So it would seem to me either that busing didn't work at all or that it has to continue.

Mr. Starr: --Well, I think it worked in the sense of dismantlement.

That is to say, it took the official sanction of the State's imprimatur away from that school, and there are now assignments on the basis of residence and not race, and coupled... and I think this is important, this Court emphasized its importance in Swann... with a majority-to-minority transfer program which assures that any school child in Oklahoma City can attend another school.

No one is assigned on grounds of race.

And I think ultimately the difficulty with, if I may say so, undue emphasis upon the numbers is that, first of all, it goes beyond, quite beyond, what Swann itself contemplated.

It contemplated numbers as a starting point in fashioning a desegregation plan, not at the end of the process.

That starting point in Oklahoma City was 18 years ago.

Counting by race is something that is a very serious act for this State to do, and it should not, in fact, do that once a desegregation plan has been in effect and has, in fact, been efficacious.

Unknown Speaker: Of course, it's still doing that here, isn't it?

One of the... one of the remedies that the school board has continued to apply is the majority transfer program.

That is to say, if you happen to be of the race that is in the majority in a particular school, you can transfer to a school in which your race is not in the majority.

Mr. Starr: That is true.

Unknown Speaker: Is that... is that unlawful, in your view?

Mr. Starr: It is not.

Unknown Speaker: Well, then what you just said is wrong.

Mr. Starr: No, I don't think so, with all due respect.

I think what this Court was emphasizing in Swann is the importance of, in fact, dismantling schools that have been racially identifiable not by virtue of demographics but by virtue of State action, State action assigning school children by virtue of their race.

With respect to majority-to-minority transfer provisions, that is a decision that parents make on their--

Unknown Speaker: General... General Starr, do I understand you correctly that in Oklahoma City the dismantling was done by putting it on residence rather than race but the poor Afro-American kids were still in the same school?

Mr. Starr: --Justice Marshall--

Unknown Speaker: The dismantling was in changing the reason?

Is that your position?

Mr. Starr: --It's not, and if I failed to be clear I do want to be clear on this point.

It's fundamental.

The dismantling occurred by virtue of the substantial good-faith compliance with a desegregation plan that was fashioned in response to this Court's mandate in Green to fashion a plan that will work and will work now, and that--

Unknown Speaker: Does school stay the same?

Does it still stay a Negro school?

Mr. Starr: --Not by virtue of State action.

Unknown Speaker: But does it still remain a segregated school?

Mr. Starr: By virtue of residential segregation, it does.

Unknown Speaker: Then it's a still a segregated school, and you don't think segregation is unconstitutional?

Mr. Starr: With all respect, Justice Marshall, that is emphatically not our position.

Our position is that any form of State-imposed segregation runs plainly afoul of the equal protection clause, that--

Unknown Speaker: Thank you, General Starr.

Mr. Chambers, we'll hear now from you.

Argument of Julius LeVonne Chambers

Mr. Chambers: Mr. Chief Justice, and may it please the Court:

The principal issue involved in this case is whether the Oklahoma City School District can now resegregate 10 black elementary schools that are located in a black residential area the district court found was created by State action, including the practices of this school district.

Unknown Speaker: In saying that that's the issue, you're using the word segregate in an unusual sense.

It is the fact, isn't it, that any of the black children who are in those neighborhood schools can choose to go to different schools if they wish?

Mr. Chambers: No.

Your Honor, if you look at the plan itself, the majority-to-minority transfer provision provides that one can go to only a designated school, and if the student selects that school and is selected the board will provide transportation.

One can request transfer to another school and provide his or her own transportation.

That is not the type of free, open transportation that the Court is... that we are talking about.

Additionally, Your Honor, we have some major problems with the majority-minority transfer provision as a means for correcting past and present discrimination.

This Court condemned in Green transfer provisions that were designed... free transfer provisions that were designed as a means for desegregating schools.

It simply doesn't work.

And we have testimony in the record here that nobody expects this majority-majority... majority-minority transfer provision to correct the segregated schools we have in this residential area.

Unknown Speaker: Was that testimony accredited, believed by the district court?

