Appendix — Austin Independent School District v. United States

Supreme Court brief1976

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IN THE

SUPREME COURT OF THE UNITED STA Tipcueet RODAK, CLE

OCTOBER TERM 1976

vo. 76-200 |

TEXAS EDUCATION AGENCY

(Austin Independent School District), et al,

Petitioner

UNITED STATES OF AMERICA, et al,

Respondents

MEXICAN-AMERICAN LEGAL DEFENSE &

EDUCATION FUND, et al,

Intervenors-Respondents

DEDRA ESTELL OVERTON, NATIONAL

ASSOCIATION FOR THE ADVANCEMENT OF

COLORED PEOPLE, et al,

Intervenors-Respondents

APPENDIX TO PETITION FOR CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

William H. Bingham

Shannon H. Ratliff

David L. Orr

McGINNIS, LOCHRIDGE &

KILGORE

Sth Floor, Texas State Bank Building

900 Congress Avenue

Austin, Texas 78701

UNITED STATES of America,

Plaintiff-Appellant,

Dedra Esteli Overton et al.,

Intervenors-Appellants,

TEXAS EDUCATION AGENCY et al.,

(Austin Independent School District),

Defendants-Appellees.

No. 73-3301.

United States Court of Appeals,

Fifth Circuit

May 13, 1976

WISDOM, Circuit Judge:

The United States and various black and Mexican-

American intervenors have challenged the student assign-

ment policies of the Austin Independent School District

(AISD). This is the second time this case has come before

us. In 1972, our en banc Court remanded the case to the

district court with directions to eliminate all dis-

criminatory segregation against black and Mexican-

American students and to establish a unitary school sys-

tem in Austin. United States v. Texas Education Agency, 5

Cir., 467 F.2d 848 (Austin /). At the time of that decision,

the AISD was 65 percent Anglo, 20 percent Mexican-

American, and 15 percent black. Eighty-three percent of

the black students and 58 percent of the Mexican-

Americans attended schools that contained over three-

fifths minority' students. The district court, on remand

from our en banc decision, adopted the desegregation plan

submitted by the AISD. This plan has had two years of

operation to prove itself. The school system is now 62 per-

cent Anglo, 23 percent Mexican-American, and 15 percent

black. Forty-two percent of the black Austin students and

45 percent of the Mexican-Americans still attend schools

that are over three-fifths minority. Progress has been

made. But the AISD is far from a unitary system.

This Austin case differs from the one we considered in

1972 in two respects. First, we must weigh the effect of the

Supreme Court decision in Keyes? on the burdens of the

plaintiffs and defendants. Second, we must measure the

constitutional sufficiency of the new desegregation plans

the AISD and the intervenors have submitted.

I. PROCEDURAL HISTORY

This school desegregation case was filed in August 1970

by the United States against the Texas Education Agency

and seven school districts, including the AISD. The com-

plaint alleged that (1) historically, the defendants had

operated a dual system based on race, and continued to do

so, and (2) the defendants discriminatorily assigned

Mexican-Americans to schools identifiable as Mexican-

American schools or as schools intended for blacks and

‘The term ‘‘minority’’ is used to refer collectively to Mexican-

American and black students.

*Keyes v. School District No. 1, Denver, Colorado, 1973, 413

U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548.

Mexican-Americans. Certain blacks and Mexican-Ameri-

cans intervened on their own behalf and as representatives

of those similarly situated.

After the parties and the United States Department of

Health, Education, and Welfare were unable to agree on a

desegregation plan, the district court consolidated a hear-

ing that took place June 14 to June 21, 1971. The court

held that there had been no de jure discrimination against

Mexican-Americans and afforded them no relief. It then

held that the ‘‘vestiges of a dual system continue to exist

with respect to blacks’’ and adopted, with minor modifi-

cations, the AISD plan for establishing a unitary school

system in Austin. The high schools and junior high schools

were to be desegregated primarily by busing about 2200

blacks to previously predominantly white schools. The

elementary schools were ‘‘clustered’’ into groups of six

schools each. One week per month the students of each

cluster were to meet together to engage in certain planned

activities. The district court found ‘‘that elementary

students would be in a desegregated environment as much

as twenty-five (25) percent of the school year’’.

This Court, sitting en banc, reversed and remanded the

case to the district court with directions to eliminate the

unconstitutional segregation of Mexican-American and

black students ‘‘at once’’. 467 F.2d at 883. We held that

the AISD had caused and perpetuated the segregation of

blacks within the school system and that it had not dis-

mantled this dual system. The Court further held that the

educational status of Mexican-American students was in-

ferior to that of their Anglo counterparts and that Mexi-

can-Americans in Austin were a separate ethnic minority

within the ambit of the Equal Protection Clause. Because

school authorities, by their actions, contributed to the

segregation of Mexican-Americans in the Austin schools,

we held that these students were denied the equal protec-

tion of the laws.

The en banc Court divided only on the issue of remedy.

A majority of the Court directed the district court to

eliminate the dual school system and itemized a hierarchy

of desegregation tools that the court should consider us-

ing. Six judges dissented: ‘‘The majority opinion . . . [is]

an example of how a reviewing court can pass the buck,

give the school board a delay, and confuse the district

court on remand.’”’ 467 F.2d at 888. This evaluation has to

some extent been borne out by later events. The district

judge admitted to the attorneys in this case that he was

baffled by the majority opinion on remedy and asked for

help in interpreting it. The response of the attorneys (of

both the intervening appellants and the AISD) was to

move for clarification of this Court’s mandate. The mo-

tion was denied over the dissent of five judges. United

States v. Texas Education Agency, 5 Cir. 1973, 470 F.2d

1001 (en banc).

On August 3, 1972, the day after our en banc decision

was issued, the district court ordered the parties to hold a

pre-trial conference within five days to discuss the possi-

bility of joining in the submission of a single desegregation

plan to that court. If no agreement could be reached, the

AISD, the United States, and the intervenors were ordered

to the district court on that day that it was ‘‘unable to

submit a desegregation plan at this time’’ and recom-

mended to the court ‘‘that local officials be given the

opportunity to formulate and submit a plan to the

Court before the Court or other parties consider alter-

natives or modifications to such a plan’’. On the same

day, the intervenors and the AISD filed desegregation

plans. The Government has yet to file any plan.

The AISD’s plan would establish six sixth grade centers

that would draw all sixth-graders in the school district.

The intervenors’ plan would require the busing of all

kindergarten (K)-to-fourth-grade students at the predom-

inantly minority schools in East Austin to new grade K-4

schools in West Austin, and the busing of all fifth-to-

eighth-grade students at predominantly Anglo schools in

West Austin to new grade 5—8 schools in East Austin.

The plan would also close the one predominantly minority

high school remaining in Austin (Johnston) and bus its

students to the remaining high schools. The black in-

tervenors added an objection to the 1971 closing of the

black high school (Anderson) and black junior high school

(Kealing) in Austin, and requested that the schools be

reopened and used in any desegregation plan adopted by

the court. The district judge conducted the trial for twelve

days in May, 1973. He issued a ‘‘Memorandum Opinion

and Order’’ on August 1, 1973.

The district court first held that, because the AISD had,

in the past, intentionally segregated black students, it must

now dismantle its dual system based on race. Second, the

court held that its finding of past intentional segregation

of blacks constituted a prima facie case of intentional se-

gregation of Mexican-Americans. It concluded, however,

that the AISD had successfully rebutted this prima facie

case by demonstrating that its racial policies were

unrelated to its treatment of Mexican-Americans and

that there was an absence of segregative intent toward

Mexican-Americans. The court, relying on Keyes v.

School District No. 1, Denver, Colorado, 1973, 413

U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548, held that it

would therefore be improper to order ‘“‘all-out desegre-

gation’’ of Mexican-Americans. The court then rejected

the black intervenors’ challenge of the closing of Ander-

son and Kealing schools and adopted, with minor modi-

fications, the AISD’s plan for establishing an integrated

school system. Because Mexican-American students are

an identifiable minority entitled to equal protection of

the laws, the court further held that they were entitled

to equal educational opportunties, including the setting

up of special educational programs, such as bilingual

and bicultural education.

The United States and the plaintiff-intervenors have ap-

pealed from this Memorandum Opinion and Order of the

district court.

II. SEGREGATION OF MEXICAN-AMERICANS

A. The Keyes Case

[1-3] The Supreme Court held in Brown v. Board of

Education, 1954, 347 U.S. 483, 495, 74 S.Ct. 686, 692, 98

L.Ed. 873, 881, that educational facilities segregated on

the basis of race are inherently unequal. In Keyes v.

School District No. 1, Denver, Colorado, 1973, 413 U.S.

189, 195-98, 93 S.Ct. 2686, 2690-2692, 37 L.Ed.2d 548,

555-557, the Court extended this principle to the segrega-

tion of Mexican-Americans in the Denver school system.

The unequal educational status of these minorities does

not constitute a violation of the Equal Protection Clause

of the Fourteenth Amendment unless it results from ‘‘state

action’’. The term of art that has long described the state

action requirement in the school desegregation context is

“‘de jure segregation’’, which the Supreme Court has de-

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fined as ‘‘a current condition of segregation resulting from

intentional state action directed specifically to the [segre-

gated] schools’’. Keyes, 413 U.S. at 205-06, 93 S.Ct. at

2697, 37 L.Ed.2d at 561. See generally Cisneros v. Corpus

Christi Independent School District, 5 Cir. 1972, 467 F.2d

142, 148 (en banc), cert. denied, 1973, 413 U.S. 920, 93

S.Ct. 3053, 37 L.Ed.2d 1041. To establish a prima facie

case of unlawful school segregation, the plaintiffs must

therefore prove (1) that there is segregation in public

schools, (2) that state officials have, with segregative in-

tent, taken or refrained from taking certain actions, and

(3) that the present segregated system is a result of that ac-

tion or inaction.’

The eight concurring judges in Austin J held:

The power of the district court will depend first upon a finding

of the proscribed discrimination in the school system. . . . In

determining the fact of discrimination ve/ non .. . , the district

court must identify the school or schools which are segregated as

a result of such discrimination . . . The importance of such a

determination will be seen in some populous school districts em-

bracing large geographical areas. There may be segregated

schools which are the result of unconstitutional statutes or of of-

ficial action. There may be other one race schools which are the

product of neutral, non-discriminatory forces.

467 F.2d at 884. To the extent that this holding requires a court to

identify the intentional state action that segregated a school as a pre-

requisite to including that school in a desegregation plan, the holding

was unambiguously supervened by Keyes. The Supreme Court there

stated:

We have never suggested that plaintiffs in school desegregation

cases must bear the burden of proving the elements of de jure

segregation as to each and every school or each and every stu-

dent within the school system. . . . [W)here plaintiffs prove that

the school authorities have carried out a systematic program of

segregation affecting a substantial portion of the students,

schools, teachers, and facilities within the school system, it is on-

The remainder of the Keyes opinion considers whether

proof of de jure segregation in a portion of the Denver

school district is sufficient to establish a system-wide con-

stitutional violation. This section of Keyes is irrelevant to

our disposition of the case before us because we hold

below that the plaintiffs have proved that intentional

segregation exists throughout the Austin school district.

B. The Cisneros-Austin I Test

We found in Austin I that Mexican-American students

in Austin had received an education inferior to that of

their Anglo counterparts and that this was the result of

ethnic segregation. 467 F.2d at 862-63 & n.21. This would

constitute an equal protection violation, we held, only if

the ‘‘school authorities, by their actions, [had] con-

tribute[d] to segregation in education, whether by causing

additional segregation or maintaining existing segregation

.... 467 F.2d at 863-64. Our ultimate decision against

the AISD was based in part on our finding that ‘‘[t]he

natural and foreseeable consequence of [its] actions was

segregation of Mexican-Americans’’. 467 F.2d at 863. We

held, however, that, to establish an equal protection viola-

tion, it is not necessary to prove discriminatory intent

when there is discriminatory effect. 467 F.2d at 864-65

n.25.

Although, in Cisneros, we discarded ‘‘the anodyne

dichotomy of classical de facto and de jure segregation’’,

the rationale of that decision was very similar to that of

ly common sense to conclude that there exists a predicate for a

finding of the existence of a dual school system.

413 U.S. at 200, 201, 93 S.Ct. at 2694, 37 L.Ed.2d at 558.

Austin I. The Court held that, in order to sustain a con-

stitutional violation,

[we] need only find a real and significant relationship,

in terms of cause and effect, between state action and

the denial of educational opportunity occasioned by

the racial and ethnic separation of public school

students.

Id. As in Austin I, we held that ‘‘[d]iscriminatory motive

and purpose . . are not necessary ingredients of constitu-

tional violations in the field of public education’’. 467

F.2d at 149. And, in language reminiscent of the Austin /

‘*foreseeable consequences’’ approach, the Court found

the requisite state action in Cisneros in the Board’s imposi-

tion of ‘‘a neighborhood school plan, ab initio, upon a

clear and established pattern of residential segregation in

the face of an obvious and inevitable result’’. Jd.

Thus, Austin I and Cisneros both applied cause-and-

effect tests for finding the state action that is a prerequisite

to establishing a constitutional violation. But, in both

cases, this test was applied in the context of school board

actions that led to the ‘‘foreseeable’’ and ‘‘inevitable’’

result of segregated schools.

C. The Impact of Keyes on the Cisneros-Austin I Test

The Mexican-American intervenors argue that the

cause-and-effect test need not fall by the wayside after

Keyes because that case does not establish that segregative

intent is a necessary element of unconstitutional school

segregation. The intervenors point out that the Keyes

holding is limited by the plaintiffs’ concession in that case

that they had the burden of proving intentional state ac-

tion and by the obvious segregative purpose of the Denver

school authorities. See generally Hart v. Community

School Board of Education, New York School District

#2], 2 Cir. 1975, 512 F.2d 37, 49; Comment, Public

School Segregation and the Contours of Unconstitu-

tionality: The Denver School Board Case, 45 Colo. L.Rev.

457, 475 (1974). This Court has already rejected this argu-

ment. In Morales v. Shannon, 5 Cir. 1975, 516 F.2d 411,

412-13, cert. denied, 1975, —— U.S. ——, 96S. Ct. 566,

46 L.Ed.2d 408, 44 U.S.L.W. 3358, we held:

[W]ith respect to the first issue, segregatory intent,

we are governed by Keyes ... , which supervened our

holding in Cisneros . . . , to the extent that Keyes re-

quires, as a prerequisite to a decree to desegregate a

de facto system, . . . proof of segregatory intent as a

part of state action.

Morales also compels rejection of the intervenors’ argu-

ment that the Cisneros-Austin I test for the constitutional

violation is the ‘‘functional equivalent’’ of the Keyes test.

To the extent that Cisneros and Austin I applied cause-

and-effect tests and rejected the requirement of a showing

of discriminatory intent, those cases were supervened by

Keyes.

[4] But the intervenors also argue that, although this

Court in Cisneros and Austin I refused to search for the

defendants’ express or specific intent, we did not discard

intent as an element of the equal protection violation. The

intervenors contend that intent could be inferred in those

cases from our findings that segregation was the ‘‘inevi-

table result’? and the ‘‘foreseeable consequence”’ of the

school boards’ actions. Whatever may have been the orig-

inally intended meaning of the tests we applied in Cisneros

and Austin I, we agree with the intervenors that, after

Keyes, our two opinions must be viewed as incorporating

in school segregation law the ordinary rule of tort law that

ee ne Omer +

we Sem

ee eee:

a person intends the natural and foreseeable consequences

of his actions.‘ This reading of Cisneros and Austin / is

faithful to the Keyes requirement of proof of segregative

intent. See Comment, 45 Colo. L.Rev. at 464 (1974). Bur

see Comment, Keyes v. School District No. 1: Unlocking

the Northern Schoolhouse Doors, 9 Harv.Civ.Rights-

Civ.Lib.L.Rev. 124, 149 n.99 (1974).

“Prosser states the tort rule that “‘[iJntent . . . extend[s}] not only to

those consequences which are desired, but also to those which the ac-

tor believes are substantially certain to follow from what he does’’.

