THE BOARD OF EDUCATION OF OKLAHOMA CITY PUBLIC SCHOOLS, INDEPENDENT
SCHOOL DISTRICT NO. 89, OKLAHOMA COUNTY, OKLAHOMA, PETITIONER V.
ROBERT L. DOWELL, ET AL.

   No. 89-1080

   In the Supreme Court of the United States

   October Term, 1989

   On Writ Of Certiorari To The United States Court Of Appeals For The
Tenth Circuit

   Brief For The United States As Amicus Curiae

            TABLE OF CONTENTS
   Question Presented
   Interest of the United States
   Statement
      A. The racial segregation of the Oklahoma City public schools
         and the imposition of the Finger Plan
      B. The district court's 1977 and 1985 unitariness findings and
         the first reversal by the court of appeals
      C. The district court's 1987 unitariness finding and the second
         reversal by the court of appeals
   Introduction and summary of argument
   Argument:
      The court of appeals applied an erroneous legal standard in
      deciding whether to terminate the Oklahoma City school
      desegregation decree
          A. A school district that has achieved unitary status is
             entitled to be released from a desegregation decree
          B. Because it misunderstood the consequences of a
             unitariness finding, the court of appeals neglected to
             consider whether Oklahoma City had, in fact, achieved a
             unitary school system by the time it adopted the
             neighborhood school plan
   Conclusion

                          QUESTION PRESENTED

   Whether, in reviewing a finding that the Oklahoma City public
schools had achieved unitary status, the court of appeals erred in
declining to terminate the ongoing desegregation decree.

                     INTEREST OF THE UNITED STATES

   This case presents the question whether a school district that has
been found to be "unitary" is entitled to be released from a
desegregation decree.  The United States, which has responsibility for
enforcing school desegregation under Titles IV, VI, and IX of the 1964
Civil Rights Act, 42 U.S.C. 2000c-6, 2000d, and 2000h-2, and the Equal
Educational Opportunities Act of 1974, 20 U.S.C. 1701 et seq., is
currently involved in approximately 500 school desegregation cases,
many of which may be affected by the disposition of this case.  For
that reason, the United States participated as amicus curiae in both
the district court and court of appeals in this case.

                               STATEMENT

   A. The Racial Segregation Of The Oklahoma City Public Schools And
The Imposition Of The Finger Plan

   1. In 1961, black parents filed an action challenging racial
segregation by the Oklahoma City public school system.  The case was
assigned to Judge Luther Bohanon, of the United States District Court
for the Western District of Oklahoma.  In 1963, after extensive
hearings on the issue, Judge Bohanon found that Oklahoma City had
segregated its students by law, resulting in schools that were either
all-white or all-black.  219 F. Supp. 427 (W.D. Okla. 1963).  The
court also found that the city's residential patterns were
significantly segregated, in large part because of restrictive
covenants and the enforcement of state and local laws mandating
residential segregation.  Id. at 433-434.  See also 244 F. Supp. 971,
975-978 (W.D. Okla. 1965);  307 F. Supp. 583, 590-591 (W.D. Okla.
1970).  The court found that, as a result of segregated housing
practices, nearly all of the black population of the city lived in the
"central east" area.  219 F. Supp. at 433-434.

   In 1965, the court found that the School Board's attempt to
desegregate through the use of neighborhood zoning had not succeeded.
In particular, Judge Bohanon determined that the proposed neighborhood
zones would maintain racially separate schools, given the extensive
residential segregation in Oklahoma City.  244 F. Supp. at 975-978.
As of the 1971-72 school year, the schools remained significantly
segregated.  While the overall racial balance of the district was
76.6% white and 23.4% black (338 F. Supp. 1256, 1259 (W.D. Okla.
1972)), 78% of the district's 114 schools were 90% or more one race
(id. at 1260).  Seventy-six of the 86 elementary schools were racially
identifiable, with 16 nearly all-black and 60 all-white (ibid.).

   2. In February 1972, Judge Bohanon ordered the School Board to
implement a desegregation plan known as the Finger Plan, after the
plan's author, Dr. John A. Finger.  See 338 F. Supp. 1256.  Under the
Finger Plan, all of the majority-white elementary schools were
reorganized to serve grades 1-4 of both races, while the
majority-black schools became "fifth grade centers," which both black
and white students would attend after completing fourth grade.  To
desegregate the elementary schools, black students would be bused from
their neighborhoods to the former white schools for grades 1-4, and
white students would be bused from their neighborhoods to the fifth
grade centers.  Kindergarten students would continue to attend their
present schools, but parents of kindergarteners would be permitted to
send their children to the school of their choice.  Middle schools
(grades 6-8) and high schools (grades 9-12) would be desegregated
through new attendance zones and feeder patterns.  606 F. Supp. 1548,
1552 (W.D. Okla. 1985).

   Finally, the Finger Plan provided that elementary schools located
in integrated neighborhoods (those with a racial balance within 15% of
the district-wide balance) could operate as K-5, without busing
obligations.  Those schools were termed "stand alones." As new
residential areas became integrated, students from those areas would
be assigned to a neighborhood stand-alone school, and any student
assigned to that school as part of the busing plan would be assigned
elsewhere.  606 F. Supp. at 1552.

   B. The District Court's 1977 and 1985 Unitariness Findings And The
First Reversal By The Court Of Appeals

   1. On June 2, 1975, after operating the Finger Plan for several
years, the Board filed a "Motion to Close Case." The Board argued that
it had "eliminated all vestiges of state-imposed racial discrimination
in its school system and (was) * * * operating a unitary school
system." 606 F. Supp. at 1551.

   After receiving evidence concerning desegregation in the Oklahoma
City public schools, Judge Bohanon granted the motion and issued an
"Order Terminating Case." He found that the Board had "operated the
Plan properly" and stated that he did "not foresee that the
termination of * * * jurisdiction will result in the dismantlement of
the Plan or any affirmative action by the defendant to undermine the
unitary system so slowly and painfully accomplished over the 16 years
during which the cause has been pending before the Court." 606 F.
Supp. at 1551.  The court concluded that in view of the school
district's unitary status, the Board was "entitled to pursue in good
faith its legitimate policies without the continuing constitutional
supervision of this Court." Ibid.  Accordingly, the court ordered the
dissolution of the committee charged with implementing the 1972 decree
and stated that "(j)urisdiction in this case is terminated ipso facto
subject only to final disposition of any case now pending on appeal."
Ibid.  The plaintiffs did not appeal the Order Terminating Case.  /1/

   2. a. Notwithstanding the order declaring the district to be
unitary and terminating the court's jurisdiction, the Board continued
to implement the Finger Plan over the next eight years.  606 F. Supp.
at 1551.  By mid-1984, as more and more neighborhoods became
integrated, an increasing number of elementary schools qualified for
"stand alone" status.  Two adverse implications of that otherwise
favorable development were noted.  First, since the stand-alone
schools were located between the black residential area (in the
central-east part of the district) and the more heavily white areas
(on the outside areas of the district), the length of the bus rides
for young black students in grades 1-4 to schools that were not yet
stand alones would significantly increase.  Second, the creation of
more stand alone K-5 schools would disrupt the fifth-grade centers by
reducing the available pool of fifth-grade children.  Id. at 1552.