Is there some way to tell?

Mr. Chambers: Well, I'm not sure, Your Honor, but there's no way... there's nothing else that would support a court finding that the majority-minority transfer provision will correct the segregation of the schools in... in this residential district.

Unknown Speaker: But you don't know whether the district court believed or disbelieved, though, the witness you referred to?

Mr. Chambers: Oh, Your Honor, I think that in the record there's no finding by the court one way or the other in terms of... of whether this provision would correct the past discrimination.

Of course, that one could transfer out.

But the Court, looking at the record, will see that there are limits to which one can request transfer and also can see that no one expects... the board will contend that it would desegregate the schools.

The practical effects here, Your Honor, are that you don't have the accommodation at these schools to accept all the students who would be able to transfer if you were desegregating those schools.

Unknown Speaker: Of course, the main reason it might not solve the problem is that the parents would rather have their children go to the neighborhood school--

Mr. Chambers: Your Honor--

Unknown Speaker: --which they participate in, and which they can watch and which they can have some voice in running.

Mr. Chambers: --We think Swann demands where we have a segregated school system like we have in Oklahoma City, that the board take steps affirmatively to desegregate those schools.

We think that comes from Green, and we think the Court made that clear in Swann.

And we do not think it's appropriate to leave it here where we have returned by this school district to the same segregated schools that were involved when we were litigating this case in 1961--

Unknown Speaker: Once again, you're using segregated to mean the schools that... that happen to have a majority or almost a totality of one race but in which anyone who is in the neighborhood of any race can go, and you call that a segregated school.

Mr. Chambers: --Yes, Your Honor, because we have the segregated community that the State helped to create.

Unknown Speaker: Well, is it a segregated community?

Can anybody move into that community or move out of that community?

Mr. Chambers: Your Honor, we have testimony on record that no one expects whites to move into this district.

Unknown Speaker: Well, that does not mean that it's... I thought segregated meant that... you know, segregated means you couldn't move there unless you were... unless you were white.

Mr. Chambers: Segregated meant that--

Unknown Speaker: You couldn't use that room unless you were white.

That's segregation.

Mr. Chambers: --Your Honor, segregated means that the board is pursuing practices which perpetuate racially segregated schools, and that's what we have here in Oklahoma City, and that's what... you cannot find these schools not segregated if you apply Swann, if you apply Green.

Unknown Speaker: Well, what definition do you use of segregated, Mr. Chambers?

Mr. Chambers: Schools that have been created with a racial identity through practices of a State.

Unknown Speaker: And so you... you say that a school today in Oklahoma City if it has majority black students at it, what else does it need to be segregated under your definition?

Mr. Chambers: Well, if the past practices of the board created, perpetuated that racial identity, that is, in my definition, a segregated school.

Unknown Speaker: Well, sir, assume there's no doubt that the schools were segregated by law at one time.

Mr. Chambers: That's correct, and there's no doubt that they... that segregation was perpetuated by practices of the board.

Unknown Speaker: Well, so even though there are no racial restrictions on the attendance at schools in Oklahoma City, you say it's segregated because, what, because there are a majority of black students attending now?

Mr. Chambers: I'm saying it's segregated because the vestiges of the past practices of the board continue to be active today so that the board's practices in drafting a student assignment plan on that residential area perpetuates the racial identity of the schools.

Unknown Speaker: Are you free to argue that?

I thought the finding of unitariness was a finding that there are no vestiges.

Mr. Chambers: Your Honor, I would like to address that.

Unknown Speaker: And that's... and that's res judicata.

You didn't appeal that.

Mr. Chambers: Well, I'd like to address both of those issues.

First with respect to... thank you.

First with respect to whether the 1977 order found a unitary system and directed that the junction be dismissed, I asked the Court to look at the... that order itself.

The court said simply it found that through the use of the Finger Plan the board had desegregated students and teachers and had eliminated other discriminatory practices in the system.

The board did not ask the court to dismiss the injunction.

The board came in and promised that it would continue to use the Finger Plan because everybody knew that because of these practices of the past to permit the board to go back to a neighborhood zone would simply resegregate the elementary schools.

