Appendix — Austin Independent School District v. United States

Supreme Court brief1979

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IN THE

SUPREME COURT OF THE UNITED STAHBUAEL 02%. UE

OCTOBER TE 1978

BRS 92

NO.

TEXAS EDUCATION AGENCY

(Austin Independent School District), et al,

Petitioner

UNITED STATES OF AMERICA, et al,

Respondents

MEXICAN-AMERICAN LEGAL DEFENSE &

EDUCATION FUND, et al,

Intervenors-Respondents

DEDRA ESTELL OVERTON, NATIONAL

ASSOCIATION FOR THE ADVANCEMENT OF

COLORED PEOPLE, et al,

Intervenors-Respondents

APPENDIX TO PETITION FOR CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

McGINNIS, LOCHRIDGE &

KILGORE

Sth Floor, Texas State Bank Building

900 Congress Avenue

Austin, Texas 78701

TABLE OF CONTENTS

Opinion of the Fifth Circuit Court of Appeals

dated September 7, 1978.

Opinion of the Fifth Circuit Court of Appeals

dated November 21, 1977. (Austin I/1)

Opinion of the United States Supreme Court

dated November 21, 1977,

Opinion of the Fifth Circuit Court of Appeals

dated May 13, 1976. (Austin I)

Memoran. m Opinion and Order of the

United States District Court for the Western

District of Texas, Austin Division, dated

August I, 1973.

Memorandum Opinion and Order of the

United States District Court for the Western

District of Texas, Austin Division, dated

July 19, 1971.

Memorandum Opinion and Order of the

United States District Court for the Western

District of Texas, Austin Division, dated

June 28, 1971.

U.S. CONST. amend. XIV

42 U.S.C. §2000c-6 (1970)

20 U.S.C. §1701 (1970)

20 U.S.C. §1702 (1970)

20 U.S.C. §1704 (1970)

20 U.S.C. §1705 (1970)

20 U.S.C. §1707 (1970)

Page

108

124

135

136

139

141

142

UNITED STATES of America,

Plaintiff-Appellant,

Dedra Estell Overton et al.,

Intervenors-Appellants,

TEXAS EDUCATION AGENCY et al.

(Austin Independent School

District), Defendants-Appellees.

No. 73-3301.

United States Court of Appeals,

Fifth Circuit.

September 7, 1978

WISDOM, Circuit Judge:

Seven years ago, seventeen years after Brown,' the

Attorney General of the United States initiated this tri-

ethnic school desegregation suit under the Civil Rights

Act of 1964, 42 U.S.C. § 2000c-6. Nothing was being

done in Austin to desegregate the schools. The district

court held that the Austin Independent School District

‘Brown v. Board of Education, 1954, 347 U.S. 483, 74 S.Ct.

686, 98 L.Ed. 873; Brown v. Board of Education, 1955, 349 U.S.

294, 75 S.Ct. 753, 99 L.Ed. 1083.

(AISD) had not discriminated against blacks or

Mexican-Americans. This Court heard the appeal from

that decision en banc, along with Cisneros vy. Corpus

Christi Independent School District, 5 Cir., 1972, 467

F.2d 142, cert. denied, 1973, 413 U.S. 920, 93 S.Ct.

3053, 37 L.Ed.2d 1041. In each case the Court (fourteen

active judges) unanimously agreed that the school board

had intentionally discriminated against both blacks and

Mexican-Americans. United States v. Texas Education

Agency, 5 Cir. 1972, 467 F.2d 848, 864-69 (Austin 1). In

the Austin case the members of the Court disagreed (8-

6) only as to the remedy. See 467 F.2d at 883 and 886.

On remand, the district court concluded, after all,

that the AISD had discriminated against blacks. But, in:

agreeing with the Board, it resorted to a remedy not

used since the earliest days of school desegregation: the

court desegregated one grade. That was the sixth grade.

The order to desegregate applied only to black schools,

leaving segregation untouched in the district’s other

grades.’ The district court left Mexican-American school

children in their segregated facilities. The AISD did not

appeal. The plaintiffs and intervenors appealed. We

again reversed the district court. We held that the plan

for desegregating blacks was constitutionally inadequate.

The panel unanimously held that the AISD had sub-

jected Mexican-Americans to intentional discrimination.

The district court agreed with the AISD’s rationalization for

desegregating only the sixth grade in black schools: desegregation of

the elementary schools would require ‘‘massive crosstown busing”’;

the junior and senior high schools were already desegregated; the

AISD has no duty to desegregate Mexican-Americans.

United States v. Texas Education Agency, 5 Cir. 1976,

532 F.2d 380, 386-92 (Austin II).

On peition of the AISD, the United States Supreme

Court granted certiorari, vacated our decision in Austin

II, and remanded the case to this Court for recon-

sideration in light of Washington v. Davis, 1976, 426

U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597.

This Court faithfully reconsidered the case in light of

Washington v. Davis. We ‘‘concluded for the third time, |

that the AISD intentionally discriminated against

Mexican-Americans; that the district court applied an

erroneous legal standard in assuming that there could

not be discriminatory intent when the actions were |

prompted by what was thought at the time to have been

a benign motive; that the district court’s finding as to

intent was erroneous.’’ 564 F.2d 162, 174 (Austin III.

We remanded the case to the district court for a

hearing, as required, in our view, by Dayton Board of

Education v. Brinkman, 1977, 433 U.S. 406, 97 S.Ct.

2766, 53 L.Ed.2d 851.

The AISD filed a petition for a rehearing of Austin

III. The Court asked for responsive briefs from the

United States, through the Department of Justice, from

the black intervenors, and from the Mexican-American

intervenors. The brief of the United States supports the

Court’s position that the ‘‘panel opinion in this case

fully comports with the mandate of the Supreme Court’

in Austin II and is ‘‘entirely consistent’? with

Washington v. Davis; Village of Arlington Heights v.

Metropolitan Housing Development Corporation, 1977,

429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450, and Dayton

Board of Education v. Brinkman.’

Nothing in the AISD’s fourth attack on this Court’s

holding justifies a rehearing. In reviewing the record,

the briefs, and the three earlier opinions, a few points

stand out and should be referred to, at the risk of being

repetitious, if only for emphasis.

This Court sitting en banc in Austin J and in panels in

Austin IT (Judges Wisdom, Coleman, and Simpson) and

Austin III (Judges Wisdom, Coleman, and Tjoflat)

unanimously found that the record showed the AISD

had intentionally discriminated against Mexican-

Americans.‘ We did so without resort to the Keyes

presumptions. Keyes v. School District No. 1, Denver,

Colorado, 1973, 413 U.S. 189, 203, 93 S.Ct. 2686, 37

L.Ed.2d 548. The second Keyes presumption is that

‘““even if it is determined that different areas of the

school district should be viewed independently of each

other’, ‘a finding of intentionally segregative school

board actions in a meaningful portion of a school

system ... creates a presumption that other segregated

schooling within the system is not adventitious’.’’ 413

U.S. at 208, 93 S.Ct. at 2697. In a tri-ethnic setting,

Keyes means that a finding of intentional segregation

against One minority group raises the presumption that

‘Brief of the United States in opposition to the petition of the

AISD for rehearing, p. 2.

‘The AISD at first argued that there were only two classes —

white and Negro — within the comtemplation of the Fourteenth

Amendment, and that placing Mexican-Americans in black schools

desegregated such schools. The district court properly recognized

Mexican-Americans as a separate ethnic minority.

any segregation suffered by the second minority group

was intentional. Here, there is no doubt that AISD

discriminated against blacks. This fact alone, therefore,

created a presumption — here, we consider, unrebutted

— that the segregated schooling of Mexican-Americans

was not ‘‘adventitious’’.

The major thrust of the AISD’s petition for rehearing

is that the holding in Austin III that school officials are

responsible for the reasonably foreseeable consequences

of their acts reinstitutes the type of effect test con-

demned in Washington v. Davis and Arlington Heights.

Neither of those decisions abrogated the principle that

an actor is held to intend the reasonably foreseeable

results of his actions.’ Given the fundamental nature of

that principle, it would be out of character for the

Supreme Court to have disapproved its use in

discrimination cases — without explicitly saying so. In

1961, when Monroe v. Pape was decided, the Supreme

Court admonished that § 1983 ‘‘ should be read against

‘The Supreme Court’s remand in this case did not foreclose the

utilization of that evidentiary principle in proper circumstances.

Where, as here, a school district has engaged in a pattern of

decisions in diverse areas, each of which has had the natural and

foreseeable consequence of producing ‘‘more racial and ethnic

separation in the schools than in the residential patterns of the

district as a whole,”’ Austin III, 564 F.2d at 170, the presumption

that the school district intended to discriminate is appropriate. See

National Association for the Advancement of Colored People v.

Lansing Board of Education, 6th Cir. 1977, 559 F.2d 1042, cert.

denied, 434 U.S. 997, 98 S.Ct. 635, 54 L.Ed.2d 491; United States

| v. Scho6l District of Omaha, 8 Cir. 1977 (en banc), 565 F.2d 127,

cert. denied, 434 U.S. 1065, 98 S.Ct. 1240, 55 L.Ed.2d 765.

the background of tort liability that makes a man

responsible for the natural consequences of his actions.”’

Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484,

5 L.Ed.2d 492 (1961). The Supreme Court has not

retreated from this view.

Realistically, this judicial mechanism is the most

reliable one for the objective determination of intent.

That is doubly true when intent to segregate is at issue.

As recently observed by the Sixth Circuit,

Indeed, it would be difficult, and nigh impossible,

for a district court to find a school board guilty of

practicing de jure segregation, unless the court is

free to draw an inference of segregative intent or

purpose from a pattern‘ of official action or

inaction which has the natural, probable and

foreseeable result of increasing or perpetuating

school desegregation.

NAACP V. Lansing Board of Education, 6 Cir. 1977, 559

F.2d 1042, 1047-48. In Lansing the court expressly relied

upon the natural and foreseeable standard. On petition for

certiorari one issue was, ‘‘Did the Court of Appeals err in

affirming the District Court’s use of the natural and

foreseeable consequences ‘test’. . .”’. 434 U.S. 997, 98

S.Ct. 635, 54 L.Ed.2d 491 (1977),

The AISD does not suggest what type of evidence would

suffice to make out a case of intentional discrimination.

On historical grounds the AISD seems to say that no

discriminatory intent is made out unless segregation is

ordered by a statute or ordinance. Perhaps, however, the

Board thinks that there must be statements by its members

that ‘“‘We do not want to mix whites and Mexican-

Americans’’. Even if individual school board members

made public statements favoring segregation of Mexican-

Americans, this evidence of subjective intent would not

necessarily be probative of the school board’s intent; any

public body may contain one or two extremists who do not

express the sentiment of the body. This is one of the points

Justice Stevens made in his concurrence in Washington v.

Davis.* The AISD seems to think that because of its stated

benign motives, it could not have _ intentionally

discriminated against Mexican-Americans. This notion

shows a misunderstanding of school desegregation. _

The most effective way to determine whether a body

intended to discriminate is to look at what it has done.’

This does not mean that every time a school board

decision has a discriminatory effect one should infer that

the board intended the result. Rather, as in Austin III, the

‘Frequently the most probative evidence of intent will be

objective evidence of what actually happened rather than evidence

describing the subjective state of mind of the actor. For normally

the actor is presumed to have intended the natural consequences of

his deeds. 426 U.S. at 253, 96 S.Ct. at 2054 (Stevens, J., con-

curring).

’Professor Paul Brest offers two policy reasons why a

rebuttable presumption triggered by the natural and foreseeable test

is especially applicable in ‘..c school desegregation context:

This shifting of the burden of proof is justified on two

grounds. First, the school district enjoys far better access than

the plaintiffs to the true reasons underlying the myriad of

decisions that determine the extent of school desegregation —

decisions concerning such matters as the drawing of at-

tendance zone lines, the location and size of new schools, and

the closing of old ones. Second, despite indications of support

for some degree of school integration, it is reasonable to

assume that school boards throughout the nation tend to

school board’s actions must be evaluated in the context of

the totality of the board’s treatment of minorities. The

Board’s unreceptivity to integration is clear from the

factual findings spelled out in Austin I and IJ and

recapitulated in Austin III. See especially 564 F.2d at 170-

174. In the context of the AISD’s performance in the area

of race relations, these findings demonstrate an intent to

discriminate against Mexican-Americans.