   By virtue of the problems posed by the increasing number of
stand-alones -- and because of a perceived decline in parental and
community support for the elementary schools -- the Board decided on
December 17, 1984, to adopt a Student Reassignment Plan (SRP) for the
1985-1986 school year.  Under the SRP, a neighborhood assignment
system would be implemented for grades K-4, thus eliminating busing
for those grades.  Busing would be retained, however, for the fifth
grade centers, as well as for the middle schools and high schools.  In
addition, the Board approved a "majority to minority" transfer policy,
under which any elementary school student could transfer from a school
in which his race was in the majority to a school in which his race
was in the minority.  All faculties and staff were to remain
integrated, and an "equity officer" would be engaged to ensure
continued equality of facilities, equipment, supplies, books, and
instructors in all schools.  606 F. Supp. at 1552.

   b. On February 19, 1985, the respondents filed a Motion to Reopen
the case, challenging the constitutionality of the SRP.  They
contended that the school system had not achieved unitary status, and
that the new plan would create racially identifiable neighborhood
schools.

   On April 25, 1985, Judge Bohanon rejected that challenge and denied
respondents' motion to reopen.  606 F. Supp. 1548 (W.D. Okla. 1985).
He explained that in issuing the 1977 Order Terminating Case, the
court had "totally relinquished its jurisdiction over this case,"
having been "convinced that the Finger Plan had been carried out in a
constitutionally permissible fashion and that the School District had
reached the goal of being a desegregated non-racially operated and
unitary school system." Id. at 1554.  In light of the 1977 order, the
court added, respondents were "collaterally estopped from relitigating
the issue of the unitary character of the Oklahoma City Public Schools
as of 1977." Id. at 1555.

   The court also found that the system had "remain(ed) unitary" as of
1985.  606 F. Supp. at 1555.  In particular, the court observed, "(i)t
has now been thirteen years since cross-town busing was introduced and
almost twenty-five years since the start of desegregation litigation
in Oklahoma City." Ibid.  The court explained that "(t)he School
Board, administration, faculty, support staff, and student body are
integrated.  Further, transportation, extracurricular activities and
facilities within the school district are equal and
nondiscriminatory." Ibid.  Indeed, the court noted, "(a)t present,
racial balance within 15 percentage points of the proportions in the
system-wide student population is maintained in all classes in grades
1-12 through busing." Id. at 1553.

   In light of its continued unitariness, Judge Bohanon held that the
District was entitled to adopt the new SRP for grades K-4.  "(O)nce a
school system has become unitary," the court explained (606 F. Supp.
at 1555-1556), "the task of a supervising federal court is concluded."
At that point, "district court intervention is normally not necessary
unless there is a showing that the school district 'has deliberately
attempted to fix or alter demographic patterns to affect the racial
composition of the schools.'" Id. at 1556.  The court concluded that
"(t)he Student Reassignment Plan was not created for the purpose of
discriminating on the basis of race." Ibid.  To the contrary, the
court found, the new plan was adopted for "legitimate purposes:  to
protect against the loss of schools in the northeast quadrant of the
district;  to maintain fifth year centers throughout the district;  to
reduce the busing burden on young black students;  to increase
parental and community involvement in the schools;  and to improve
programs and provide elementary children with a greater opportunity
for participation in extracurricular activities." Id. at 1553-1554.
The court therefore upheld the SRP and denied the motion to reopen the
case.

   3. The court of appeals reversed.  795 F.2d 1516 (1986), cert.
denied, 479 U.S. 938 (1987).  The court first examined the 1977 order,
concluding that "(n)othing in the 1977 order tempered the 1972
mandatory injunction." 795 F.2d at 1519.  To the contrary, the court
stated, the 1977 order indicated that "the court intended the 1972
order to retain its validity and prospective effect." Ibid.  Moreover,
the court held, the fact that the district court had declared the
school district unitary did not mean that the decree had been lifted
or that the Board was free to adopt a new plan.  To be sure, the court
observed, the 1977 unitariness finding "terminated active supervision
over this case" and reflected that "the original purpose of the
lawsuit had been achieved and that the parties had implemented a means
for maintaining that goal." Id. at 1520.  The court also acknowledged
that the unappealed 1977 finding "was binding upon the parties." Id.
at 1522.  But because the district court had not "specifically
dissolv(ed) its decree," the court of appeals held that the School
Board was not relieved of its continuing "duty to persist in the
elimination of the vestiges of segregation." Id. at 1520.  The court
stated that "(i)t is only when the order terminating active
supervision also dissolves the mandatory injunction that the governing
board regains total independence from the previous injunction." Id. at
1520-1521.

   Having concluded that the School Board was still subject to the
desegregation decree, the court next held that respondents were
entitled to reopen the case to challenge the SRP.  In assessing
respondents' challenge, the court explained, the district court must
not "lightly" permit a change in the underlying decree.  "Having once
determined the necessity to impose a remedy, the court should not
allow any modification of that remedy unless the law or the underlying
facts have so changed that the dangers prevented by the injunction
'have become attenuated to a shadow,' * * * and the changed
circumstances have produced 'hardship so extreme and unexpected' as to
make the decree oppressive.'" 795 F.2d at 1521, quoting United States
v. Swift & Co., 286 U.S. 106 (1932).  The court of appeals therefore
remanded the case to the district court "to determine whether the
original mandatory order will be enforced or whether and to what
extent it should be modified." 795 F.2d at 1523.  The court added that
on remand the Board "must present evidence that changed conditions
require modification or that the facts or law no longer require the
enforcement of the order." Ibid.

   C. The District Court's 1987 Unitariness Finding And The Second
Reversal By The Court Of Appeals

   1. Addressing the question posed by the court of appeals --
"whether the School Board has shown a substantial change in conditions
warranting dissolution or modification of the 1972 Order" (Pet. App.
5b) -- the district court found that "over time, demographic change in
Oklahoma City has rendered the 'stand-alone' feature in the Finger
Plan inequitable and oppressive." Id. at 23b.  The court reiterated
that, without a change in the Plan, the growing number of stand alones
would have "increase(d) the busing burden, in terms of time and
distance, on young black children in grades 1-4" (id. at 21b), and
would have "caused the student population at the fifth-year centers
located in the east inner-city area to drop" (ibid.).  Conversely, the
court found, the move to a neighborhood K-4 plan had increased
parental and community involvement in the school system.  Id. at
26b-27b.