The Law of Torts § 8, at 31 (4th ed. 1971). The rule has also been ap-

plied in many other areas. See, e.g., NLRB v. Great Dane Trailers,

1967, 388 U.S. 26, 33, 87 S.Ct. 1792, 1797, 18 L.Ed.2d 1027, 1034

quoting NLRB vy. Erie Resistor Corp., 1963, 373 U.S. 221, 227, 228,

231, 83 S.Ct. 1139, 1144, 1145, 1147, 10 L.Ed.2d 308, 313, 314, 316

(discrimination against labor union member in violation of §8(a)(3) of

the National Labor Relations Act):

Some conduct . . . is so ‘inherentiy destructive of employee in-

terests’ that it may be deemed proscribed without need for proof

of an underlying improper motive. . . . That is, some conduct

carries with it ‘unavoidable consequences which the employer

not only foresaw but which he must have intended’ and thus

bears ‘its own indicia of intent.’

Gomillion v. Lightfoot, 1960, 364 U.S. 339, 341, 347, 81 S.Ct. 125,

127, 130, 5 L.Ed.2d 110, 113, 116 (unconstitutionality of state statute

redefining the boundaries of the City of Tuskegee), where, based on

its observation that the ‘‘inevitable effect’’ of the redefinition of the

City’s boundaries was to remove almost all of its black voters, the

Court observed that ‘‘the legislation is solely concerned with’’

segregating whites and blacks so as to deprive blacks of their vote, and

that, ‘‘to that end [the Legislature] has incidentally changed the city’s

boundaries’’. (emphasis added). Miller v. Milwaukee, 1927, 272 U.S.

713, 715, 47 S.Ct. 280, 71 L.Ed. 487, 489 (validity of indirect state tax

on federally tax-exempt income): ‘‘A result intelligently foreseen and

offering the most obvious motive for an act that will bring it about,

fairly may be taken to have been a purpose of the act.”’

Apart from the need to conform Cisneros and Austin I

to the supervening Keyes case, there are other reasons for

attributing responsibility to a state official who should

reasonably foresee the segregative effects of his actions.

First, it is difficult—and often futile—to obtain direct

evidence of the official’s intentions. Rather than announce

his intention of violating antidiscrimination laws, it is far

more likely that the state official ‘‘will pursue his dis-

criminatory practices in ways that are devious, by methods

subtle and illusive—for we deal with an area in which

‘subleties of conduct . . . play no small part’’’. Holland

v. Edwards, 1954, 307 N.Y. 38, 45, 119 N.E.2d 581,

584. See also United States v. O’Brien, 1968, 391 U.S.

367, 383-85, 88 S.Ct. 1673, 1682-1683, 20 L.Fd.2d 672,

683-684; Brest; Palmer v. Thompson: An Approach to the

Problem of Unconstitutional Legislative Motive, 1971

Sup.Ct. Rev. 95, 124. Hence, courts usually rely on cir-

cumstantial evidence to ascertain the decisionmakers’ mo-

tivations.°

[5] Second, in Monroe v. Pape, 1961, 365 U.S. 167,

187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492, 505, the Supreme

Court rejected the argument that specific intent is a neces-

sary element of the cause of action under 42 U.S.C. §

‘See Brest, 1971 Sup.Ct.Rev. at 120-21.

The process does not differ from that of inferring ultimate facts

from basic facts in other areas of the law. It is grounded in an

experiential, intuitive assessment of the likelihood that the deci-

sion was designed to further one or another obiective.

Id. at 121. See also Developments in the Law—Equal Protection, 82

Harv.L.Rev. 1065, 1077 (1969). Indeed, in Keyes the Supreme Court

inferred the School Board’s segregative intent with respect to one sec-

tion of Denver (the core city) from evidence of intentional segregation

in another area (Park Hill).

1983, the statute under which many school desegregation

cases are brought. The Court held that § 1983 ‘‘should be

read against the background of tort liability that makes a

man responsible for the natural consequences of his ac-

tions’. Jd. We find no inconsistency between the rule ap-

plied in Monroe v. Pape and that applied in Keyes, nor do

we find any reason for applying a standard different from

Monroe v. Pape in school desegregation cases.* See Ely,

Legislative and Administrative Motivation in Constitu-

tional Law, 79 Yale L.J. 1205, 1292 n.258 (P970).

[6] One final word need be added about our Austin /

forinulation. Our holding that there was unlawful state-

imposed segregation was based in part on our finding that

affirmative action by the school authorities could have re-

sulted in desegregation. 467 F.2d at 863. The AISD cri-

ticizes this approach because it would put

virtually all school districts . . . under massive

desegregation orders. Racial and ethnic imbalances

occur wherever there are racial or ethnic minorities,

and no school district can measure up to a standard

which requires that it have taken affirmative action to

*We are not the first circuit to read the ‘‘natural and foreseeable

consequences’’ test into the Keyes requirement of segregative intent.

See, e.g., Hart v. Community School Board of Education, New York

School District #21, 2 Cir. 1975, 512 F.2d 37, 50-51; Morgan v. Ker-

rigan, | Cir. 1974, 509 F.2d 580, cert. denied, 1975, 421 U.S. 963, 95

S.Ct. 1950, 44 L.Ed.2d 449; Oliver v. Michigan State Board of Educa-

tion, 6 Cir. 1974, 508 F.2d 178, 182, cert. denied, 1975, 421 U.S. 963,

95 S.Ct. 1950, 44 L.Ed.2d 449. But see Soria v. Oxnard School Board

of Trustees, 9 Cir. 1973, 488 F.2d 579, 585, cert. denied, 1974, 416

U.S. 951, 94 S.Ct. 1961, 40 L.Ed.2d 301. See generally Fiss, School

Desegregation: The Uncertain Path of the Law, 4 Phil. & Pub. Affairs

3 (1974).

promote the integration of all racial and ethnic

minorities throughout its history.

Our holding in Austin I placed no such burden on school

boards. Our statement about affirmative action immedi-

ately followed our finding that the foreseeable conse-

quence of various actions of the AISD was the segregation

of Mexican-Americans. Hence, our holding of unlawful

segregation was based on the foreseeability and avoidabili-

ty of that segregation. See Fiss, The Charlotte-

Mecklenburg Case—Its Significance for Northern School

Desegregation, 38 U.Chi.L.Rev. 697, 706 (1971). Many

circuits have taken this approach.’ In any event, it should

be clear after Keyes that the refusal of school authorities

to take affirmative action that would desegregate the

school system may be probative of the segregative intent

underlying various actions of those officials. *

D. The Prima Facie Case of Unlawful Segregation of

Mexican-Americans in Austin

[7] 1. Segregation in the schools. The district court

found that there was substantial segregation of Mexican-

Americans in the Austin school system. That finding is

"See, e.g., Hart, 512 F.2d at 50; Morgan, 509 F.2d at 585-86;

Oliver, 508 F.2d at 187; United States v. Board of School Commis-

sioners of Indianapolis, Indiana, 7 Cir. 1973, 474 F.2d 81, 89 cert.

denied, 1973, 413 U.S. 920, 93 S.Ct. 3066, 37 L.Ed.2d 1041.

‘Justice Powell, in a separate opinion, made the following obser-

vations about the approach of the Keyes majority: The Court

‘‘searches for de jure action in what the Denver School Board has

done or failed to do’’. Keyes, 413 U.S. at 230, 92 S.Ct. at 2708, 37

L.Ed.2d at 575. ‘‘Every act of a school board and school administra-

tion, and indeed every failure to act where affirmative action is in-

dicated, must now be subject to scrutiny.’’ 413 U.S. at 234, 93 S.Ct. at

2710, 37 L.Ed.2d at 578.

not clearly erroneous. Our Court has held that ‘‘{uJnder

Keyes .. . and Cisneros . . . , schools in Texas with a com-

bined predominance of black and Mexican-American stu-

dents are eligible to be classified as ‘segregated schools’.’’®

The statistics paint a clear picture of the extensive segrega-

tion that still exists in the Austin schools.'® Of the 41, 174

students attending one of the 70 elementary and junior

high schools in Austin, 16 percent (6590) are black, 24 per-

cent (9950) are Mexican-American, and 60 percent

(24,634) are Anglo. About 52 percent (3396) of the black

pre-high school students and over 54 percent (5380) of the

Mexican-American pre-high school students attend one

of the 18 schools that is over three-fifths minority. Over

47 percent (11,610) of the Anglo pre-high school stu-

dents in Austin attend one of the 24 schools that is over

four-fifths Anglo.'' Of the 17,746 public high school

students in Austin, 14 percent (2520) are black, 19 per-

cent (3316) are Mexican-American, and 67 percent

(11,910) are Anglo. About 17 percent (423) of the black

high school students and over 30 percent (1003) of the

*Arvizu v. Waco Independent School District, 5 Cir. 1974, 495 F.2d

499, SOS N. 10. See also Keyes, 413 U.S. at 197, 93 S.Ct. at 2691, 37

L.Ed.2d at 556.

‘*In citing these statistics, we recall the words of United States v. Jef-

ferson County Bd. of Educ., 5 Cir. 1966, 372 F.2d 836, 887, aff’d en

banc, 1967, 380 F.2d 387, cert. denied, 1967, 389 U.S. 840, 88 S.Ct.

67, 19 L.Ed.2d 103:

A similar inference [of deliberate discrimination against

Negroes] may be drawn in school desegregation cases, when the

number of Negroes attending school with white children is

manifestly out of line with the ratio of Negro school children to

white school children in public schools.

''Another 18 percent (4358) of the Anglo elementary and junior

high school students attend one of the 8 schools that is between 75 and

80 percent Anglo.

Mexican-American students attend Johnston High

School, which is 99 percent minority. Over 55 percent

(655) of the Anglo high school students in Austin attend

one of the 3 schools that is over four-fifths Anglo.

[8] 2. Segregative actions taken with segregative in-

tent. It has been the AISD’s policy to assign students to

the schools closest to their homes. The City of Austin,

with the exception of the strip between East and West

Austin, has ethnically segregated housing patterns.'’

Hence, the natural, foreseeable, and inevitable result of

the AISD’s student assignment policy has been segregated

schools throughout most of the city. Moreover, as we

found in Austin I, ‘‘{a]ffirmative action to the contrary

would have resulted in desegregation’’. 467 F.2d at 863.

The inference is inescapable: the AISD has intended, by its

continued use of the neighborhood assignment policy, to

maintain segregated schools in East and West Austin."

‘East Austin is bordered on the north by East Nineteenth Street

and the airport, on the south by the Colorado River, on the west by

Interstate Highway 35, and on the east by the AISD boundary line.

We found in Austin J that 64 percent of the City’s Mexican-Americans

live in East Austin. A large portion of the remaining Mexican-

Americans live in the area between East and West Austin.

''The same conclusion is inferable from other evidence as well.

We held in Austin I

that the AISD has, in its choice of school site locations, con-

struction and renovation of schools, drawing of attendance

zones, student assignment and transfer policies, and faculty and

staff assignments, caused and perpetuated the segregation of

Mexican-American students within the school system.

467 F.2d at 865-66. We also found that ‘‘[t}he natural and foreseeable

consequence of these actions was segregation of Mexican-Ameri-

cans’’. 467 F.2d at 863. The Supreme Court inferred segregative intent

from the same kind of circumstantial evidence in Keyes. See 413 U.S.

~~ Or ert bee

—-

The plaintiffs have therefore established a prima facie case

of de jure segregation of Mexican-Americans in all por-

tions of the school district except the residentially in-

tegrated central city area. '*

E. The A'SD’s Attempted Rebuttal of the Prima Facie

Showing of Segregative Intent

The AISD offers numerous arguments to justify the acts

that we criticized in Austin I as segregating Mexican-

American students in the Austin school system. For the se-

cond time, we reject these arguments.

The AISD contends that Mexican-Americans were

segregated before 1950 not because of their ethnic

background but because they had language difficulties or

were the children of migrant workers and needed special

educational considerations. We answered this argument in

Austin I;

We are not convinced that, to meet the special educa-

tional needs of Mexican-American children, the

at 192, 93 S.Ct. at 2689, 37 L.Ed.2d at 553. The inference of segrega-

tive intent that the Supreme Court made regarding the Denver school

authorities is equally applicable to their counté: parts in Austin.

‘*The district couri held that the AISD had, in the past, assigned

black students for the purpose of promoting segregation. The plain-

tiffs argue that this finding of de jure segregation in a substantial por-

tion of the Austin school district triggers the Keyes presumption of

unlawful segregation in the remainder of the district. The AISD

responds that this Keyes presumption is inapplicable to the case before

us because ‘‘[t]he existence of a statutorily based black-white system

has no probative value with respect to concentrations of Mexican-

American students when the Mexican-American Students were

classified and treated as white under the dual system’’. See Higgins v.

Bd. of Educ. of Grand Rapids, 6 Cir. 1974, 508 F.2d 779, 789. We

need not resolve this dispute about the Keyes presumption because,

even without this presumption, we conclude that the AISD has taken

actions intentionally calculated to segregate the Mexican-American

students throughout the district.

AISD had to keep these children in separate schools,

isolate them in Mexican-American neighborhoods, or

prevent them from sharing in the educational, social,

and psychological benefits of an integrated educa-

tion.

467 F.2d at 869. We concluded that the AISD intentionally

acted to segregate Mexican-Americans in the pre-Brown

years.'°

[9] The AISD then argues that, even if the early special

programs are viewed as intentional segregation, no causal

relationship exists between them and the present Mexi-

can-American concentrations in the schools. We rejected

this argument in Austin J when we held that the post-1950

AISD actions perpetuated the pre-1950 segregation.'* We

now reaffirm our previous rejection of this AISD conten-

tion.

The AISD’s primary argument with regard to its

post-1950 actions is that, although the location of new

schools and the drawing of attendance zones for those

schools had ‘‘the inevitable and unavoidable result’’ of in-

creasing the concentrations of Mexican-Americans in the

East Austin schools, this segregation resulted from the

preexisting residential patterns and not from segregative

motives of the AISD. This Court recently rejected a sim-

's!TJhe AISD used dual-overlapping attendance zones, student

assignment policies, and site selection to segregate Mexican-American

students in the years prior to 1954.

467 F.2d at 867.

‘6A fter the Supreme Court decision in Brown, the AISD nominal-

ly undertook to abolish the dual system based on separate schools for

blacks and whites. But the board continued to perpetuate segregation

of Mexican Americans.

467 F.2d at 867.

ilar argument in Morales v. Shannon, 5 Cir. 1975, 516

F.2d 411, 413, cert. denied, 1975, ___. U.S. ___., 96

S.Ct. 566, 46 L.Ed.2d 408, 44 U.S.L.W. 3358:

the imposition of the neighborhood assignment

system froze the Mexican-American students into the

Robb and Anthon schools. There could have been no

other result and this is strong evidence of segregatory

intent.

See also United States v. Midland Independent School

District, 5 Cir. 1975, 519 F.d 60, cert. denied, 1976,

—____. U.S. ___, 96 S.Ct. 1106, 47 L.Ed.2d 314,United

States v. Jefferson County Board of Education, 5 Cir.

1966, 372 F.2d 836, 876, 879-80, aff’d en banc, 1967,

380 F.2d 385, cert. denied, 1967, 389 U.S. 840, 88 S.Ct.

67, 19 L.Ed.2d 103.

In rejecting for a second time these contentions of the

AISD, we reaffirm—hopefully for the last time—the

words of United States v. Midland Independent School

District, 519 F.2d at 64:

the facts in the Austin and Corpus Christi cases,

however, as in this case, show an overriding intent by

the school boards in those districts to isolate, to

segregate, Mexican-Americans and blacks.

[10-12] Finally, we think it important to draw atten-

tion to a basic misconception of the AISD, on which a

great deal of its argument relies. This misconception goes

to the heart of the responsibilities of school authorities to

provide equal educational opportunities for the students in

their districts. The AISD has argued that ‘‘[uJnder Keyes,

the school district was prohibited from segregating Mexi-

can-American students, but it was under no duty to take

affirmative action to attempt to avoid Mexican-American

concentrations in the schools which resulted from residen-

tial concentrations’’. At least in the Texas schools, where

we have held that Mexican-American students are entitled

to the same benefits of Brown as are blacks, school

authorities may not constitutionally use a neighborhood

assignment policy creating segregated schools in a district

with ethnically segregated residential patterns. A segre-

gated school system is the foreseeable and inevitable result

of such an assignment policy. When this policy is used, we

may infer that the school authorities have acted with se-

gregative intent.

