Cole, Robert D., Jr.

English

University of Baltimore School of Law

University of Baltimore Law ForumVolume 22Number 1 Summer, 1991 Article 81991Recent Developments: Board of Oklahoma City v.Dowell: Federal Court Supervision of PreviouslySegregated Schools May Be Terminated ifSubstantial Compliance with DesegregationObjectives Has Been AttainedRobert D. Cole Jr.Follow this and additional works at: http://scholarworks.law.ubalt.edu/lfPart of the Law CommonsThis Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion inUniversity of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, pleasecontact snolan@ubalt.edu.Recommended CitationCole, Robert D. Jr. (1991) "Recent Developments: Board of Oklahoma City v. Dowell: Federal Court Supervision of PreviouslySegregated Schools May Be Terminated if Substantial Compliance with Desegregation Objectives Has Been Attained," University ofBaltimore Law Forum: Vol. 22 : No. 1 , Article 8.Available at: http://scholarworks.law.ubalt.edu/lf/vol22/iss1/8nographer, but not by the defendant. The child was openly frightened of the defendant, therefore, the judge concluded that the child was not emotionally prepared to testify in open court before the defendant. Accordingly, the judge decided that a two-way television should be used in such a way that both the child and the defendant could see one another without actual confrontation. Gilbert's motion fora new trial was denied and he received a fifteen year prison sentence. Craig, 588 A.2d at 336. Gilbert appealed, but before the court of special appeals had an opportunity to decide the case, the court of appeals issued a writ of certiorari. Id. at 337. The defendant claimed that the trial judge erred in permitting the section 9-1 02 procedure without first examining the child victim testify-ing in the presence.ofthe defendant. Id. at 338. Nevertheless, the court of appeals upheld the trial court judge's findings, basing its decision on two rationales: (1) the trial court judge did not have the guidance of Craig I nor Maryland v. Craig, which favors the initial interview in front of the defendant; and (2) the court ruled that it was within the trial court judge's discretion whether or not to allow the defendant to be present. Id. at 338-39. In summary, Gilbert's case was decided differently than Craig's due to the trial court judge's per-sonal examination of the child prior to her testifying. The judge made a case-specific finding, and concluded that the child was unable to testify in open court without subjecting her-selfto serious emotional trauma. Id. at 339. Craig and Gilbert established a set of guidelines, not a rigid for-mula, for trial court judges to follow in child abuse cases. The ruling in Craig leaves a tremendous amount of discretion in the hands of the trial court judge. Gilbert indicates that so long as the trial judge makes an individualized evaluation of the child's emotional health, his or her decision to implement section 9-102 will be upheld. These cases demonstrate an effort to provide fur-ther guidelines in child abuse cases, and in so doing, the court of appeals has pushed the right of confronta-tion to its constitutional limits in an all out effort to protect abused chil-dren. - Andrew S. Kasmer Board of Oklahoma City v. Dowell: FEDERAL COURT SUPERVISION OF PREVI-OUSL Y SEGREGATED SCHOOLS MAY BE TERMI-NATED IF SUBSTANTIAL COMPLIANCE WITH DE-SEGREGATION OBJEC-TIVES HAS BEEN ATTAINED In Board of Oklahoma City v. Dowell, 111 S. Ct. 630 (1991), the United States Supreme Court pro-mulgated a standard for dissolving desegregation decrees. Specifically, the Court ruled that a federal district court may lift a desegregation de-cree if a school district can show that it has complied with the decree in good faith and that vestiges of past discrimination have been elimi-nated to the extent practicable. If a decree is to be terminated or dis-solved, the parties are entitled to a detailed statement to that effect from the court. In 1972, the Board of Education of Oklahoma City was ordered to adopt a court-supervised desegre-gation plan involving busing. This plan was designed to integrate the schools in its district and end de jure segregation. After complying with the desegregation decree for five years, the Board moved in 1977 to end court supervision of the plan. After finding that the Board had substantially complied with the con-stitutional requirements and that lack of court supervision would not be detrimental to the unitary system the Board had achieved, the district court terminated its jurisdiction in the case. In 1984, the Board adopted the Student Reassignment Plan (SRP). This plan was designed to alleviate greater burdens placed on blackchil-dren caused by demographic changes in the area that resulted in longer busing routes. In 1985, the respon-dents, black students and their par-ents, asked the district court to re-open the case, contending that the school district had not achieved ''uni-tary" status and that SRP was a return to segregation. Id. at 634. The district court refused to re-open the case, holding that its 1977 find-ing that the school system was ''uni-tary" was res judicata and that the school system had remained uni-tary. Id. The Court of Appeals for the Tenth Circuit reversed, and held thatthe 1977 orderdidnotterminate the original injunction. Id. The court of appeals remanded the case for the district court to determine if the injunction should be lifted or modified. On remand, the district court vacated the injunc-tion because it found that the previ-ously ordered desegregation plan was unworkable dueto demographic changes, the school district had maintained its unitary status, and that the SRP was not designed with discriminatory intent. Id. at 634-35. The Court of Appeals again re-versed. Id. at 635. Relying on United States v. Swift, 286 U.S. 106 (1932), the court ruled that the in-junction should remain in effect until the school district could show that its existence was causing a "griev-ous wrong evoked by new and un-foreseen conditions." Dowell, 111 S. Ct. at 635 (quoting Swift, 286 __________________________ 22.