   The district court also found that the Board had taken "absolutely
no action which has caused or contributed to the patterns of the
residential segregation which presently exist in areas of Oklahoma
City." Pet. App. 17b-18b.  To the contrary, the court stated, "the
actions of the Board of Education, through implementation of the
Finger Plan at all grade levels for more than a decade, have fostered
the neighborhood integration which has occurred in Oklahoma City." Id.
at 18b.  And the Board's continued, voluntary use of busing for grades
5-12, the court added, "cannot help but promote neighborhood
integration and deter residential segregation in the future." Ibid.
/2/

   Finally, the district court found that the new K-4 plan had
maintained the district's unitariness.  The court noted that the
neighborhood plan was adopted "without the intent to discriminate on
the basis of race." Pet. App. 25b.  Moreover, the court observed,
although "many of the schools which were predominately black before
the Finger plan was implemented are predominately black today because
of the neighborhood plan," "discriminatory intent may not be inferred
solely from the disproportionate impact of a particular measure upon
one race." Id. at 28b-29b (emphasis omitted).  /3/ Taking all of the
factors together -- including the composition of the student bodies,
faculties and staff, and the community and administration attitudes
toward the schools (id. at 29b) -- the court found that "the Oklahoma
City School District has remained unitary from 1977 to the present."
Id. at 33b.  /4/

   Judge Bohanon then held that the decree he entered in 1972 should
be dissolved.  In making such a determination, Judge Bohanon
explained, a court must "determine whether the 'purposes of the
litigation,' as incorporated in the * * * decree, have been fully
achieved." Pet. App. 35b.  In the present case, the court stated, the
purpose of the decree was "to dismantle the dual school system." Id.
at 35b-36b.  This objective, the court held, was achieved in 1977 when
the District was declared unitary.  Id. at 36b.  "Moreover," the court
added, "the school district's continued adherence to the fundamental
tenets of the Finger Plan at all grade levels through the school year
1984-85 further insured that all vestiges of prior state-imposed
segregation had been completely removed." Id. at 38b.  The court
concluded that "(u)ndoubtedly, after proper implementation for more
than a decade, the dangers prevented by the 1972 decree have 'become
attenuated to a shadow.'" Ibid.  In short, "(w)hen the Oklahoma City
School Board adopted its 1985 student assignment plan, it was unitary;
 and the purpose of this litigation had been fully achieved." And the
achievement of unitariness, the court concluded, "compels dissolving
the 1972 decree." Id. at 39b.  /5/

   2. a. A divided court of appeals reversed (Pet. App. 1a-113a).
Relying on United States v. Swift & Co., 286 U.S. 106 (1932), the
court held that to secure a modification in a desegregation decree, a
party must make "'(n)othing less than a clear showing of grievous
wrong evoked by new and unforeseen conditions * * * to change what was
decreed after years of litigation'" (Pet. App. 11a-12a).  Because, in
the court's view, "'an injunction takes on a life of its own and
becomes an edict quite independent of the law it is meant to
effectuate'" (id. at 13a), the court explained that "the party seeking
relief from an injunctive decree 'must demonstrate dramatic changes in
conditions unforeseen at the time of the decree that both render the
protections of the decree unnecessary to effectuate the rights of the
beneficiary and impose extreme and unexpectedly oppressive hardships
on the obligor'" (id. at 12a).  Moreover, the court added, mere
"termination of the wrongdoing" (id. at 13a), or "compliance (with the
injunction) alone" (id. at 14a), does not justify a change in the
decree.  That is so, the court asserted, because "(t)he condition that
eventuates as a function of the injunction cannot alone become the
basis for altering the decree absent the Swift showing" (id. at 13a).

   The court next held that the district court's 1977 unitariness
finding did not entitle the School Board to be released from the
decree "without proof of a substantial change in the circumstances
which led to the issuance of the decree." Pet. App. 16a.  The court
explained that while a finding of unitariness vitiates "the court's
need for active jurisdiction," it does not abate the court's "power to
enforce its equitable remedy." Id. at 17a n.17.  Accordingly, the
court stated, because the decree "remain(ed) in place" when the Board
instituted the new K-4 plan, the Board had a "heavy burden" under this
Court's decision in Swann v. Charlotte-Mecklenburg Bd. of Educ., 402
U.S. 1 (1971), "to show that its implementation of the Plan does not
'serve to perpetuate or reestablish the dual school system.'" Pet.
App. 19a.  The court held that the Board had not carried its burden
under Swann.  Reviewing the evidence, the court found that under the
SRP there was an "emergence of eleven all-black elementary schools."
Id. at 26a.  Moreover, the court stated, the increasing number of
stand-alone schools did not constitute "a hardship" that was both
"extreme and unexpected." Id. at 27a.

   Finally, again applying the rule in Swann (see Pet. App. 31a), the
court held that the new K-4 plan did not maintain the unitariness of
the district.  The court acknowledged that "population shifts in the
District" had warranted some change in the Finger Plan.  Id. at 30a.
But it concluded that the district court had erred in finding the SRP
a constitutional response to the changed conditions.  According to the
court of appeals, the district court had "(u)nfortunately" focused
entirely on the question of "the Board's alleged discriminatory intent
in adopting the Plan." Ibid.  In the majority's view, the district
court should instead have looked at whether the new plan accommodates
"the changed circumstances" while at the same time "maintain(ing) the
continuing prospective effect of the decree." Ibid.  In view of "the
emergence of one-race elementary schools" (id. at 32a), and what the
court termed "the growing parity of imbalance between faculty and
students" (id. at 33a), the court found that the Board had not
justified the new plan under the Swann test.

   The court therefore remanded the case once again.  It directed the
district court to "(t)ake evidence of (respondents') and
(petitioner's) alternatives to maintain racially balanced elementary
schools within the framework of the changed circumstances that have
occurred in the District";  to "(m)odify the Finger Plan to
accommodate the changed circumstances";  in modifying the Plan, to
"assure that faculties achieve racial balance";  and to "retain
jurisdiction for a reasonable period of time to oversee the
implementation and maintenance of these assignments." Pet. App.
44a-45a.

   b. Judge Baldock dissented.  Pet. App. 46a-113a.  He explained that
because the District had achieved unitary status by 1985, it was
entitled to a "lifting of the decree" (id. at 79a) and was therefore
not required to meet the Swann test in defending the new K-4 Plan.  In
imposing the Swann standard, Judge Baldock noted, the court had
mistakenly applied the rules governing "dual systems charged with the
affirmative duty to eradicate de jure segregation and its vestiges";
the present case, he added, is "very different," in that "this board
has met its affirmative duty and no longer is under 'an unsatisfied
duty to liquidate a dual system.'" Id. at 51a-52a.  In light of the
unitariness finding, respondents "were required to demonstrate that
the district had lost its unitary status through purposefully
segregative school board actions." Id. at 50a.

   Applying an intent standard -- rather than the rule in Swann
applied by the majority -- Judge Baldock concluded that the new K-4
Plan did not undermine the District's unitariness.  Pet. App. 52a.  He
noted that "(t)he district court's finding concerning increased
parental involvement caused by the neighborhood plan, * * * and the
efforts of the district to provide improved educational opportunity
for all, * * * are not clearly erroneous." Id. at 102a.  In Judge
Baldock's view, the majority had mistakenly evaluated the evidence
"against an improper legal standard given the unitary status of the
school district." Id. at 99a.

                 INTRODUCTION AND SUMMARY OF ARGUMENT

   The court of appeals has held that the Oklahoma City School
District remains subject to a desegregation decree, notwithstanding
unitariness findings entered by the district court in 1977, 1985, and
1987.  Although its opinion is not free of ambiguity, the majority
appeared to believe that unitariness, without more, is not a
sufficient basis for dissolving a decree.  In the majority's view, "an
injunction takes on a life of its own and becomes an edict quite
independent of the law it is meant to effectuate" (Pet. App. 13a);  as
a result, the court held that a decree can be dissolved only upon "a
clear showing of grievous wrong evoked by new and unforeseen
conditions." Id. at 11a-12a.  What is more, the majority suggested,
the achievement of unitary status cannot by itself meet that standard.
 As the majority put it, "(t)he condition that eventuates as a
function of the injunction cannot alone become the basis for altering
the decree." Id. at 13a.