The segregation is de jure and unconstitutional because

it is the result of school board action taken with the ob-

vious (though not necessarily predominant) intent to cre-

ate or maintain segregated schools. School authorities are

then ‘‘clearly charged with the affirmative duty to take

whatever steps might be necessary to convert to a unitary

system in which racial discrimination would be eliminated

root and branch’’. Green v. County School Board of New

Kent County, Virginia, 1968, 391 U.S. 430, 437-38, 88

S.Ct. 1689, 1694, 20 L.Ed.2d 716, 723. As articulated in

Austin I, the case before us presents not only the use of a

neighborhood assignment policy in a residentially segre-

gated school district, but also the taking of an extensive

series of actions dating back to the early twentieth century

that had the natural, foreseeable, and avoidable result of

creating and maintaining an ethnically segregated school

system. The AISD must convert this ‘‘still-functioning

dual system to a unitary, non-[ethnic] system—lock,

stock, and barrel’’. United States v. Jefferson County

Board of Education, 372 F.2d at 878.

—

Ill, SEGREGATION OF BLACKS

The district court held that ‘‘the AISD . . . has engaged

in discriminatory assignment of black students to promote

segregation’’ and ordered the AISD to dismantle its dual

school system and convert to an integrated, unitary school

system. These holdings have not been challenged on ap-

peal. They are affirmed.

IV. THE REMEDY

A. The ‘‘Desegregation Plan’’ Adopted by the District

Court

1. The Plan. The district court adopted whole the

Sixth Grade Center Plan submitted by the AISD. We be-

gin our analysis of this plan by stating what the AISD did

not attempt to accomplish through it. The AISD views the

junior and senior high schools in Austin as totally de-

segregated and, therefore, its plan does not further in-

tegrate those schools. The AISD, as noted above, does not

believe that it has the duty to desegregate the Mexican-

Americans and, hence, its pian has only an incidental ef-

fect on these students. Finally, the AISD contends that

complete desegregation of the elementary schools would

require ‘‘massive crosstown busing’’ of 6-10 year olds,

which it views as undesirable, and, therefore, its de-

segregation plan is limited to the sixth grade.

As the AISD describes it,

(t]he Sixth Grade Center Plan essentially estab-

lishes six elementary schools in different geographic

parts of the School District as centers for all sixth-

grade students in the School District. Those buildings

which are not serving as elementary schools and

would become the sixth-grade centers would be emp-

tied of all students K through grade 5 so the building

would be available for the Sixth Grade Center. Stu-

dents in those schools would be assigned to the

nearest available elementary school.

The plan would also set up sixth grades at two of the

junior high schools in Austin. Of the six Sixth Grade

Centers, two would have Anglo populations of over 80

percent; the sixth grade populations at the two junior high

schools would be about 97 percent minority. The AISD es-

timates that the plan would require the busing of about

1900 students, and that about 62 percent of those students

would be Anglo.

In an effort to provide equal educational opportunities

for all of its students, the AISD has also approved the

employment of two assistant superintendents, one to be

Mexican-American and one to be black; established ma-

jority-to-minority transfer provisions for both black and

Mexican-American students; begun to develop a bilingual

educational program; made several changes in boundary

lines assertedly to produce a better racial and ethnic com-

position in the city schools; and established an advisory

committee to investigate and propose programs for minor-

ity students that may be used in Austin.

[13* 2. The Plan’s deficiences. As we did in Austin I,

we congratulate the AISD for some of the creative educa-

tional techniques it has proposed and adopted for equaliz-

ing educational opportunities of minority students in

Austin. We cannot applaud, however, the channeling of

the AISD’s creative abilities into new methods of cir-

cumventing its ‘‘affirmative duty to take whatever steps

might be necessary to convert to a unitary system in which

racial [and ethnic] discrimination would be eliminated

root and branch’’. Green v. County School Board of New

Kent County, Virginia, 1968, 391 U.S. 430, 437-38, 88

S.Ct. 1689, 1694, 20 L.Ed.2d 716, 723. The first elemen-

tary school ‘‘desegregation plan’’ that the AISD presented

to the district court provided for meetings of students one

week per month to participate in certain cultural activities.

We reversed the district court’s adoption of this plan,

holding that ‘‘[p]art-time desegregation does not meet

constitutional requirements’’.'’ 467 F.2d at 872. On re-

mand, the district court adopted the AISD’s new ‘‘dese-

gregation plan’’, which leaves untouched the students in

grades K-5 and 7-12. For reasons similar to those that un-

derlay our rejection of the AISD’s plan in Austin I, we

again hold that the AISD-district court plan is constitu-

tionally deficient. The constitutional duty of the school

authorities is to establish a unitary system, not a unitary

grade. ’

"In Tasby v. Estes, § Cir. 1975, 517 F.2d 92, cert. denied, 1975,

423 U.S. 939, 96 S.Ct. 299, 46 L.Ed.2d 271, 44 U.S.L.W. 3264, we

held another ‘‘part-time’’ desegregation plan constitutionally defi-

cient. The unique feature of the plan submitted there by the Dallas In-

dependent School District (DISD) and adopted by the district court

was the requirement that there be a minimum of one hour a day of

contact between the races through two-way oral and visual television

communication between two or more schools. We held:

The Supreme Court has made it clear that nothing less than the

elimination of predominantly one-race schools is constitutional-

ly required in the disestablishment of a dual school system based

upon segregation of the races. For this reason, the district

court’s elementary school ‘‘television plan’’ must be rejected as

a legitimate technique for the conversion of the DISD from a

dual to a unitary educational system.

517 F.2d at 103.

{14, 15] The AISD offers two arguments in support of

its failure to desegregate grades K to 5. Both are meritless.

First it cites the Supreme Court’s holding that

the district judge or school authorities should make

every effort to achieve the greatest possible degree of

actual desegregation, taking into account the prac-

ticalities of the situation.

Davis v. Board of School Commissioners of Mobile Coun-

ty, 1971, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d

577, 581. The only “‘practicality’’ it specifies is the vague,

conclusory, and unsupported assertion that children under

10 years old should not be bused for the purpose of dese-

gregation. But busing, a ‘‘normal and accepted tool of ed-

ucational policy’’, cannot be rejected without an eviden-

tiary showing that ‘‘the time or distance of travel is so

great as to risk either the health of the children or sig-

nificantly impinge on the educational process’’. Swann v.

Charlotte-Mecklenburg Board of Education, 1971, 402

U.S. 1, 29, 30-31, 91 S.Ct. 1267, 1283, 28 L.Ed.2d 554,

575.

[16] The AISD’s only other defense of the exclusion of

kindergarten-to-fifth-grade students from its desegrega-

tion plan is that the black intervenors and the United

States should be precluded from objecting to the Sixth

Grade Center Plan because they submitted no plan of their

own. The Mexican-American intervenors, however, did

propose a desegregation plan, in which the black in-

tervenors concurred. And, as to the United States, al-

though we are disappointed by their noncompliance with

the district judge’s request that they submit a plan, we find

no basis for denying them the right to criticize the plan

submitted by the AISD.

The plan adopted by the district court also fails to com-

ply with the mandate of Austin I. The eight concurring

judges in that case held that

[w]here a student assignment plan is found to be un-

constitutional, as here, because of the existence of

segregation which has been imposed by statute or by

official act against blacks and an identifiable ethnic

group (here the Mexican-American students), it is the

duty of the school officials to forthwith formulate

and implement such student assignment plan as will

remedy the discrimination which has been found to

exist.

467 F.2d at 884. We held in Parts II and III of this opinion

that official discrimination against blacks and Mexican-

Americans has infected almost the entire Austin school

system. The discrimination has prevented most minority

students in the district from securing educational op-

portunities equal to those of their Anglo counterparts. The

AISD’s submission of a ‘‘desegregation plan’’ that would

provide an integrated education for only sixth grade stu-

dents simply does not fulfill the AISD’s duty to remedy

that discrimination.

(17, 18] The plan submitted by the AISD would

assign students in grades K to 5 to the schools closest

to their homes. The district court’s adoption of this

plan is directly contrary to the holding in Austin J that

[it] is apparent that [assignment on a strict neighbor-

hood basis] will not suffice in the AISD although it

may suffice as to some schools. To the extent that it

does not suffice, the district court will proceed to

employ other methods of desegregation.

The Austin I majority also held that if, after trying the

pairing or clustering of schools, the realignment of school

assignment zones, and the relocation of portable school

rooms, ‘‘proscribed segregated schools still exist, the court

must consider the pairing or clustering of schools in non-

contiguous school zones’’. 467 F.2d at 885. It was an

abuse of discretion for the court to refuse to give serious

consideration to the last desegregation method despite the

concession of the AISD that

[cJountless efforts by school officials, consultants,

and visiting team shave found it impossible to pro-

duce significant desegregation by boundary line

changes, contiguous pairing of schools, magnet

schools, or other effective means short of massive

crosstown busing incident to non-contiguous pairing

oT. Ce . « es”

{19} 3. The closing of Anderson High School and

Kealing Junior High School. In his first opinion in this

case, the district judge ordered the closing of two all-black

schools, Anderson and Kealing.'? The students from those

'*The federal courts may adopt desegregation remedies requiring

busing only as a last resort. See 20 U.S.C. §§ 1713, 1755. In the case

before us, however, we find that crosstown busing is the only

desegregation method that will work. This finding is supported not

only by the above-quoted statement of the AISD but also by the resi-

dential patterns in Austin. In school districts with segregated neigh-

borhoods, ‘‘[djesegregation plans cannot be limited to the walk-in

school’’. Swann v. Charlotte-Mecklenburg Bd. of Educ. 1971, 402

U.S. 1, 30, 91 S.Ct. 1267, 1283, 28 L.Ed.2d 554, 575. Hence the fed-

eral statutes do not bar the court-ordered transportation of students in

Austin.

'*At the time Anderson High School was closed, it was 98 percent

black and its student body constituted about 44 percent of the black

high school population in the Austin school district. Kealing Junior

High School was also 98 percent black and its student body con-

stituted 46 percent of the black junior high school students in the

district. See Austin I, 467 F.2d at 876-77, Appendix A.

ee ~~ oe

schools were to be transferred to other schools in the sys-

tem. Six judges concluded in Austin J that the schools were

closed for racial reasons and, hence, the closings were un-

acceptable. 467 F.2d at 872. The remaining eight judges

did not consider this issue. On remand, the district court

found that the school closings were based on nonracial

considerations. This finding is clearly erroneous. The

AISD concedes, as it must, that a primary reason for the

school closings was the fear that whites would flee the

school system rather than send their children to these East

Austin schools. It is hardly a new principle of constitu-

tional law that this fear is an impermissible basis for clos-

ing public schools. See, e.g., United States v. Hendry

County School District, 5 Cir. 1974, 504 F.2d 550, 553.

Kealing Junior High School must therefore be reopened

and used as part of the regular public school program of

the District. The district court approved the conversion of

Anderson High School into Austin Community College,

and the conversion has already taken place. Because it has

closed Anderson as a high school, the AISD on remand

should present a program that will permit the burdens of

desegregation to be as fairly distributed as they would

have been if Anderson had not been converted into a com-

munity college.”°

B. The Finger Plan

1. The Plan. The Mexican-American intervenors sub-

mitted a desegregation plan prepared by Dr. John A.

Finger, Jr., a professor of education at Rhode Island Col-

**For example, through the construction of a new high school in

East Austin.

lege.?' The ‘‘Finger Plan’’ would convert the school sys-

tem to a 4-4-4 grade structure, that is, elementary schools

would contain grades K to 4, middle schools would con-

tain grades 5 to 8, and high schools would continue to

operate grades 9 to 12. All students in grades K to 4 in

elementary schools that are over 50 percent minority

would be bused to elementary schools that are over 90 per-

cent Anglo. Fifth-to-eighth-grade students in schools that

are over 90 percent Anglo would be bused to schools that

are over 50 percent minority. The practical effect of the

Plan is that kindergarten-to-fourth-grade students in East

Austin would be bused to West Austin and fifth-to-

eighth-grade students in West Austin would be bused to

East Austin. Elementary and junior high schools that are

between 50 and 90 percent Anglo are defined as ‘‘naturally

desegregated’’ and would remain unchanged. When

changing demographic patterns cause any of these schools

to fall outside of the ‘‘naturally desegregated’’ range, the

schools would be brought within the Finger Plan 4-4-4

system. The high schools would be integrated by selecting,

for each high school, feeder schools that would maximize

the integration of that high school. Dr. Finger estimates

that 18,659 (the AISD says 25,000) of Austin’s public

school students would be bused under his plan.”?

?'Dr. Finger is a recognized authority in the area of school dese-

gregation and has designed the plans presently being used in several

cities. He prepared, for example, the plan for Charlotte, North

Carolina, which was approved by the Supreme Court in Swann v.

Charlotte-Mecklenburg Bd. of Educ., 1971, 402 U.S. 1, 91 S.Ct. 1267,

28 L.Ed.2d 554.

?The Finger Plan would therefore require the busing of about 32

percent (42 percent according to the AISD’s estimate) of the Austin

students. This is comparable to the Charlotte-Mecklenburg, North

{20} 2. The AISD’s objections to the Finger Plan.

The AISD’s first objection to the Finger Plan is that it is

counter-productive in that it requires kindergarten-to-

fourth-grade Anglo students attending schools in minority

areas to be bused along with minority students to schools

in Anglo areas; it also requires fifth-to-eighth-grade

minority students going to predominantly Anglo schools

to be bused along with their Anglo classmates to minority

areas. These results are dictated by the feature of the

Finger Plan that requires a// students in the relevant grades

at ‘‘sending schools’’ to be bused to the designated ‘‘re-

ceiving schools’’. About 357 Anglos presently attending

minority schools and about 168 minority students present-

ly attending Anglo schools will be bused to the new

schools.?? These students represent only about | percent of

Carolina school system, which, before the Supreme Court’s 1971 de-

segregation order, planned to bus 27 percent of its students ‘‘without

regard to desegregation plans’’, and the Mobile County, Alabama

school system, which bused 30 percent of its students before the

Supreme Court’s 1971 desegregation order. See Swann v. Charlotte-

Mecklenburg Bd. of Educ., 1971, 402 U.S. 1, 6, 29 n. 11, 91 S.Ct.

1267, 1271, 28 L.Ed.2d 554, 561; Davis v. Board of School Commis-

sioners of Mobile County, 1971, 402 U.S. 33, 34, 91 S.Ct. 1289, 1290,

28 L.Ed.2d 577, 579. Moreover, the Supreme Court noted in Swann

that about 39 percent of this country’s public school children were

bused to their schools in 1969-70. 402 U.S. at 29, 91 S.Ct. at 1282, 28

L.Ed.2d at 574.

?*The AISD has calculated that the correct figures are 535 Anglos

and 336 minority students. These numbers are too high because the

AISD has assumed that ai// students at elementary and junior high

schools over 50 percent minority or 90 percent Anglo would be bused

to new elementary or middle schools outside of their neighborhoods.

The Finger Plan, however, would bus only kindergarten-to-fourth-

grade students from the elementary schools in East Austin and fifth-

to-eighth-grade students from the elementary and junior high schools

the pre-high school students in Austin. These percentages

are simply not substantial enough to invalidate the entire

desegregation plan. If, on remand, the district court con-

cludes that a constitutionally sufficient degree of desegre-

gation can be achieved without busing these 525 students

across town, the Finger Plan may be so modified.

The AISD also criticizes the Finger Plan because the

newly created elementary and middle schools would be (by

the AISD’s estimate) about 54 percent minority, although

the entire Austin pre-high school system is only about 40

percent minority. This discrepancy is due to the fact that

the ‘‘naturally desegregated’’ schools left untouched by

the Finger Plan are substantially more than 60 percent

Anglo. Thus, Dr. Finger would permit a disproportion-

ately large number of Anglo students to remain at their

present schools.

[21] The Supreme Court has held that ‘‘[t]he constitu-

tional command to desegregate schools does not mean that

every school in every community must always reflect the

racial composition of the school system as a whole’’.