The application of the natural and foreseeable con-

sequences test in Austin III was consistent with these

principles. We expressly stated that the use of the

neighborhood assignment policy, though it foreseeably led

to segregated schools, was insufficient, standing alone, to

sustain a holding of segregative intent. Instead, we

regarded this board policy as one item of evidence

Suggesting segregative intent. The Court evaluated the use

of this policy in light of ‘‘an extensive series of actions

dating back to the early 20th century”’ and others that had

occurred in more recent years. Only then did the Court

hold the segregation to be de jure. This is in accord with

Arlington Heights which draws a distinction between

‘‘impact alone”’ and impact plus ‘‘other evidence’’ bearing

reflect the desires of many white constituents to avoid having

their children attend schools with too high a proportion of

minority students.

Brest, the Supreme Court, 1975 Term — Foreword: In Defense of the

Anti-Discrimination Principle, 90 Harv.L.Rev. 1, 29-30 (1976). See

also the thorough discussion of racially discriminatory purpose in

Comment, Proof of Racially Discriminatory Purpose Under the

Equal Protection Clause: Washington v. Davis, Arlington Heights

Mt. Healthy, and Williamsburgh, 12 Harv.Civ.Rts. — Civ.Lib L.

Rev. 725 (1977). a

on the decision-maker’s intent. ‘‘The impact of the of-

ficial action . . . may provide an important starting point’

for analysis. 429 U.S. at 266, 97 S.Ct. at 564.

The opinion in Austin III attempted to suggest a func-

tional basis for determining segregative intent by cir-

cumstantial evidence. But irrespective of the methodology

used in determining segregative intent, the facts clearly

show that the AISD segregated Mexican-Americans,

except to the extent that some were integrated in black

schools.*

*Not all of the evidence of intentional segregation in this case is

circumstantial. For example, the Comal Street School was built to

‘take care of the large number of non-English speaking students at

Palm, Metz and Bickler’’. Pretrial order, Attachment A, p. k-i.

Zavala school was built ‘‘to provide for the large group of Spanish-

speaking citizens of Austin, a suitable, well-equipped building as near

the center of this population as possible’’. Def. Ex. 125, p. 5; Gov.

Ex. 6-C, August 8, 1935. In response to a complaint from Anglo

parents at the Winn School the Superintendent took the following

action: ‘*‘.. . all Mexican pupils enrolled in John B. Winn School

living south of 14th St., had been transferred to Bickler School, except

one boy who is being allowed to complete the 7th grade’’. Gov. Ex. 6-

F, September 25, 1935.

The School District had maintained dual overlapping zones. These

zones were only found between predominantly Anglo and

predominantiy Mexican-American schools. 564 F.2d 162, 171-72. The

dual overlapping zone is essentially identical to the optional zone

frequently found by Courts to be a segregative device. See, ¢. g.,

Morgan v. Kerrigan, \ Cir. 1974, 509 F.2d 580, 589, cert. denied 421

U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 81, 86 cert. denied 413 U.S. 920,

93 S.Ct. 3066, 37 L.Ed.2d 1041; United States v. School District of

Omaha, 8 Cir. 1975, 521 F.2d 530, 540-43, cert. denied 423 U.S. 946,

96 S.Ct. 361, 46 L.Ed.2d 280. The AISD does not take issue in their

petition for rehearing with this finding.

Il.

There is no merit to the AISD’s contentions with

respect to this Court’s application of the clearly

erroneous rule. Rule 52, Fed.R.Civ.Pro. In Austin III

we held that the clearly erroneous rule did not apply,

because the district court applied an erroneous legal

standard. The intentional isolation of Mexican-American

children is not excusable on the ground that such

treatment was inspired by benevolent motives: Stark v.

Shell Oil Co., 5 Cir. 1971, 450 F.2d 994, 997, But, we

held, alternatively, if Rule 52 applies, the court was

clearly erroneous.

School construction and abandonment are key indicia of

segregative intent. Swann v. Charlotte-Mecklenberg Board of

Education, 1971, 402 U.S, 1, 21,91 S.Ct. 1267, 28 L.Ed.2d 554; Keyes

v. School District No. 1, Denver, 1973, 413 U.S. 189, 201-02, 93 S.Ct.

2686, 37 L.Ed.2d 548. In the Austin cases we found that (a) boundary

lines were gerrymandered tipon the opening of O’Henry Junior High

School, (b) Allan Junior High School was rebuilt (after a fire) in its

previously segregated locale, (c) Johnston High School was placed to

insure its opening as a highly segregated school notwithstanding

options which would have enhanced integration, (d) boundaries were

gerrymandered between University Junior High School and Martin,

and (e) overcrowding and use of portables in East Austin were

commonplace While new schools were built to relieve overcrowding in

Anglo areas, 564 F.2d 172-73.

In Austin III (as in Austin I and IN) the Court found an ex-

traordinarily high degree of faculty segregation. This alone has been

held to establish a prima facie case of intentional segregation. As the

Supreme Court observed in Swann, 402 U.S. 1, 18, 91 S.Ct. 1267,

1277, 28 L.Ed.2d 554 (emphasis added), ‘Independent of student

assignment where it is possible to identify a ‘white school’ or a ‘Negro

school’... a prima facie case of violation of substantive con-

stitutional rights under the Equal Protection Clause is shown’”’.

IIl.

The AISD complains that this Court, while purporting

to rely on Dayton, has attempted ‘‘to force a system-

wide remedy without regard to the facts that may be

found’’. In Austin III] this Court repeated the remedial

principles expressed in Keyes, Swann, and Dayton. The

Dayton case was remanded to the district court, not

because the plaintiff failed to show that the violations

had system-wide effects, but because neither the district

court nor the court of appeals had examined the

evidence to determine if the defendant had met its

burden and because the lower courts failed to address

the available evidence as to the scope of the liability. In

some cases, after years of fruitless litigation, for the

guidance of all the district courts throughout the Cir-

cuit, this Court has established general guidelines.’ As a

rule, however, we defer to the district court for it to

consider and grant the appropriate relief in the par-

ticular case before it to remedy the effects of

discriminatory conduct. ‘We followed that principle in

Austin III], Our opinion properly does not dictate the

precise relief in this case. School systems in Austin,

Corpus Christi, and other cities with tri-ethnic problems

are not fungible with school systems generally. As

Dayton prescribes:

the District Court in the first instance, subject to

review by the Court of Appeals, must determine

how much incremental segregative effect these

*See United States v. Jefferson County Bd. of Educ., 5 Cir. 1966,

372 F.2d 836; Singleton v. Jackson Municipal Separate School

District, 5 Cir. 1969, 419 F.2d 1211 (en banc).

violations had on the racial distribution of the * *

school population as presently constituted, when

that distribution is compared to what it would have

been in the absence of constitutional violations.

Dayton, 433 U.S. at 420, 97 S.Ct. at 2775. See Austin III,

564 F.2d at 175. To the extent that we attempted to

provide limited guidance to the district court, we were

warranted in doing so in the interest of judicial economy.

See Austin III, 564 F.2d at 164, n. 1.

The AISD bewails its burden of going forward to meet

the prima facie case made (or the presumption raised) by

the plaintiffs. Keyes and Swann establish that once a

school district has been found to have engaged in in-

tentionally discriminatory conduct, the burden of going

forward is on the school district to meet the plaintiffs’

prima facie case. Austin III, like the Swann and Keyes

cases, applies the settled principle that the perpetrator of a

constitutional wrong bears the burden of demonstrating

that its violation had no effect, or a limited effect, on what

actually happe -d. See Arlington Heights, 429 U.S. at

271, n. 21, 97 o.Ct. 555; Mt. Healthy City School District

Board of Education v. Doyle, 1977, 429 U.S. 274, 285-

287, 97 S.Ct. 568, 50 L.Ed.2d 471. Cf. Franks v. Bowman

Transportation Co., 1976, 424 U.S. 747, 771-773, 96 S.Ct.

1251, 47 L.Ed.2d 444; International Brotherhood of

Teamsters v. United States, 1977, 431 U.S. 324, 358, 362,

359-360 n. 45, 97 S.Ct. 1843, 52 L.Ed.2d 396.

The allocation of the burden is supported by this

Court’s recent decision in United States v. Columbus

Municipal Separate School District, 1977, 558 F.2d 228,

cert. denied, 434 U.S. 1013, 98 S.Ct. 728, 54 L.Ed.2d 757.

There the Court held that a desegregation plan was proper

in light of the fact that ‘‘we have no reason to suppose that

the schools of Columbus would have been less

desegregated than they will under the pairing plan.’’ /d.,

§58 F.2d at 231 n. 11. In so holding, the Court placed the

burden upon the school district, for the effect of the

Court’s order was to approve a desegregation plan,

because the school district failed to carry its burden of

providing a ‘‘reason to suppose that the schools of

Columbus would have been less desegregated * * *.”’

* + * ca * +

Over a long period of years, the AISD tried to separate

the Anglo strand from the black and Mexican-American

strands of its tri-ethnic school system. But the United

States Constitution has tied these strands into a knot no

Alexander can cut, and may be used to the greater ad-

vantage of the school children of the City of Austin.

The AISD must desegregate blacks in other grades than

the sixth grade. The AISD must desegregate Mexican-

American school children by putting them in schools with

Anglos — as well as with blacks.

The petition for rehearing is denied. No member of this

Panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing en

banc, (Rule 35 Federal Rules of Appellate Procedure;

Local Sth Circuit Rule 12), the petition for rehearing en

banc is DENIED.

14 ‘

UNITED STATES of America,

Plaintiff-Appellant,

Dedra Estell Overton et al.,

Intervenors-Appellants,

Vv.

TEXAS EDUCATION AGENCY et al.

(Austin Independent School

District), Defendants-Appellees.

No. 73-3301.

United States Court of Appeals,

Fifth Circuit.

Nov. 21, 1977.

WISDOM, Circuit Judge:

In accordance with the mandate of the Supreme Court

in Austin Independent School District v. United States,

1976, 429 U.S. 990, 97 S.Ct. 517, 50 L.Ed.2d 603, we

have reconsidered the Austin School case, United States

v. Texas Education Agency, 5 Cir. 1976, 532 F.2d 380

(Austin IT), in light of Washington v. Davis, 1976, 426

U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597. We reaffirm

our reversal of the district court’s judgment.

After restudy of our two earlier decisions and the

record, we again hold that the evidence overwhelmingly

supports the conclusion that the Austin School Board,

Austin Independent School District (AISD), engaged in

acts showing a pervasive intent to segregate Mexican-

Americans. Dayton Board of Education v. Brinkman,

_ US. _, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977),

however, as we read it, compels the remand of the case

for.a hearing so that the AISD may submit and the

district court approve a tri-ethnic desegregation plan

consistent with the decisions of this Court and of the

United States Supreme Court.

- I.

Seven years after the Attorney General of the United

States initiated this tri-ethnic school desegregation suit

under the Civil Rights Act of 1964, 42 U.S.C. § 2000c-6,

it comes to this Court for the third time, this time on

remand from the Supreme Court.

In United States v. Texas Education Agency, 5 Cir.

1972, 467 F.2d 848 (en banc), Austin J, this Court held,

with respect to black students, that ‘‘the AISD has not’

dismantled the state-imposed [segregated school] system

based on race’’. The district court had entered an order

approving a plan that closed black secondary schools.

The students in those schools were assigned to Anglo

secondary schools. This plan scattered blacks of

secondary school age through the district, but put the

entire burden of transportation on blacks. We held,

“The AISD has not fulfilled its ‘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’ ’’. 467 F.2d at 870.

With respect to Mexican-American students, we held

that the district court was clearly erroneous in finding

that the AISD had not practiced segregation against that

identifiable ethnic minority. We held that through

various actions AISD officials ‘‘caused and perpetuated

the segregation of Mexican-American students within the

[Austin] school system’’. 467 F.2d at 865-866. We

ordered that the school system ‘‘be converted to a

unitary system on a tri-ethnic, desegregated basis’’. 467

F.2d at 871. The en banc court of fourteen was

unanimous in holding that AISD _ intentionally

discriminated against Mexican-Americans and was

divided only as to how desegregation should be ac-

complished.

On remand, the district court was at a disadvantage in

carrying out the mandate in Austin J in view of the

decision of a majority of our Court rejecting a motion

to clarify the remedy (the vote was nine to five).' 5 Cir.,

470 F.2d 1001. The district court also had to consider

the Supreme Court’s supervening decision in Keyes v.

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

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

court reiterated its earlier holding that ‘‘the AISD .. .

has engaged in discriminatory assignment of black

students to promote segregation’’. The court ordered the

black high school and junior high school closed, again

throwing the burden of busing only on the blacks. The

‘The record shows that the district judge said to the attorneys, in

regard to the majority’s opinion on remedy: ‘‘I assume that all of you

have read the opinion. I hope that you know more about it than I do

..+ [t}hen you, Judge Bell or the majority opinion coming along

saying that the only way you can proceed under Swann is to ferret out

by schools the proscribed segregation. If you can help out any, I sure

pis appreciate it, about that sort of thing, what they mean by that

thing’’.

district court held that its finding of past intentional

segregation of blacks constituted a prima facie case of

intentional segregation of Mexican-Americans. It

concluded, however, that the AISD had rebutted this

prima facie case by demonstrating that there was no

intentional discrimination against Mexican-American

students. Nevertheless, the court included them in the

limited desegregation remedy it approved for blacks.