   In our view, the court of appeals' apparent conclusion -- that
unitary status does not entitle a school district to be relieved of a
desegregation decree -- cannot be squared with decisions of this Court
recognizing the purposes of, and equitable limitations on, injunctive
decrees in school desegregation cases.  Moreover, because the court of
appeals misapprehended the implications of unitariness, it failed to
address the logically prior question:  whether the Oklahoma City
public schools were, in fact, unitary at the time the school board
adopted the neighborhood school plan.  Having applied an erroneous
legal standard, the decision of the court of appeals should be
vacated.

   A. In school desegregation cases, "(t)he transition to a unitary,
nonracial system of public education was and is the ultimate end to be
brought about." Green v. County School Bd., 391 U.S. 430, 436 (1968).
But as this Court has many times emphasized, it is only "(d)uring this
period of transition" that the courts are to "retain jurisdiction of
these cases." Brown v. Board of Educ. (Brown II), 349 U.S. 294, 301
(1956).  The court of appeals' contrary view cannot be squared with
this Court's cases.  More generally, the decision below cannot be
reconciled with a fundamental equitable principle that informs the
school desegregation cases:  "judicial powers may be exercised only on
the basis of a constitutional violation," Swann v.
Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971).  In the
absence of a continuing violation, there is no basis for continuing
judicial relief.  The court of appeals' decision -- which rests on a
mistaken reading of this Court's decision in United States v. Swift &
Co., 286 U.S. 106 (1932) -- cannot be sustained.

   In the present case, the district court's 1977 Order Terminating
Case may well have constituted a finding of unitariness entitling the
school district to be released from further judicial supervision.
Because there is some confusion about the meaning of that order,
however, the court of appeals must examine the 1977 order on remand.
If the court of appeals concludes that the 1977 order constituted a
declaration that the school district was unitary in the required
sense, it must dismiss the lawsuit against petitioners.

   B. If, on the other hand, the court of appeals concludes on remand
that the 1977 order did not constitute a sufficient finding of
unitariness, it must then address the question whether, as the trial
court plainly did find, the Oklahoma City public schools were unitary
in 1985, when petitioners adopted the neighborhood school plan for
grades K-4.  This Court has not had occasion to define what it means
for a previously dual system to be "unitary";  what is more,
"(a)ppellate courts have provided district courts with little guidance
regarding how to determine whether a school system has achieved
unitary status." Pitts v. Freeman, 887 F.2d 1438, 1445 (11th Cir.
1989.  Since, in our view, the case must in any event be remanded, we
believe it would be appropriate to provide the court of appeals, and
the lower federal courts generally, with guidance on what constitutes
a unitary school district.

   We believe that three broad inquiries should inform the question of
unitariness:  (1) whether the district has continuously complied with
the desegregation decree in good faith;  (2) whether the school
district has abandoned any and all acts of intentional discrimination;
 and (3) whether the school district has eliminated, as far as
practicable, the "vestiges" of prior discriminatory conduct.

                               ARGUMENT

   THE COURT OF APPEALS APPLIED AN ERRONEOUS LEGAL STANDARD IN
DECIDING WHETHER TO TERMINATE THE OKLAHOMA CITY SCHOOL DESEGREGATION
DECREE

   A. A School District That Has Achieved Unitary Status Is Entitled
To Be Released From A Desegregation Decree

   1. The "objective" of a desegregation decree, this Court observed
in Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971),
is "to eliminate from the public schools all vestiges of state-imposed
segregation." "The transition to a unitary, nonracial system of public
education was and is the ultimate end to be brought about." Green v.
County School Bd., 391 U.S. 430, 436 (1968).  In meeting that
obligation, a school district must ensure that it has desegregated
"every facet of school operations" -- including "student bodies, * * *
faculty, staff, transportation, extracurricular activities and
facilities." Id. at 435.

   But this Court has never suggested that a district that becomes
unitary nevertheless remains subject to the underlying desegregation
decree.  To the contrary, beginning with Brown v. Board of Educ.
(Brown II), 349 U.S. 294 (1955), this Court has made clear that
court-ordered desegregation of a school system is a process with both
a beginning and an end.  As Brown II clearly teaches, the purpose of a
decree is "to effectuate a transition to a racially nondiscriminatory
system," and it is only "(d)uring this period of transition" that the
courts are to "retain jurisdiction of these cases." Id. at 301.
Accord Green v. County School Bd., 391 U.S. at 439 (jurisdiction
should be maintained "until it is clear that state-imposed segregation
has been completely removed");  Raney v. Board of Education, 391 U.S.
443, 449 (1968) (jurisdiction should be retained "until it is clear
that disestablishment (of the dual system) has been achieved").

   So, too, in Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S.
1, this Court addressed at length the scope of permissible remedial
measures, reiterating that injunctive relief is only temporary.  "At
some point," the Court emphasized, "school authorities and others like
them should have achieved full compliance with this Court's decision
in (Brown v. Board of Educ., 347 U.S. 483 (1954)).  The systems would
then be 'unitary' in the sense required by our decisions in Green and
Alexander (v. Holmes County, 396 U.S. 19 (1969))." To be sure, the
Court observed, "(t)his does not mean that federal courts are without
power to deal with future problems;  but in the absence of a showing
that either the school authorities or some other agency of the State
has deliberately attempted to fix or alter demographic patterns to
affect the racial composition of the schools, further intervention by
a district court should not be necessary." 402 U.S. at 31-32.  See
also City of Richmond v. J.A. Croson Co., 109 S. Ct. 706, 738 (1989)
(Scalia, J., concurring in the judgment).

   2. In this case, the court of appeals apparently took a different
view.  The panel majority suggested that unitariness, without more,
does not entitle a school district to relief from a desegregation
decree.  Apart from showing unitariness, the court stated, a school
district must also make "a clear showing of grievous wrong evoked by
new and unforeseen conditions." Pet. App. 11a-12a.  Unitariness is
insufficient because, in the court's view, "(t)he condition that
eventuates as a function of the injunction cannot alone become the
basis for altering the decree." Id. at 13a.

   That principle cannot be squared with this Court's recognition that
a desegregation decree is a "transition(al)" remedy (Brown II, 349
U.S. at 301), not a permanent state of affairs.  Nor can the lower
court's decision be squared with traditional equitable principles.
Unitariness is the object of the decree.  Once that object has been
achieved, the decree no longer serves its intended function.  At that
point, principles of equity require that the decree be dissolved:
"the scope of the remedy is determined by the nature and extent of the
constitutional violation" (Milliken v. Bradley, 418 U.S. 717, 744
(1974)), and judicial remedial powers may extend "no farther than
required by the nature and the extent of that violation." General
Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 399 (1982).  As
the Court explained in Swann, "judicial powers may be exercised only
on the basis of a constitutional violation," and "as with any equity
case, the nature of the violation determines the scope of the remedy."
402 U.S. at 16.  And precisely because those equitable principles are
well settled, it is not surprising that the panel majority stands
alone in holding that a court's authority over a school district
extends beyond a proper finding of unitariness.  /6/

   3. Relying on United States v. Swift & Co., 286 U.S. 106 (1932),
the court of appeals held that a school district seeking relief from
an injunctive decree must demonstrate "dramatic changes in conditions
unforeseen at the time of the decree that both render the protections
of the decree unnecessary to effectuate the rights of the beneficiary
and impose extreme and unexpectedly oppressive hardships on the
obligor." Pet. App. 12a.  In our view, the court of appeals misread
Swift.