So when the court overruling it said it had no reason to believe that the board would now abandon the Finger Plan.

So we don't have a court in 1977 finding a unitary system in the sense that we would define and think a unitary system should be defined.

We certainly do not have the court dismissing the injunction in 1977, so that injunction remains in effect: continue to use the Finger Plan.

And in 1987 when the court was looking at the system and said that the system was unitary, it again, in our view, used a patently insufficient definition for unitary.

It said that because the board had followed the Finger Plan, which it had found in 1977 had produced the unitary system, it found that in its view some of the vestiges had... had... had been attenuated.

But yet it looked at this black residential area, and it could not find that the vestiges there had been attenuated.

We had, then, clearly, vestiges of the past that continue to permit, perpetuate a segregated system in--

Unknown Speaker: Didn't the district court make a finding, though, on whether the school district was responsible for the residential segregation?

Mr. Chambers: --Yes, it did, Your Honor.

Contrary to its earlier findings in 1963 and 1965, it said in over 25 years it found the board hadn't done anything to perpetuate this residential segregation.

Yet, in 1965 it found specifically that because of State law and board practices this residential segregation... segregated system... segregated area was created.

So certainly--

Unknown Speaker: What was its later finding?

Mr. Chambers: --It said it found that the board had not contributed to that residential segregation.

Unknown Speaker: But it's your position that by adopting the neighborhood assignment plan this really reinstates matters to where it was, say, in 1966 before?

Mr. Chambers: That's correct in this district, Your Honor.

Unknown Speaker: And then it follows that busing over all these years has done almost nothing to eliminate the causes and the effects of segregation?

Mr. Chambers: I think it has.

It certainly first has countered--

Unknown Speaker: Well, if the neighborhood pattern is just the same and if your goal is to affect the neighborhood pattern, then what's busing accomplished?

Mr. Chambers: --Your Honor, the injunction was designed to... to require the board to address those practices that cause and perpetuated a residential... racially segregated system.

Unknown Speaker: I understand.

Mr. Chambers: And that's all the order at that stage can do.

It can direct the board to not create and to not perpetuate a segregated system.

The order may or may not eventually eradicate all vestiges of past discrimination.

But until those vestiges are removed it's our position that Swift and Swann require that that injunction remain in force.

Unknown Speaker: Well, if 100 years from now in Oklahoma City there are still some residential patterns that have... show predominantly black neighborhoods and predominantly white neighborhoods, does this order have to remain in effect all that time and on into the next centuries?

Mr. Chambers: Your Honor, we think the order should remain and must remain in force until all vestiges have been eliminated, which would cause resegregation even through use of a racially neutral attendance plan.

If there are--

Unknown Speaker: xxx.

Mr. Chambers: --Well, yes, but it depends on the extent to which segregation would be reinstated by that residential segregation.

Here we have 40 percent of the black students in the elementary grades now in segregated schools, and it's because of that that we think that the injunction should remain in force.

Unknown Speaker: What do you... I don't understand your answer to Justice Kennedy's point that if... if a quarter century of busing hasn't... hasn't made a dent in that, what reason is there to believe that the next quarter century is... is... is going to make a dent in it?

Mr. Chambers: Well, Your Honor--

Unknown Speaker: And if there's no reason to believe, why is it justifiable as a... as a... as an injunction from the Court?

Mr. Chambers: --Why is the injunction justified?

Unknown Speaker: Yeah.

I mean, you know, you don't direct them to do things that are useless, and if, as you tell us, 25 years has produced nothing--

Mr. Chambers: I didn't say it had produced nothing.

I said it had certainly countered the residential segregation that the court was trying to address.

Unknown Speaker: --While it's in effect, but as soon as it's gone you say the vestige returns.

It hasn't been eliminated.

Mr. Chambers: That is correct, Your Honor.

Unknown Speaker: Well, then it is not useful in eliminating the vestige.

Mr. Chambers: It's certainly useful in integrating the schools, and that's what we're about in Brown and the cases that follow Brown.