That remedy was to desegregate one grade in the black

elementary schools — the sixth — leaving segregation

untouched in the district’s other grades and schools.

Mexican-American children were left in thei: segregated

facilities, except for those who attended the Sixth Grade

Center. The district court approved certain worthy

bilingual and bicultural programs.

The unique limitation on desegregation to the sixth

grade in black schools, which the AISD proposed and

was approved by the district court, raises a fair in-

ference that the AISD intended to continue extensive

segregation of Mexican-Americans. The AISD suggests

that the 1974 Education Amendments, 20 U.S.C. § 1701

et seq. (1976 Supp.), somehow support this blanket

exclusion. There are two answers to this contention.

First, as the AISD in its own brief correctly observes:

‘the provisions of this chapter are not intended to

modify or diminish the authority of the courts of

the United States to enforce fully the fifth and

fourteenth amendments to the Constitution of the

United States.’’ 20 U.S.C. § 1702(b).

Second, the 1974 amendments do not support the

wholesale exclusion of entire grades from a desegregation

plan. They merely ‘‘find’’ that ‘‘the risks and harms

created by excessive transportation are particularly great

for children enrolled in the first six grades’. 20 U.S.C.

§ 1702 (a)(5) (emphasis added). This legislation does not

purport to prohibit desegregation of children at such grade

levels, but points out the obvious; as the Supreme Court

said in Swann v. Charlotte-Mecklenburg Bd. of Ed., 402

U.S. 1, 31, 91 S.Ct. 1267, 28 L.Ed.2d 554, age is one

factor in evaluating the ‘‘practicalities’’ of a tran-

sportation plan.

In United States v. Texas Education Agency, 5 Cir.

1976, 532 F.2d 380 (Austin II), the district court’s finding

of de jure discrimination against blacks was not appealed.

We again reversed the district court’s holding that the

AISD had not subjected Mexican-American students to

intentional discrimination. We held that the plaintiffs had

made out an unrebutted prima facie case of segregation of

Mexican-American students. We further held that the

Sixth Grade Plan — part time desegregation for some —

was ‘‘constitutionally insufficient’’. We instructed the

district court to ‘‘draft a comprehensive tri-ethnic

desegregation plan’’ that would ‘‘conform to one of the

approaches outlined by Dr. Finger in his written sub-

mission of August 14, 1972, and in his testimony’’. 532

F.2d at 399. (Dr. Finger was the court-appointed expert in

Swann.) The Finger Plan, submitted by the Mexican-

American intérvenors, envisioned the conversion of the

Austin school system to a 4-4-4 or a 5-3-4 grade structure

in which all students ‘‘in elementary schools that are over

50 percent minority would be bused to elementary schools

that are over 90 percent Anglo’’, and middle school

students ‘‘in schools that are over 90 percent Anglo would

be bused to schools that are over 50 percent minority’’.

532 F.2d at 395. High school integration would be ac-

complished ‘‘by selecting, for each high school, feeder

schools that would maximize the integration of that high

school’’. Id.

The AISD petitioned for a writ of certiorari. The United

States, in its brief on certiorari, had doubts about this

Court’s rationale in Austin IJ, but contended that the

judgment was correct in holding ‘‘that the AISD engaged

in pervasive acts of discrimination against Mexican-

Americans’’. The Supreme Court granted certiorari,

vacated our decision, and remanded the case to us ‘‘for

reconsideration in light of Washington v. Davis.’’ We now

review our decision in Austin // in light of this mandate.

Il.

We note at the outset, our determination that the

AISD practiced intentional discrimination against black

students is not in issue; the AISD did not appeal the

district court’s finding to this effect in Austin IT, 532 F.2d

at 392. Moreover, because Washington v. Davis is con-

cerned with the evidentiary showing necessary to establish

an equal protection violation in those situations where

there has been no law specifically requiring segregation,

that decision is inapplicable ‘‘where a statutory dual

system has ever existed’’, Keyes v. School District No. 1,

Denver, Colorado, 1973, 413 U.S. 189, 201, 93 S.Ct. 2686,

2694, 37 L.Ed.2d 548, 559.? Our concern here, there-

*Such statutory dual educational systems are unconstitutional per

se under Brown v. Board of Education, 1954, 347 U.S. 483, 74S.Ct.

686, 98 L.Ed. 873. A school board is under an affirmative duty to

convert a dual school system to a unitary system. Swann v. Charlotte-

Mecklenburg Board of Education, 1971, 402 U.S. 1, 91 S.Ct. 1267, 28

L.Ed.2d 554; Alexander v. Holmes County Board of Education, 1969,

fore, is with the effect of Washington v. Davis on our

holding that the AISD unconstitutionally discriminated

against Mexican-American students.

In Washington v. Davis the Supreme Court held that

otherwise neutral state action does not violate the four-

teenth amendment’s equal protection clause ‘‘solely’’

because it has a disproportionate impact on a racial

minority. Instead, courts must ‘‘adhere to the basic equal

protection principle. that the invidious quality of a law

claimed to be racially discriminatory must ultimately be

traced to a racially discriminatory purpose’’’. 426 U.S. al

240, 96 S.Ct. at 2048. The use of the word ‘‘solely’’ was

clarified by Mr. Justice White, organ of the Court. He was

careful to point out that a racially disproportionate effect

may be an important evidentiary consideration in

evaluating whether state action was discriminatorially

motivated, |

Necessarily, an invidious discriminatory purpose

may often be inferred from the totality of the relevant

facts, including the fact, if it is true, that the law bears

more heavily on one race than another. It is also not

infrequently true that the discriminatory impact...

396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19: Green v. County School

Board, of New Kent County, 1968, 391 U.S. 430, 88 S.Ct. 1689, 20

L..Ed.2d 16; Brown vy, Board of Education, 1955, 349 US. 294, 75

S.Ct. 753, 99 L.Ed. 1083,

‘This principle seems to be the key to an understanding of

Washington v. Davis. It is a key, however, that does not readily turn

in all locked school doors. As Justice Stevens observed in his con-

curring opinion, “the line between discriminatory purpose and

discriminatory impact is not nearly as bright, and perhaps not quite as

critical, as the reader of the Court's opinion might assume’’. 426 U.S

at 254, 96S.Ct. at 2054. ii

may for all practical purposes demonstrate un-

constitutionality because in various circumstances the

discrimination is very difficult to explain on nonracial

grounds ... Disproportionate impact is not

irrelevant, but it is not the sole touchstone of in-

vidious racial discrimination forbidden by the

Constitution.

426 U.S. at 242, 96 S.Ct. at 2049.

More recently, in Village of Arlington Heights v.

Metropolitan Fiousing Development Corp., 1977, 429

U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450, upholding the

constitutionality of a local zoning decision that had a

disproportionate effect on blacks, the Supreme Court

elaborated upon its holding in Washington v. Davis by

detailing evidentiary guidelines under which the

discriminatory intent requirement of Washington v. Davis

could be satisfied. Mr. Justice Powell, for the Court,

carefully noted that Washington v. Davis ‘‘does not

require a plaintiff to prove that the challenged action

rested solely on racially discriminatory purposes’.

(Emphasis added). 429 U.S. at 97 S.Ct. at 563. In his

opinion he stated:

The impact of the official action — whether it ‘bears

more heavily on one race than another,’ Washington

v. Davis, 426 U.S. at 242 [96 S.Ct. 2040] — may

provide an important starting point. Sometimes a

clear pattern, unexplainable on grounds other than

race, emerges from the effect of the state action even

when the governing legislation appears neutral on its

[O68 os « .

The historical background of the decision is

[another] evidentiary source, particularly if it reveals

a series of official actions taken for invidious pur-

poses . . . The specific sequence of events leading up

the challenged decision also may shed some light on

the decisionmaker’s purposes... . Departures from

the normal procedural sequence also might afford

evidence that improper purposes are playing a role.

Substantive departures too ‘may be relevant, par-

ticularly if the factors usually considered important

by the decisionmaker strongly favor a decision

contrary to the one reached. ;

429 U.S. at 266-67, 97 S.Ct. at 564.

In Austin IT, as will be discussed more fully, we referred

to the neighborhood assignment system as neutral on its

face, but observed that all of the evidence showed that the

AISD resorted to that system only when it would produce

the maximum feasible separation of Anglos from

Mexican-Americans. When it did not, the AISD resorted

(Oo gerrymandering, dual-overlapping zones,

discriminatory school _ siting and capacity decision

(tailoring the design, location, and size of a school to fit

only a racial or ethnic group), and other discriminatory

devices. The package demonstrated a pervasive intent to

discriminate against Mexican-Americans.

The principle that plaintiffs challenging official action

as racially or ethnically discriminatory must show the

ey jtence of a purpose or intent to discriminate was

foreshadowed in Keyes v. School District No. 1, Denver,

Colorado, 1973, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d

548, three years before our decision in Austin JI. In

writing Austin I] we were conscious of the Court’s

Statement in Keyes, ‘‘We emphasize that the dif-

ferentiating factor between de jure segregation and so-

called de facto segregation ... is purpose or intent to

segregate.’’ (Emphasis in original.) 413 U.S. at 208, 93

S.Ct. at 2697. The essential element of de jure segregation

is ‘fa current condition of segregation resulting from

intentional state action’’. 413 U.S. at 205, 93 S.Ct. at

2696. The court in Keyes, however, did not explicate

whether the discriminatory intent necessary to make out

an equal protection violation in school desegregation cases

was to be determined (a) under a subjective standard,

which would require a court to determine whether the

‘official decisionmakers harbored a subjective desire to

segregate or discriminate‘ or (b) under an objective

standard, by which the official decisionmakers would

be held to have intended the reasonably foreseeable

consequences of their decisions.’

We understand the difficulties inherent in employing a

subjective intent test to aetermine whether school board

authorities practiced impermissible de jure segregation

‘As one commentator has observed:

Some of the language in the Keyes majority opinion can be

read to endorse the interpretation that ‘segregative intent’ refers

to the subjective motivation of individual school officials.

According to the Keyes majority, the Denver school authorities’

actions were ‘deliberate’ and ‘purposeful’; ‘purpose or intent’

was said to distinguish de jure from de facto segregation.

Similarly, the Court held that proof of segregative intent with

respect to one area of Denver left the school authorities with the

burden of showing that their actions in other areas of the city

‘were not also motivated by segregative intentions’.

Note, Reading the Mind of the School Board: Segregative Intent and

the De Facto/De Jure Distinction, 86 Yale L.J. 317, 321-322 (1976)

(emphasis in original).

‘The principle that an actor is held to intend the reasonably

foreseeable results of his actions is firmly rooted in the common law

of torts. See, e.g., W. Prosser, The Law of Torts § 8 (4th ed. 1971);

Restatement (Second) of Torts § 8A, Comment b (1965).

against minority students. In Austin II, therefore, we

adopted an objective test for ascertaining discriminatory

*In Austin I] we observed:

[I]t 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 discriminatory practices in ways

that are devious, by methods subtle and illusive — for we deal

with an area in which ‘subileties of conduct . . . play no small

part’ ’’.

532 F.2d at 388. Accord, United States v. Board of School Com-

missioners of Indianapolis, Ind., 7 Cir. 1973, 474 F.2d 81, 88. Justice

Stevens, in his concurring opinion in Washington v. Davis, provided

another reason why an official’s personal motivation is an area of

“inquiry that is generally tangentially probative at best in evaluating

whether a school board has practiced de jure segregation.

Frequently the most probative evidence of intent will be ob-

jective evidence of what actually happened rather than evidence

describing the subjective state of mind of the actor. For nor-

mally the actor is presumed to have intended the natural con-

sequences of his deeds. This is particularly true in the case of

governmental action which is frequently the product of com-

promise, of collective decisionmaking, and of mixed motivation.

It is unrealistic, on the one hand, to require the victim of alleged

discrimination to uncover the actual subjective intent of the

decisionmaker or, conversely, to invalidate otherwise legitimate

action simply because an improper motive affected the

deliberation of a participant in the decisional process. A law

conscripting clerics should not be invalidated because an atheist

voted for it.

