# Jose Cisneros v. Corpus Christi Independent School District > Court of Appeals for the Fifth Circuit · August 2, 1972 · 467 F.2d 142 URL: https://www.frixlaw.com/law-library/cases/9458702 ## Case - **Full name:** Jose CISNEROS Et Al., Plaintiffs-Appellees, v. CORPUS CHRISTI INDEPENDENT SCHOOL DISTRICT Et Al., Defendants-Appellants - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** August 2, 1972 - **Citations:** 467 F.2d 142; 1972 U.S. App. LEXIS 8093 - **Precedential status:** Published - **Opinion:** Concurring in part by Goldberg - **Judges:** Brown, Wisdom, Gewin, Bell, Thornberry, Coleman, Goldberg, Ainsworth, Godbold, Dyer, Simpson, Morgan, Clark, Ingraham, Roney - **Cited by:** 82 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9458702 ## Opinion text GOLDBERG, Circuit Judge, with whom JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN and SIMPSON, Circuit Judges, join, concurring in part and dissenting in part: I concur in every word and syllable «of Judge Dyer’s opinion of superlative excellence until the section captioned “Remedy” is reached. Discerning no error in the decree of the district court, I would affirm without qualification or equivocation. The Board argues that the remedy fashioned by the district court is so excessive that it is erroneous. I entertain no doubt whatsoever that the methods adopted by the district court in its plan to desegregate the school system, e. g., the pairing of schools and alterations of attendance zones, are within the scope of the court’s remedial powers. Swann v. Charlotte-Mecklenburg, 1971, 402 U.S. 1 , 91 S.Ct. 1267 , 28 L.Ed.2d 554 . But the critical factor is that the majority itself makes clear today that it entertains no such doubt. Thus, my dissent is compelled as much by confusion at what the majority has done as by disagreement with its remedy. I fail to understand why the majority would agree to the substantive requirements as set forth in Judge Dyer’s fine opinion, and then remand to the district court for a remedy based on findings of fact that have already been made. The majority concludes that student assignment plans are initially the prerogative of the school board. So the district court held, and so we have held on a number of occasions. Yet the majority remands. The majority admits that the school board must bear the burden of proof if it wishes to maintain a system found to be unconstitutionally segregated. So the district court found. Yet the majority remands. The majority concludes that the district court must proceed to desegregate if the board fails to do so. The district court found that the board in Corpus Christi failed to desegregate to any substantive degree, and the district court then proceeded to fashion a remedy. A very able district judge requested that the school board submit a comparative plan for integrating its schools. The board refused to offer any constructive suggestions whatsoever. Cisneros v. Corpus Christi Ind. School Dist., S.D.Tex. 1971, 330 F.Supp. 1377 . It is astounding that the school board would then urge that this court delay implementing the district court order when the school board itself failed to advance any constructive suggestion of its own. It is even more astounding that a majority of this court now condones the board’s behavior. Yet the majority remands. The majority endorses pairing, clustering, and realignments of school zones, as indeed it must under the precedents of this court and of the Supreme Court. *158 See especially Brown v. Board of Education of Bessemer, Alabama, 5 Cir. 1972, 464 F.2d 382 . The district court paired, clustered, and realigned school zones. Yet the majority remands. The majority concludes that transportation may as a last resort be required to eliminate segregation in the Corpus Christi schools. If transportation is required, the majority intones, then the district court must order busing. The district court found as a matter of fact that some transportation would be required in Corpus Christi. Yet the majority remands. In short, every single finding of fact that is necessary to support the majority’s substantive reasoning has already been made. Yet the majority remands. The remedy that the majority has engrafted onto the reasoning of the district court and of this court will produce no substantive changes whatsoever in the trial court’s original decree — ex-fcept delay. Without so much as a hint that the findings by the trial judge with regard to the remedy were erroneous, the majority cavalierly consigns the plaintiffs to another round of litigation and the school children of Corpus Christi to another round of segregated educa- , tion. “There is a constitutional right that must be vindicated by a desegregation plan — a right possessed by the students of the district, not by the parties involved in the negotiations. If a constitutional right to attend integrated schools actually exists, there must be a way of ensuring that it is not bartered away in a trade-off for other goals or lost because of incompetence or inadvertence.” Comment, “Busing, Swann v. Charlotte-Mecklenburg, and the Future of Desegregation in the Fifth Circuit,” 49 Texas L.Rev. 884 , 907 (1971). The board alleges that it will sustain a financial burden in providing any buses necessary for implementation of the court’s student assignment plan. In Swann the Court found that bus transportation was a normal and accepted tool of educational policy. Notwithstanding the fact that the “remedy may be administratively awkward, inconvenient, and even bizarre in some situations and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems.” Swann v. Charlotte-Mecklenburg, 402 U.S. at 28 , 91 S.Ct. at 1282 , 28 L.Ed.2d at 573 . Busing is transportation, nothing more. If it is possible to integrate the schools of Corpus Christi without the purchase of a single bus, then that is clearly preferable. But the critical question is integration not transportation. “It is imperative, then, that the Nation’s judicial system be able to deal efficiently with the basic concept of busing. If the judiciary does not, the future of desegregation may be endangered. . . . Whatever the wisdom of the