The Court is talking about how do we ensure that black children are not now going to be relegated to a black segregated school, and what the Court did in 1972 was to direct a plan that would remove barriers that prohibited busing--

Unknown Speaker: You do not regard this, then, as a transitional remedy, which is what it was originally described at when it was adopted.

You... you envision it as a permanent remedy, that it... it eliminates the vestige as long as it is in effect; and once it's taken away, the vestige comes back.

Therefore, you say it's a permanent... a permanent remedy.

Mr. Chambers: --Your Honor, I think the plan is designed to correct a constitutional violation.

We have no way of deciding how long that plan has to be in effect, and as long as those vestiges are there which permit resegregation, if you decide that we can't continue to correct that, you tell us that we can go back to the period before Brown.

That is not what we think is here.

Unknown Speaker: Or adopt other remedies that... that won't require perpetual supervision of democratic processes by courts.

That's not how busing was originally envisioned.

Mr. Chambers: Your Honor, if... well, I think busing was envisaged because the court felt it was necessary to use that remedy to correct this intransigent segregation of schools.

And so here, if there is some other alternatives... and there may be.

We're not suggesting that the Finger Plan is the only one that would correct this past... for this past discrimination.

Unknown Speaker: Mr. Chambers, you referred to the Swift case, and, of course, the court of appeals relied heavily on that.

You think that principle is applicable here, that the injunction against... what was it, meat packers there... should be treated in the same way as the injunction against the school board here?

You have to show a grievous wrong, unforeseen conditions in order to set aside the decree?

Mr. Chambers: Yes, Your Honor.

I think that the Swift standard is applicable in school desegregation matters just like it's applicable generally in inequitable cases.

Unknown Speaker: You don't think there should be any difference in... because of the fact that there is presumably a preference for local regulation of education, other things being equal, whereas I don't know there's any preference for meat packers.

Mr. Chambers: Your Honor, I think that when the court, as this Court has directed, the district court begins to design a remedy, it takes into consideration that it's ordering a local public school district to do something.

Those factors are taken into consideration at that time, and, yet, the court knows that what it is directing is necessary to correct a constitutional violation.

Now we know of no reason why we should apply a lesser standard than in Swift.

Unknown Speaker: Well, do you... do you think Swift is consistent with the idea that when the violation has been cured it goes back to local control?

Mr. Chambers: Yes, sir.

I'm saying that, as I think the Tenth Circuit pointed out, once you achieve the objectives of Green and Swann, then the court... there's no need for the injunction.

Unknown Speaker: What did you mean... I... what did you mean by your statement in your brief that... it says,

"Here, it was petitioner's school board that unilaterally without notice or permission abandoned part of a school plan that had effectively and permanently achieved full integration? "

And there's another statement,

"Here, the school board itself acted unilaterally to reverse the pupil assignment plan that had made the system unitary. "

Now, what did you mean by those statements?

Mr. Chambers: Okay.

First, Your Honor, we meant that the Finger Plan was necessary in order to achieve integration of the schools.

Unknown Speaker: Well, you say that it had achieved.

Mr. Chambers: Well, it had achieved as long as they were operating with the Finger Plan.

Unknown Speaker: Well, obviously it had effectively and permanently achieved full integration and that it had made the system unitary.

Mr. Chambers: We were--

Unknown Speaker: What did you mean by unitary?

Mr. Chambers: --There, we were talking about unitary in the sense that with that plan in effect, it integrated the schools and removed the vestiges of the past which would, though--

Unknown Speaker: So you say--

Mr. Chambers: --Except for housing, Your Honor.

Unknown Speaker: --You do... you do agree, then, that the plan had made the system unitary but that you just can't abandon it if it means going back to black schools?

Mr. Chambers: Your Honor, it doesn't mean that it was unitary in a sense that all vestiges of past discrimination have been eliminated.

Unknown Speaker: Well, you said it was unitary.

Mr. Chambers: I was using that in the sense that the plan was countering the... the continuing effects of the past.

Not that all vestiges of discrimination--

Unknown Speaker: By the way, what... what had happened during the life of the Finger Plan residentially?

Had there been a lot of demographic movement in the city?