426 U.S. at 253, 96 S.Ct. at 2054. See Dayton Board of Education vy.

Brinkman, __ U.S. __, —, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977)

(Stevens, J., concurring). For a further critique of the use of a sub-

jective intent test in school desegregation cases, see Note, Reading the

Mind of the School Board: Segregative Intent and the De Facto/De

Jure Distinction, 86 Yale L.J. 317, 322-327 (1976), remarks of

Professor Owen Fiss at the Second Circuit Judicial Conference (1976),

reported in 74 F.R.D. 276, 280.

intent and ‘‘incorporat[ed] in school segregation law the

ordinary rule of tort law that a person intends the natural

and foreseeable consequences of his actions’’. 532 F.2d at

388.’ In reading. the ‘‘natural and foreseeable con-

sequences’’ test into the necessary requirement of

segregative intent (Washington v. Davis), this Circuit

stands not alone, but in company with four other circuits.

Hart v. Community School Board of Education, New

York School District #21, 2 Cir. 1975, 512 F.2d 37, 50-51

(a well articulated decision); Morgan v. Kerrigan, | Cir.

1974, 509 F.2d 580, 588, affirming Morgan v. Hennigan,

D.Mass. 1974, 379 F.Supp. 410, 478, cert. denied, 1975,

421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449; Oliver v.

Michigan State Board of Education, 6 Cir. 1974, 508 F.2d

178, 181-182, cert. denied, 1974, 421 U.S. 963, 95 S.Ct.

1950, 44 L.Ed.2d 449; Bradley v. Milliken, 6th Cir. 1973,

‘484 F.2d 215, 222, aff’d in relevant part, 1974, 418 U.S.

717, 738 n. 18, 94S.Ct. 3112, 41 L.Ed.2d 1069, 1087 n. 18

‘This result was further compelled, we reasoned, by the fact that

in Monroe v. Pape, 1961, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5

1..E.2d 492, 505, the Supreme Court rejected the argument that

specific intent is a necessary element of the cause of action under

42 U.S.C. §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

actions”’.

We went onto

find no inconsistency between the rule applied in Monroe v.

Pape and that applied in Keves, nor. . . any reason for applying

a standard differe.t from Monroe v. Pape in_ school

desegregation cases.

Austin 11, 532 F.2d at 389.

(adopting district court’s reliance on ‘‘natural and

predictable effect’? school board policies). Cf. United

States v. Board of School Commissioners of Indianapolis,

Ind., 7 Cir. 1973, 474 F.2d 81, 84-85, cert. denied, 1973,

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

In neither Washington v. Davis nor Arlington

Heights did the Supreme Court directly confront the issue

of what type of official intent — subjective or objective —

a plaintiff must show to present a prima facie case of im-

permissible racial or ethnic discrimination or segregation

under the fourteenth amendment’s equal protection

clause. Washington v. Davis and Arlington Heights did

establish that the disproportionate racial impact of the

neutral application of a long-standing neutral policy, by

itself, will rarely constitute a constitutional violation.

' Those decisions thus partly answered in the affirmative,

one of the questions left open in Keyes — ‘‘whether a

neighborhood school policy of itself will justify racial or

ethnic concentrations, in the absence of a finding that

school authorities have committed acts constituting de

jure segregation’’.* We are well aware that some official

actions on which a plaintiff hinges an allegation of un-

constitutional discrimination have historically been

motivated by racially and ethnically neutral bona fide

concerns, such as the desire to have children attend the

school closest to their home, and no showing is made

that those concerns were actually subordinate to, or a

subterfuge for, unconstitutional discrimination. In those

circumstances, that a discriminatory result was the natural

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

U.S. 189, 212, 93 S.Ct. 2686, 2699, 37 L.Ed.2d 548,

and foreseeable consequence of the actions is insufficient

to infuse the challenged acts with the type of

discriminatory intent required by Washington v. Davis

and Arlington Heights. Nevertheless, we emphasize that

we do not read Washington v. Davis and Arlington

Heights as banishiiig from the law of racial and ethnic

discrimination the venerable common law tort principle

that a person intends the natural and foreseeable con-

sequences of his actions. When the official actions

challenged as discriminatory include acts and decisions

that do not have a firm basis in well accepted and

historically sound non-discriminatory social policy,

discriminatory intent may be inferred from the fact that

those acts had foreseeable discriminatory consequences.

As a practical matter, in school desegregation cases we can

envision few official actions, other than the decision to use

a neighborhood school policy for student assignment, that

would not be subject to the ‘‘natural foreseeable con-

sequences’’ rule.? The presumption is especially probative

in assessing the official intent behind such affirmative

“As this Court recognized in United States v. Jefferson County

Board of Education, 5 Cir. 1966, 372 F.2d 836, 879, aff'd en banc,

1967, 380 F.2d 385, cert. denied, 1967, 389 U.S. 840, 88 S.Ct. 67, 19

1..Ed.2d 103, ‘The neighborhood school system is rooted deeply in

American culture’. In Deal v. Cincinnati Board of Education, 6 Cir.

1966, 369 F.2d 55, 60, the Sixth Circuit summarized the sound policy

reasons for the adoption and maintenance of a neighborhood school

system.

The neighborhood system is in wide use throughout the nation

and has been for many years the basis of school administration,

This is so because it is acknowledged to have several valuable

aspects which are an aid to education, such as minimization of

safety hazards to children in reaching school, economy of cost in

reducing transportation needs, case of pupil placement and

school board decisions as those concerning school

locations, the construction and renovation of schools, the

closing of schools, the drawing of student attendance

zones, and the assignment of faculty and staff.'°

There is language in our Austin I] opinion that an

official discriminatory intent adequate to support a

finding of de jure segregation could be inferred solely

from the school board’s use of a neighborhood school

policy for student assignment.'' To the extent that Austin

IT can be so read, it is inconsistent with Washington vy.

Davis and Arlington Heights. The Supreme Court

administration through the use of neutral, casily determined

standards, and better home-school communication.

In his separate opinion in Keves v. School District No, 1, Denver.

Colorado, 1973, 413 U.S. 189, 246, 93 §.Ct. 2686, 2716, 37 1 .Ed.2d

548, Justice Powell elaborated on a further desirable aspect of a

neighborhood school policy.

Neighborhood school systems, neutrally administered, reflect

the deeply felt desire of citizens for a sense of community in their

public education. Public schools have been a traditional source

of strength to our Nation, and that strength may derive in part

from the identification of many schools with the personal

features of the surrounding neighborhood. Community support,

interest, and dedication to public schools may well run higher

with a neighborhood attendance pattern: distance may en-

courage disinterest,

"Nothing in Washington v. Davis or Arlington Heights is in-

consistent with inferring a discriminatory intent from a school board's

refusal to take action to ameliorate segregation. See Austin I, 532

F.2d at 389,

"We had in mind the misuse of a neighborhood school policy:

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 that creates segregated schools |

recognized this ambiguity in vacating our decision and

remanding the case to us.

In Austin IT, however, we analyzed the cause and effect

test used in Austin I, which was the same test applied in

our earlier decision in Cisneros v. Corpus Christi In-

dependent School District, 5 Cir. 1972, 467 F.2d 142 (en

banc), cert. denied, 1973, 413 U.S. 920 93 S.Ct. 3053, 37

L.Ed.2d 1041. In light of Keyes, we expressly rejected the

argument of the Mexican-American intervenors that Keyes

did not establish that segregative intent is a necessary

element of unconstitutional school segregation. We held,

quoting from Morales v. Shannon, 5 Cir. 1975, 516 F.2d

411, 412-13, cert. denied, 1975, 423 U.S. 1034, 96 S.Ct.

566, 46 L.Ed.2d 408, that ‘‘[W]ith respect to the first

in a district with ethnically segregated residential patterns. A

seyregated 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 segregative

intent.

§32 F.2d at 392. We also said:

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

sceregated 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 .tusrin J, “fa]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. The

plaintiffs have therefore established a prima facie case of de jure

segregation of Mexican-Amcricans in all portions of the school

district except the residentially integrated central city area.

§32 F.2d at 390 (footnotes omitted).

issue, segregatory intent, we are governed by Keyes...

which supervenes our holding in Cisneros ... to the

extent that Keyes requires as a prerequisite to a decree to

desegregate a de facto system, .. . proof of segregatory

intent as a part of state action’’. Austin I], 532 F.2d 380,

387. But it was apparent to us in both Austin J and Austin

IT that the AISD historically had used neighborhood

schools to accentuate and to perpetuate segregation of

blacks and Mexican-Americans, and that it was at-

tempting now to absolve itself of responsibility for in-

creasing segregation by taking shelter in a supposed

neutral policy of assigning students to neighborhood

schools. As the United States argued, ‘‘When [a neigh-

borhood school] policy has been used- in concert with

obvious tools of discrimination, it may come to partake of

a discriminatory quality and to be an instrument of

discrimination itself.’’ Brief for the United States, p. 9.

Our finding of discriminatory intent in Austin J] was

not predicated ‘‘solely’’ on the AISD’s use of a

neighborhood student assignment policy. We thought

that we had made this clear in concluding:

As articulated in Austin J, the case before us

presents not only the use of a _ neighborhood

assignment policy in a_ residentially segregated

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.

532 F.2d 392. Austin is not just a case of a school board’s

inaction or failure to reduce segregation because of the

force of residential patterns unrelated to official board

action. Here the school authorities produced more racial

and ethnic separation in the schools than in the residential

patterns of the district as a whole.'? Nevertheless, to dispel

any doubt that may remain, we again set forth the findings

that compel our conclusion that the AISD intentionally

discriminated against Mexican-American students, adding

to racial and ethnic separation.

III.

A. The segregation of Mexican-Americans in the AISD

schools.

We observed in Austin II that ‘‘[t]he statistics paint

a clear picture of the extensive segregation that still exists

in the Austin schools’’. 532 F.2d at 390.'? Although

"We held [the en banc decision]

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

construction 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-

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

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

U.S. at 192, 93 S.Ct. 2686. The inference of segregative intent that

the Supreme Court made regarding the Denver school authorities is

equally applicable to their counterparts in Austin. In its memorandum

opinion and order of February 2, 1976, the district court, citing

Justice Powell's separate opinion in Keyes, 413 U.S. at 226 and 240-

41, 93 S.Ct. 2686, declined to approve the construction of the

proposed Southwest High School and Northeast Junior High School

because the proposed schools would accentuate the desegregation

problems in the district.

"In. so finding, we confirmed the district court’s finding that

there was substantial segregation of Mexican-Americans in the Austin

school system, Austin II, 532 F.2d at 389. The court found, however,

Arlington Heights cautioned that ‘‘[a]bsent a pattern as

stark as that in Gomillion [v. Lightfoot, 1960, 364 U.S.

339, 81 S.Ct. 125, 5 L.Ed.2d 110] or Yick Wo [v.

Hopkins, 1886, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220},

impact alone is not determinative, and the Court must

look to other evidence'*’’, the Court stated that ‘‘[t]he

impact of the official action ... may provide an im-

portant starting point'’’’, in analyzing whether a ,

discriminatory intent existed.

The AISD’s report to the district court for the period

ending January 15, 1977, indicates that the ‘‘clear picture

of ... extensive segregation’’ we discerned in Austin I/

has not faded. Of the 58,664 students attending all of

Austin’s schools, 60 percent (35,342) are Anglo, 16

percent (9,378) are black, and 24 percent (13,933) are

Mexican-American. Almost 40 percent of the AISD’s

Mexican-American students attend school that have a

minority enrollment of greater than 90 percent. On the

higt school level, 65.2 percent of the district’s 17,973 students

are Anglo, 14.4 percent )2,584 are black, and 20.4 percent

(3,668) are Mexican-American. While 54 percent of the

“‘an absence of segregatory intent or purpose toward. Mexican-

Americans’”’.

'*Village of Arlington Heights v. Metropolitan Housing

Development Corp., 1977, 429 U.S. at 266, 97 S.Ct. at 564. (Foot-

notes omitted). See Dayton Board of Education v. Brinkman, 1977,

— U.S. _, —, 97 S.Ct. 2766, 2772, 53 L.Ed.2d 851: ‘The finding

that the pupil population in the various ... schools is not

homogeneous, standing by itself, is not a violation of the Fourteenth

Amendment in the absence of a showing that this condition resulted

from intentionally segregative actions on the part of the Board.”’

'*Village of Arlington Heights v. Metropolitan Housing

Development Corp. , 429 U.S. at 266, 97 S.Ct. at 564.

Mexican-American high school students attend schools

that are greater than 58 percent minority, nearly two-

thirds of the Anglo high school students attend schools

that are greater than 78 percent Anglo. Mexican-American

students fare no better in the junior high schools. Forty-

seven percent of them attend either Allan Jr. High or

Martin Jr. High , which are 99 percent minority and 97

minority respectively. Of the AISD’s 30,275 elementary

school students, 58 percent (17,692) are Anglo, 17 percent

(5,122) are black, and 25 percent (7,461) are Mexican-

American. Over 46 percent of the Mexican-American

elementary school children attend elementary schools that

have minority enrollments ranging from 91 to 100 percent;

and 55 percent of the Anglo elementary school children

attend schools that are over four-fifths Anglo. Of the

school district’s 61 elementary schools, only 23 have

enrollments that are not over 80 percent Anglo or 80

percent minority.