   In Swift, several meat-packing companies moved to modify a consent
decree, issued several years before, enjoining them from various
monopolistic practices.  Although this Court refused to modify the
injunction, its decision recognized a court's inherent authority to
alter a decree when the underlying circumstances have changed.  As the
Court put it, "(a) continuing decree of injunction directed to events
to come is subject always to adaptation as events may shape the need."
286 U.S. at 114.  Many consent decrees, the Court observed, "involve
the supervision of changing conduct or conditions and are thus
provisional and tentative." Ibid.  Accordingly, "a court does not
abdicate its power to revoke or modify its mandate if satisfied that
what it has been doing has been turned through changing circumstances
into an instrument of wrong." Id. at 114-115.

   On the facts of that case, the Swift Court did not find a
sufficient basis for altering the decree.  As the Court perceived the
record, the meat-packers were "still in a position, even when acting
separately, to starve out weaker rivals, or at least that the fear of
such abuses, if rational in 1920, is still rational today." 286 U.S.
at 117.  And although the Court acknowledged that there had been some
changes in the industry, it found no changes that bore "significantly
upon the old-time abuses in the sale of other foods." Ibid.  At the
same time, Swift expressly recognized that where the decree's original
purposes have been served, and there is no appreciable risk of renewed
danger, a court enjoys full authority to terminate the injunction.  As
the Court put the matter in a later decision, "an injunction should be
subject to modification when it appears that one or more of the
restraints imposed are no longer needed to protect the public."
Donaldson v. Read Magazine, Inc., 333 U.S. 178, 184 (1948).  /7/

   The court below relied, however, on a passage in Swift stating that
the meat-packers had failed to prove that the injunction was causing
"grievous wrong evoked by new and unforeseen conditions";  citing that
passage, the panel majority held that only "dramatic changes in
conditions unforeseen at the time of the decree" could justify a
termination of the Oklahoma City injunction.  The cited language
cannot bear so much weight.  As the Court explained in United States
v. United Shoe Corp., 391 U.S. 244 (1968), the quoted passage "must,
of course, be read in light of th(e) context" presented in Swift:  a
determination, on the facts presented, that "the danger of monopoly
and of the elimination of competition which led to the initial
government complaint and the decree had not been removed and that,
although in some respects the decree had been effectuated, there was
still a danger of unlawful restraints of trade." Id. at 248.
Moreover, the United Shoe Court reiterated that when the purposes of
the injunction have been fully served, the decree may be lifted.  As
the Court stated, "Swift teaches that a decree may be changed upon an
appropriate showing, and holds that it may not be changed in the
interests of the defendants if the purposes of the litigation as
incorporated in the decree * * * have not been fully achieved." Ibid.

   The panel majority's contrary reading would mandate perpetual
decrees -- and accompanying judicial supervision -- as a general rule.
 Only "dramatically" changed and "unforeseen" circumstances could
justify lifting a decree;  the fact that the decree has served its
purpose could never suffice -- because it can hardly be viewed as
unforeseen that a decree would accomplish its purpose.

   4. Once a school district is declared unitary, and the decree is
lifted, future conduct by the school authorities is once again
governed by traditional equal protection standards, which prohibit
only intentional acts of discrimination.  Washington v. Davis, 426
U.S. 229 (1976).  At that point, the local officials are no longer
subject to obligations imposed on desegregating districts -- that all
actions must be measured simply by their effect on integration.  See
Wright v. Council of City of Emporia, 407 U.S. 451 (1972);  Dayton Bd.
of Educ. v. Brinkman, 443 U.S. 526 (1979).  As the Court stated in
Swann (402 U.S. at 31-32):

      Neither school authorities nor district courts are
      constitutionally required to make year-by-year adjustments of
      the racial composition of student bodies once the affirmative
      duty to desegregate has been accomplished and racial
      discrimination through official action is eliminated from the
      system.  This does not mean that federal courts are without
      power to deal with future problems;  but in the absence of a
      showing that either the school authorities or some other agency
      of the State has deliberately attempted to fix or alter
      demographic patterns to affect the racial composition of the
      schools, further intervention by a district court should not be
      necessary.  (/8/)

   We hasten to add that a declaration of unitariness, and a
consequent termination of an effects standard, do not necessarily
permit a return to a neighborhood plan.  Intentional acts of racial
segregation violate the Constitution and should be enjoined.  In
determining whether a proposed change in the student assignment plan
suffers from such an illicit intent, a court may, of course, take into
consideration both the segregative history of the school system and
the foreseeability that the new plan will lead to racial imbalances.
See Village of Arlington Heights v. Metropolitan Housing Dev. Corp.,
429 U.S. 252, 266-268 (1977).  But once unitary, a school system
should have available to it the same full range of legitimate
educational choices -- neighborhood schools, choice programs, magnet
schools, and so forth -- as other school systems.

   5. In the present case, the district court declared the school
system unitary in 1977, and the plaintiffs did not appeal from that
judgment.  Even if erroneous, that judgment is now res judicata and,
as the court of appeals itself observed, is "binding upon the
parties." 795 F.2d at 1522.  "The principles of collateral estoppel or
issue preclusion are applicable to school desegregation cases."
Riddick v. School Bd., 784 F.2d 521, 531 (4th Cir.), cert. denied, 479
U.S. 938 (1986).  See generally Montana v. United States, 440 U.S.
147, 153-154 (1979).

   There is some confusion, however, about precisely what the district
court intended by its 1977 order.  /9/ How properly to construe Judge
Bohanon's 1977 order is a question best left to the courts below.  For
his part, Judge Bohanon ruled in 1985 that his 1977 order was intended
as a finding of unitariness in the required sense that "the School
District had reached the goal of being a desegregated non-racially
operated and unitary school system." 606 F. Supp. at 1554.  Since that
1977 order was not appealed, it is not open to the court of appeals to
question the adequacy of the unitariness finding.  What was open to
the court of appeals in 1986 -- and what it should consider on remand
from this Court -- is whether the 1977 finding was in fact a finding
of unitariness in the sense Judge Bohanon construed it in 1985.  The
court of appeals did not address this question because of its
erroneous view that such a finding does not necessarily mean that
judicial supervision must come to an end.  If the court of appeals
concludes that Judge Bohanon declared (whether rightly or wrongly) the
school district unitary and therefore free from judicial oversight, it
must dismiss the lawsuit on that ground;  as we have explained above,
such an unappealed finding is res judicata, and Swift imposes no
further obligations on a unitary school district.  If, on the other
hand, the court concludes that Judge Bohanon did not intend to release
petitioner from the decree in 1977, it must then determine whether the
trial court's 1985 unitariness finding -- which explicitly approved
petitioner's decision to abandon the Finger Plan for grades K-4 -- was
correct.  We address the latter question below.