Mr. Chambers: --There had, Your Honor.

There had been a number of black families who had moved out of the residential area we are complaining about to other parts of the city.

Unknown Speaker: And--

Mr. Chambers: But--

Unknown Speaker: --And had whites been moving, also?

Mr. Chambers: --Whites had been moving, had been moving to areas in the city and to the suburban areas--

Unknown Speaker: Well, did you feel at the time that in 1988, 1987-1988, do you think that the Finger Plan was still an effective instrument to achieve your end?

I thought you wanted it changed yourself?

Mr. Chambers: --We did.

We wanted to modify the Finger Plan.

Unknown Speaker: Why did... why did you want it modified?

Mr. Chambers: There are two reasons.

Unknown Speaker: What had happened?

Mr. Chambers: Okay.

First, under the Finger Plan there was... the black students were required to be bused for the first 4 years and then white children were bused for 1 year.

That created an inequity in terms of the burdensharing of students for desegregation in elementary schools.

Second, the Finger Plan provided for a stand-alone school once a neighborhood became sort of racially mixed, and if that was implemented it would mean that the schools that were becoming racially mixed, which were very near the black residential area, would then become stand-alone schools so that black children would be bused further from the central core area to the outlying areas where the schools were not so mixed.

All that was required to accommodate this change was a change in the grade structure and the elimination of the stand-alone provision.

There was no need to abandon the plan, and that's why we feel that the board and the court, district court, went too far in modifying--

Unknown Speaker: So basically, you think that the district court in a situation like that should modify its desegregation plan in order to keep up with demographic movements that might result in blacker schools or whiter schools?

Mr. Chambers: --No.

We're talking about demographic movements that might result in inequities.

In a plan that is directed, Your Honor, nobody expects people to remain static.

We all know that there will be changes, and we are not asking this Court or any court to follow behind demographic changes in order to try to maintain a racial balance.

You've decided that that is not what should be done.

What we are suggesting, though, is that this board not revert to a plan that will reinstitute the discriminatory practices of the past.

Unknown Speaker: Mr. Chambers, would it make any difference in your view if the transfer provisions were fully adequate so that any pupil wanting to get out of a school could do so?

Does that make a difference?

Mr. Chambers: Your Honor, it would not solve the problem.

First of all--

Unknown Speaker: In other words, you think there must be forced busing for students who do not want to be bused?

Mr. Chambers: --I think there must be some pairing and clustering with the schools, with transportation provided if that is necessary, in order to accommodate desegregation or the maintenance of desegregation of these elementary schools.

I think as the district court pointed out, look, we're talking not just about the 40 percent of the black students, we're talking about 14 to 21 white schools.

So we have a substantial number of students in the system now attending racially identifiable or racially segregated schools.

We transported students under the Finger Plan.

It did create a problem.

We were able to do it.

So it makes no... it creates no problem now to accommodate maintenance of integration in these schools.

And going... I'd like to address briefly the justification the board offered for moving to this plan.

It said that there were educational objectives.

It said it was going to increase parental involvement.

It said it was going to increase community involvement.

It said that it was going to institute an equity program to improve the educational program, and it had the majority-minority transfer.

Your Honor, neither of these or all of them collectively do not justify this board resegregating 40 percent of its black elementary students.

Additionally, as the circuit court pointed out, there are questions about the effectiveness of these programs, and all of them can be implemented in a desegregated setting.

We could have the quality education program in a desegregated setting.

We could have parental involvement.

We could have community involvement, and we could accommodate all of these objectives in maintaining the schools, the desegregated schools.

All of them, we submit, do not justify resegregating 40 percent of the black children in the system.

Unknown Speaker: Was the board's determination of parental involvement based on the fact that the parental involvement would be much more likely if there were neighborhood schools?

Mr. Chambers: The board said that, and, Your Honor, in fact there was a finding of the district court that that had helped to promote parental involvement.

But--

Unknown Speaker: So then your last summary was not quite consistent with the finding of facts by the district court in that one respect, it seems to me, counsel.

Mr. Chambers: --Well, Justice Kennedy, the problem is I'm saying that these things could have been done; that is, you could have promoted parental involvement with desegregated schools.