Swann, 402 U.S. at 24, 91 .Ct. at 1280, 28 L.Ed.2d at 571.

But the Court later held in the same opinion that ‘‘[t}he

district judge or school authorities should make every ef-

fort to achieve the greatest possible degree of actual dese-

gregation . . . .’’ 402 U.S. at 26, 91S.Ct. at 1281, 28

L.Ed.2d at 572. Such an effort must be made by the dis-

trict court on remand.**

in West Austin. Hence, the AISD estimates are about one-third too

high for the Anglo students at minority schools in East Austin and

about one-half too high for the minority students at Anglo schools in

West Austin.

**Quotas may be a starting point for the district court, but are not

an ironclad requirement. See Milliken v. Bradley. 1974, 418 U.S. 717,

[22] The AISD also argues that the 4-4-4 school

system, though perhaps logical for the purpose of facilitat-

ing school desegregation, is basically inconsistent with

sound educational principles. This argument is based sole-

ly on the testimony of Dr. Jack Davidson, the Superinten-

dent of Schools for the AISD, that placing fifth graders in

the same schools (the middle schools) with students four

years older ‘‘at that period of time—it is the development-

al age—produces all kinds of problems’’. Even if that

statement is considered persuasive, these ‘‘problems’’ can

be solved when a final plan is constructed on remand. Dr. .

Finger testified that his plan could, and perhaps should, be

modified to a 5-3-4 system. This plan would replace the

middle schools with junior high schools housing the sixth,

seventh, and eighth grades.

[23] The AISD next brings to our attention several

problems that would be created by the Finger Plan busing

program. It first argues that the Plan would require the

busing of students ‘‘in a basic east-west pattern through a

traffic system which provides no adequate east-west ar-

teries’’. Moreover, the AISD continues, the students

would have to be bused through the large complex of the

downtown business area, the state office buildings, and

the University of Texas, and this would produce a highly

congested traffic situation. The AISD also cites the eco-

740-41, 94 S.Ct. 3112, 3125, 41 L.Ed.2d 1069, 1088-89; North

Carolina Bd. of Educ. v. Swann, 1971, 402 U.S. 43, 46, 91 S.Ct. 1284,

1286, 28 L.Ed.2d 586, 589.

nomic cost of the busing, the difficulty of obtaining suffi-

cient fuel, and the inevitability of ‘‘white flight’’, which

would render the Plan ineffective as a desegregation de-

vice.*°

[24] We think it is important to point out first the

reason these remedial costs are relevant to judicial deci-

sionmaking in a school desegregation case. We point this

out because the AISD seems to be arguing that these costs

are relevant to the determination whether there is a consti-

tutional violation, that is, that the court must decide that

the harmfulness of the school segregation is sufficient to

justify the remedial costs of correcting that segregation.

See generally Fiss, The Jurisprudence of Busing, 39 Law &

Contemp.Prob. 194 (1975). We disagree.

**The AISD contends that whites will flee the Austin public

school system to attend private schools and public schools in sur-

rounding school districts. As a result, the AISD concludes that the

plan fails to meet the standard of Davis v. Board of School Commis-

sioners of Mobile County, 1971, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292,

28 L.Ed.2d 577, 581: ‘*The measure of any desegregation plan is its ef-

fectiveness.’’ The district court was presented with two desegregation

plans, the AISD Plan, which would desegregate only the sixth grade,

and the Finger Plan, which would desegregate the entire school sys-

tem. It is wholly speculative \. nether white flight will eventually render

the Finger Plan less effective than the AISD Plan in transforming the

AISD into a unitary system. It is beyond dispute, however, that the

Finger Plan is the more effective desegregation device for the imme-

diate future. For this reason, and others that we have specified in this

opinion, it was an abuse of discretion for the district court to adopt

the AISD Plan. See United States v. Bd. of School Commissioners of

Indianapolis, Indiana, 7 Cir. 1974, 503 F.2d 68, 75-76, cert. denied,

1973, 413 U.S. 920, 93 S.Ct. 3066, 37 L.Ed.2d 1041.

The Supreme Court stated the controlling principle in

Swann, 402 U.S. at 15-16, 91 S.Ct. at 1276, 28 L.Ed.2d at

566:

a school desegregation case does not differ funda-

mentally from other cases involving the framing of

equitable remedies to repair the denial of a constitu-

tional right. The task is to correct, by a balancing of

the individual and collective interests, the condition

that offends the Constitution.

In other words, there are two separate phases to a school

desegregation case. First, the Court must determine

whether there is de jure segregation. This decision, in cases

such as the one before us, conforms with the standards of

Keyes. Second, the Court must decide upon a remedy. It is

at this point that the balancing of interests becomes rele-

vant.”* In this phase of the case, the Court must determine

**The Court stated in Brown II that, in determining whether

school authorities should be given additional time to carry out the

desegregation remedy, ‘‘the courts may consider problems related to

administration, arising from the physical condition of the school

plant, the school transportation system, personnel... .”’ 349 U.S. 294

at 300, 75 S.Ct. 753, 99 L.Ed. 1083. The Brown I] Court, however,

carefully limited its approval of consideration of these problems to the

delay issue. See also Watson v. Memphis, 1963, 373 U.S. 526, 532-33,

83 S.Ct. 1314, 1318, 10 L.Ed.2d 529, 534-35.

The AISD’s arguments that its school district should not be

ordered to desegregate ‘‘root and branch’’ because of economic cost

and the specter of white flight have already been rejected by the

Supreme Court. In Watson, 373 U.S. at 537-38, 83 S.Ct. at 1320-21,

10 L.Ed.2d 537-38, the Court was unpersuaded by the argument that

desegregation of the Memphis parks should be delayed because of the

expenses it would generate:

the least costly method of correcting the constitutional vi-

olation.?’ But the above quote from Swann leaves no

doubt that, however, the balancing of interests is resolved,

the constitutional violation must be corrected.

[25] We therefore direct the district court, in com-

pleting the desegregation plan for Austin, to minimize the

economic cost of busing, the traffic congestion that the

busing plan will cause, the time that school children must

spend on the buses, and the number of students who will

leave the public school system rather than participate in

the desegregation plan.** The overriding judicial goal,

it is obvious that vindication of conceded constitutional rights

cannot be made dependent upon any theory that it is less expen-

sive to deny them to afford them. We will not assume that the

citizens of Memphis accept the questionable premise implicit in

this argument or that either the resources of the city are inade-

quate, or its government unresponsive, to the needs of all of its

citizens.

And the Court has repeatedly held that segregative state action must

be terminated and remedied despite pub!ic disagreement with the con-

stitutional principles. See, e. g., Uniter’ States v. Scotland Neck City

Bd. of Educ., 1971, 407 U.S. 484, 490-91, 92 S.Ct. 2214, 2217-18, 33

L.Ed.2d 75, 80-81; Watson, 373 U.S. at 535, 83 S.Ct. at 1319, 10

L.Ed.2d at 536; Cooper v. Aaron, 1958, 358 U.S. 1, 16, 78 S.Ct. 1401,

1408, 3 L.Ed.2d 5, 15: Brown IT, 349 U.S. at 300, 75 S.Ct. at 756, 99

L.Ed. at 1106; Buchanan v. Waley, 1917, 245 U.S. 60, 81, 38 S.Ct. 16,

20, 62 L.Ed. 149, 163

?”See Fiss, 39 Law & Contemp.Prob. at 198. Professor Fiss cor-

rectly points out that ‘‘[t}he court need not choose the remedy that has

the best cost-benefit relationship since it may eliminate a smaller por-

tion of the harm’’. id.

*On the issue of ‘‘white flight’’, the district court should accord

appropriate weight to the following testimony of Dr. Finger:

{[M]y thought in preparing this plan was to minimize the public

anguish over busing as much as possible, that there isn’t any way

that one can overcome it, but my attempt was to minimize it as

much as possible.

however, must be ‘‘the development of a decree ‘that pro-

mises realistically to work, and promises realistically to

work now.’’’. Davis v. Board of School Commissioners of

Mobile County, 402 U.S. at 38, 91 S.Ct. at 1292, 28

L.Ed.2d at 581, quoting Green v. County School Board of

New Kent County, Virginia, 1968, 391 U.S. 430, 439, 88

S.Ct. 1689, 1694, 20 L.Ed.2d 716, 724.

C. Formulation of the Desegregation Decree

[26] We affirm the district court order that the AISD

continue in its active efforts to recruit Mexican-American

teachers. The AISD should work ‘‘toward the achieve-

ment, as a goal, of a ratio of mexican-american teachers to

total faculty that approaches the ratio of mexican-ameri-

can students to the total student population’’. Cisneros,

467 F.2d at 151-52. Moreover, the ratio of Mexican-

American to Anglo teachers in each school should be

substantially the same as it is throughout the district. See

United States v. Montgomery County Board of Educa-

tion, 1969, 395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263.

We have already held that the AISD has adequately

desegregated its faculty on a black-white basis. Austin J,

467 F.2d at 870 n. 37.

[27] The AISD had an ongoing bilingual-bicultural

education program that the Superintendent of Schools tes-

tified would continue ‘‘regardless of the level of federal

funding’’. Indeed, state and federal law require as much.

See 20 U.S.C. § 1703(f); Tex.Educ.Code Ann. § 21.451 et

seq. (1975 pocket part). See also Lau v. Nichols, 1974, 414

U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1. The district court

properly made this commitment a part of its decree.

[28] We held in United States v. Board of Public In-

struction of Polk County, Florida, 5 Cir. 1968, 395 F.2d

66, 69, that

[t}here is an affirmative duty, overriding all other

considerations with respect to the locating of new

schools, except where inconsistent with ‘‘proper

operation of the school system as a whole’’ to seek

means to eradicate the vestiges of the dual system.

See also Swann, 402 U.S. at 20-21, 91 S.Ct. at 1278, 28

L.Ed.2d at 569; Tasby v. Estes, § Cir. 1975, 517 F.2d 92,

104-06, cert. denied, 1975, 423 U.S. 939, 96 S.Ct. 299, 46

L.Ed.2d 271. The district court was therefore correct in in-

corporating into its order the commitment of the AISD to

locate newly constructed schools in such a manner as to

maximize integration. When formulating the Austin dese-

gregation decree on remand, the district court should ap-

prove new school sites only if they would operate, within

the context of the new desegregation decree, to maximize

integration in the district.

[29] We suggest that the district court consider ap-

pointing a master to draft a comprehensive tri-ethnic dese-

gregation plan consistent with this opinion and the deci-

sions of the United States Supreme Court.”’ The plan

should conform to one of the approaches outlined by Dr.

Finger in his written submission of August 14, 1972, and

in his testimony.

*The AISD should provide staff assistance to the master or ex-

pert upon his request. See, e. g., United States v. Bd. of School Com-

missioners of Indianapolis, Indiana, 7 Cir. 1974, 503 F.2d 68, 78, cert.

denied, 1973, 413 U.S. 920, 93 S.Ct. 3066, 37 L.Ed.2d 1041; Bradley

v. Milliken, 6 Cir. 1973, 484 F.2d 215, 252, rev’d on other grounds,

1974, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069.

Vv. CONCLUSION

[30] Finally, the intervenors are entitled to reasonable

attorneys’ fees. See § 718 of Title VII of the Emergency

School Aid Act of 1972, 20 U.S.C. § 1617; Bradley v.

School Board of Richmond, 1974, 416 U.S. 696, 94 S.Ct.

2006, 40 L.Ed.2d 476; Henry v. Clarksdale Municipal

Separate School District, 5 Cir. 1973, 480 F.2d at 583. The

district court should conduct evidentiary proceedings to

determine the proper amount of fees to be awarded.

We have today held, for the second time, that a desegre-

gation plan submitted by the AISD is constitutionally in-

sufficient. Blacks and Mexican-Americans in Austin have

waited a long time for the unitary school system that the

constitution requires. We suggest that the district court

move expeditiously on remand to provide Austin minority

students with such a system.

We reverse the judgment of the district court and re-

mand the case for further proceedings consistent with this

opinion. The mandate of the Court shall issue forthwith.

The district court should consider appointing a master to

prepare a comprehensive desegregation plan. The desegre-

gation plan adopted by the district court in 1973 may be

continued only as a stop-gap.

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.

38 39

APPENDIX Mexican-

AUSTIN INDEPENDENT SCHOOL DISTRICT Schoo! Total Black American Anglo

ETHNIC COMPOSITION OF STUDENTS*

1975-76 JUNIOR HIGH

SCHOOLS

Mexican- ;

School Total Black American’ Anglo Allan 836 268 575 20

(31) (67) (2)

SENIOR HIGH Redichek 1168 15 181 912

SCHOOLS (6) (16) (78)

1029 «139 70 ~— 820

Anderson 2432 «219 572156 a (13) (7) (80)

(9) (2) 89) Dobie 1110 206 118 786

Austin 1842 210 502 1130 (18) (11) (71)

(12) >. os Fulmore 921 83 431 407

Crockett 3095 239 299 2557 (9) (47) (44)

(8) = Lamar 750 50 133 ($67

L. B. Johnson 1656 388 127 1141 (7) (18) (75)

(23) =. ws Martin 957 74 851 32

Johnston 1441 423 1003 15 (8) (89) (3)

(29) (70) (1) 873 109 18 746

Lanier 2285 291 1511843 —_— (13) (2) (85)

(13) >. Ss O. Henry 69457 80 557

McCallum 1407 94 203 «1110 (8) (12) (80)

(7) (14) (79) a 1308 435 104769

Reagan 1688 502 171 1015 (33) (8) (59)

| (30) oa & Porter 934 105 147682

Travis 1900 154 803 943 (11) (16) (73)

(8) (42) (50) |

JUNIOR HIGH

SENIOR HIGH SCHOOLS 10,607 1601 2708 «6298

SCHOOLS 17,746 2520 3316 11,910 | TOTAL? (15) (26) (59)

TOTALS (14) (19) (67)

Derived from October 10, 1975 submission of the AISD. Figures in

parentheses indicate percentages.