   B. Because It Misunderstood The Consequences Of A Unitariness
Finding, The Court Of Appeals Neglected To Consider Whether Oklahoma
City Had, In Fact, Achieved A Unitary School System By The Time It
Adopted The Neighborhood School Plan

   As noted above, the case should be remanded for a determination
whether the trial court's 1977 order in fact constituted a finding of
unitariness.  If the court of appeals concludes that the trial court
in 1977 did not find the district to be unitary, it must then decide
whether, as the trial court plainly did find, the school district was
unitary in 1985, when petitioners adopted the neighborhood school
plan.  Because the court of appeals misunderstood the implications of
a unitariness finding, it never addressed that question.

   This Court has not had occasion to define what it means to be
"unitary," and, more generally, "(a)ppellate courts have provided
district courts with little guidance regarding how to determine
whether a school system has achieved unitary status." Pitts v.
Freeman, 887 F.2d 1438, 1445 (11th Cir. 1989).  Because the case
should in any event be remanded, we believe it would be appropriate to
provide the court of appeals, and the lower federal courts generally,
with much-needed guidance on what constitutes a unitary school
district.  In our judgment, three broad inquiries should inform the
issue of unitariness:  (1) whether the district has continuously
complied in good faith with the desegregation decree;  (2) whether the
school district has abandoned any and all acts of intentional
discrimination;  and (3) whether the school district has eliminated,
as far as practicable, the "vestiges" of prior discriminatory conduct,
as principally defined by this Court's decision in Green v. County
School Bd., 391 U.S. 430 (1968).

   1. First and foremost, the school district must faithfully observe
the dictates of the desegregation decree over a continuous period of
time.  As the First Circuit recently explained, "a sufficiently
well-established history of good faith in both the operation of the
educational system in general and the implementation of the court's
student assignment orders in particular * * * indicate(s) that further
oversight of assignments is not needed to forestall an imminent return
to the unconstitutional conditions that led to the court's
intervention." Morgan v. Nucci, 831 F.2d 313, 321 (1987).

   The importance of faithful, consistent compliance is closely tied
to this Court's decisions articulating the purposes of the underlying
decree, and the broad discretion afforded to district courts in
formulating such decrees.  As the Court has explained, a trial judge
"has not merely the power but the duty to render a decree which will
so far as possible eliminate the discriminatory effects of the past as
well as bar like discrimination in the future." Green v. County School
Bd., 391 U.S. at 438 n.4.  To pass constitutional muster, a plan must
therefore "provide meaningful assurance of prompt and effective
disestablishment of a dual system" (id. at 438) -- thereby ensuring
that the district will "convert promptly to a system without a 'white'
school and a 'Negro' school, but just schools" (Raney v. Board of
Educ., 391 U.S. 443, 448 (1968)).  Toward that end, a district court
enjoys broad remedial authority -- bounded, of course, by the scope of
the constitutional violation and prudential limitations on judicial
power -- to fashion a decree that fully transforms the dual system "to
a unitary system in which racial discrimination (has been) eliminated
root and branch" (Green, 391 U.S. at 438).  And should the decree
prove inadequate to the task, the plaintiffs should promptly seek its
modification, by moving for appropriate relief in the district court.
Compare United States v. Lawrence County School Dist., 799 F.2d 1031,
1043 (5th Cir. 1986) with Pasadena City Bd. of Educ. v. Spangler, 427
U.S. at 435-436.

   It follows, in our view, that faithful, continuous compliance with
such a well-conceived plan -- a "plan that promises realistically to
work, and promises realistically to work now" (Green, 391 U.S. at 439)
-- is compelling evidence that the school district has become unitary.
 By doing exactly what the trial court mandated, pursuant to the
court's constitutional obligation to ensure the "effective
disestablishment of a dual system" (id. at 438), a school district
goes far in showing that it has fulfilled its duty under the
Constitution.  See Spangler v. Pasadena City Bd. of Educ., 611 F.2d
1239, 1244 (9th Cir. 1979) (Kennedy, J., concurring) ("compliance with
the Pasadena Plan for nine years is sufficient in this case, given the
nature and degree of the initial violation, to cure the effects of
previous improper assignment policies").  At the same time, faithful
compliance with the decree affords considerable assurance that the
school board will not revert to its prior practices once released from
further judicial oversignt.

   In assessing the board's compliance with the decree, two factors
are central.  The first is the length of compliance.  Eliminating the
effects of a segregated system that has been in place for many years
cannot be accomplished overnight.  "It should go without saying that a
system does not become unitary merely upon entry of a court order
intended to transform it into a unitary system." United States v.
Lawrence County School Dist., 799 F.2d at 1037.  Conversely, effective
implementation of a plan over a sustained period is strong evidence
that the link between any remaining or prospective racial imbalances
and the official dual system has been broken.  In the present case,
for example, the school district complied with the Finger Plan for
thirteen years -- during which time an entire school population, from
kindergarten through twelfth grade, matriculated in a racially
unidentifiable school system.  Cf. Ross v. Houston Independent School
Dist., 699 F.2d 218, 227 (5th Cir. 1983) ("After twelve years of
court-supervised desegregation efforts, this case has reached the
stage where no benefit can be derived from further probing for the
perhaps unmeasurable sins of the past").

   The second factor is the quality of the board's compliance.  In
this connection, a court should consider whether the plaintiffs have
been required to secure enforcement orders during the life of the
decree, or, what is worse, have been constrained to obtain contempt
citations against school officials.

   2. In addition to faithful observance of the decree, a unitary
school system may not adopt any new practices that discriminate among
students on the basis of race.  That is the central teaching of Brown.
 "To separate (students) from others of similar age and qualifications
solely because of their race generates a feeling of inferiority as to
their status in the community that may affect their hearts and minds
in a way unlikely ever to be undone." Brown I, 347 U.S. at 494.  What
is "(a)t stake," the Court reiterated in Brown II, "is the personal
interest of the plaintiffs in admission to public schools as soon as
practicable on a nondiscriminatory basis." 349 U.S. at 300.

   3. Finally, a school district seeking to be declared unitary must
demonstrate that it has eliminated the vestiges of its prior acts of
discrimination.  "The objective," the Court has noted, is "to
eliminate from the public schools all vestiges of state-imposed
segregation." Swann, 402 U.S. at 15.

   a. The Court's cases have tied the concept of "vestiges" closely to
the underlying discrimination.  The pivotal case in that respect is
Green.  There, the Court looked "not just to the composition of
student bodies at the two schools but to every facet of school
operations -- faculty, staff, transportation, extracurricular
activities and facilities." 391 U.S. at 435.  Similarly, in Swann, the
Court observed that "existing policy and practice with regard to
faculty, staff, transportation, extracurricular activities, and
facilities" are "among the most important indicia of a segregated
system." 402 U.S. at 18.  And in Keyes v. School District No. 1, 413
U.S. 189, 196 (1973), this Court again focused on what have come to be
known as the "Green factors." "In addition to the racial and ethnic
composition of a school's student body, other factors, such as the
racial and ethnic composition of faculty and staff and the community
and administration attitudes toward the school, must be taken into
consideration."