//fhe Law Forum - 29 U.S. at 119 (1932». The Supreme Court granted the Board's petition for certiorari and reversed. In the majority opinion written by ChiefJustice Rehnquist, the Court first considered whether the respon-dents could contest the 1977 order disso 1 ving the desegregation decree. The Board argued that the 1977 finding ofunitariness barred the re-spondents from challenging the or-der. Id. at 635. Because the lower courts inconsistently used the term ''unitary,'' confusion arose in inter-preting the 1977 order. As a result, the Court held that when a desegre-gation decree is to be terminated, all parties are "entitled to a rather pre-cise statement" to that effect from the court. Id. at 636. In its analysis, the Court focused on the standard for dissolving de-segregation decrees and placed great weight on the nature of injunctions issued in desegregation cases. In distinguishing the nature of the Swift injunction on which the court of appeals had relied, the Court recog-nized that "federal supervision of local school systems was intended as a temporary measure to remedy past discrimination." Id. at 637. Accordingly, the Court found that dissolution standards, which applied to other injunctions that were de-signed to operate in perpetuity, were not the proper standards to apply to desegregation decrees that were tem-porary by their very nature. Id. The Court held that after local authorities had complied with the desegregation decree for a "reason-able period of time," the decree's dissolution was proper. Id. In deter-mining a school district's compli-ance with desegregation decrees, the court first must conclude that the school board had "complied in good faith with the desegregation decree since it was entered." Id. at 638. In deciding the question of good 30 - The Law Forwnl22.1 faith, "compliance with previous court orders is obviously relevant." Id. at 637. In this case, the Board complied with the decree from 1972 until 1985. The Court held, there-fore, that the court of appeals had erred in relying on United States v. W. T. Grant Co., 345 U.S. 629 (1953), for the proposition that "compliance alone cannot become the basis for modifying or dissolv-ing an injunction." Dowell, 111 S. Ct. at 637. The Court also recog-nized that the "grievous wrong" test, which the court of appeals gleaned from Swift, would place school boards under judicial supervision indefinitely. Id. at 638. This result conflicted with the purpose of schoo 1 desegregation injunctions, which sought only to remedy past segrega-tion, prevent future discrimination, and ultimately return schools to lo-cal control. Id. Next, the Court instructed lower courts to determine if the "vestiges of past discrimination had been eliminated to the extent practicable." Id. In evaluating this criteria, the Court stated that consideration must be given not only to student assign-ments, but also to "every facet of school operations - faculty, staff, transportation, extra-curricular ac-tivities and facilities." Id. (quoting Green v. New Kent County School Board, 391 U.S. 430,435 (1968». On remand, the Court instructed the district court to determine (1) if the Board had complied in good faith with the desegregation decree since its imposition and (2) if the vestiges of past discrimination had been eliminated as far as practicable throughout every facet ofthe school district's operations. If the district court found that the Board was en-titled to have the injunction lifted, it must then proceed to evaluate the SRPunderthemandatesoftheEqual Protection Clause of the Fourteenth Amendment. [d. In dissent, Justice Marshall, joined by Justices Blackmun and Stevens, sought a stricter standard than the majority for ending court supervised desegregation. Drawing on Brown v. Board of Education, 347 U.S. 483 (1954), the dissenters argued that a decree should not be lifted while conditions likely to in-flict the type of stigma identified in Brown still remained. So long as "racially identifiable schools" and other conditions likely to inflict such injury persisted, and while at the same timethere were feasible means of eliminating them, the dissenters would not terminate desegregation decrees. Dowell, 111 S. Ct. at 639 (Marshall, J., dissenting). The decision in Board of Educa-tion of Oklahoma City v. Dowell set down standards for dissolution of desegregation decrees, thus making it easier for school districts cur-rently under supervision to be set on their own again. Under the new standards, a school system that was at one time segregated and subject to a desegregation order may have that order terminated upon a show-ing that it has complied with the order in good faith for a "reasonable period oftime," has abandoned any discriminatory practices to the ex-tent "practicable," and that it is un-likely that the school system would again resort to discriminatory prac-tices. - Robert D. Cole Jr. Feist Publications, Inc. v. Rural Telephone Service Co.: ALPHA-BETIZED DIRECTORY LISTINGS CONSISTING OF SURNAMES AND TELE-PHONE NUMBERS ARE NOT SUBJECT TO COPYRIGHT PROTECTION. In Feist Publications, Inc. v. Ru-ral Telephone Service Co., 111 S. 

Recent Developments: Board of Oklahoma City v. Dowell: Federal Court Supervision of Previously Segregated Schools May Be Terminated if Substantial Compliance with Desegregation Objectives Has Been Attained

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Recent Developments: Board of Oklahoma City v. Dowell: Federal Court Supervision of Previously Segregated Schools May Be Terminated if Substantial Compliance with Desegregation Objectives Has Been Attained

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