Admittedly, the AISD’s neighborhood school policy

played no small part in creating and maintaining this

pattern of Mexican-American segregation in the Austin

schools. This is not a case, however, in which ‘‘the

‘neighborhood school concept’ has . . . been maintained

free of manipulation’’. Keyes v. School District No. 1,

Denver, Colorado, 1973, 413 U.S. 189, 212, 93 S.Ct. 2686,

2699, 37 L.Ed.2d 548. Instead, an examination of school

board decisions on such matters as the construction and

abandonment of schools, the selection of school sites, the

assignment of faculty and staff, and the drawing of

student attendance zones confirms the existence of the

segregative intent that the statistics imply.

B. The historical background of official actions taken for

segregative purposes. ;

Pre-Brown,'* the AISD’s established ‘‘Mexican’’

schools, just as it established ‘‘black’’ schools. The AISD

now says that Mexicans are whites and, of course, they

usually are. But the Mexican schools had all Mexican-

American enrollments; few Mexican-Americans were

assigned to Anglo schools. The AISD maintained the

segregated identity of the schools through the use of dual-

overlapping attendance zones, student assignment

policies, teacher assignment policies, school site selection,

and gerrymandering. The evidence clearly showed the

school board’s intent to segregate Mexican-American

students.'’ In dual-overlapping zones Anglos attended

'*Brown v. Board of Education, 1954, 347 U.S. 483, 74 S.Ct. 686,

98 L.Ed. 873; 1955, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083.

'’The district court, in its decision of August 1, 1973, that was the

subject of our review in Austin I], concluded that these actions were

not indicative of a segregative intent on the part of the AISD because

**the existence of these schools represented no more than a humane

and compassionate attempt by the School District, using educational

techniques then accepted as proper and progressive, to meet the

special educational needs of children who would otherwise have been

much more severely handicapped in their efforts to obtain an edu-

cation’’. The district court, however, erred in assuming that there

could be no discriminatory intent where segregative actions were

prompted by what at the time was thought to be benign motive. As

we held in Austin J, 467 F.2d at 869, and reiterated in Austin //,

532 F.2d at 391,

we are not convinced that, to meet the special educational needs

of Mexican-American children, the 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

education. ... A benign motive will not excuse the

discriminatory effects of the school board’s actions.

Anglo schools; Mexican-Americans attended Mexican

schools. The AISD built new schools deep inside Mexican-

American neighborhoods, with a capacity keyed to serving

only the Mexican-Americans. We recount those actions as

they were set forth in Austin J.

Evidence at trial . . . reveals the existence of an all-

Mexican-American school, West Avenue, as early as

1916. West Avenue shared a dual-overlapping zone

with Pease, an all-white school. Whites within the

zone went to Pease, and Mexican-Americans attended

West Avenue. West Avenue continued to operate as a

Accord: Keyes v. School District No. 1, Denver, Colorado, 10 Cir.

1975, 521 F.2d 465, 480, cert. denied, 1976, 423 U.S. 1066, 96 S.Ct.

806, 46 L.Ed.2d 657 (holds that ‘‘although bilingual instruction may

be required to prevent the isolation of minority students in a

predominantly Anglo school system ... such instruction must be

subordinate to a plan of school desegregation’’). See McNeal v. Tate

County School District, 5 Cir. 1975, 508 F.2d 1017, disapproving

ability groupings within schools that result in segregated classrooms

where ability groupings are a product of a previously segregated

school system. Furthermore, as the Mexican-American and black

-intervenors assert, ‘‘[iJt is difficult . . . to see how the segregation of

Spanish-speaking children into schools and classrooms where teachers

were forbidden by [Texas state] law to speak Spanish and instruction

was provided in English only could have resulted from ‘benign’

motivation’’. Reply Brief of Mexican-American and Black In-

tervenors to Supplemental Brief Filed by the AISD at 7.

Because the district court’s misapprehension of the law infected its

ultimate conclusion that the AISD did not intentionally subject

Mexican-American students to discrimination with an erroneous legal

standard, our review of the district court’s findings is not governed by

the ‘‘clearly erroneous’’ standard of Fed.R.Civ.P. 52 (a). Manning v.

M/V ‘Sea Road’’, § Cir. 1969, 417 F.2d 603, 607. Even under the

‘‘clearly erroneous’’ rule, we are convinced that the district court’s

finding that the AISD did not intentionally discriminate against

Mexican-American students would warrant reversal.

Mexican-American school until it was closed in 1947.

Canal [Comal] Street School was opened in 1924.

School Board minutes reflect that the school was built

to accommodate Mexican-American students at-

tending three other schools. These three schools were

the only schools in the district with more than twenty

Mexican-Americans.

In 1934, West Avenue and Canal [Comal] Street

enrolled 45 percent of the district’s Mexican-

American students; Bickler had about 25 percent and

Metz about 15 percent. After the passage of a bond

issue Zavala school opened. The site for the new

school was three blocks from the Mexican-American

Canal [Comal] Street school which was then closed.

Zavala shared a dual-overlapping zone with Metz,

one of two predominately white schools with

significant numbers of Mexican-American students.

Mexican-Americans were expected to and did attend

Zavala; whites attended Metz. This is unadulterated

segregation. West Avenue and Zavala, predominately

Mexican-American, were the only schools in the

district which shared zones with other schools. By

1940, West Avenue and Zavala enrolled 56 percent of

the AISD’s Mexican-American students. Also at the

time Zavala was built in 1935, Bickler, the other

predominately white school with a significant number

of Mexican-American students, was discontinued as

an elementary school, and Bickler students were sent

to other schools. It is unclear as to where these

students went, although some were reassigned to

Winn, Palm, and Metz (Zavala). In 1939, a com-

mittee from Winn complained of the assignment of

Mexican-American students from Bicklez to Winn.

Soon thereafter, some of these students were

reassigned to Bickler.

467 F.2d at 866-867 (footnote omitted).

C. The post-Brown sequence of events indicating in-

tentional racial discrimination.

Post-Brown decisions by the AISD pertaining to school

construction and abandonment and teacher assignment

further evince the existence of a segregative intent on the

part of the school board. ‘‘In ascertaining the existence of

legally imposed school segregation, the existence of a

pattern of school construction and abandonment is. . .a

factor of great weight.’’ Swann v. Charlotte-Mecklenburg

Board of Education, 1971, 402 U.S. 1, 21, 91 S.Ct. 1267,

1278, 28 L.Ed.2d 554, 569. See Keyes v. School District

No. 1, Denver, Colorado, 1973, 413 U.S. 189, 201-202, 93

S.Ct. 2686, 37 L.Ed.2d 548.

In Austin I we observed the following discriminatory

pattern which infected both elementary and secondary

public schools,

In 1953, O’Henry Junior High School opened in the

western section of Austin. At that time the zone line

for Allan Junior High School, a predominately

Mexican-American facility, was moved so that many

whites were zoned out of Allan and into O’Henry. In

1956, Allan Junior High burned down. The new

Allan Junior High School was built on the same site

as the old school and opened in 1957 with 75 percent

Mexican-American enrollment. In addition, the Allan

Zone line was moved so that fewer whites were in-

cluded in the new zone.

In 1960, the new Johnston High School was opened

in East Austin [the predominately Mexican-American

section of Austin]. The suggestion for a central

location for this facility was rejected, and the school

was built deep in a Mexican-American area. It opened

with a 78 percent Mexican-American enrollment. In

1967, University Junior High School was closed

because the University of Texas reclaimed the

property where the school was located. Martin Junior

High School was built in the heart of the Mexican-

American community. Again, centrally-located sites

for the new facility were considered and rejected.

Martin opened with 77 percent Mexican-American

enrollment. White students who had formerly at-

tended University Junior High School were zoned to

predominately-white junior high schools rather than

to Martin.

The elementary school zone lines have remained

Static in East Austin during the years following

Brown. As a result, the schools have become in-

creasingly overcrowded as the school population

increased. Several new elementary schools have been

built to relieve overcrowded conditions in areas

outside of East Austin. In the seven predominately-

Mexican-American schools in East Austin portable

classrooms have been supplied, instead.

467 F.2d at 867 (footnote omitted).'*

'"At the time of Austin 1, ‘‘[t}he 39 predominately white

elementary schools outside of East Austin [had] a total of 44 portable

classrooms; the seven Mexican-American schools in East Austin [had]

a total of 24 portables’’. Austin I, 467 F.2d 867 n.32. This

disproportionate use of portable classrooms instead of new school

construction to alleviate overcrowding in predominately Mexican-

American schools may itself be indicative of a discriminatory intent.

See Armstrong v. Brennan, 7 Cir. 1976, 539 F.2d 625, 631, vacated

The AISD further demonstrated its intent to

segregate Mexican-Americans by assigning the district’s

small number of Mexican-American teachers and other

professional staff to schools with predominately Mexican-

American student enrollments. In Swann, the Supreme

Court cautioned that, ‘‘[iJndependent of student

assignment, where it is possible to identify a ‘white school’

or a ‘Negro school’ simply by reference to the racial

composition of teachers and staff. . . a prima facie case

of violation of substantive constitutional rights under the

Equal Protection Clause is shown’’. 402 U.S. at 18, 91

SO. a igr7.””

We found in Austin J that, in 1971, ‘‘[s]ixty-five percent

of the Mexican-American high school teachers, 36 percent

of the Mexican-American junior high school teachers, and

77 percent of the Mexican-American elementary teachers

[were] assigned to predominately Mexican-American

schools’’. 467 F.2d at 868. Although no Austin school had

and remanded for reconsideration in the light of Village of Arlington

Heights v. Metropolitan Housing Development Corp., 429 U.S. 252,

97 S.Ct. 555, 50 L.Ed.2d 450 (1977), and Dayton Board of Education

v. Brinkman, __ U.S. __, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977), __

U.S. __, 97 S.Ct. 2907, 53 L.Ed.2d 1044.

'*Although the Swann Court spoke only in terms of ‘‘Negro’’ and

‘‘white’’ schools, it is established ‘‘that Hispanos [Mexican-

Americans] constitute an identifiable class for purposes of the

Fourteenth Amendment’’. Keyes v. School District No. 1, Denver,

Colorado, 1973, 413 U.S. at 197, 93 S.Ct. at 2691. We believe that

faculty segregation is especially probative of a school board’s intent to

discriminate because of the high degree of control school boards

exercise over such matters as faculty placement. See United States v.

School District of Omaha, 8 Cir. 1975, 521 F.2d 530, 538 n.13, cert.

denied, 1975, 423 U.S. 946, 96 S.Ct. 361, 46 L.Ed.2d 280; Kelly v.

Guinn, 9 Cir. 1972, 456 F.2d 100, 107.

a majority of Mexican-American faculty members, and

these figures would not, by themselves, suffice to prove

the AISD’s intent to discriminate, they constitute another

stroke in an evidentiary picture that all too clearly shows

the school board’s intent to discriminate against Mexican-

Americans.

The plans adopted in 1955 and in the 1960’s for the

desegregation of black schools primarily allowed black

students to transfer to Mexican-American schools but not

to Anglo schools. Mexican-Americans were invariably

assigned to black schools but not to Anglo schools.

Ironically, the AISD argues that this policy was benign; it

was to allow Mexican-Americans to be with their Spanish-

speaking friends and their neighbors. But the teachers, by

law, were forbidden to speak Spanish; instruction was

only in English!

We find that the evidence demonstrates that the

segregation of Austin’s Mexican-American students was

pervasive and intentional. We find it unnecessary,

therefore, to determine whether absent this evidence the

plaintiffs could nevertheless have made out a prima facie

case of ethnic discrimination by relying on one or both of

the presumptions announced by the Supreme Court in

Keyes.° See Austin IT, 532 F.2d at 390-391 n.14.

*The first presumption is that ‘‘proof of state-imposed

segregation in a substantial portion of the district will suffice to

support a finding by the trial court of the existence of a dual system’’.

413 U.S. at 203, 93 S.Ct. at 2695. In tri-ethnic school districts such as

Austin’s, proof that one minority group was subject to statutorily

enforced segregation will thus support a presumption that the other

minority group was also subject to the same dual school system. The

school board can overcome this presumption by showing that ‘‘the

geographical structure of, or the natural boundaries within, a school

district may have the effect of dividing the district into separate,

IV.

We have concluded for the third time, that the AISD

intentionally discriminated against Mexican-Americans;

that the district court applied an erroneous legal standard

in assuming that there could not be discriminatory intent

when the actions were prompted by what was thought at

the time to have been a benign motive; that the district

court’s finding as to intent was erroneous. Our recon-

sideration of the case in light of Washington v. Davis

complies with the mandate of the Supreme Court.

