Jose Cisneros v. Corpus Christi Independent School District

GEWIN, Circuit Judge,

with whom JOHN R. BROWN, Chief Judge, and WISDOM, GOLDBERG and SIMPSON, Circuit Judges, join, concurring in part and dissenting in part:

This court today approves the district court’s findings of fact and affirms its statement of the applicable law. But for reasons not stated in the opinion and certainly not apparent from the record, a majority of this court concludes that “a different approach [as to remedy] may achieve a constitutional result without involving the conversion of the school system from a non-transportation to a transportation basis to the extent ordered by the district court.” I believe that today’s modification-by-deletion of the district court’s remedy ignores both the facts as found and the procedure followed during that court’s year long effort to fashion a remedy. I therefore dissent from the “modification” of the ordered remedy.

As a member of the original panel which heard this appeal argued and as one who has painstakingly examined the record below, I fully concur with Judge Dyer’s graphic and detailed description of the operation of the Corpus Christi schools and the approval of the district court’s finding of school board segregation. I particularly endorse Judge Dyer’s explicit abandonment of distinctions in the constitutional rights of school children based on the source or purpose of state fostered segregation.

After years of tortuous school desegregation litigation in this court reflected by hundreds of opinions in numerous volumes, the majority now stumbles and falters over issues which we have decided and laid to rest in almost every geographical area of this circuit. To realize this fact it is not necessary to cite cases; they are legion. We have dealt with practically all major school systems and many minor ones throughout the six states over which we exercise jurisdiction. These decisions have dealt in positive and often stern fashion with the school systems of Atlanta, Savannah, Jacksonville, Miami, Jackson, Birmingham, Mobile, Montgomery, Jefferson Parish, Houston, Fort Worth and numerous others.

In most instances we were following mandates from the Supreme Court which directed us in unequivocal terms to write a decree “that promises realistically to work, and promises realistically to work now.” Our opinions have related to all facets of desegregation and school integration including transportation, faculty and staff integration, pairing and clustering, non-curricular activities, school construction, the sale of school property, faculty ratios, hiring and firing teachers, racial protests and many others. We have not been a timid or inactive court in dealing with these problems. At times I have disagreed and have expressed my views in dissents, but the court is bound and should be bound by the long list of majority decisions we have rendered.

There is no justification for changing the rules and guidelines which we have hammered out just because the problem presented in this case relates to prohibited racial discrimination against a substantial number of Mexican-Americans and a small number of black students. I can not and will never embrace the idea that the children in Corpus Christi have different or lesser rights than the children in Jackson, Birmingham, Atlanta, New Orleans, Jacksonville and Houston, just because they are Mexican-Ameri- *155 cans. Moreover, I continue to assert that the Constitution must be applied with equal force in all areas of the nation — North, South, East and West.

Aside from rhetorical criticism of “bussing” the majority opinion utterly fails to demonstrate any defect in the remedy fashioned by the district court or to offer any guidance on the key substantive questions: (1) how much desegregation is required?; and (2) how much bussing is too much? The prescribed seven point “remedy” procedure essentially directs the district court to retrace its steps.

The district court ordered the school board to submit an acceptable plan (Point #2') 1 and the court then held hearings and sought the assistance of private litigants and public agencies to devise a plan of its own (Point #3).

As the majority opinion recognize, over two-thirds of the 46,000 public school students in Corpus Christi are the victims of unconstitutional ethnic and racial segregation. The majority also finds that the rigid imposition of a neighborhood school plan upon the historic pattern of marked residential segregation in Corpus Christi produced this school segregation. It is therefore absurd to believe that the use of strict neighborhood assignment (Point #4) or the pairing of close schools to expand the neighborhood or community school concept (Point #5) will significantly alleviate the existing segregation.

Even a brief examination of the district court’s opinion of July 2, 1971, reveals that the court did exhaust the possibilities of zone realignment, and the pairing and clustering of schools in close proximity. The court had the benefit of the Supreme Court’s opinion in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 , 91 S.Ct. 1267 , 28 L.Ed.2d 554 (1971) and made specific inquiry as to the effects of bussing (Point #6).

The district judge noted that he had made no attempt to meet any certain ratio throughout the school district, but that no school should be without a substantial number of students from minority ethnic groups, and no school should be without a substantial number of Anglo students. The court found that in Corpus Christi where the Mexican-American and black students are almost one-half the student population, attendance in any school of less than 20% Anglo students or of less than 20% Mexican-American and black students (combined) would be insubstantial. The majority opinion does not object to this technique and I find no fault with a balance of “substantiality” as a constitutionally permitted ‘interim corrective measure’. (Point 7).

Finally in its enigmatic decree that bussing be minimized even if after exhausting other possibilities segregated schools remain, the court is perfectly obscure on the point which will dominate the proceedings to follow below.

I believe the Supreme Court has delineated the standard with respect to transportation of students. In Davis v. Board of School Commissioners of Mobile County, 402 U.S. 33 , 91 S.Ct. 1289 , 28 L.Ed.2d 577 (1971) the Court rejected a desegregation plan prepared by this court because it was based on treating the western section of the county in isolation from the eastern section. The court stated:

Like the District Court’s plan, the Court of Appeals’ plan was based on treating the western section in isolation from the eastern. There were unified geographic zones, and no transportation of students for purposes of desegregation. The reduction in the number of all-Negro schools was achieved through pairing, rezoning, and adjusting grade structures within the eastern section.

A district court may and should consider the use of all available techniques including restructuring of attendance zones and both contiguous *156 and noncontiguous attendance zones. See Swann, supra, at 22-31 , 91 S.Ct., at 1279-1283, 28 L.Ed.2d at 570-575. The measure of any desegregation plan is its effectiveness.

On the record before us, it is clear that the Court of Appeals felt constrained to treat the eastern part of metropolitan Mobile in isolation from the rest of the school system, and that inadequate consideration was given to the possible use of bus transportation and, split zoning. For these reasons, we reverse the judgment of the Court of Appeals as to the parts dealing with student assignment, and remand the case for the development of a decree “that promises realistically to work, and promises realistically to work now.”

402 U.S. at 36-38, 91 S.Ct. at 1291-1292, 28 L.Ed.2d 580 -581. Without reason or authority the majority opinion abandons the mandate of Davis and numerous other Supreme Court decisions.

I realize that the remedy as ordered by the district court presents serious financial and administrative difficulties. It is a very substantial matter to direct the bussing of one-third of the district’s students. But I do not find it at all surprising that such a remedy might be required in a system where over two-thirds of the students attend segregated schools. The remedy ordered is the consequence of the district court’s consideration of precisely those factors and priorities which this court now decrees. I would affirm the order with leave to the district court to amend the order as the practicalities of the situation require in order to avoid undue hardships or burdens on the School Board.

. These headings refer to numbers in the majority opinion under the Section entitled “Remedy.”