Mexican-

School Total Black American Anglo

ELEMENTARY

SCHOOLS

Allison 714 106 580 28

(15) (81) (4)

Andrews 515 129 36 350

(25) (7) (68)

Baker 489 47 102 340

(10) (21) (69)

Barrington 65¢ 13 80 561

(2) (12) (86)

Barton Hills 317 4 11 302

(1) (4) (95)

Becker 711 68 521 122

(10) (73) (17)

Blackshear 450 436 14 —

(97) (3)

Blanton 616 207 63 346

(34) (10) (56)

Brentwood 547 22 99 426

(4) (18) (78)

Brooke 389 3 377 y

(1) (97) (2)

Brown 548 119 151 278

(22) (27) (51)

Bryker Woods 244 2 20 222

(1) (8) (91)

Campbell 468 460 6 2

| (98) (1) (1)

Casis 591 20 32 539

(3) (6) (91)

Cook 668 26 85 557

(4) (13) (83)

Cunningham 806 10 90 706

Mexican-

School Total Black American’ Anglo

Dawson 693 41 442 210

(6) (64) (30)

Dill 114 3 7 104

(3) (6) (91)

Doss 626 10 7 609

(2) (1) (97)

Govalle 698 167 501 30

(24) (72) (4)

Graham 400 11 29 360

(3) (7) (90)

Gullett 481 — 7 474

(1) (99)

Harris 590 120 72 398

(20) (12) (68)

Highland Park 408 4 13 391

(1) (3) (96)

Hill 551 5 6 540

(1) (1) (98)

Joslin 947 94 130 723

(10) (14) (76)

Lee 260 36 47 177

(14) (18) (68)

Linder 624 47 Qy 478

(7) (16) (77)

Maplewood 353 280 40 33

(79) (11) (10)

Mathews 257 31 69 157

| (12) (27) (61)

Menchaca 381 12 42 327

(3) (11) (86)

Metz 495 4 487 4

(1) (98) (1)

Norman 316 309 7 —

(98) (2)

42 43

Mexican- Mexican-

School Total Black American’ Anglo School Total Black American’ Anglo

Oak Hill 582 3 18 561 Sunset Valley 611 20 61 530

(1) (3) (96) (3) (10) (87)

Oak Springs 321 303 18 ten : Travis Heights 762 93 301 368

(94) (6) (12) (40) (48)

Odom 1032 25 240 . 767 Walnut Creek 308 3 42 263

(3) (23) (74) (1) (14) (85)

Ortega 399 243 145 11 Webb 897 169 122 606

(61) (36) (3) (19) (14) (67)

Palm 419 —_ 394 25 Winn 544 180 34 330

(94) (6) (33) (6) (61)

Pease 254 47 53 154 Wooldridge 747 32 80 635

(18) (21) (61) (4) a a

Pecan Springs 537 205 53 279 Wooten 635 18 a -

(38) (10) (52) (3) (13) ( :

Pillow 538 8 30 500 Zavala 415 23 384

(1) (6) (93) (6) (92) (2)

Pleasant Hill 821 22 172 627 Zilker 541 23 100 418

(3) (21) (76) (4) (19) (77)

(10) (6) (84) ELEMENTARY

Reilly 278 4 78 196 SCHOOLS 30,567 4989 7242 18,336

(1) (28) (71) TOTALS (16) (24) (60)

Ridgetop 228 2 111 115 GRAND TOTAL 58,920 9110 13,266 36,544

(1) (49) (50) (15) (23) (62)

Rosedale 266 7 52 207

(3) (19) (78)

Rosewood 160 156 a _

(98) (2)

St. Elmo 975 32 321 622 i

(3) (33) (64)

Sims 494 455 34 5

(92) (7) (1)

Summitt 201 _ l 200

(100)

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

UNITED STATES OF AMERICA ()

()

() Civil

() Action

VS. () No. A-

() 70-CA-80

()

TEXAS EDUCATION AGENCY,ETAL. ()

(Austin Independent School Dist.) ()

MEMORANDUM OPINION AND ORDER

This school desegregation suit is before this Court on re-

mand from the Fifth Circuit Court of Appeals, 467 F.2d

848 (1972). The suit was originally brought by the United

States Department of Justice to challenge alleged segrega-

tion of black and Mexican-American students in the

Austin Independent School District (AISD). On July 19,

1971, this Court approved, with modifications, a school

desegregation plan proposed by the AISD. On appeal, the

Circuit Court, aware of the equivocation by the Depart-

ment of Justice, permitted intervention by interested black

and Mexican-American citizens of Austin. The Justice

Department’s equivocation has been manifested by an un-

willingness, continuing to this day, to submit a plan which

it would consider appropriate to remedy the segregation it

alleges to exist in the AISD. This Court is now once again

in the position of being compelled to pass upon the ade-

quacy of a student assignment plan submitted by the

AISD. The Court having heard all evidence, testimony,

stipulations and argument presented by the parties, now

sets forth its Findings of Fact and Conclusions of Law in

this Memorandum Opinion and Order.

I. DISCRIMINATION AS TO BLACKS

Prior to Brown v. Board of Education, 347 U.S. 483

(1954) the AISD was required by State law to segregate

black and white students. Shortly after the Supreme

Court’s declaration that the operation of such a dual

school system contravened the Constitution, the AISD be-

gan a voluntary program of desegregation until by 1963,

enforced segregation was completely removed from the

school system. While the District’s efforts during that time

undoubtedly fell short of the subsequently-proclaimed

‘‘affirmative duty to take whatever steps might be neces-

sary to convert to a unitary system in which discrimination

would be eliminated root and branch,’’ Green v. County

School Board of New Kent County, 391 U.S. 436, 437-38

(1968), its voluntary actions during a time when many

Southern communities were violently rejecting any deseg-

regation whatsoever reflects a desire to comply with the

law and to eschew discriminatory segregation.

Nonetheless, the fact is clear that the AISD, at some

time in the past, has engaged in discriminatory assignment

of black students to promote segregation. As the Supreme

Court has said, ‘‘If the actions of school authorities were

to any degree motivated by segregative intent and the seg-

regation resulting from those actions continues to exist,

the fact of remoteness in time certainly does not make

those actions any less ‘intentional’.’’ Keyes v. School Dis-

trict No. 1, U.S. , 41 U.S.L.W. 5002, 5008

(June 19, 1973). Consequently, the AISD must now show

that it has dismantled its old dual school system, and con-

verted to an integrated unitary school system.

II. DISCRIMINATION AS TO

MEXICAN-AMERICANS

Indisputably, some eight elementary, two junior high,

and one senior high schools in Austin educate dispropor-

tionately large numbers of Mexican-American students.

The Fourteenth Amendment, of course, prohibits segrega-

tion in public schools if it results from state action. As the

Fifth Circuit has noted, two distinct factual determina-

tions are required to support a finding of unlawful segre-

gation: ‘‘First, a denial of equal educational opportun-

ity . . ., defined as racial or ethnic segregation. Secondly,

this segregation must be the result of state action.’’ Cis-

neros v. Corpus Christi Independent School District, 467

F.2d 142, 148 (Sth Cir. 1972).

Inasmuch as the AISD has, in the past, maintained a

dual school system insofar as black students are con-

cerned, we must first determine whether this policy was

**separate, identifiable and unrelated,’’ Keyes, supra at

5009, to the District’s treatment of Mexican-American

students. Clearly it was. The AISD’s old statutorily re-

quired dual school system was based upon discrimination

between whites and blacks. Mexican-American students

are, and always have been, classified as ‘‘white’’ by the

AISD. The historic legal treatment of black and Mexican-

American students has been completely different. More-

over, the treatment of Mexican-American students was

wholly unrelated to maintenance of the black-white dual

school system.

The School District having demonstrated that the black-

white dual system did not create a dual school system in-

sofar as Mexican-American’s were concerned, we must

consider whether the AISD has rebutted ‘‘. . . petitioners’

prima facie case of intentional segregation [of Mexican-

American’s] . . . raised by the finding of intentional seg-

regation [of blacks] . . .’’ Keyes, supra at 5009.

There, the Board’s burden is to show that its policies

and practices with respect to school site locations,

school size, school renovations and additions, student

attendance zones, student assignment and transfer

options, mobile classroom units, transportation of

students, assignment of faculty and staff, etc., con-

sidered together and premised on the Board’s so-

called ‘‘neighborhood school’’ concept, either were

not taken in effectuation of a policy to create or

maintain segregation [of Mexican-American’s] . . .,

or, if unsuccessful in that effort, were not factors in

causing the existing condition of segregation in these

schools.

Id.

We begin by observing that there has never been any

statute, rule, regulation, or policy of the AISD which pro-

hibited Mexican-American students from attending school

with Anglo students. Mexican-American and Anglo stu-

dents have attended schools and classes together at virtual-

ly all times during the operation of the AISD. Notwith-

standing this uncontroverted fact, we must determine

whether the AISD has ever exhibited a purpose or intent to

promote segregation of Mexican-American students. ‘‘We

emphasize that the differentiating factor between de jure

segregation and so-called de facto segregation to which we

referred in Swann [v. Charlotte-Mecklenburg, 402 U.S. 1

(1971).] is purpose or intent to segregate.’’ Keyes, supra at

5007

Perhaps the strongest showing of an allegedly segrega-

tive intent toward Mexican-American’s is in the creation

of the West Avenue, Comal Street and Zavala schools.

West Avenue served grades 1-3 from 1916 until 1947.

Comal Street was closed in 1936. Zavala operated as a spe-

cial school from 1936 until 1954, when it was given an at-

tendance zone similar to any other school. These schools

were designed to serve the educational needs of non-Eng-

lish speaking students, and students who were members of

migrant farm-working families and who could not, conse-

quently, attend school for a full normal school year. In

this day of educational innovation, the Court notes that

many of the teaching methods used in these schools may

now be considered outdated and inadequate. Nonetheless,

the Court is of the strong opinion that the existence of

these schools represented no more than a humane and

compassionate attempt by the School District, using the

educational techniques then accepted as proper and pro-

gressive, to meet the special educational needs of children

who would otherwise have been much more severely han-

dicapped in their efforts to obtain an education. More-

over, Mexican-American students were not required to at-

tend these special schools. On the contrary, substantial

numbers of Mexican-American students attended other

predominantly Anglo schools throughout the District dur-

ing this time. The Court finds that these three schools, all

of which were open schools with no attendance zones

while operating as special schools, had no effect on the ra-

cial or ethnic housing patterns in the District.

Of the seven predominantly Mexican-American elemen-

tary schools in the District other than Zavala, five (Becker,

Palm, Metz, Dawson and Govalle) opened as predomi-

nantly Anglo schools. These five schools gradually became

predominantly Mexican-American because of shifting res-

idential patterns, and their transformation was in no way

caused by any action of the AISD. The District has clearly

shown the lack of a segregatory intent or purpose re-

garding these schools.

The other five predominantly Mexican-American

schools in the District (Allison and Brooke Elementary,

Martin and Allan Jr. High, and Johnston High Schools)

did open with a predominance of Mexican-American stu-

dents. The record reflects however, that these schools

were, without exception, located as they were solely be-

cause of growth in the East Austin area and the need for

new schools to serve the area. The area of heaviest black

and Mexican-American concentration in the District, re-

ferred to herein as East Austin, is a relatively isolated area.

It is bounded on the south by the Colorado River, across

which access is inadequate. To the west of the area are a

major interstate highway, the University of Texas, and the

State Capitol complex. Barricading the north end of the

area is the Austin Municipal Airport. On the eastern edge

of the area is the AISD boundary. Thus, schools built to

serve growth in East Austin could necessarily serve only

that area unless the historically-honored ‘‘neighborhood

school’’ concept were completely abandoned. The loca-

tion of schools within this area had little immediate im-

pact, and virtually no long-term impact, upon the integra-

tion of Anglo and Mexican-American students.

After a thorough review of the evidence the Court finds

that the AISD has successfully demonstrated that its poli-

cies with regard to school site location, school size, school

renovations and additions, student attendance zones, stu-

dent assignment and transfer options, mobile classroom

units, transportation of students, assignment of faculty

and staff, etc., were not effectuated as part of a policy of

promoting segregation of Mexican-American’s. Rather,

the Court finds that the AISD has demonstrated an ab-

sence of segregatory intent or purpose toward Mexican-

American’s. Consequently, a decree by this Court for

‘*all-out desegregation’’ of Mexican-American’s would be

improper. Keyes, supra at 5009.

Our obligation to assure to the Mexican-American in-

tervenors in this case the equal protection of the laws does

not end with our finding that such segregation of Mexican-

American’s as does exist in Austin is not the result of a

segregatory intent or purpose on the part of the AISD.

Mexican-American’s in Austin constitute an identifiable

ethnic minority, recognizable by their numbers, concen-

tration, cultural uniqueness, and common special needs

and problems. We find that Mexican-American students

in Austin constitute ‘‘an identifiable, ethnic-minority class

entitled to the equal protection guarantee of the Four-

teenth Amendment.’’ Cisneros, supra at 149. As such,

Mexican-American students are entitled to proper imple-

mentation of steps necessary to assure them the equal pro-

tection of the laws and an equal educational opportunity,

including implementation of a curriculum and special edu-

cational programs, such as bilingual-bicultural education,

necessary to provide equal educational opportunities for

Mexican-American students as a group.

Ill. THE REMEDY

The AISD has submitted a compilation of its record in

converting to a unitary school system and fulfilling its ob-

ligation to implement a curriculum and special educational

programs necessary to provide equal educational oppor-

tunities for black and Mexican-American students. Addi-

tionally, it has submitted a ‘‘Sixth Grade Center Plan’’

_and an alternative ‘‘Fifth and Sixth Grade Center Plan’”’

by which the mixing of black and white students will be

promoted.

Austin junior and senior high school students are fully

desegregated. The closing of the old Anderson High

School and Kealing Junior High School has been chal-

lenged by the black Intervenors. Testimony indicated,

however, that the old Anderson (the Anderson name has

been retained and transferred to the new high school due

to open for the 1973-74 school year, serving the predomi-

nantly Anglo northwest area of Austin; this action will

make Austin one of the comparatively few cities in Texas

to have a predominantly Anglo high school named in

honor of a black person) facility was inadequate to con-

tinue as a high school. One option would have been to

convert it to a junior high school. The AISD has now,

however, designated the facility as a location for the

newly-created community college in Austin. As such, the

facility will draw students from throughout the District.

We find this use of the facility to be fully as acceptable as

any other possible use. Testimony further indicated that

only a part of the Kealing facility would be acceptable for

continued use. Rather than operate on this basis, the Dis-

trict determined that the facility should be closed and its

students re-assigned. We find no impermissible closing of

schools solely for racial reasons. Cf. Lee v. Macon County

Board of Education, 448 F.2d 746 (Sth Cir. 1971). More-

over, the impact of the closing of these facilities will be

greatly alleviated with the opening of the new Lyndon B.

Johnson (Northeast) High School in 1974, and the pro-

jected construction of a new Northeast Junior High

School. These facilities will be placed in racially neutral

locations, drawing naturally desegregated student bodies.

The desegregation of elementary schools presents the

greatest problem in this case. Elementary zones have tradi-

tionally been small in Austin, and the facilities, drawing

students only from their immediate neighborhoods, have

been correspondingly small. As we have previously dis-

cussed, East Austin is a locked-in, relatively inaccessible

part of Austin. The only portion of Austin readily accessi-

ble from East Austin is Northeast Austin. The schools in

Northeast Austin are, however, already largely integrated,

and any attempt to use this area alone as the AISD’s de-

segregative tool would be inequitable, would upset natural

patterns of integration, and would very likely result ulti-

mately in total resegregation.

Additionally, the predominantly Mexican-American

Southeast Austin area could be used to desegregate black

schools. This would, however, be intolerable. As this

Court has stated, ‘‘All too often, the practical effect of the

‘desegregation’ of school systems has been that black stu-

dents are mixed with Mexican-American students, thus

denying to both groups the benefit of any meaningful de-

segregation. Schools with substantial Mexican-American

populations cannot be made to carry a disproportionate

share of the burden of desegregation.’’ Arvizu v. Waco

Independent School District, at 8, Civil Action No. W-71-

CA-56 (W.D. Tex. April 27, 1973).

Clearly, the entire community must be involved in any

effort to desegregate the black East Austin elementary

schools. The Sixth Grade Center Plan submitted by the

AISD does involve the entire community in the desegrega-

tion of at least one grade of the elementary school years.

Involvement of the entire community in desegregation of

additional grades (even the District’s Fifth and Sixth

Grade Center Plan does not involve all students in the Dis-

trict in both grades) would involve progressively massive

transportation, the uprooting of children in their earliest

formative years, and would be educationally dysfunc-

tional. Considering the ‘‘age of the children, and the risk

to health and probable impingement of the educational

process,’’ United States v. Texas Education Agency (Aus-

tin Independent School District), 467 F.2d 848, 885 (Sth

Cir. 1972) (Bell, J., specially concurring), we find that the

time fequired for transportation, risk to health, and prob-

able impingement of education for students younger than

the sixth grade would be prohibitive under any such plan.

In assessing the AISD’s proposal, we note the language

of Mr. Justice Powell:

The term ‘“‘integrated school systems’’ presup-

poses, of course, a total absence of any laws, regula-

tions of policies supportive of the type of ‘‘legalized’’

segregation condemned in Brown. A system would be

integrated in accord with constitutional standards if

the responsible authorities had taken appropriate

steps to (i) integrate faculties and administration; (ii)

scrupulously assure equality of facilities, instruction

and curricul& opportunities throughout the district;

(iii) utilize their authority to draw attendance zones to

promote integration; (iv) locate new schools, close old

ones, and determine the size and grade categories with

the same objective in mind. Where school authorities

decide to undertake the transportation of students,

this also must be with integrative opportunities in

mind.

.. . An integrated school system does not mean—

and indeed could not mean in view of the residential

patterns of most of our major metropolitan areas—

that every school must in fact be an integrated unit. A

school which happens to be all or predominantly

white or all or predominantly black is not a “‘segre-

gated’’ school in an unconstitutional sense if the sys-

tem itself is a genuinely integrated one.

