# Board of Education of Oklahoma City Public Schools, Independent School District No. 89 v. Dowell

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## Dissenting Opinion

    Marshall
United States Supreme Court
498 U.S. 237
Board of Education of Oklahoma City Public Schools, Independent School District No. 89 v. Dowell
No. 89-1080 Argued: Oct. 2, 1990. --- Decided: Jan 15, 1991
Syllabus
In 1972, finding that previous efforts had not been successful at eliminating de jure segregation, the District Court entered a decree imposing a school desegregation plan on petitioner Board of Education. In 1977, finding that the school district had achieved "unitary" status, the court issued an order terminating the case, which respondents, black students and their parents, did not appeal. In 1984, the Board adopted its Student Reassignment Plan (SRP), under which a number of previously desegregated schools would return to primarily one-race status for the asserted purpose of alleviating greater busing burdens on young black children caused by demographic changes. The District Court thereafter denied respondents' motion to reopen the terminated case, holding, inter alia, that its 1977 unitariness finding was res judicata. The Court of Appeals reversed, holding that respondents could challenge the SRP because the school district was still subject to the desegregation decree, nothing in the 1977 order having indicated that the 1972 injunction itself was terminated. On remand, the District Court dissolved the injunction, finding, among other things, that the original plan was no longer workable, that the Board had complied in good faith for more than a decade with the court's orders, and that the SRP was not designed with discriminatory intent. The Court of Appeals again reversed, holding that a desegregation decree remains in effect until a school district can show " 'grievous wrong evoked by new and unforeseen conditions,' " United States v. Swift & Co., 286 U.S. 106, 119, 52 S.Ct. 460, 464, 76 L.Ed. 999, and that circumstances had not changed enough to justify modification of the 1972 decree.
Held:
1. Respondents may contest the District Court's order dissolving the 1972 injunction. Although respondents did not appeal from the court's 1977 order, that order did not dissolve the desegregation decree, and, since the order is unclear with respect to what it meant by "unitary" and the necessary result of that finding, it is too ambiguous to barrespond ents from challenging later action by the Board. If a desegregation decree is to be terminated or dissolved, the parties are entitled to a rather precise statement to that effect from the court. Pp. 244-246.
2. The Court of Appeals' test for dissolving a desegregation decree is more stringent than is required either by this Court's decisions dealing with injunctions or by the Equal Protection Clause of the Fourteenth Amendment. Pp. 246-251.
(a) Considerations based on the allocation of powers within the federal system demonstrate that the Swift test does not provide the proper standard to apply to injunctions entered in school desegregation cases. Such decrees, unlike the one in Swift, are not intended to operate in perpetuity, federal supervision of local school systems always having been intended as a temporary measure to remedy past discrimination. The legal justification for displacement of local authority in such cases is a violation of the Constitution, and dissolution of a desegregation decree after local authorities have operated in compliance with it for a reasonable period is proper. Thus, in this case, a finding by the District Court that the school system was being operated in compliance with the Equal Protection Clause, and that it was unlikely that the Board would return to its former ways, would be a finding that the purposes of the desegregation litigation had been fully achieved, and no additional showing of "grievous wrong evoked by new and unforeseen conditions" would be required of the Board. Pp. 246-248.
(b) The Court of Appeals also erred in relying on United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 for the proposition that "compliance alone cannot become the basis for modifying or dissolving an injunction." That case did not involve the dissolution of an injunction, but the question whether an injunction should be issued in the first place in light of the wrongdoer's promise to comply with the law. Although a district court need not accept at face value a school board's profession that it will cease to intentionally discriminate in the future, the board's compliance with previous court orders is obviously relevant in deciding whether to modify or dissolve a desegregation decree, since the passage of time results in changes in board personnel and enables the court to observe the board's good faith in complying with the decree. The Court of Appeals' test would improperly condemn a school district to judicial tutelage for the indefinite future. Pp. 248-249.
(c) In deciding whether the Board made a sufficient showing of constitutional compliance as of 1985, when the SRP was adopted, to allow the injunction to be dissolved, the District Court, on remand, should address itself to whether the Board had complied in good faith with the desegregation decree since it was entered, and whether, in light of every facet of school operations, the vestiges of past de jure segregation had been eliminated to the extent practicable. If it decides that the Board was entitled to have the decree terminated, the court should proceed to decide whether the Board's decision to implement the SRP complies with appropriate equal protection principles. Pp. 249-251.
890 F.2d 1483 (CA10 1989), reversed and remanded.
REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BLACKMUN and STEVENS, JJ., joined. SOUTER, J., took no part in the consideration or decision of the case.
Ronald L. Day, Oklahoma City, Okl., for petitioner.
Sol. Gen. Kenneth W. Starr, Washington, D.C., for U.S., as amicus curiae, in support of petitioner, by special leave of Court.
Julius L. Chambers, New York City, for respondents.
Chief Justice REHNQUIST delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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