The Supreme Court’s recent decision in Dayton Board

of Education v. Brinkman, __ U.S. __, 97 S.Ct. 2766, 53

L.Ed. 851 (1977) requires us again to remand the case to

the district court for a hearing. In Dayton, the Court

specifically addressed the question of ‘‘the proper

allocation of functions between the district courts and the

courts of appeals within the federal system’’?', and in-

structed that once a constitutional violation is found in a

school desegregation case,

the District Court in the first instance, subject to

review by the Court of Appeals, must determine how

much incremental segregative effect these violations

identifiable and unrelated units’’. /d. The second presumption is that

‘even if it is determined that different areas of the school district

should be viewed independently of each other’’, ‘‘a finding of in-

tentionally segregative school board actions in a meaningful portion

of a school system . . . creates a presumption that other segregated

schooling within the system is not adventitious’’. 413 U.S. at 208, 93

S.Ct. at 2697. In a tri-ethnic setting, this means that a finding that

intentional segregation was practiced against one minority group

raises the presumption that any segregation suffered by the second

minority group was intentional.

21 U.S. at —., 97 S.Ct. at 2770.

had on the racial distribution of the ... school

population as presently constituted, when that

distribution is compared to what it would have been

in the absence of such constitutional violations. The

remedy must be designed to redress that difference,

and only if there has been a systemwide impact may

there be a systemwide remedy. (Emphasis added.)

wee Wise OE cus OT Oe BU Sl ies

Assessing the incremental segregative impact of a

school board’s discriminatory actions and policies is not

an easy task. The district court, on remand, must take into

account that

[pleople gravitate toward school facilities, just as

schools are located in response to the needs of people.

The location of schools may thus influence the

patterns of residential development of a metropolitan

area and have important impact on composition of

inner-city neighborhoods.

Swann v. Charlotte-Mecklenburg Board of Education,

1971, 402 U.S. 1, 20-21, 91 S.Ct. 1267, 1278, 28 L.Ed.2d

554. The burden of demonstrating that the residential

concentration of minorities in East Austin is unrelated to

the AISD’s segregative school policies is to be shouldered

by the school board. See Keyes v. School District No. 1,

Denver, Colorado, 1973, 413 U.S. at 211 n.17, 93 S.Ct.

2686.

‘(T]he burden of state officials is that set forth in

Swann — to take the necessary steps ‘to eliminate from the

public schools all vestiges of state-imposed segregation’.

402 U.S. at 15.’’ Milliken v. Bradley, __ U.S. __, 97 S.Ct.

2749, 2762, 53 L.Ed.2d 745 (1977). The remedy, of course,

must be tailored to fit the nature of the violation.’ If the

district court finds that the incremental segregative effects

of the AISD’s intentional actions discriminating against

Mexican-Americans have a systemwide impact on the

racial distribution of the Austin school population, then

the scope of the remedy must also be systemwide. In

assessing the extent of the impact, the district court should

keep in mind the Supreme Court’s statement in Keyes that

‘“‘racially inspired school board actions have an impact

beyond the particular schools that are the subjects of those

actions.’’*’ 413 U.S. at 203, 93 S.Ct. at 2695. The partial

desegregation of a single grade has no basis in logic or in

“The standard set by Swann is ‘‘that the scope of the remedy is

determined by the nature and extent of the constitutional violation.’’

402 U.S. at 16. Milliken II explains: *‘The well-settled principle that

the nature and scope of the remedy is to be determined by the

violation means simply that federal court decrees must directly ad-

dress and relate to the constitutional violation itself... . [WJhere, as

here, a constitutional violation has been found, the remedy does not

‘exceed’ the violation if the remedy is tailored to cure the ‘condition’

that offends the Constitution.’’ (Emphasis supplied.) Milliken v.

Bradlev, _ U.S. __, 97 S.Ct. 2758.

“In devising an appropriate plan, it seems to us important for the

AISD and the district court to bear in mind that in the setting of a

school case the plaintiffs are not just aggrieved individuals; they

represent the ‘collective will.’ Hart v. Community School Board, 2

Cir, 1975, 512 b.2d 37. ‘Segregation is a group phenomenon. . . [A]s

a group wrong ... the mode of redress must be group-wide to be

adequate."* Note, 20 U.Chi.L. Rev. 577 (1953). See also, Meador, The

Constitution and the Assignment of Pupils to Public Schools, 45

Va.b..Rev. 517, 523 (1959). What we said in Jefferson about blacks

applics equally to Mexican-Americans in certain states: “Negroes

collectively are harmed when the state, by law or custom, operates

segregated schools or a school system with uncorrected effects of

segregation. Denial of access to the dominant culture, lack of op-

portunity in any meaningful way to participate in political and other

equity as a remedy suited and sufficient to rectify the

constitutional deprivations inflicted by segregating school

children. It is an affront to Brown, Green v. New Kent,

Alexander v. Holmes, Swann, and Keyes,** to say nothing

of this Court’s long and consistent record of affording

minorities an opportunity to enter the mainstream of

American life by affording them an equal opportunity

with whites for an education.

The district court should give the hearing on remedy a

high docket priority. All parties should be free to in-

troduce such additional testimony and other evidence as

the district court may consider appropriate. All remedial

measures currently in effect shall remain in effect pending

the district court’s decision on remedy.

public activities, the stigma of apartheid condemned in the Thirteenth

Amendment are concomitants of the dual educational system. The

unmalleable fact transcending in importance the harm to individual

Negro children is that the separate school system was an integral

clement in the Southern State's general program to restrict Neeroes as

a class from participation in the life of the community, the affairs of

the State, and the mainstream of American life: Negroes must keep

their place."’ United Siates v. Jefferson County Board of Education,

1966, 5 Cir., 372 F.2d 836 at 866, a/f"d on reh. en bane 380 2d 385

cert. denied, 389 U.S. 840, 88 S.C1. 67, 19 L..Ed.2d 103.

“See citations in fh. 1. [This Court has, with limited evx-

ceptions, disapproved of school board plans which exclude a certain

age grouping from school desegregation.” Arvizu v. Waco In-

dependent School District, § Cir. 1974, 495 F.2d 499, 503.

SUPREME COURT OF THE UNITED STATES

AUSTIN INDEPENDENT SCHOOL DISTRICT

UNITED STATES

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 76-200. Decided December 6, 1976

PER CURIAM.

The petition for certiorari is granted, the judgment of

the Court of Appeals for the Fifth Circuit is vacated, and

the case is remanded for reconsideration in light of

Washington v. Davis, 426 U.S. 229 (1976).

MR. JUSTICE POWELL, with whom THE CHIEF

JUSTICE and MR. JUSTICE REHNQUIST join,

concurring.

I concur in the action of the Court, and agree that there

would be no need to address the issue of remedy if the

Court of Appeals upon reconsideration of its opinion in

light of Washington v. Davis, 426 U.S. 229 (1976), should

conclude that there was no constitutional violation. |

would nonetheless include the issue of remedy in the

remand order because of what appears to be a misap-

plication of a core principle of desegregation cases. In

such cases, this Court has repeatedly emphasized that

‘the task is to correct by a balancing of the individual

and collective interests, ‘the condition that offends

the Constitution.’ A federal remedial power may be

exercised ‘only on the basis of a constitutional

violation’ and, ‘{a]s with any equity case, the nature

of the violation determines the scope of the

remedy.’ ’’ Milliken v. Bradley, 41& U.S. 717, 738

(1974), quoting Swann v. Charlotte-Mecklenburg

Board of Education, 402 U.S. 1, 16 (1971).

As suggested by this Court’s remand premised upon

Washington v. Davis, supra, the Court of Appeals may

have erred by a readiness to impute to school officials a

Segregative intent far more pervasive than the evidence

justified.' That court also seems to have erred in ordering

a desegregation plan far exceeding any identifiable

violations of constitutional rights.

As is true in most of our larger cities with substantial

minority populations, Austin has residential areas in

‘Although in an earlier stage in this case other findings were made

which evidenced segregative intent, see, e.g., United States v. Texas

Education Agency, 467 F.2d 848, 865-869 (CAS 1972) (actions by

school authorities contributing to segregation of Mexican-American

students), the opinion below apparently gave controlling effect to the

use of neighborhood schools:

**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, schoo! authorities may not constitutionally use a neigh-

borhood assignment policy creating segregated schools in a district

with ethnically segregated residential patterns. A segregated 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 segregative intent.’’ App. to Pet. for Cert.,

at 20.

which certain racial and ethnic groups predominate in the

population. Residential segregation creates significant

problems for school officials who seek to achieve a

nonsegregated school district. In Austin those problems

are perhaps accentuated by the geography of the city.

Acknowledging these difficulties, the Court of Ap-

peals noted that

‘*(cJountless efforts by school officials, consultants,

and visiting teams have found it impossible to pro-

duce significant desegregation by boundary line

changes, contiguous pairing of schools, magnet

schools, or other effective means short of cross-town

busing incident to non-contiguous pairing of ...

schools....’’ App. to Pet. for Cert., at 26.

The Court of Appeals then concluded that nothing short

of extensive cross-town transportation would suffice.

Designed to achieve a degree of racial balance in every

school in Austin,’ the desegregation plan endorsed by the

Court of Appeals is remarkably sweeping. For kin-

dergarten through eighth grade, the plan requires cross-

*Apparently misconceiving the import of language in Green v.

County School Board of New Kent County, 391 U.S. 430, 442 (1968),

to the effect that there should be no ‘‘Negro’’ school or ‘‘white’’

school, the Court of Appeals seems to believe every school must be

racially balanced to some degree. Green involved a rural, sparsely

populated county with only two schools. Much of its language is

irrelevant to a large urban school system. Moreover, the effect of

applying the language of Green to such a system may be to stigmatize

— without justification — schools that can be identified as having a

racial or ethnic majority. The Solicitor General, speaking for the

United States in this case, commented that ‘‘there is nothing

inherently ‘inferior about all-black schools, any more than all-white

schools are inferior, when the separation is not caused by state ac-

tion.”’ Brief for the United States, at 8 n. 52.

town busing of all students in schools that are over 50%

minority or 90% Anglo.’ For kindergarten through fourth

grade, the students in East Austin attending the relevant

schools will be bused through the congested center of the

city to West Austin. For fourth through eighth grade, the

flow will be reversed. The high schools will be integrated

by a system of ‘‘feeder’’ schools. This plan requiring

transportation of from 18,600 to 25,000 students, con-

sisting of from 32% to 42% of the entire school

population,‘ was ordered despite the District Court’s

‘This ‘‘triggering’’ condition of the plan requires further com-

ment. Describing it, the Court of Appeals stated as follows:

‘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 anv

of these schools to fall outside of the ‘naturally deseereeated’ range,

the schools would be brought within the Finger Plan 4-4-4 svstem."'

App. to Pet. for Cert., at 28 (emphasis added).

This aspect of the plan clearly reveals that the plan is designed to

achieve some predetermined racial and ethnic balance in the schools

rather than to remedy the constitutional violations committed by the

school authorities. As described by the Court of Appeals, the plan is

impermissible under our holding Pasadena City Board of Education

v. Spangler, _— U.S. __ (1976).

‘In defending the high percentage of children proposed to be

bused in Austin, the Court of Appeals relied on superficially com-

parable percentages of children that were to be transported under the

plan approved in Swann. The school district before the Court in

Swann included Mecklenburg County as well as the city of Charlotte.

As the Court said: ‘‘The area is large — 550 square miles — spanning

roughly 22 miles east-west and 36 miles north-south."’ 402 U.S., at 6.

Although it included a metropolitan area, much of the district was

rural, requiring the transportation of pupils quite apart from

desegregative efforts. Because of this situation in Swann, it is unduly

simplistic to compare the percentages of children bused. The situation

in Austin in simply not comparable.

conclusion that such a plan would involve a ‘‘risk to health

and probable impingement of education for students

younger than the sixth grade... .’’ App. to Pet. for Cert.,

at 53.

Whether the Austin school authorities intentionally

discriminated against minorities or simply failed to fulfill

affirmative obligations to eliminate segregation, see Keyes

v. School District No. 1, Denver, Colorado, 413 U.S. 189,

217-253 (1973), (POWELL, J., concurring in part and

dissenting in part), the remedy ordered appears to exceed

that necessary to eliminate the effect of any official acts or

omissions. The Court of Appeals did not find and there is

no evidence in the record available to us to suggest that,

absent those constitutional violations, the Austin school

system would have been integrated to the extent con-

templated by the plan. If the Court of Appeals believed

that this remedy was coextensive with the constitutional

violations, it adopted a view of the constitutional

obligations of a school board far exceeding anything

required by this Court.