Keyes, supra at 5012 (Powell, J., concurring in part and

dissenting in part). We note that in addition to its submit-

ted Sixth Grade Center Plan the AISD has taken other

steps to effect its conversion to a unitary integrated sys-

tem, including: (i) A commitment to employ a black and a

Mexican-American assistant superintendent to work at the

cabinet level with system-wide responsibilities and to pro-

vide special assistance in the development of programs and

activities for black and Mexican-American students; (ii)

Establishment of majority-to-minority transfer provisions

for both black and Mexican-American students, with free

transportation provided; (iii) A commitment to employ

five elementary assistant directors who will, inter alia, su-

pervise and evaluate programs; (iv) Implementation of

many innovative programs designed to aid minority stu-

dents, including bilingual-bicultural educational pro-

grams; (v) Alteration of existing school attendance zones

and the drawing of attendance zones for new schools to

promote desegregation; and (vi) Construction and projec-

tion of new schools to be located in such a manner as to

maximize integration.

Thus, although the Sixth Grade Center Plan contem-

plates the continued operation of several predominantly

black schools, we find that it, combined with the District’s

other efforts and commitments, will render the AISD to be

a unitary and integrated school system. In approving the

Plan, however, we wish to emphasize that all its compo-

nents are a legal obligation of the District. The District’s

commitments—to integrate the administration, to main-

tain an integrated faculty and continue to seek qualified

Mexican-American teachers, to assign faculty members to

schools in a nondiscriminatory manner (we construe this

to mean that teachers in predominantly minority schools

shall be equivalent to teachers in predominantly Anglo

schools according to such objective criteria as experience

and educational background), to scrupulously assure

equality of facilities, to assure equality of educational op-

portunities through programs especially designed to meet

the needs of black and Mexican-American students, to

utilize its authority to draw attendance zones to promote

integration, and to locate new schools, close old ones, and

determine the size and grade categories to promote inte-

gration—are al! legal obligations which shall be strictly en-

forced by the Court. Likewise, the District must afford

Mexican-American’s protection against bearing a dispro-

portionate burden of desegregation of black students, and

must promote rather than retard tri-ethnic integration as

part of its legal obligation.

This Court shall retain jurisdiction of this cause, and the

School District is directed to report to the Court semi-an-

nually, on or about January 15, and July 15, of each year,

regarding the status of integration in the AISD. Included

in these reports shall be: the status of faculty and adminis-

tration integration; the comparative objective qualifica-

tions of teachers in predominantly minority schools vis-a-

vis the objective qualifications of teachers of that grade

level in the District as a whole; the addition or elimination

of any programs especially designed to meet the educa-

tional needs of black and Mexican-American students; the

status of efforts to draw school attendance zones and

locate new schools to promote integration; the status of

the District’s commitment to scrupulously assure equality

of facilities; a report regarding utilization of the District’s

majority-to-minority transfer plan; and the status of stu-

dent integration in each school in the District. Additional-

ly, this Court shall require that prior to any change in

school attendance zones and prior to construction of any

new school by the District, the Board shall notify counsel

for Plaintiff and Intervenors of such proposal. If, within

thirty (30) days, counsel for Plaintiff and Intervenors have

made no objection thereto, the proposal shall be consid-

ered approved by the Court. If, within thirty (30) days,

objection is made, the Court shall hear and resolve the

dispute by approving or disapproving the proposal. It is

accordingly

ORDERED, ADJUDGED and DECREED that the

Sixth Grade Center Plan submitted by the Austin Indepen-

dent School District be, and hereby is, APPROVED,

under the terms and conditions set out herein. We attach

hereto, and incorporate herein, a copy of the Plan. This

Memorandum Opinion and Order shall constitute Find-

ings of Fact and Conclusions of Law.

Entered at Austin, Texas, this Ist day of August, 1973.

United States District Judge

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

UNITED STATES OF AMERICA ()

()

() Civil

VS. () Action

() No. A-

() 70-CA-80

()

TEXAS EDUCATION AGENCY,ETAL. ()

(Austin Ind. School District) ()

MEMORANDUM OPINION AND ORDER

On June 28, 1971, this Court entered an Order deter-

mining the absence of de jure segregation against Mexican

Americans, but the continuation of the vestiges of a dual

school system as regards Blacks. This Order incorporates

that earlier Memorandum Opinion and Order and pro-

ceeds to outline a plan for eliminating the dual school

system.

Despite this Court’s repeated requests for a joint plan,

the parties were able to agree only as to the high school in-

tegration plan submitted by the Austin Independent

School District. See Report and Submission filed July 15,

1971. As regards junior highs, the Plaintiff continued to

disregard this Court’s guideline three as to the unsuitabili-

—— ~ -

ty of Anderson for a junior or senior high facility. The

previously determined unsuitability of the Anderson facili-

ty, the greater costs, and longer transportation time in-

volved in the Plaintiff’s plan require this Court to reject it. _

See Defendant’s Exhibits 37 and 82.

In reviewing the plans submitted for elementary school

integration, this Court first reiterates its guideline calling

for minimized busing. The testimony at the earlier hearing

of this case convinced this Court that extensive crosstown

busing could only harm the local education system. Dr.

Cecil Hardesty, Superintendent of Schools in Jackson-

ville, Florida, an unbiased educational expert who has had

extensive experience with crosstown busing ordered in his

school district, delineated the many adverse effects from

this remedial technique. The added time requirements im-

posed on students by busing often reduce attendance and

produce higher dropout rates, especially among minority

students, and limit the opportunity of all transported

students to participate before and after school in extra-

curricular activities, which both parties agree are an im-

portant factor in the educational process. Busing similarly

reduces parental participation in school activities, par-

ticularly where it necessitates dividing a family’s children

among a number of schools. It also taxes the capability of

health facilities in individual schools to deal with at-school

injuries and illnesses. Of course, the objections to busing

thus far enumerated might in many circumstances apply

with equal validity to the traditional role bus transporta-

tion has played in overcoming the geographical separation

between pupil and school. However, such objections take

on a new and much larger dimension in the urban environ-

ment where massive transportation of students is involved.

Moreover, both Dr. Hardesty and Dr. Davidson further

testified that busing students simply to achieve racial

balance, as opposed to the traditional function of bus

transportation, raises new educational problems not here-

tofore experienced. Transportation of students, par-

ticularly the very young, from their home neighborhoods

into strange and often hostile environments causes raised

anxiety levels in both students and their teachers that con-

Stitute psychological barriers to learning progress, and

subjects students to traumatic experiences that they are

not equipped by age or experience to handle. The Court is

also aware of other barriers posed by community opposi-

tion: to forced busing. Cf. United States v. Haynes,

F.2d No. 71-1165 (Sth Cir. June 17, 1971).

Because such large numbers of students must be trans-

ported within a reasonably short period of time, busing to

achieve desegregation in Austin will necessitate assembly

of students at their neighborhood schools prior to trans-

porting them to another school. Thus inclement weather

may pose problems in sheltering up to twice the school’s

student capacity during the busing period in the morning

and afternoon. Moreover, in Austin, the bus routes would

require transporting many students through a heavy traf-

fic complex consisting of downtown Austin (Colorado

River to 11th Street), the Capitol complex (12th Street to

19h Street) and the University of Texas campus (19th

Street to approximately 27th Street). The traffic situation

is further complicated by the fact that Interstate Highway

35, which is the main north-south traffic artery in Austin,

is undergoing major construction work involving the clos-

ing of traffic lanes and various detours. This Court there-

fore finds that the traffic situation presents a serious and

substantial obstacle to the safe transportation of school

children. Finally, it should be noted that transportation

costs in excess of those normally incurred in the traditional

function of busing are essentially a non-productive expen-

diture, since such costs contribute little, if anything to

academic achievement. Dollars spent on additional buses,

driver’s salaries, gasoline, tires and other maintenance

yield little or no educational return to the community;

dollars spent on productive programs, teacher’s salaries,

books, facilities and teaching equipment do.

Accordingly, this Court finds as a fact that busing to

achieve desegregation in the Austin community will result

in serious interference with the educational process.

Because of this, the Court has examined both the HEW

Recommendations and the AISD plan with a view toward

minimizing busing and maximizing the use of neighbor-

hood schools. Normally, in fashioning a remedy, the

recommendations of the Department of Health, Educa-

tion & Welfare are entitled to great weight, U.S. v. Jeffer-

son County Board of Education, 372 F.2d 836, 847 (Sth

Cir. 1966), and ‘‘the school districts are to bear the burden

of demonstrating beyond question, after a hearing, the un-

workability of the [HEW] proposals... .’’ Carter v.

West Feliciana Parish School Bd., 396 U.S. 290, 292

(1969) (concurring opinion of Justice Harlan.) In the in-

stant case, however, the evidence adduced at trial, espe-

cially the uncontradicted testimony of Mr. Cunningham

and Dr. Davidson, shows that despite AISD’s repeated at-

tempts to communicate with HEW, over a period of sev-

eral months, nothing was forthcoming from HEW until

approximately 30 days prior to trial. At this time, HEW

filed with this Court its comments on the desegregation

plan formulated by the AISD. These comments (Letter

from Thomas Kendrick, Senior Program Officer to Dr.

Jack Davidson, Superintendent, AISD, dated and filed

May 14, 1971) [Hereinafter called HEW Recommenda-

tions] as they have been amended at trial through the in-

troduction of Plaintiff’s Exhibits 23, 25 and 26, and the

Report and Submission filed with this Court on July 15,

1971, constitute the only documentary evidence of any

desegregation plan developed by HEW. At trial, several

further modifications to the HEW Recommendations

were revealed for the first time through the oral testimony

of Mr. A. T. Miller, the HEW Project Officer. The only

explanation offered by HEW for this course of conduct

was the testimony of Mr. Miller that he was not authorized

to deviate from the HEW plan, which had been drawn in

Washington, D.C., but that he had been ‘‘available’’ for

consultation throughout the pendency of the suit. The fact

remains, however, that the AISD was not given the benefit

of HEW recommendations in drawing its plan, despite

repeated efforts to obtain such recommendations, until

approximately 30 days prior to trial. This inflexibility on

the part of HEW is inconsistent with this Court’s under-

standing of the role to be played by HEW in the complex,

difficult task of urban school desegregation, and it is fur-

ther inconsistent with the clear and obvious purpose of

this Court’s Order of September 4, 1970, directing the par-

ties to attempt agreement on a common desegregation

plan. This case thus appears to depart substantially from

the usual run of school cases in that here the uncom-

municative, uncooperative and recalcitrant party has been

not the local school board, but the Department of Health,

Education and Welfare.

This Court has therefore weighed both plans according

to their relative merits under the two-pronged test devel-

oped in the cases:

(1) Does the plan convert now the existing dual school

system ‘‘to a unitary system in which racial discrimination

would be eliminated root and branch?’’ Green v.:County

School Board, 391 U.S. 430, 437-38 (1969), and

(2) Is the plan ‘‘reasonable, realistic and workable?”’,

Swann v. Charlotte-Mecklenburg Board of Education,

supra, at 575.

HIGH SCHOOLS

The parties have agreed that the plan submitted by

AISD for implementation in the.Fall of 1971 (see Defend-

ants’ Exhibits Nos. 35 and 37) would assign all black high

school students to schools that are not identifiable as

Negro schools, (Report and Submission of July 15, 1971,

at 1), and the Court so finds. The AISD plan for the high

schools, (Alternate Plan No. 2, for the 1971-72 school

year) together with the planned construction of three new

high schools and proposed revision of attendance zones,

(Alternate Plan No. I, for the 1973-74 school year) meets

all constitutional requirements and is therefore AP-

PROVED.

JUNIOR HIGH SCHOOLS

The parties similarly agree that the AISD plan for junior

high schools, (Defendants’ Exhibit No. 36, Alternate Plan

hed

No. 2, as modified by the closing of Kealing Jr. High

School for the 1971-72 school year) would assign all black

junior high school students to schools that are not iden-

tifiable as Negro schools, although HEW expresses doubt

that this would comply with the fourth guideline contained

in this Court’s Memorandum Opinion and Order of June

28, 1971, since it, together with AISD’s high school plan

“‘unnecessarily places on the black community the entire

burden of desegregating on the secondary level.’’ Report

and Submission of July 15, 1971, at 2-3. The guideline in

question was addressed to any attempt on the part of

either party to achieve desegregation merely by integrating

blacks with Mexican-Americans as opposed to integrating

them throughout the entire community. Although some of

the same considerations of fairness support HEW’s posi-

tion, this Court believes that they are outweighed by the

continuity of zone lines and feeder patterns, decreased

likelihood of ‘‘white flight’’, transportation efficiencies

and coordination with the AISD elementary plan afforded

by the AISD junior high plan. Moreover, the HEW pro-

posals for secondary schools disregard an additional cost

of some $246,200. for portable buildings made necessary

by the crowding of some facilities and drastic underutiliza-

tion of others under the HEW plan, and involves the use

of Anderson High School as a junior high facility, which

this Court finds unsatisfactory. The AISD junior high

school plan (Alternate Plan No. 2), as modified by the

closing of Kealing Jr. High, also meets all constitutional

requirements and is APPROVED.

ELEMENTARY SCHOOLS

Austin’s 55 elementary schools, which are widely scat-

tered across the city to meet neighborhood needs, pose the

major problem in implementing an effective desegregation

program. HEW suggests pairing for a few contiguous at-

tendance zones, but in the main recommends the groups

of contiguous zones be ‘‘clustered’’ with ‘‘satellite’’ or

noncontiguous zones. See HEW Recommendations at

3-5 and Attachment 1, and Plaintiff’s Exhibit 1. Each

cluster, usually consisting of one predominately Black

school, one predominately Mexican-American school, and

four predominately Anglo schools, would be thoroughly

integrated on a daily basis through extensive cross-town

busing. Mr. Miller, the HEW Project Officer, indicated

that in each cluster all students in one of the schools, or

' several grades could be divided among several of the

schools in the cluster. In the Report and Submission of

July 15, 1971, HEW further suggests ‘‘full time pairing of

the five all-black elementary schools (counting Rosewood

and Oak Springs as one school encompassing grades one

through six) with ten or more non-contiguous Anglo

schools.”’

While employing a form of clustering similar to that

proposed by HEW at trial, (See Defendant’s Exhibit 78 at

16) AISD offers a unique new approach to elementary de-

segregation. Integrating not only people, but the entire

educational process, the AISD plan creates learning

resource centers, provides inter-school visitations, and

sponsors joint field study trips. A ‘‘Companion School

Team Planning Advisory Council’’, composed of repre-

sentatives from each school in a given cluster as well as

staff representatives, would develop integrated educa-

tional programs for the cluster. As explained more fully in

Defendant’s Exhibit 80,

[t]he primary purpose of the multi-cultural learning

activities at the Learning Resource Centers is to pro-

vide new dimensions of understanding by placing

greater emphasis on the cultural influences and con-

tributions of various ethnic groups of American

society.

To accomplish this objective, one center each for fine arts,

social sciences, avocations, and science, would be estab-

lished in vacant or underutilized facilities designated by -

AISD. According to Defendant’s Exhibit 78, ‘‘Major Pro-

gram Thrusts’’ would be ‘‘1. Bolster academic programs

in one race schools (cognitive learning) [and] 2. Develop

wholesome attitudes and understandings (affective learn-

ing).’’ As ‘‘a major portion of the social studies cur-

riculum’’, these centers will concentrate on ‘‘instructiona!

groups’’ ‘‘composed of ‘‘four multi-ethnic student teams

consisting of 6, 7, or 8 students each, depending on the

size of the companion school group.’’ Defendant’s Exhibit

80. These instructional groups would regularly be assem-

bled for inter-school visits, field study trips, and planned

programs at the learning resource centers. The bus trans-

portation used both to assemble the groups and transport

them to these activities would be integrated into the educa-

tional program through the use of supervised on-bus activ-

ities.

Under the AISD plan the Court finds that elementary

students would be in a desegregated environment as much

as twenty-five (25) percent of the school year. This Court

further finds that the AISD elementary plan, particularly

in its creation of learning resource centers, possesses great

educational benefits. It is a program designed specifically

to develop in elementary school children the capacity to

understand, appreciate and respect cultural values other

than their own by providing, in a structured, supervised

program, a common bond of experience with members of

other ethnic groups. The centrai thrust of the AISD plan is

to eliminate the mutual fears that lie at the heart of racial

prejudice, and the discriminatory attitudes that flow from

such fears, through educational activities specifically

tailored to reach this objective. Its underlying premise is

that meaningful and effective desegregation depends pri-

marily on the quality, and only secondarily on the quanti-

ty, of the multicultural experiences to which each elemen-

tary school child is exposed.

