The closely watched legal battle over Oklahoma City’s neighborhood-schools policy took a new twist this month when the federal appeals court that had found the plan unconstitutional withdrew and vacated its recent decision in the case.
The two-member majority of the panel in the U.S. Court of Appeals for the 10th Circuit withdrew its opinion to respond to an 84-page dissent by the panel’s third member, according to their order in the case.
Civil-rights experts believe the U.S. Supreme Court will use the case to rule on the unsettled issues of how and when school-desegregation cases should be ended.
Hundreds of school districts have desegregation plans about as old as Oklahoma City’s, which was adopted in 1972. Many have also been judged unitary--or in substantial compliance with their court orders--as Oklahoma City was in 1977.
‘A Grievous Wrong’
On July 7, the majority on the 10th Circuit panel ruled that the Oklahoma City public schools remained bound by the 1972 court orders in the case and that its 1985 decision to end busing for K-4 students violated those orders. (See Education Week, Aug. 2, 1989.)
To make such a change in a court-ordered desegregation plan, the majority opinion said, “requires nothing less than a clear showing of a grievous wrong evoked by new and unforseen conditions.”
U.S. Circuit Judge Bobby R. Baldock’s dissent, which was released this month, constitutes a detailed attack on much of the legal reasoning in the majority’s opinion, which was vacated on Sept. 15.
The use of the legal standard employed by the court’s majority, Judge Baldock wrote, makes it “virtually impossible to vacate or modify” desegregation orders without the consent of minority plaintiffs.
He termed “ridiculous” the reasoning that led the majority to conclude that desegregation injunctions should remain in effect indefinitely.
Judge Baldock also charged that the panel’s majority failed to give due consideration to the 1977 ruling that Oklahoma City’s schools had attained “unitary” status.
“I question retention of jurisdiction in this case given the unitary status of the school district,” he wrote. “Four other [appeals-court] circuits hold that current desegregation law doesn’t envision continued federal jurisdiction in the affairs of local school districts in perpetuity once a school district becomes unitary.”
A Rare Judicial Step
Finally, Judge Baldock also disputed the majority’s view that Oklahoma City’s implementation of a neighborhood-school-assignment plan constituted a return to an unconstitutionally dual school system.
“There is ample evidence to support the finding that, even with the introduction of a neighborhood-school plan in grades 1-4, the school board still operates a unitary system,” he wrote.
Although the majority considered 32 of the district’s 64 elementary schools to be one-race schools under the neighborhood-schools plan, he said, 21 of those schools have balanced enrollments if Asian-Americans, Hispanics, and Native Americans are counted.
Appeals panels rarely take the step of withdrawing their opinions, according to experts, but this is the second time this year that the 10th Circuit has withdrawn a school-desegregation ruling.
Two members of the Oklahoma City panel, including Judge Baldock, also preside over the second case, the latest round of Brown v. Board of Education of Topeka. The original majority opinion in the historic case found that the district had never adequately dismantled its dual school system, and an expected dissenting opinion has yet to be released.