The principal cause of racial and ethnic imbalance in

urban public schools across the country — North and

South — is the imbalance in residential patterns. Such

residential patterns are typically beyond the control of

school authorities. For example, discrimination in housing

— whether public or private — cannot be attributed to

school authorities. Economic pressures and voluntary

preferences’ are the primary determinants of residential

patterns.

‘See Keyes, 413 U.S., at 224-253 (POWELL, J., concurring in

part and dissenting in part). The tendency of citizens of common

national or ethnic origins to form homogencous residential patterns in

our cities is a familiar demographic characteristic of this country.

I do not suggest that transportation of pupils is never a

permissible means of implementing desegregation.® |

merely emphasize the limitation repeatedly expressed by

this Court that the extent of an equitable remedy is

determined by and may not properly exceed the effect of

the constitutional violation. Thus, large-scale busing is

permissible only where the evidence supports a finding

that the extent of integration sought to be achieved by

busing would have existed had the school authorities

fulfilled their constitutional obligations in the past. Such a

standard is remedial rather than punitive, and would

rarely result in the widespread busing of elementary-age

children.’ A remedy simply is not equitable if it is dis-

proportionate to the wrong.

MR. JUSTICE BRENNAN and MR. JUSTICE

MARSHALL dissent because they are persuaded that the

Court of Appeals correctly interpreted and applied the

relevant decisions of this Court.

*See id., at 242-252.

"A related equitable principle, also applicable in fashioning a

desegregation remedy, is that a court has the duty to ‘‘balancfe] . . .

the individual and collective interests.”’ Milliken v. Bradlev, 418 U.S.,

at 738. The individual interests at issue here are as personal and im-

portant as any in our society. They relate to the family, and to the

concern of parents for the welfare and education of their children —

especially those of tender age. Families share these interests wholly

without regard to race, ethnic origin, or economic status. It also is to

be remembered, in granting equitable relief, that a desegregation

decree is unique in that its burden falls not upon the officials or

private interests responsible for the offending action but, rather, upon

innocent children and parents.

UNITED STATES of America,

Plaintiff-Appellant,

Dedra Estell Overton et al.,

Intervenors-Appellants,

Vv.

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 Méexican-

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 I). At the time of that decision,

the AISD was 65 percent Anglo, 20 percent Mexican-

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

the black students and 58 percent of the Mexican-

Americans attended schools that contained over three-

fifths minority' students. The district court, on remand

from our en banc decision, adopted the desegregation plan

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

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

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

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

45 percent of the Mexican-Americans still attend schools

that are over three-fifths minority. Progress has been

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

This Austin case differs from the one we considered in

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

Supreme Court decision in Keyes? on the burdens of the

plaintiffs and defendants. Second, we must measure the

constitutional sufficiency of the new desegregation plans

the AISD and the intervenors have submitted.

I. PROCEDURAL HISTORY

This school desegregation case was filed in August 1970

by the United States against the Texas Education Agency

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

plaint alleged that (1) historically, the defendants had

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

so, and (2) the defendants discriminatorily assigned

Mexican-Americans to schools identifiable as: Mexican-

American schools or as schools intended for blacks and

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

American and black students.

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

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

Mexican-Americans. Certain blacks and Mexican-Ameri-

cans intervened on their own behalf and as representatives

of those similarly situated.

After the parties and the United States Department of

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

desegregation plan, the district court consolidated a hear-

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

held that there had been no de jure discrimination against

Mexican-Americans and afforded them no relief. It then

held that the ‘‘vestiges of a dua! system continue to exist

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

cations, the AISD plan for establishing a unitary school

system in Austin. The high schools and junior high schools

were to be desegregated primarily by busing about 2200

blacks to previously predominantly white schools. The

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

schools each. One week per month the students of each

cluster were to meet together to engage in certain planned

activities. The district court found ‘‘that elementary

students would be in a desegregated environment as much

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

This Court, sitting en banc, reversed and remanded the

case to the district court with directions to eliminate the

unconstitutional segregation of Mexican-American and

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

the AISD had caused and perpetuated the segregation of

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

mantled this dual system. The Court further held that the

educational status of Mexican-American students was in-

ferior to that of their Anglo counterparts and that Mexi-

can-Americans in Austin were a separate ethnic minority

within the ambit of the Equal Protection Clause. Because

school authorities, by their actions, contributed to the

segregation of Mexican-Americans in the Austin schools,

we held that these students were denied the equal protec-

tion of the laws.

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

A majority of the Court directed the district court to

eliminate the dual school system and itemized a hierarchy

of desegregation tools that the court should consider us-

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

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

give the school board a delay, and confuse the district

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

some extent been borne out by later events. The district

judge admitted to the attorneys in this case that he was

baffled by the majority opinion on remedy and asked for

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

both the intervening appellants and the AISD) was to

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

tion was denied over the dissent of five judges. United

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

1001 (en banc).

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

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

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

bility of joining in the submission of a single desegregation

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

AISD, the United States, and the intervenors were ordered

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

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

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

Opportunity to formulate and submit a plan to the

Court before the Court or other parties consider alter-

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

day, the intervenors and the AISD filed desegregation

plans. The Government has yet to file any plan.

The AISD’s plan would establish six sixth grade centers

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

The intervenors’ plan would require the busing of all

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

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

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

eighth-grade students at predominantly Anglo schools in

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

The plan would also close the one predominantly minority

high school remaining in Austin (Johnston) and bus its

students to the remaining high schools. The black in-

tervenors added an objection to the 1971 closing of the

black high school (Anderson) and black junior high school

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

reopened and used in any desegregation plan adopted by

the court. The district judge conducted the trial for twelve

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

and Order’’ on August 1, 1973.

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

in the past, intentionally segregated black students, it must

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

court held that its finding of past intentional segregation

of blacks constituted a prima facie case of intentional se-

gregation of Mexican-Americans. It concluded, however,

that the AISD had successfully rebutted this prima facie

case by demonstrating that its racial policies were

unrelated to its treatment of Mexican-Americans and

that there was an absence of segregative intent toward

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

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

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

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

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

the black intervenors’ challenge of the closing of Ander-

son and Kealing schools and adopted, with minor modi-

fications, the AISD’s plan for establishing an integrated

school system. Because Mexican-American students are

an identifiable minority entitled to equal protection of

the laws, the court further held that they were entitled

to equal educational opportunties, including the setting

up of special educational programs, such as bilingual

and bicultural education.

The United States and the plaintiff-intervenors have ap-

pealed from this Memorandum Opinion and Order of the

district court.

Il. 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 unetjual 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-

Fe ae

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 / 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 vel 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-

: 58

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 J 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.

~er

Bre ree oe

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 ‘ta neighborhood school plan, ab initio, upon a

clear and established pattern of residential segregation in

the face of an obvious and inevitable result’’. /d.

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

effect tests for finding the state action that is a prerequisite

to establishing a constitutional violation. But, in both

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

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

result of segregated schools.

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

The Mexican-American intervenors argue that the

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

Keyes because that case does not establish that segregative

intent is a necessary element of unconstitutional school

segregation. The intervenors point out that the Keyes

holding is limited by the plaintiffs’ concession in that case

that they had the burden of proving intentional state ac-

tion and by the obvious segregative purpose of the Denver

school ‘authorities. See generally Hart v. Community

School Board of Education, New York School District

#21, 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

a person intends the natural and foreseeable consequences

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

faithful to the Keyes requirement of proof of segregative

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

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 ‘inherently 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, § L.Ed.2d 110, 113, 116 (unconstitutionality of state statute

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

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

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

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

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

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

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

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

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

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

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

Apart from the need to conform Cisneros and Austin I

to the supervening Keyes case, there are other reasons for

attributing responsibility to a state official who should

reasonably foresee the segregative effects of his actions.

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

evidence of the official’s intentions. Rather than announce

his intention of violating antidiscrimination laws, it is far

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

criminatory practices in ways that are devious, by methods

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

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

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

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

367, 383-85, 88 S.Ct. 1673, 1682-1683, 20 L.Ed.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 objective.

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

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

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

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

in another area (Park Hill).

1983, the statute under which many school desegregation

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

read against the background of tort liability that makes a

man responsible for the natural consequences of his ac-

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

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

we find any reason for applying a standard different from

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

Legislative and Administrative Motivation in Constitu-

tional Law, 79 Yale L.J. 1205, 1292 n.258 (1970).

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

formulation. Our holding that there was unlawful state-

imposed segregation was based in part on our finding that

affirmative action by the school authorities could have re-

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

ticizes this approach because it would put

virtually all school districts . . . under massive

desegregation orders. Racial and ethnic imbalances

occur wherever there are racial or ethnic minorities,

and no school district can measure up to a standard

which requires that it have taken affirmative action to

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

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

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

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

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

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

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

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

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

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

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

3 (1974).

promote the integration of all racial and ethnic

minorities throughout its history.

Our holding in Austin J placed no such burden on school

boards. Our statement about affirmative action immedi-

ately followed our finding that the foreseeable conse-

quence of various actions of the AISD was the segregation

of Mexican-Americans. Hence, our holding of unlawful

segregation was based on the foreseeability and avoidabili-

ty of that segregation. See Fiss, The Charlotte-

Mecklenburg Case—Its Significance for Northern School

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

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

be clear after Keyes that the refusal of school authorities

to take affirmative action that would desegregate the

school system may be probative of the segregative intent

underlying various actions of those officials.’

D. The Prima Facie Case of Unlawful Segregation of

Mexican-Americans in Austin

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

found that there was substantial segregation of Mexican-

Americans in the Austin school system. That finding is

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

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

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

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

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

vations about the approach of the Keyes majority: The Court

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

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

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

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

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

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

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

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

bined predominance of black and Mexican-American stu-

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

The statistics paint a clear picture of the extensive segrega-

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

students attending one of the 70 elementary and junior

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

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

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

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

Mexican-American pre-high school students attend one

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

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

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

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

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

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

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

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

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

499, 505 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-

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

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

67, 19 L.Ed.2d 103:

A similar inference [of deliberate discrimination against

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

number of Negroes attending school with white children is

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

white school children in public schools.

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

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

80 percent Anglo.

Mexican-American students attend Johnston High

School, which is 99 percent minority. Over 55 percent

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

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

{8} 2. Segregative actions taken with segregative in-

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

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

with the exception of the strip between East and West

Austin, has ethnically segregated housing patterns."’

Hence, the natural, foreseeable, and inevitable result of

the AISD’s student assignment policy has been segregated

schools throughout most of the city. Moreover, as we

found in Austin J, ‘‘[ajffirmative 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.''

Bast 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 / 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 /

that the AISD has, in its choice of schowl 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.

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 AISD’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 7 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 counterparts in Austin,

'*The district court held that the AISD had, in the past, assigned

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

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

tion of the Austin school district triggers the Keyes presumption of

unlawful segregation in the remainder of the district. The AISD

responds that this Keyes presumption is inapplicable to the case before

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

has no probative value with respect to concentrations of Mexican-

American students when the Mexican-American Students were

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

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

need not resolve this dispute about the Keyes presumption because,

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

actions intentionally calculated to segregate the Mexican-American

students throughout the district.

AISD had to keep these children in separate schools,

isolate them in Mexican-American neighborhoods, or

prevent them from sharing in the educational, social,

and psychological benefits of an integrated educa-

tion.

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

acted to segregate Mexican-Americans in the pre-Brown

years.’

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

programs are viewed as intentional segregation, no causal

relationship exists between them and the present Mexi-

can-American concentrations in the schools. We rejected

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

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

now reaffirm our previous rejection of this AISD conten-

tion.

The AISD’s primary argument with regard to its

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

schools and the drawing of attendance zones for those

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

creasing the concentrations of Mexican-Americans in the

East Austin schools, this segregation resulted from the

preexisting residential patterns and not from segregative

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

‘(T]he 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. /

'*After the Supreme Court decision in Brown, the AISD nominal-

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

blacks and whites. But the board continued to perpetuate segregation

of Mexican Americans.

467 F.2d at 867.

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

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

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

the imposition of the neighborhood assignment

system froze the Mexican-American students into the

Robb and Anthon schools. There could have been no

other result and this is strong evidence of segregatory

intent.

See also United States v. Midland Independent School

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

_. *ULS. —___, 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 1..Ed.2d 103.

In rejecting for a second time these contentions of the

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

words of United States v. Midland Independent School

District, 519 F.2d at 64:

the facts in the Austin and Corpus Christi cases,

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

the school boards in those districts to isolate, to

segregate, Mexican-Americans and blacks.