The court didn't find that you couldn't.

The court found that it helped to promote, according to the court, parental involvement by having neighborhood schools.

Unknown Speaker: Can I ask you to help me out?

Do you suppose there's a city or town in the country where there are... are predominantly black schools and predominantly white schools who wouldn't be vulnerable to a desegregations case?

Mr. Chambers: Yes.

What--

Unknown Speaker: Well, are there cities in the country where there are predominantly black schools and white schools where you could not successfully claim that it's... that it's the result of State action?

Mr. Chambers: --Well, I... you know, Your Honor, there may be.

I think this Court has decided that de facto segregation will not warrant judicial intervention, and there are some districts, the Court... some lower courts, I don't recall this Court... have held were not segregated by State action.

So I... I--

Unknown Speaker: But you say... you say Oklahoma City should not be treated like one of those cities?

Mr. Chambers: --Your Honor, it's clear... no, it should not.

Oklahoma City clearly had State law requiring segregation of students.

Unknown Speaker: Well, the argument is, of course, that... is that official segregation is a thing of the past and this has achieved unitary status, and Oklahoma City ought to be... ought to be treated with a city with de facto segregation.

Mr. Chambers: Your Honor, I submit that there are vestiges of segregation still remaining in Oklahoma City which bars the Court from considering Oklahoma like this de facto situation we're talking about.

Second, Your Honor, in this instance I submit that however you define unitary you should not permit Oklahoma City or any other school district like Oklahoma City with this history of de jure segregation to reinstitute the same assignment practices that caused segregation in the past.

What we have here is not just a system that was segregated by State law implementing a plan that eliminated some vestiges and then go on to some other assignment system that permits some racial identifiability of schools.

We have a school district that is incorporating its plan on the same practices that it used before 1972 that caused segregation, and so--

Unknown Speaker: Well, not really.

They... it's not against the law for blacks and whites to go to school together anymore in Oklahoma City.

Mr. Chambers: --That's correct.

Unknown Speaker: Well, that was the practice before, and that isn't there anymore.

Mr. Chambers: That is not there, and there's also--

Unknown Speaker: Well, there a lot of other--

Mr. Chambers: --I'm sorry, Your Honor.

Unknown Speaker: --You say that they're still back to their... up to their same old tricks.

Well, that isn't really so, is it?

Mr. Chambers: Well, Your Honor, there have been changes in teachers' assignments.

There have been changes in some racial mix of students in other schools in the system, but we have gone back to the same geographic zones that we had before 1972.

We are using the same black residential area to confine students in these nine schools or 10 schools.

That's what I'm talking about.

Unknown Speaker: But you're operating in an environment in which any family, assuming the economic ability, can move to any district in the city and go to any neighborhood school that it wants, and that is different.

Mr. Chambers: Your Honor, that is a change--

Unknown Speaker: And that assumes the ability to change, which is a difficult problem.

Mr. Chambers: --Yeah.

That... that... that is a change in what the law was in 1972.

Unknown Speaker: And also the transfer policy, so that any student in a racially segregated residential area can transfer out on request.

That also would be some difference.

Mr. Chambers: It would be some difference.

But again, what we have is a plan that, as the record now shows, perpetuates black... black segregated schools in the same schools we had before 1972.

Even with all the changes that the Court has alluded to, we still have nine black segregated schools in this black residential area.

Unknown Speaker: Just continue to note my objection to the use of the word segregated in that context.

There... there are schools that do not have integrated student populations in the sense of being the mixed races, but they are not segregated as I understand the word segregated.

You acknowledge that anybody of any race can go to those schools if he's in the neighborhood.

Mr. Chambers: If the person lives in the neighborhood, then one can go to that school.

It's just that I'm using a different definition from the Court in terms of segregation, and I think that my definition is really appropriate because it points out what is really happening with the practice.

Unknown Speaker: Mr. Chambers, can I ask you one question?

I want to be sure on your position on this.

Your opponents take the position that the decree was, in effect, vacated and no longer binding on the school board after the '77 finding.