judiciary’s original involvement in desegregation, it would be tragic for the forces of equality to be frustrated, after victory in so many bloody battles, merely because the courts could not rise to the task presented them.” 49 Texas L.Rev. at 910. I doubt that the extent of busing that might be necessary under the district court’s original plan has been fully explored by the majority or the school board. I think it is not unlikely that far less transportation and at less cost may be required than that which has been estimated. Because of the density of Mexican-American and black children in the “corridor” area of Corpus Christi, which is approximately in the center of the school district, there may well be a number of alternatives in rearranging boundaries that would reduce the number of children to be bused. Furthermore, during this appeal a bond issue has been approved in which $5.9 million is allocated for building, renovating, and rebuilding various schools. A number of alternatives that do not require transportation are now available in careful site selections. All of this is not to say that the implementation *159 of the district court’s plan should be postponed or placed in limbo while other avenues finally leading to a unitary school system are explored. The school board had its chance, the district court made its findings, and both should now be concluded. Desegregation of the Corpus Christi school system is long overdue, and the plan approved by the district court should be promptly put into effect. But I suggest that with some innovation the segregated system could have been and now can be eliminated without the dire consequences that are conjured up by the school board. Swann and its lineal ascendants and forefathers command us to be sensitive to the trial court’s proximity to the problems. This reference to the trial court’s localization is particularly persuasive when the trial judge himself, as here, concludes that some drastic action is required. See Comment, “School Desegregation after Swann : A Theory of Government Responsibility,” 39 U. Chi.L.Rev. 421 (1972). Admittedly the trial court performed needed major surgery in order to purge the system of ethnic prejudice and discrimination. Such surgery has heretofore been confirmed as a therapeutic necessity. I would not incise again and apply a Band-Aid to the incision, as the majority has done with its “remedy.” The remand would permit and even aus-picate a jejune and mild antiseptic. The ghetto line is clearly marked “Ayres Street” in Corpus Christi, and designating it as the ethnic division point, has infected the whole system. First aid to a toe and then to a finger finds" no support in the Supreme Court’s diagnosis and prognosis for ending segregation in schools “root and branch.” I do not read Swann as a countermanding order to patch up the school district and return it to action with a terminal case of the Mexican-American counterpart to Jim Crowism. See Comment, “Project Report: DeJure Segregation of Chica-nos in Texas Schools,” 7 Harv.Civ.Lib. —Civ.Rights L.Rev. 307. If the Supreme Court wanted to let roots and branches of discrimination foliate, it would have so decreed. Until its orders are clarion, I will use every effort to despoil any system that permits unconstitutional discrimination in the public schools by whatever descriptive semantics- — de facto, de jure, state action. In fact, the Supreme Court reversed one of this court’s decisions in a companion ease to Swann, Davis v. Board of School Commissioners, 1971, 402 U.S. 33 , 91 S.Ct. 1289 , 28 L.Ed.2d 577 . To me this response not only vindicated the efforts that this court has made toward maximizing the integration of the school systems, but indicated that even more rigorous action on our part was called for. Yet the majority remands. This is not the hour, this is not the day, and Corpus Christi is" not the place for courts to flag in their striving for constitutional schools, for quality education, for integrated education. I am aware that the Board’s resources are not unlimited. If the district court finds after a plenary hearing with full findings of fact and conclusions of law that the board is unable to carry out any of the plans, then that court or this court may, of course, adjust its" order accordingly. Our court must of necessity rely to a large extent on the informed judgment of the district court, the majority’s actions today notwithstanding. In my judgment, however, it is also necessary to say clearly that the days of “with all deliberate speed” are gone, and gone forever. The district court plan should be implemented now, for “[t]he obligation of every school district is" to terminate dual school systems at once and to operate now and hereafter only unitary schools.” Alexander v. Holmes County, 1969, 396 U.S. 19 , 90 S.Ct. 29 , 24 L.Ed.2d 19 . The majority’s so-called “remedy” in this case is not an abdication of our past efforts. It is a regression. “Equal protection of the laws” means equal protection, not equivocal protection. *160 AINSWORTH, Circuit Judge, with whom BELL and RONEY, Circuit Judges, join, concurs in the result, and in the remedy which the District Court is directed to provide on remand of this case. GODBOLD, Circuit Judge, with whom COLEMAN, MORGAN, and CLARK, Circuit Judges, join, files the following special opinion. For the reasons set out in the special opinion of Judge Godbold in United States of America v. Texas Education Agency, et al., No. 71-2508, 5 Cir., 467 F.2d 848 , decided this date, we would hold this appeal in abeyance pending further action by the Supreme Court of the United States, and we dissent from consideration of the merits at this time. Directed as we are by a vote of eight judges to seven to consider the merits, we concur in only that part of the opinion of Judge Dyer headed “Remedy.” JOHN R. BROWN, Chief Judge, with whom WISDOM, GEWIN, THORNBER-RY, GOLDBERG, DYER and SIMPSON, Circuit Judges, join: To Judge Godbold’s dissent I reiterate my response in 71-2508, United States of America v. Texas Education Agency. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9458702. Public record. Not legal advice.