   For three related reasons, we believe that the "Green factors"
should be the primary focus of a court when it assesses the extent to
which the "vestiges" of discrimination have been eliminated.  First,
those factors are the ones that most clearly identify a school as
"Black" or "White." The racial stratification of the school itself --
in its students, faculties, plant and equipment, and services and
operations -- is the plainest evidence of a dual system.  Second, the
Green factors are the most immediate byproduct of intentional racial
discrimination in the school system and, indeed, provide the clearest
evidence that school authorities have engaged in discriminatory
conduct.  Finally, because they are the most direct result of official
discriminatory conduct, the Green factors are the most amendable to
change through decree.  These are the areas over which school
officials generally have direct control.  There is every reason,
therefore, to impose on them an exacting standard to rid the system of
the vestiges of discrimination in each of the areas identified in
Green.  /10/

   The courts of appeals have generally taken the same approach in
assessing whether a school district is unitary.  In Riddick v. School
Bd., 784 F.2d 521, cert. denied, 479 U.S. 938 (1986), for example, the
Fourth Circuit upheld a finding that the Norfolk school system was
unitary and was therefore entitled to abandon a busing plan in favor
of a neighborhood school plan.  Relying on Green, the court explained
that "(a)ll aspects of public education must be freed from the
vestiges of state sanctioned racial segregation before a school system
becomes unitary" -- including, in particular, "the system's faculty,
staff, transportation practices, extracurricular activities,
facilities and pupil assignments." Id. at 533.  In the case before it,
the court of appeals observed, the trial judge had "reviewed all six
factors set out in Green and found that Norfolk's school system had
remained unitary since 1975." Id. at 534.  Because "substantial
evidence" supported those findings, the court of appeals upheld the
trial court's unitariness determination.  Ibid.

   More recently, the Eleventh Circuit applied the same principles in
Pitts v. Freeman, 887 F.2d 1438 (1989).  Noting the "six factors set
forth in Green," the court stated that "(a) review of these six
factors constitutes the best approach for determining whether a school
system has eliminated the vestiges of a dual system." Id. at
1445-1446.  Accordingly, the court held, if a school system "fulfills
all six factors at the same time for several years, the court should
declare that the school system has achieved unitary status.  If the
school system fails to fulfill all six factors at the same time for
several years, the district court should retain jurisdiction." Id. at
1446 (emphasis omitted).  /11/

   b. The question remains, however, whether a court may look beyond
the Green factors in determining whether a school district has
eliminated the vestiges of racial discrimination.  In any given case,
discrimination in school system may have wide-ranging implications for
the society at large;  any one of those implications, no matter how
far removed, can theoretically be deemed a "vestige" of an original
act of intentional discrimination.

   Residential segregation provides one example.  As this Court has
noted, a practice of confining students of one race to particular
schools will have a reciprocal effect on the development of other
schools, "and this, in turn, together with the elements of student
assignment and school construction, may have a profound reciprocal
effect on the racial composition of residential neighborhoods within a
metropolitan area, thereby causing further racial concentration within
the schools." Keyes, 413 U.S. at 202.  /12/ At the same time, however,
there may be "quite normal pattern(s) of human migration (that)
result() in some changes in the demographics of * * * residential
patterns," which may not be "attributed to any segregative actions on
the part" of school officials.  Pasadena City Bd. of Educ. v.
Spangler, 427 U.S. at 436.  See also Swann, 402 U.S. at 31-32.  And
even where housing patterns can, to some degree, be traced to
segregation in the school system, such patterns typically also depend
upon a wide array of private and other public factors.  As a result,
it may well be beyond the capability of school officials to alter
residential patterns sufficiently to prevent housing segregation from
affecting attendance patterns.  See Ross v. Houston Independent School
Dist., 699 F.2d 218 (5th Cir. 1983).  /13/

   Because they are more remote from the original acts of
discrimination, and more inherently intractable, the ripple effects of
school segregation must be assessed, if at all, much differently from
the Green factors.  Courts should recognize, as this Court did in
Keyes, that "at some point in time the relationship between past
segregative acts and present segregation may become so attenuated as
to be incapable of * * * warranting judicial intervention." 413 U.S.
at 211.  Where a school board has (1) faithfully complied with a
decree over a continuous period, (2) engaged in no new discriminatory
practices, and (3) eliminated the vestiges of discrimination in all of
the areas identified in Green, the strong presumption should be that
any further "vestige" of discrimination has been attenuated.

   In the present case, the Court need not decide whether, and if so
how, to assess the significance of residential segregation.  The trial
court examined the issue in detail and concluded that the Board had
taken "absolutely no action which has caused or contributed to the
patterns of the residential segregation which presently exist in areas
of Oklahoma City." Pet. App. 17b-18b.  To the contrary, the court
stated, "the actions of the Board of Education, through implementation
of the Finger Plan at all grade levels for more than a decade, have
fostered the neighborhood integration which has occurred in Oklahoma
City." Id. at 18b.  On any view of the matter, those findings, if not
clearly erroneous, are entirely sufficient.  /14/

                      * * * * *

   Because it misapprehended the implications of a unitariness
finding, the court of appeals failed to resolve two logically prior
questions:  (1) whether the district court's 1977 Order Terminating
Case constituted a finding of unitariness (whether correct or not),
thus foreclosing further judicial superintendence of the Oklahoma City
schools;  and if not, (2) whether the district court erred when it
found the schools to be unitary in 1985, prior to the adoption of the
neighborhood school plan for grades K-4.  In our view, a remand is
therefore necessary.

                              CONCLUSION

   The judgment of the court of appeals should be vacated and the case
remanded for further proceedings.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   JOHN R. DUNNE

      Assistant Attorney General

   JOHN G. ROBERTS, JR.

      Deputy Solicitor General

   ROGER CLEGG

      Deputy Assistant Attorney General

   LAWRENCE S. ROBBINS

      Assistant to the Solicitor General

   DAVID K. FLYNN

   MARK L. GROSS

      Attorneys

   JUNE 1990

   /1/ Over the next eight years, moreover, although minor
modifications in the Finger Plan were adopted by the Board, the
plaintiffs did not seek to revive or reopen the case.  606 F. Supp. at
1551.

   /2/ The evidence submitted to the trial court showed that since
1972, when the Finger Plan was first implemented, a significant number
of black families had moved into areas throughout the school system;
as a result, by 1980 there were no areas of the City that were more
than 90% white.  Def. Exhs. 1-4.  Similarly, whereas prior to 1972
nearly 80% of black elementary schoolchildren had attended the black
schools in the central east area (see Def. Exh. 36), by 1986 -- even
after neighborhood zones had been restored for grades 1-4 -- only 40%
of the black K-4 students attended the central east schools (Pltf.
Exh. 27).  And whereas in 1972 only 2.3% of the black children
attended schools that were more than 95% white in the outer areas of
the City (Def. Exh. 36), by 1986 fully 44% of the black children in
grades K-4 were then attending those schools (Pltf. Exh. 27).

   /3/ The evidence before the trial court showed that under the new
neighborhood school plan, there had been some resegregation of the
school system.  Whereas in 1986, the overall racial composition of the
school district was 51% white, 36% black, and 13% other (predominantly
Hispanic), following the adoption of the SRP 11 of the 64 elementary
schools had become more than 90% black.  Def. Exh. 63;  Pet. App.
11b-13b.  Ten of those schools, moreover, were in the central east
area and had been more than 90% black before implementation of the
Finger Plan.  Compare 338 F. Supp. at 1260 n.6 with Pltf. Exh. 27.  On
the other hand, less than half of the black children in grades 1-4
attended the 11 predominantly black schools, and none of the
elementary schools with neighborhood zones were more than 90% white.
Pltf. Exh. 27.  The faculties of all the schools had also remained
integrated.  Def. Exh. 187.