HEW attempts to stigmatize this innovative proposal

with the label ‘‘part-time desegregation’’, relying on

Bivins v. Bibb County Board of Education, 424 F.2d 97,98

(Sth Civ. 1970) where only 25% of the Negro students

were attending formerly all-white schools and only ‘‘nine

percent of the white students were participating or waiting

to participate on a part-time basis in virtually all of the

all-Negro schools in response to the incentive of special

courses there .. . .’” No such scheme is proposed by the

AISD elementary plan, which is mandatory on all elemen-

tary students and which encompasses virtually all of the

system’s Anglo elementary students for a much larger por-

tion of their academic time in a far wider and more mean-

ingful range of multicultural experiences. This Court

therefore considers Bivins v. Bibb County, supra, inap-

plicable to this case.

Nor can the HEW Recommendations be said to provide

more satisfactory distribution of ethnic groups. Plaintiff’s

Cluster #5, when examined in view of the more accurate

enrollment figures provided in Defendant’s Exhibit 79, in-

cludes only eighteen Blacks or about 1% of the cluster’s

student population; Cluster #6 includes only twenty-one

Blacks or about 2%. See HEW Recommendations, At-

tach. E for composition of clusters. At the same time

HEW would pair three schools—Becker, Mathews, and

Pease—which, as indicated in Defendant’s Exhibit 79, are

already integrated on a tri-ethnic basis.

While the HEW Recommendations strictly avoid any

discussion of implementation methods, which, of course,

form the core of any determination as to reasonableness

and workability, Mr. Miller’s testimony indicates almost

total reliance upon extended daily busing of 89% elemen-

tary students. See Plaintiff’s Exhibit 26. This Court finds

as a matter of fact that this proposal entails all the educa-

tional disadvantages of busing previously discussed.

Moreover, the cost comparison of the HEW proposal with

that of AISD is startling. Because the AISD can employ

during the school day at the elementary level the same

buses used to transport secondary students, no additional

equipment is required. Consequently, expenditures would

be held to $100,000. in operating costs. Defendant’s Ex-

hibit 82. in this same exhibit, the AISD estimates that the

HEW elementary proposal would cost $1,708,000.—

$1,573,000. for transportation, and $135,000. for addi-

tional portable rooms. Even the Plaintiff’s Exhibit 26,

with its understatement of the number of buses required to

implement the HEW Recommendations estimates total

first year costs of $717,900. This Court finds as a matter

of fact that, by either estimate, the cost of this proposal

places an unreasonable burden upon the school district.

This Court further finds that the minimum number of

buses necessary to implement the HEW proposals cannot

be obtained until late in the 1971-72 school year. See direct

testimony of Dr. Leon R. Graham.

After a review of the evidence, particularly Defendant’s

Exhibit 82, Attach. A, this Court finds that the AISD plan

is preferable also because it imposes lesser time burdens on

students in going to and from school and lessens traffic

hazards. Unlike the HEW Recommendations, the limited

amount of busing required by the AISD will occur during

hours of lessened traffic flow, as a part of the learning day

with teacher participation. This Court finds that the AISD

plan minimizes the disadvantages inherent in busing.

The AISD elementary plan is a wholly new approach to

the problems of desegregating elementary schoo!s locked

deeply in areas of urban minority concentration. Under

difficult circumstances, the plan achieves maximum deseg-

regation consistent with reasonable cost, student safety

and educational soundness. It is the finding of this Court

that Defendants have met their burden of showing the

non-feasibility of the HEW proposals, and that the AISD

elementary plan is the only physically possible desegrega-

tion plan for the 1971-72 school year because of the non-

availability of additional buses until late in the second

semester.

With the closing of St. John’s Elementary School, a

predominantly black school, the students of which can

easily be assigned to neighboring schools, and the addition

of a majority-to-minority transfer provision, the AISD

elementary plan will also meet all constitutional require-

ments.

CONCLUSION

Upon implementation of the AISD plans for the high

schools, junior high schools and elementary schools, as

modified herein, the defendant school district will be in

full compliance with the previous Orders of this Court

dated September 4, 1970, December 15, 1970, February

26, 1971, and April 14, 1971, all terms of the Civil Rights

Act of 1964, and the constitutional principles announced

in Brown v. Board of Education, 347 U.S. 483 (1954),

Green v. County School Board, 391 U.S. 430 (1968), and

Swann v. Charlotte-Mecklenburg Board of Education,

U:S. , 28 L.Ed.2d 554 (1971), and will have

achieved a unitary school system. This memorandum

Opinion shall constitute this Court’s findings of fact and

conclusions of law pursuant to Rule 52, Federal Rules of

Civil Procedure.

ORDER

Based upon the foregoing memorandum Opinion, it is

ORDERED, ADJUDGED and DECREED that”’

1. Alternate Plan No. 2, proposed by the Austin School

Board, is to be put into immediate effect subject to the

following modifications:

a. Kealing Junior High School is to be closed for

school year of 1971-72.

b. St. Johns Elementary School is to be closed and its

students reassigned to the neighboring white schools.

c. Paragraphs B, C, F and G of the interim Desegre-

gation Plan for the Austin Independent School District

implemented by this Court’s Order of September 4, 1970,

shall remain in effect.

2. The site locations for the proposed high schools,

junior high schools, and elementary schools are hereby ap-

proved; the School Board is further ORDERED to report

back to this Court on June 1, 1972, and every six (6)

months thereafter, on the site acquisition, progress, plan-

ning and construction of new schools.

3. Since the AISD plan for elementary desegregation is

unique in approach, the Board will report to this Court on

October 1, 1971, and each February |, and June 1, of suc-

ceeding years the progress made in desegregation at all

levels with special emphasis on information pertinent to

the elementary program, such reports to include, but not

be limited to, student involvement, racial composition of

staff and students, participation in extracurricular ac-

tivities, and transportation utilized to accomplish both

Board Alternate Plan No. 2 and the AISD plan for ele-

mentary schools.

4. Prior to the occupation of the new high schools and

junior high schools at Northeast High School, Northwest

High School, Austin High School, Rundberg Lane Junior

High School, Northeast Junior High School, and the

South First Street Junior High School, the Board will sub-

mit to this Court a projected ethnic composition for each

school so that this Court can determine whether the fea-

tures of Alternate Plan No. 2 should be continued or

altered.

5. As authorized by the Supreme Court in Swan v.

Charlotte-Mecklenburg Board of Education, supra, this

Court will retain jurisdiction of this case to insure that the

unitary system hereinabove provided and required is oper-

ated in accordance with these Orders to achieve the objec-

tive specified. For this purpose, it is required that the

Austin School Board shall, on or before the Ist day of the

months of November, December, February, March, April

and May, during the 1971-72 school year, submit to this

court reports each of which shall cover the following

topics:

a. Students, including (1) the number of students by

race enrolled in the school district; (2) the number of

students by race enrolled in each school in the district;.(3)

the number of students by race enrolled in each classroom

in each of the schools in the district; and (4) the number of

school days during each month that each child has par-

ticipated in multi-cultural activities pursuant to the

elementary school program, broken down by learning

resource center visits, inter-site visits, and field-study

trips.

b. Teachers, including (1) the number of full-time

teachers by race in the district; (2) the number of full-time

teachers by race in each school in the district; (3) the

number of part-time teachers by race in the district; and

(4) the number of part-time teachers by race in each school

in the district.

c. Transfers, describing the requests and results

which have accrued by race, under the majority-to-

minority transfer provision which is a part of this Court’s

Order.

d. Specifying any change which may have been made

in the boundaries of any zone or zones.

e. Transportation system, including the number of

vehicles in use and the extent to which black and white

students are transported daily on the same buses.

f. Utilization of equipment, including a statement

that all gymnasia, auditoriums, cafeterias and like

facilities are being operated on an integrated basis.

6. If it appears that the plan hereby adopted does not in

actual fact and in operation provide the unitary system for

which it was designed and adopted, the Order of this

Court may be changed to whatever extent necessary to

accomplish the objective.

SIGNED at Austin, Texas, this day of

July, 1971.

United States District Judge

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

UNITED STATES OF AMERICA ()

()

() Civil

() Action

VS. () No. A-

( )70-CA-80

()

TEXAS EDUCATION AGENCY,ETAL. ()

(Austin Ind. School District) ()

MEMORANDUM OPINION AND ORDER

On August 7, 1970, the Attorney General of the United

States, on behalf of the United States, initiated this action

against the Texas Education Agency, the State Commis-

sioner of Education, and seven school districts. This Opin-

10n constitutes Findings of Fact and Conclusions of Law

concerning those allegations against Defendant Austin In-

dependent School District [hereinafter referred to as

AISD].

Plaintiff alleges that AISD, contrary to the Civil Rights

Act of 1964, 42 U.S.C. §2000c-6(a) and (b) and the Four-

teenth Amendment to the United States Constitution,

‘‘has traditionally operated and continues to operate a

dual school system based on race.’’ In addition, Plaintiff

contends that AISD is ‘‘discriminating against Mexican-

American students by assigning Mexican-American stu-

dents to schools on the basis of their ethnic origin .. . .

[and by] maintaining schools that are identifiable as Mexi-

can-American schools, and schools that are attended al-

most exclusively by Mexican-American and Negro stu-

dents.”’

On August 27, 1970, this Court held a hearing concern-

ing the AISD and entered an oral Order implementing the

Interim Desegregation Plan formulated by the Depart-

ment of Health, Education and Welfare. After the modifi-

cation of this Order on September 4, 1970, the parties were

given until December 15, 1970, to submit a common plan

providing for the complete desegregation of the AISD.

Despite four further Orders of this Court extending this

deadline, cooperation between the parties was most

limited and no common plan was produced.

On May 14, 1971, Plaintiff and Defendant submitted

their separate desegregation plans. Consideration of these

'The Swann decision has been considered in other stages of

litigation. Gaines v. Dougherty County Bd. of Education,

F.2d , No. 30290 (Sth Cir. June 7, 1971) (remand-

ing student assignment plan); Davis v. School Dist. of the City

of Pontiac, Inc., ____F.2d___., No. 20477 (6th Cir. May

28, 1971) (affirming a district court desegregation plan);

Johnson v. San Francisco United School Dist., F.Supp.

, No. C-70 1331 SAW (N.D. Cal. April 28, 1971) (re-

quiring parties to file desegregation plan); Ross v. Eckels,

F.Supp. , No. 10444 (S.D. Tex. May 24, 1971)

(denying motions to amend and to intervene).

For an excellent analysis of Swann and earlier desegregation

rulings see Comment, Busing, Swann v. Charlotte-

Mecklenburg and the future of Desegregation in the Fifth Cir-

cuit, 49 TEX.L.REV. 1971.

plans resulted in a full scale desegregation trial.

AISD is currently composed of 54,970 students of

whom 64.6% are Anglo; 20.4%, Mexican American; and

15.1%, Black. Plaintiff’s Exhibit 59, at 11. These demo-

graphic data raise an initial question posed to the Court—

the effect of a large ethnic minority group other than

Blacks upon efforts to dismantle a dual school system.

That Mexican Americans constitute a separate ethnic

group has been recognized by several earlier decisions,’ by

this Court in its appointment of a Tri-Ethnic as distin-

guished from a Bi-Racial Advisory Committee,’ by the tes-

timony of AISD Superintendent, Dr. Jack Davidson, and

by even the most casual examination of Mexican Ameri-

can culture. But the mere existence of an ethnic group, re-

gardless of its racial origin, and standing alone, does not

establish a case for integrating it with the remainder of the

school population. Rather the Plaintiff must show that

there has been some form of de jure segregation against

the ethnic minority. In considering the Defendant’s ac-

tions, this Court adopts the broad standard expressed in

Davis v. School District of the City of Pontiac, 309

F.Supp. 734, 742 (E.D. Mich. 1970), aff’d, F.2d

» No. 20,477 (6th Cir., May 28, 1971).

Where a Board of Education has contributed and

played a major role in the development and growth of

*See, e.g., Hernandez v. Texas, 347 U.S. 475 (1954);

Cisneros v. Corpus Christi Ind. School Dist., F.Supp.

» No. 68-C-95 (S.D. Tex. June 4, 1970), noted, 49 TEX.

L.REV. 337 (1971); Clifton Puente, 218 S.W.2d 272 (Tex.

Civ.App. San Antonio 1948, writ ref’d n.r.e.).

*Order of this Court, September 4, 1970.

a segregated situation, the Board is guilty of de jure

segregation.

While alleging such de jure segregation, against Mexican

Americans, the Plaintiff failed in maintaining its burden

of proof.

Texas has never required by law that Mexican American

children be segregated, and the AISD, unlike some other

school systems,‘ has never enacted regulations to this ef-

fect. Since no discriminatory rule or regulation has ex-

isted, Plaintiff has sought to demonstrate a history of dis-

criminatory practices against Mexican Americans. All that

Plaintiff has succeeded in showing is that at one time the

AISD had overlapping school zones for Pease and the

West Avenue schools, and for Metz and Zavala. During

this period, prior to World War II, the West Avenue and

Zavala schools were referred to as ‘‘Mexican’’ schools,

since their enrollment was totally Mexican American, and

since their programs were designed to meet the needs of a

largely migrant population with a fluctuating attendance

pattern. Even during this period, there were a number of

Mexican Americans attending the so-called ‘‘Anglo”’

schools.’ A pattern of de jure segregation is not

established by the statement of a former student that Mex-

ican Americans were encouraged to attend Zavala rather

‘See, e.g., Gonzales v. Sheely, 96 F.Supp. 1004 (D. Ariz.

1951); Mendez v. Westminister School Dist., 64 F.Supp. 544

(S.D. Cal. 1946), aff’d, 161 F.2d 774 (9th Cir. 1947); Ind.

School Dist. v. Salvatierra, 33 S.W.2d 790 (Tex.Civ.App. San

Antonio 1930, no writ), appeal dismissed w.o.j. & cert. denied,

284 U.S. 580 (1931).

‘Defendant’s Exhibit 69, as explained by the testimony of

Arthur Cunningham, Pupil Placement Officer for AISD.

than Metz in 1936-41,° the testimony of an educational ex-

pert that concentration of Mexican Americans in certain

schools is detrimental,’ the opinion of an interested, but

non-expert citizen that segregation continues,* and the im-

plication of a recent student that the education in one mi-

nority school is inferior.’ The only other evidence on the

issue of Mexican American segregation consists of testi-

mony by certain AISD administrators and former school

board members.'° Taken as a whole, the testimony of the

witnesses, particularly that of Dr. Wilburn, Mr. Cunning-

ham, and Dr. Davidson, conclusively shows that at no

time during the existence of the AISD has there been de

jure segregation against Mexican Americans,'' and this

‘Testimony of Richard Moya, Travis County Precinct 4

Commissioner.

’Testimony of Dr. George Sanchez.

*Testimony of Dr. Jorge Lara-Braud.

*Testimony of Mr. Alfred Munoz.

‘Testimony of Mr. Willie Kocurek, Mr. Graham, Mr. C. N.

Avery, Mr. Noble Prentice, and Mr. Will Davis.

''Because of this finding, which is limited to the factual set-

ting existing in the AISD, the Court is under no constitutional

obligation to integrate Mexican Americans throughout the

school system. This is not to say that the mere integration of

Mexican Americans with Blacks is legally sufficient to meet the

command of Brown I, Brown II, and Swann. Such a plan, by

placing the burden of integration upon another ethnic minority

rather than upon the entire community, would clearly be in-

consistent with the equitable principles which these decisions

make obligatory on this Court. Moreover, Dr. Davidson spe-

cifically indicated that an earlier HEW plan to mix Blacks and

Mexican Americans was not a sound educational proposal.

Surely such a plan would accomplish none of the objectives an-

nounced in Brown and subsequent decisions.

Court so finds.'?