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

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

great deal of its argument relies. This misconception goes

to the heart of the responsibilities of school authorities to

provide equal educational opportunities for the students in

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

the school district was prohibited from segregating Mexi-

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

affirmative action to attempt to avoid Mexican-American

concentrations in the schools which resulted from residen-

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

we have held that Mexican-American students are entitled

to the same benefits of Brown as are blacks, school

authorities may not constitutionally use a neighborhood

assignment policy creating segregated schools in a district

with ethnically segregated residential patterns. A segre-

gated school system is the foreseeable and inevitable result

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

may infer that the school authorities have acted with se-

gregative intent.

The segregation is de jure and unconstitutional because

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

vious (though not necessarily predominant) intent to cre-

ate or maintain segregated schools. School authorities are

then ‘‘clearly charged with the affirmative duty to take

whatever steps might be necessary to convert to a unitary

system in which racial discrimination would be eliminated

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

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

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

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

neighborhood assignment policy in a residentially segre-

gated school district, but also the taking of an extensive

series of actions dating back to the early twentieth century

that had the natural, foreseeable, and avoidable result of

creating ‘and maintaining an ethnically segregated school

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

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

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

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

III. 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 plan has only an incidental ef-

fect on these students. Finally, the AISD contends that

complete desegregation of the elementary schools would

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

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

segregation plan is limited to the sixth grade.

As the AISD describes it,

[t]he Sixth Grade Center Plan essentially estab-

lishes six elementary schools in different geographic

parts of the School District as centers for all sixth-

grade students in the School District. Those buildings

which are not serving as elementary schools and

would become the sixth-grade centers would be emp-

tied of all students K through grade 5 so the building

would be available for the Sixth Grade Center, Stu-

dents in those schools would be assigned to the

nearest available elementary school.

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

junior high schools in Austin, Of the six Sixth Grade

Centers, two would have Anglo populations of over 80

percent; the sixth grade populations at the two junior high

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

timates that the plan would require the busing of about

1900 students, and that about 62 percent of those students

would be Anglo.

In an effort to provide equal educational opportunities

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

employment of two assistant superintendents, one to be

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

jority-to-minority transfer provisions for both black and

Mexican-American students; begun to develop a bilingual

educational program; made several changes in boundary

lines assertedly to produce a better racial and ethnic com-

position in the city schools; and established an advisory

committee to investigate and propose programs for minor-

ity students that may be used in Austin,

113* 2. The Plan’s deficiences, As we did in Austin 1,

we congratulate the AISD for some of the creative educa-

tional techniques it has proposed and adopted for equaliz-

ing educational opportunities of minority students in

Austin, We cannot applaud, however, the channeling of

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

cumventing its ‘‘affirmative duty to take whatever steps

might be necessary to convert to a unitary system in which

racial [and ethnic] discrimination would be eliminated

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

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

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

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

to the district court provided for meetings of students one

week per month to participate in certain cultural activities.

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

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

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

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

gregation plan’’, which leaves untouched the students in

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

derlay our rejection of the AISD’s plan in Austin J, 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, 5 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

climination 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 sdhool ‘television plan’’ must be rejected as

a legitimate technique for the conversion of the DISD from a

dual toa unitary educational system,

517 F.2d at 103,

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

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

First it cites the Supreme Court’s holding that

the district judge or school authorities should make

every effort to achieve the greatest possible degree of

actual desegregation, taking into account the prac-

ticalities of the situation.

Davis v. Board of School Commissioners of Mobile Coun-

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

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

conclusory, and unsupported assertion that children under

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

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

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

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

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

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

Charlotte-Mecklenburg Board of Education, 1971, 402

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

575,

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

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

tion plan is that the black intervenors and the United

States should be precluded from objecting to the Sixth

Grade Center Plan because they submitted no plan of their

own. The Mexican-American intervenors, however, did

propose a desegregation plan, in which the black in-

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

though we are disappointed by their noncompliance with

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

no basis for denying them the right to criticize the plan

submitted by the AISD.

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

ply with the mandate of Austin J. 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 I] 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 J majority also held that if, after trying the

pairing or clustering of schools, the realignment of school

assignment zones, and the relocation of portable school

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

must consider the pairing or clustering of schools in non-

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

abuse of discretion for the court to refuse to give serious

consideration to the last desegregation method despite the

concession of the AISD that

{cjountless efforts by school officials, consultants,

and visiting team shave found it impossible to pro-

duce significant desegregation by boundary line

changes, contiguous pairing of schools, magnet

schools, or other effective means short of massive

crosstown busing incident to non-contiguous pairing

of...schools....'°

{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 J, 467 F.2d at 876-77, Appendix A.

. —— ———

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

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

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

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

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

found that the school closings were based on nonracial

considerations. This finding is clearly erroneous. The

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

school closings was the fear that whites would flee the

school system rather than send their children to these East

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

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

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

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

Kealing Junior High School must therefore be reopened

and used as part of the regular public school program of

the District. The district court approved the conversion of

Anderson High School into Austin Community College,

and the conversion has already taken place. Because it has

closed Anderson as a high school, the AISD on remand

should present a program that will permit the burdens of

desegregation to be as fairly distributed as they would

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

munity college.”°

B. The Finger Plan

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

mitted a desegregation plan prepared by Dr. John A.

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

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

East Austin.

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

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

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

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

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

elementary schools that are over 50 percent minority

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

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

are over 90 percent Anglo would be bused to schools that

are over 50 percent minority. The practical effect of the

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

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

eighth-grade students in West Austin would be bused to

East Austin. Elementary and junior high schools that are

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

desegregated’’ and would remain unchanged. When

changing demographic patterns cause any of these schools

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

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

system. The high schools would be integrated by selecting,

for each high school, feeder schools that would maximize

the integration of that high school. Dr. Finger estimates

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

school students would be bused under his plan.??

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

gregation and has designed the plans presently being used in several

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

Carolina, which was approved by the Supreme Court in Swann y,

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

28 L.Ed.2d 554.

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

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

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

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

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

counter-productive in that it requires kindergarten-to-

fourth-grade Anglo students attending schools in minority

areas to be bused along with minority students to schools

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

minority students going to predominantly Anglo schools

to be bused along with their Anglo classmates to minority

areas. These results are dictated by the feature of the

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

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

ceiving schools’’. About 357 Anglos presently attending

minority schools and about 168 minority students present-

ly attending Anglo schools will be bused to the new

schools.’' These students represent only about | percent of

eee eee

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 a// 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-cighth-grade students from the elementary and junior high schools

the pre-high school students in Austin. These percentages

are simply not substantial enough to invalidate the entire

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

cludes that a constitutionally sufficient degree of desegre-

gation can be achieved without busing these 525 students

across town, the Finger Plan may be so modified.

The AISD also criticizes the Finger Plan because the

newly created elementary and middle schools would be (by

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

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

percent minority. This discrepancy is due to the fact that

the ‘‘naturally desegregated’’ schools left untouched by

the Finger Plan are substantially more than 60 percent

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

ately large number of Anglo students to remain at their

present schools.

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

tional command to desegregate schools does not mean that

every school in every community must always reflect the

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

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

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

district judge or school authorities should make every ef-

fort to achieve the greatest possible degree of actual dese-

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

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

trict court on remand.**

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

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

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

West Austin,

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

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

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

system, though perhaps logical for the purpose of facilitat-

ing school desegregation, is basically inconsistent with

sound educational principles. This argument is based sole-

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

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

the same schools (the middle schools) with students four

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

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

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

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

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

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

middle schools with junior high schools housing the sixth,

seventh, and eighth grades.

[23] The AISD next brings to our attention several

problems that would be created by the Finger Plan busing

program. It first argues that the Plan would require the

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

traffic system which provides no adequate east-west ar-

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

would have to be bused through the large complex of the

downtown business area, the state office buildings, and

the University of Texas, and this would produce a highly

congested traffic situation. The AISD also cites the eco-

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

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

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

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

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

would render the Plan ineffective as a desegregation de-

vice.*?

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

reason these remedial costs are relevant to judicial deci-

sionmaking in a school desegregation case. We point this

out because the AISD seems to be arguing that these costs

are relevant to the determination whether there is a consti-

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

the harmfulness of the school segregation is sufficient to

justify the remedial costs of correcting that segregation.

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

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

*The AISD contends that whites will flee the Austin public

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

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

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

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

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

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

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

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

tem. It is wholly speculative whether white flight will eventually render

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

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

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

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

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

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

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

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

The Supreme Court stated the controlling principle in

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

566:

a school desegregation case does not differ funda-

mentally from other cases involving the framing of

equitable remedies to repair the denial of a constitu-

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

the individual and collective interests, the condition

that offends the Constitution.

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

desegregation case. First, the Court must determine

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

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

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

at this point that the balancing of interests becomes rele-

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

*The Court stated in Brown // 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 // 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,

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

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

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

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

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

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

desegregation of the Memphis parks should be delayed because of the

expenses it would generate:

the least costly method of correcting the constitutional vi-

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

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

the constitutional violation must be corrected.

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

pleting the desegregation plan for Austin, to minimize the

economic cost of busing, the traffic congestion that the

busing plan will cause, the time that school children must

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

leave the public school system rather than participate in

the desegregation plan.** The overriding judicial goal,

it is Obvious that vindication of conceded constitutional rights

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

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

citizens of Memphis accept the questionable premise implicit in

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

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

citizens,

And the Court has repeatedly held that segregative state action must

be terminated and remedied despite public disagreement with the con-

stitutional principles. See, e. g., United 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 I/, 349 U.S. at 300, 75 S.Ct. at 756, 99

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

20, 62 L.Ed. 149, 163.

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

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

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

tion of the harm", Id,

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

appropriate weight to the following testimony of Dr. Finger:

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

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

that One can Overcome it, but my attempt was to minimize it as

much as possible,

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

mises realistically to work, and promises realistically to

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

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

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

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

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

C. Formulation of the Desegregation Decree

{26} We affirm the district court order that the AISD

continue in its active efforts to recruit Mexican-American

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

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

total faculty that approaches the ratio of mexican-ameri-

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

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

American to Anglo teachers in each school should be

substantially the same as it is throughout the district. See

United States v. Montgomery County Board of Educa-

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

We have already held that the AISD has adequately

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

467 F.2d at 870 n. 37.

(27] The AISD had an ongoing bilingual-bicultural

education program that the Superintendent of Schools tes-

tified would continue ‘‘regardless of the level of federal

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

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

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

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

properly made this commitment a part of its decree.

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

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

66, 69, that

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

considerations with respect to the locating of new

schools, except where inconsistent with ‘‘proper

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

means to eradicate the vestiges of the dual system.

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

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

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

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

corporating into its order the commitment of the AISD to

locate newly constructed schools in such a manner as to

maximize integration. When formulating the Austin dese-

gregation decree on remand, the district court should ap-

prove new school sites only if they would operate, within

the context of the new desegregation decree, to maximize

integration in the district.

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

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

gregation plan consistent with this opinion and the deci-

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

should conform to one of the approaches outlined by Dr.

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

in his testimony.

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

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

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

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

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

1974, 418 U.S, 717, 94 8.Ct, 3112, 41 L.Ed.2d 1069.

V. 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, 94S.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.

88 89

APPENDIX i

AUSTIN INDEPENDENT SCHOOL DISTRICT macnn

ETHNIC COMPOSITION OF STUDENTS* School Total _Black American _ Anglo

1975-76 JUNIOR HIGH

SCHOOLS

Mexican-

School Total Black American’ Anglo Allan 836 268 575 20

(31) (67) (2)

ae” Bedichek 1168 75 181 912

(6) (16) (78)

Anderson 2432219 $7 «286 Burnet 1029139 70 820

(9) (2) (89) , (13) (7) (80)

Austin 1842-210 502-1130 Dobie 1110-206 118 786

(12) (27) (61) . (18) (11) (71)

Crockett 3095 239 299 2557 Fulmore 921 : = =

(8) (10) (82)

L. B. Johnson 1656 =: 388 127 1141 Lamar 750 a _

(23) (8) (69)

Johnston 1441 423 1003 15 Martin 957 74 851 32

(29) (70) (1) a (8) (89) (3)

Lanier 2285 —-291 151 1843 Murchison 873-109 18 746

(13) (6) (2!) (13) (2) (85)

McCallum 1407 94 203 «1110 O. Henry 694 57 80 557

(7) (14) (79) (8) (12) (80)

Reagan 1688 502 171 1015 Pearce 1308 = 435 104 769

(30) (10) (60) (33) (8) (59)

Travis 1900 «154 803 943 Porter 934 105 147 682

(8) (42) (50) (11) (16) (73)

SENIOR HIGH JUNIOR HIGH

SCHOOLS 17,746 2520 3316 11,910 SCHOOLS 10,607 1601 2708 6298

TOTALS (14) (19) (67) TOTALS (15) (26) (59)

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 654 13 80 561

(2) (12)

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