   /4/ The evidence showed that from 1972 through 1984, through its
operation of the Finger Plan, the Board had achieved and maintained in
each public school a racial balance among students that was within 15%
of the district-wide figures.  Pltf. Exh. 13-25.  In addition, the
record showed that since 1970 faculties had been racially integrated.
Def. Exh. 187.

   /5/ Having found the school district to be unitary, the district
court explained that future actions by the Board would be measured by
traditional equal protection standards, and not under an effects
standard as respondents had urged.  The court stated that the "1977
unitary finding signifies that the Oklahoma City Board of Education
had satisfied its affirmative duty to desegregate by eliminating the
dual school system.  Since the Board had dismantled the dual system at
the time it adopted its neighborhood plan, effect does not govern over
purpose as plaintiffs suggest." Pet. App. 41b.

   /6/ See Riddick v. School Bd., 784 F.2d 521, 535 (4th Cir.) ("once
the goal of a unitary school system is achieved, the district court's
role ends"), cert. denied, 479 U.S. 938 (1986);  United States v.
Overton, 834 F.2d 1171, 1175 (5th Cir. 1987) ("Attaining unitary
status * * * means that a school board is free to act without federal
supervision so long as the board does not purposefully discriminate;
only intentional discrimination violates the Constitution");  Spangler
v. Pasadena Bd. of Educ., 611 F.2d 1239, 1242 (9th Cir. 1979)
(Kennedy, J., concurring) ("When a court ordered remedy has
accomplished its purpose, jurisdiction should terminate");  Morgan v.
Nucci, 831 F.2d 313, 318 (1st Cir. 1987) ("although the court has
produced no formula for recognizing a unitary school system, the one
thing certain about unitariness is its consequences:  the mandatory
devolution of power to local authorities");  Jacksonville Branch,
NAACP v. Duval County School Bd., 883 F.2d 945 (11th Cir. 1989) (once
a district attains unitary status, "court supervision is no longer
warranted").  In fact, a subsequent panel of the Tenth Circuit, in
Keyes v. School District No. 1, 895 F.2d 659, 669 (1990), stated that
a school desegregation decree "will terminate once the district is
declared unitary."

   /7/ To be sure, the Swift Court emphasized that a party seeking
relief from a decree bears an imposing burden of proof;  "(t)he
inquiry," as the Court put it, "is whether the changes are so
important that dangers, once substantial, have become attenuated to a
shadow." 286 U.S. at 119.  But while the burden of proof is rigorous,
it is not insurmountable.  To the contrary, as the Court has explained
many times since Swift, "the settled rule of (this Court's) cases is
that district courts retain power to modify injunctions in light of
changed circumstances." Dombrowski v. Pfister, 380 U.S. 479, 492
(1965).  Accord Evans v. Jeff D., 475 U.S. 717, 726 (1986);  Arizona
v. California, 460 U.S. 605, 624-625 (1983).  And that
"well-established rule() governing modification of even a final decree
entered by a court of equity" is no less applicable in the specific
context of desegregation orders.  Pasadena City Bd. of Educ. v.
Spangler, 427 U.S. 424, 437 (1976).

   /8/ See also United States v. Overton, 834 F.2d at 1175
("(a)ttaining unitary status * * * means that a school board is free
to act without federal supervision so long as the board does not
purposefully discriminate;  only intentional discrimination violates
the Constitution");  Vaughns v. Board of Educ., 758 F.2d 983, 988 (4th
Cir. 1985);  Riddick v. School Bd., 784 F.2d 521 (4th Cir.), cert.
denied, 479 U.S. 938 (1986);  Pitts v. Freeman, 755 F.2d 1423, 1426
(11th Cir. 1985).

   /9/ On the one hand, the order provided that the Board had
"operated the Plan properly," had "slowly and painfully accomplished"
a "unitary system," and was therefore "entitled to pursue in good
faith its legitimate policies without the continuing constitutional
supervision of this Court." 606 F. Supp. at 1551.  On the other hand,
Judge Bohanon also stated that he did "not foresee that the
termination of * * * jurisdiction will result in the dismantlement of
the Plan or any affirmative action by the defendant to undermine the
unitary system * * *." Ibid.  The latter statement might suggest that
Judge Bohanon did not intend the 1977 finding to release the Oklahoma
City schools from the decree.  If so, the school district would not
have been found "unitary" in the required sense -- a finding that
entails "the mandatory devolution of power to local authorities."
Morgan v. Nucci, 831 F.2d 313, 318 (1st Cir. 1987).

   /10/ Compliance with such a standard, however, "does not require
any particular racial balance in each 'school, grade or classroom.'"
Milliken v. Bradley, 418 U.S. 717, 740-741 (1974).  See also Swann,
402 U.S. at 24.

   /11/ See also Quarles v. Oxford Municipal Separate School Dis., 868
F.2d 750, 753 (5th Cir. 1989) (referring to "the six factors the
Supreme Court has specified for consideration in determining whether a
school system has achieved unitary status");  United States v.
Overton, 834 F.2d 1171, 1176 (5th Cir. 1987);  Morgan v. Nucci, 831
F.2d 313 (1st Cir. 1987);  United States v. Lawrence County School
Dist., 799 F.2d 1031, 1034 (5th Cir. 1986).

   /12/ See also Swann, 402 U.S. at 21;  Columbus Bd. of Educ. v.
Penick, 443 U.S. 449, 465 n.13 (1979) ("school segregation is a
contributing cause of housing segregation");  Pitts v. Freeman, 887
F.2d at 1449 n.12.

   /13/ In Ross, the parties agreed that the school district was
"unitary in every aspect but the existence of a homogeneous student
population." 699 F.2d at 228.  The plaintiffs opposed a finding of
unitariness, however, on the ground that "the large number of one-race
schools" resulted from "housing patterns" linked to the school
district's "past segregative actions." Id. at 226.  In rejecting that
argument, the court of appeals acknowledged the ripple effect of prior
school segregation, noting that "(c)urrent housing patterns may still
show the lingering effects of school board actions that preceded the *
* * desegregation order." Ibid.  Nevertheless, the court of appeals
explained that it was "not persuaded that the district judge was in
error when he rejected the possible probative value of further
proceedings to demonstrate that earlier housing patterns resulted from
official school segregation policy apart from other community economic
and social influence." Id. at 226-227.  The court therefore upheld the
trial court's finding that the school district had "done everything
practicable at an intradistrict level to eradicate the effects of past
segregative practices." Id. at 227.

   /14/ In making unitariness determinations, reviewing courts must be
guided by the factual findings of the trial court, to the extent those
are not clearly erroneous or subject to legal error.  See Columbus Bd.
of Educ. v. Penick, 443 U.S. at 457 n.6;  Milliken v. Bradley, 433
U.S. 267, 287 n.18 (1977);  Brown II, 349 U.S. at 299;  Flax v. Potts,
864 F.2d 1157, 1160 (5th Cir. 1989).