A different situation exists as regards Black students. It

is undisputed that at one time the AISD maintained a dual

school system with educational opportunities separate and

inherently unequal for Blacks. However, unlike many

communities elsewhere in the South, the City of Austin

has since Brown I] adopted a progressive and non-discrim-

inatory policy in the administration of its public schools.

The government has made no showing that in the period

from 1955 to the present the AISD has intentionally per-

petuated segregation of Blacks; the record instead in-

dicates that during this period the school administration’s

"Specifically, the Court makes the following findings of

fact, based on the record as a whole:

(a) The Austin Independent School District has never adopt-

ed, published or promulgated any written or unwritten rules,

regulations or policies having as their purpose the discrimina-

tion against, or segregation or isolation of, Mexican Amer-

icans. é

(b) The Austin Independent School District has never dis-

criminated against, or attempted to discriminate against,

isolate or segregate Mexican Americans in any form what-

soever, particularly in:

(1) site location of schools;

(2) school construction;

(3) drawing of school attendance zones;

(4) student assignments;

(5) faculty assignments;

(6) staff assignments;

(7) faculty and staff employment;

(8) extracurricular activities; and

(9) transportation.

for the purpose of discriminating against, isolating or segregat-

ing students on the basis of Mexican American ethnic origin.

official acts have not been motivated by any discrimina-

tory purpose.'* The Court therefore deals in this case only

with vestiges of state-imposed segregation, in the form of

some all-white and all black schools, that survived under a

racially-neutral policy on the part of the local authorities.

In this connection, it should be observed that those one-

race schools that do exist in the system take much of their

present character from historical residential patterns that

developed from economic factors and from ‘‘the myriad

factors of human existence which can cause discrimination

in a multitude of ways on racial, religious or ethnic

grounds.’’'* That is to say, the racial composition of these

schools, whether white, black or Mexican American,

closely tracks the demography of the neighborhoods in

which they are located, and while the racial segregation of

Blacks formerly imposed by statute in Texas may at one

time have influenced the development of these patterns,

no persuasive evidence has been introduced that the local

school authorities have purposefully sought to perpetuate

them following repeal of the statute.

Swann v. Charlotte-Mecklenburg Bd. of Educ., supra,

28 L.Ed. 2d at 568, relying upon Green v. County School

Bd., 391 U.S. 430, 435 (1968), announced that in addition

to pupil placement,

existing policy and practice with regard to faculty,

staff, transportation, extracurricular activities, and

facilities were among the most important indicia of a

segregated system.

See especially testimony of Mr. Cunningham.

‘“Swann v. Charlotte Mecklenburg Bd. of Ed

L.Ed.2d at 570. . uc., supra, 28

Reviewing these criteria, this Court finds that the AISD

has adequately desegregated faculty and staff,'* transpor-

tation, '* extracurricular activities,'’ and facilities.

As regards the last criterion, Plaintiff argues that the

AISD has purposefully located school facilities so as to

perpetuate segregation of minorities. However, the evi-

dence adduced at trial, especially the testimony of Mr.

Cunningham, shows that the AISD has followed a policy

of ‘‘racial neutrality’’ in locating facilities. The AISD con-

siders neighborhood need, not race, in choosing school

sites.

Thus far, the Court has held that no de jure discrimina-

tion on the basis of race or ethnic origin has ever been

practiced against Mexican-Americans in the operation of

the AISD, but that vestiges of a dual system continue to

exist with respect to Blacks. In light of this ruling on the

Mexican-American issue, the Court is of the opinion that

the parties should be given an opportunity to conduct fur-

ther negotiations aimed at agreement on a common plan

for the desegregation of Austin schools. It is evident that

in drawing the plans heretofore submitted the parties con-

templated that the Court might rule otherwise on this

issue; therefore even if a common plan cannot be agreed

upon the parties should be allowed to make such revisions

to their individual proposals as they may deem necessary

or desirable. This will ensure full and fair consideration of

all the alternative remedies available for resolving the

complex and difficult problems presented.

The Court offers the parties the following guidelines as

they review their plans:

'SSee especially Defendant’s Exhibit 79.

'*See especially Defendant’s Exhibit 24.

'"See especially Defendant’s Exhibit 81.

(1) The parties should explore every possible avenue for

arriving at a common plan. This directive simply renews

and emphasizes the plain import of the Court’s earlier

Order of September 4, 1970, and the four separate exten-

sions thereof, which were given the parties so that such

negotiation could take place. The evidence adduced at trial

revealed little, if any, effort by the parties to cooperate in

compliance with these orders, and now that the parties

have presented their separate plans the desirability of

cooperation appears all the more obvious. A comparison

of the projected enrollment figures for high schools and

junior high schools from Plaintiff’s Exhibits 22 and 24

with Defendant’s Exhibit 37 reveals that thé parties are

very close to agreement, at least as to these portions of

their proposals. Consequently, the Court directs the par-

ties to develop a common proposal to resolve part of the

desegregation problem, even if they cannot agree on a plan

for the elementary schools. It will be far more desirable

for all concerned to have the parties combine the best

elements of their separate plans than to have the Court

draw its own plan.

(2) By far the most pressing issue in this case is the ex-

tent to which transportation of students by bus should be

utilized in achieving a unitary system. ‘‘The importance of

bus transportation as a normal and accepted tool of edu-

cational policy’’ has been recognized by the Supreme

Court'* and by both parties to this suit in the plans they

have submitted. Furthermore, it is now clear that ‘‘bus

transportation as one tool of school desegregation’’ falls

‘Swann v. Charlotte-Mecklenburg Board of Education,

supra, at 574.

within the Court’s power to provide equitable relief.'’

However, the evidence adduced at trial persuades this

Court that there are severe practical limitation on the

degree of busing that should be ordered in aid of desegre-

gation. Therefore, the Court encourages the parties to

combine the best elements of both their plans with a view

toward minimizing busing.

(3) The testimony at trial makes clear the impossibility

of the continued use of the Anderson facility as either a

junior or senior high school. The size of the facility and its

location away from major traffic arteries, as well as the

difficulty of drawing a realistic attendance zone that will

include Anglos make it impossible to integrate this school.

Therefore, the parties should avoid plans which include

Anderson as a junior or senior high school.

(4) Finally, the import of this Court’s decision on the

Mexican-American question should be clarified. Although

the Court has determined that de jure segregation of

Mexican-Americans does not exist, the Court wil! never-

theless consider the effect upon this ethnic minority of any

plan submitted by the parties. The entire community, not

just one segment of it, must bear the burden of integra-

tion. Furthermore, as both Dr. Davidson and Dr. Sanchez

appropriately testified, there will be little educational

value in a plan which merely integrates one socially and

economically disadvantaged ethnic group, the Blacks,

with another, the Mexican-Americans.

IT IS THEREFORE ORDERED that the Office of Ed-

ucation, United States Department of Health, Education

and Welfare, and the officials of the Austin Independent

'°Id. at 574-75.

School District shall immediately enter cooperative con-

sultation respecting the proposals heretofore submitted to

the Court, with the aim of agreeing upon a common de-

segregation plan consistent with the guidelines contained

in the foregoing Memorandum Opinion.

Should the Office of Education and the school district

agree upon a common desegregation plan, they shall so

report to this Court by filing said plan immediately, but

not later than July 16, 1971. Should the parties fail to

agree in whole or in part upon a common plan, the Office

of Education and the school district are both directed to

file any revisions they may wish to make to all or any por-

tion of the existing plans immediately, but not later than

July 16, 1971.

SO ORDERED this the 28th day of June, 1971, at

Austin, Texas.

JACK ROBERTS

UNITED STATES

DISTRICT JUDGE

AMENDMENT XIV.—CITIZENSHIP; PRIVILEGES

AND IMMUNITIES; DUE PROCESS; EQUAL

PROTECTION; APPORTIONMENT OF

REPRESENTATION; DISQUALIFICATION OF

OFFICERS; PUBLIC DEBT; ENFORCEMENT

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State where-

in they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of citi-

zens of the United States; nor shall any State deprive

any person of life, liberty, or property, without due pro-

cess of law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.

Section 2. Representatives shall be apportioned

among the several States according to their respective

numbers, counting the whole number of persons in each

State, excluding Indians not taxed. But when the right

to vote at any election for the choice of electors for

President and Vice President of the United States, Rep-

resentatives for Congress, the Executive and Judicial of-

ficers of a State, or the members of the Legislature

thereof, is denied to any of the male inhabitants of such

State, being twenty-one years of age, and citizens of the

United States, or in any way abridged, except for par-

ticipation in rebellion, or other crime, the basis of

representation therein shall be reduced in the proportion

which the number of such male citizens shall bear to the

whole number of male citizens twenty-one years of age

in such State.

Section 3. No person shall be a Senator or Represen-

tative in Congress, or elector of President and Vice

President, or hold any office, civil or military, under the

United States, or under any State, who, having previ-

ously taken an oath, as a member of Congress, or as an

officer of the United States, or as a member of any

State legislature, or as an executive or judicial officer of

any State, to support the Constitution of the United

States, shall have engaged in insurrection or rebellion

against the same, or given aid or comfort to the enemies

thereof. But Congress may by a vote of two-thirds of

each House, remove such disability.

Section 4. The validity of the public debt of the

United States, authorized by law, including debts in-

curred for payment of pensions and bounties for serv-

ices in suppressing insurrection or rebellion, shall not

be questioned. But neither the United States nor any

State shall assume or pay any debt or obligation in-

curred in aid of insurrection or rebellion against the

United States, or any claim for the loss or emancipation

of any slave; but all such debts, obligations and claims

shall be held illegal and void.

42 U.S.C. §2000c-6. Civil actions by the Attorney

‘General—Complaint; certification; notice to school

board or college authority; institution of civil action;

relief requested; jurisdiction; transportation of pupils to

achieve racial balance; judicial power to insure com-

pliance with constitutional standards; impleading addi-

tional parties as defendants

(a) Whenever the Attorney General receives a com-

plaint in writing—

(1) signed by a parent or group of parents to the effect

that his or their minor children, as members of a class of

persons similarly situated, are being deprived by a

school board of the equal protection of the laws, or

(2) signed by an individual, or his parent, to the effect

that he has been denied admission to or not permitted to

continue in attendance at a public college by reason of

race, color, religion, sex or national origin, and the At-

torney General believes the complaint is meritorious and

certifies that the signer or signers of such complaint are

~ unable, in his judgment, to initiate and maintain ap-

propriate legal proceedings for relief and that the in-

stitution of an action will materially further the orderly

achievement of desegregation in public education, the

Attorney General is authorized, after giving notice of

such complaint to the appropriate school board or col-

lege authority and after certifying that he is satisfied

that such board or authority has had a reasonable time

to adjust the conditions alleged in such complaint, to in-

stitute for or in the name of the United States a civil ac-

tion in any appropriate district court of the United

States against such parties and for such relief as may be

appropriate, and such court shall have and shall exercise

jurisdiction of proceedings instituted pursuant to this

section, provided that nothing herein shall empower any

official or court of the United States to issue any order

seeking to achieve a racial balance in any school by re-

quiring the transportation of pupils or students from

one school to another or one school district to another

in order to achieve such racial balance, or otherwise

enlarge the existing power of the court to insure com-

pliance with constitutional standards. The Attorney

General may implead as defendants such additional par-

ties as are or become necessary to the grant of effective

relief hereunder.

Persons unable to initiate and maintain

legal proceedings

(b) The Attorney General may deem a person or per-

sons unable to initiate and maintain appropriate legal

proceedings within the meaning of subsection (a) of this

section when such person or persons are unable, either

directly or through other interested persons or organiza-

tions, to bear the expense of the litigation or to obtain

effective legal representation; or whenever he is satisfied

that the institution of such litigation would jeopardize

the personal safety, employment, or economic standing

of such person or persons, their families, or their

property.

‘*Parent’’ and ‘‘complaint’’ defined

any person standing in loco parentis. A ‘‘complaint’’ as

used in this section is a writing or document within the

meaning of section 1001, Title 18.

Pub.L. 88-352, Title IV, §407, July 2, 1964, 78 Stat.

248; Pub.L. 92-318, Title IX, §906(a), June 23, 1972, 86

Stat. 375.

SUBCHAPTER I—EQUAL EDUCATIONAL

OPPORTUNITIES

PART 1—POLICY AND PURPOSE

20 U.S.C. § 1701. Congressional declaration of policy

(a) The Congress declares it to be the policy of the

United States that—

(1) all children enrolled in public schools are en-

titled to equal educational opportunity without regard to

race, color, sex, or national orgin; and

(2) the neighborhood is the appropriate basis for

determining public school asignments.

(b) In order to carry out this policy, it is the purpose

of this subchapter to specify appropriate remedies for

the orderly removal of the vestiges of the dual school

system.

Pub.L. 93-380, Title II, § 202, Aug. 21, 1974, 88 Stat.

514.

20 U.S.C. §1702. Congressional findings; necessity

for Congress to specify appropriate remedies for

elimination of dual school systems without affecting

judicial enforcement of fifth and fourteenth amend-

ments

(a) The Congress finds that—

(1) the maintenance of dual school systems in which

students are assigned to schools solely on the basis of

race, color, sex, or national origin denies to those

students the equal protection of the laws guaranteed

by the fourteenth amendment; |

(2) for the purpose of abolishing dual school

systems and eliminating the vestiges thereof, many

local educational agencies have been required to

reorganize their school systems, to reassign students,

and to engage in the extensive transportation of

students;

(3) the implementation of desegregation plans that

require extensive student transportation has, in many

cases, required local educational agencies to expend

large amount of funds, thereby depleting their finan-

cial resources available for the maintenance or im-

provement of the quality of educational facilities and

instruction provided;

(4) transportation of students which creates serious

risks to their health and safety, disrupts the educa-

tional process carried out with respect to such

students, and impinges significantly on their educa-

tional opportunity, is excessive;

(5) the risks and harms created by excessive

transportation are particularly great for children

enrolled in the first six grades; and

(6) the guidelines provided by the courts for

fashioning remedies to dismantle dual school systems

have been, as the Supreme Court of the United States

has said, “‘incomplete and imperfect,’’ and have not

established, a clear, rational, and uniform standard

for determining the extent to which a local educa-

tional agency is required to reassign and transport its

students in order to eliminate the vestiges of a dual

school system.

(b) For the foregoing reasons, it is necessary and

proper that the Congress, pursuant to the powers

granted to it by the Constitution of the United States,

specify appropriate remedies for the elimination of the

a ale a nag

ee ee ey on oe

vestiges of dual school systems, except that the provi-

sions of this chapter are not intended to modify or

diminish the authority of the courts of the United States

to enforce fully the fifth and fourteenth amendments to

the Constitution of the United States.

Pub.L. 93-380, Title II, § 203, Aug. 21, 1974, 88 Stat.

514.

20 U.S.C. § 1704. Balance not required

The failure of an educational agency to attain a

balance, on the basis of race, color, sex, or national

origin, of students among its schools shall not constitute

a denial of equal educational opportunity, or equal pro-

tection of the laws.

Pub.L. 93-380, Title Il, § 205, Aug. 21, 1974, 88 Stat.

515.

20 U.S.C. § 1705. Assignment on neighborhood basis

not a denial of equal educational opportunity

Subject to the other provisions of this subchapter, the

assignment by an educational agency of a student to the

school nearest his place of residence which provides the

appropriate grade level and type of education for such

student is not a denial of equal educational opportunity

or of equal protection of the laws unless such assign-

ment is for the purpose of segregating students on the

basis of race, color, sex, or nmional origin, or the

public school to which such student is assigned was

located on its site for the purpose of segregating

students on such basis.

Pub.L. 93-380, Title II, § 206, Aug. 21, 1974, 88 Stat.

515.

20 U.S.C. § 1707. Population changes without effect,

per se, on school population changes

When a court of competent jurisdiction determines

that a school system is desegregated, or that it meets the

constitutional requirements, or that it is a unitary

system, or that it has no vestiges of a dual system, and

thereafter residential shifts in population occur which

result in school population changes in any school within

such a desegregated school system, such school popula-

tion changes so occurring shall not, per se, constitute a

cause for civil action for a new plan of desegregation or

for modification of the court approved plan.

Pub.L. 93-380, Title II, § 208, Aug. 21, 1974, 88 Stat.

- 516.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.