# Appendix — Austin Independent School District v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1976
- **Citation:** 429 U.S. 990

## Text

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

V.

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,

v.

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-

2

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.

3

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

4

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

5

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

6

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-

ee

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: Ne ne ree eres Oe ate ee -

7

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-

8

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.

9

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

10

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:

11

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.”’

12

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).

13

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).

14

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.

15

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.

16

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

—-

17

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.

18

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.

19

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-

20

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.

—

21
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

22

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

23

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.

24

{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.

25

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

26

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

27

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.

28

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

29

{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

30

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,

31

[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.

32

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.

33

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:

34

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.

35

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.

36

[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.

37
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

41

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)
Read 681 70 37 574
(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)

44

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

45

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

46

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

47

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

48

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-

49

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

50

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,

51

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

52

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

53

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:

54

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

55

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-

56

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

ae

57

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

58

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-

—— ~ -

59

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.

60

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

61

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

62

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.

63

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.

65

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

66

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

67

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.

68

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

ee

69

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.

70

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

71

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-

72

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.

73

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

74

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

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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.

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plans resulted in a full scale

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0429%3A2. Public record. Not legal advice.