Do you agree with that?

Mr. Chambers: No, Your Honor.

Unknown Speaker: What do you... what do you say in response to your opponent's argument that the judge's understanding, the parties' understanding was that the decree would no longer be in effect?

Mr. Chambers: Your Honor, we... we'd point out that... that first the board didn't ask for a dissolution of the injunction.

Everybody knew in 1977 that that order had to remain in effect in order to maintain desegregated schools.

And so when the court entered the order and dismissed the case no one expected the board was going to abandon that plan.

We all expected that this plan would continue, and we knew it had to.

So we didn't have a court really dismissing.

It was only later when the court told us it meant to dismiss the order when it also said it found a unitary system.

But then we... we have challenged that, and that goes to the second question you raise.

We were not bound by any determination in '77 if that was supposed to be a unitary finding which was supposed to dissolve that order.

We... if we had... if we were to be bound, we would have had an opportunity to litigate that issue.

We didn't have an opportunity to litigate that issue.

And so if that is to be the determination by the Court, we ought to have a chance to go demonstrate it.

And so we contend that the order was not designed to eliminate the injunction and--

Unknown Speaker: What about in '85 and '87?

Mr. Chambers: --We have appealed that, Your Honor.

There was a decision, a finding by the court, and we contend that finding was clearly erroneous in 1985 and 1987.

Unknown Speaker: What finding?

You mean--

Mr. Chambers: The unitariness findings.

Your Honor, if the Court please, I was in high school when this Court--

Unknown Speaker: --What do you think?

Do you think the court of appeals addressed the unitary issue?

Mr. Chambers: --Did it address the unitary... it did, Your Honor.

Unknown Speaker: What did it hold?

Mr. Chambers: It held that the court, the district court was clearly erroneous--

Unknown Speaker: On the unitary... on the unitariness?

Mr. Chambers: --Yes.

Unknown Speaker: Well, I find it very fuzzy in that respect.

Mr. Chambers: I'm sorry?

Unknown Speaker: I... I find it very fuzzy in that respect because I thought they really said it doesn't make any difference whether it's unitary or not; the injunction remains.

Mr. Chambers: The court--

Unknown Speaker: That's what it held.

Mr. Chambers: --The court said--

Unknown Speaker: They applied Swift and said that unitariness just was irrelevant to their decision.

Mr. Chambers: --The court said basically two things, Your Honor.

Unknown Speaker: Do you have a page citation for what you're about to say?

Or maybe you could furnish it later.

Mr. Chambers: I could furnish it later.

I just wanted to respond to Justice White.

The court said basically two things.

One, that the basis the district court used for making its finding were clearly erroneous.

The court had found that the discrimination had attenuated and that it was no longer a basis for this... the imposition of the injunctive order.

The court also found that the court... the district court had relied on intent, and the district court said that was not a determining factor.

So--

Unknown Speaker: I think you've answered the question, Mr. Chambers.

Mr. Chambers: --Thank you, Your Honor.

Unknown Speaker: Thank you.

Mr. Day, do you have rebuttal?

You have 2 minutes remaining.

Mr. Day, do you have rebuttal?

You have two minutes remaining?

Rebuttal of Ronald L. Day

Mr. Day: Mr. Chief Justice, unless there are questions from the Court, we're prepared to yield the remainder of our time back to the Court.

Unknown Speaker: I was going to ask Mr. Chambers.

I guess I'll have to ask you.

The respondent does not, as I understand it, propose a definition of unitary.

The SG, the Solicitor General, proposes one.

The Great Schools amicus brief proposes one.

Am I correct that you, the respondents, think there is no particular definition of unitary?

Mr. Day: Justice Kennedy, the respondents had alternative arguments, and I believe in their first argument there was no definition, but in one of their alternative arguments they took the position that before a unitary status can be achieved that all the vestiges had to be eliminated, and in Oklahoma City that meant that all the neighborhoods had to be integrated.

Unknown Speaker: That was part of their unitary... the unitary definition?

Mr. Day: Yes.

Chief Justice Rehnquist: Thank you, Mr. Day.

The case is submitted.