Opposition — Austin Independent School District v. United States

“Supreme Court, U,

FILED

FEB % 1979

No. 78-897

i

ICuary

wiAKw ID we

, IR. CLERK

In the Supreme Court of the Wnited States

OCTOBER TERM, 1978

—-

TEXAS EDUCATION AGENCY (AUSTIN INDEPENDENT

SCHOOL DISTRICT), ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

WapeE H. McCREE, JR.

Solicitor General

Drew S. Days, Ill

Assistant Attorney General

BRIAN K. LANDSBERG

MILDRED M. MATESICH

Attorneys

Department of Justice

Washington, D.C. 20530

INDEX

Page

I I pid iii sill aaa cbc dicbphasatonntenesuenaaiietins l

I Sei sida scsi ki iiiai diniitcentrdvcsidisadievecdicewedeveess l

I SUIT |. discon padhousanpbhcbassieeancienepiiionsenpeanesie 2

SE IINTIET sctedatutdvaccctpubstudselidvedetaveensoabinersovepnucssiandnevens 2

Pe IITD. dildi rocks enisshdaibannss tiietdithinaninsisithbinannadanngntuniieepresveny 4

SINT | shat abdbleishesdundeqiayebssaulinduduneséaviclosesvedseverstabies 11

CITATIONS

Cases:

Brown v. Board of Education, 347

SU MERE initoseetibie aibcuibintonishaastaittscorcnvecessvecbienss 8

Buchanan v. Warley, 245 U.S. 60 oo... ee 8

Dayton Board of Education v. Brinkman,

GEENA EE Gudnldbngdidbabainnedidaseviaiaccensoncs 4, 6, 10

Keyes v. School District No. 1, 413 |

NIE: SUN (iis aes atl inland buapteibnihaiahseeesoenteooeeyenege 9

Morales v. Shannon, 516 F. 2d 411, cert.

I Ie SO I cnkciniicsnceieccsisevssiccssessececeee 9

Oliver v. Michigan State Board of Education,

508 F. 2d 178, cert. denied, 421

MN IEEE Wldibacacatsadbbedivucdentaniessanactondsneonscecscencees 9

Swann v. Charlotte-Mechlenburg Bd. of

SII, IED AP TR citonodiebiveccddingsemsasseenioceesees 9

United States v. School District of Omaha,

521 F. 2d 530, cert. denied, 423

TE: bales bies bidishekiicelibsidetbasibaibedacdsddeinwbideserersnnacee 9

United States v. Texas Education Agency,

SE PEEL wdnhidiacidaloddedeinpbatnadéninatsihivdhesunasane 2

il

Page

_ Cases (continued): ’

Village of Arlington Heights v. Metropolitan

Housing Development Corp., 429

SEAMEN ANN tsdesbeseaatiacagcaitbasassnackiccerass 4, 6, 7, 8, 10

Washington v. Davis, 426 U.S.

er RAE REN ALE ORO 3, 4, 5, 8, 10

Statute: |

Civil Rights Act of 1964, Section 407,

oR ERE Te SO 2

Miscellaneous:

Note, Reading the Mind of the School

Board: Segregative Intent and the De

Facto/ De Jure Distinction, 86 Yale L. J.

WF POON Mecdlbuiziiaahabsc bes: 9

In the Supreme Court of the Hnited States

OcTOBER TERM, 1978

No. 78-897

TexaS EDUCATION AGENCY (AUSTIN INDEPENDENT

SCHOOL DISTRICT), ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals denying petitioner’s

request for rehearing en banc (Pet. App. 1-13) is reported

at 579 F. 2d 910. The opinion of the court of appeals on

remand from this Court (Pet. App. 14-44) is reported at

564 F. 2d 162. The opinion of the court of appeals on the

issue of relief and on liability for discrimination against

Mexican-Americans (Pet. App. 51-93) is reported at 532

F. 2d 380. The opinion of the court of appeals en banc as

to liability is reported at 467 F. 2d 848. The memorandum

opinions and orders of the district court as to liability and

remedy (Pet. App. 94-131) are unreported.

JURISDICTION

The judgment of the court of appeals (Pet. App. 14-44)

was entered on November 21, 1977. Petitioner’s request

(1)

for rehearing en banc was denied on September 7, 1978

(Pet. App. I-13) and the petition for certiorari was filed in

this Court on December 5, 1978. The jurisdiction of this

Court is invoked under 28 U.S.C. 12541).

QUESTION PRESENTED

Whether the court of appeals properly complied with

this Court’s order remanding the case for reconsideration

of its earlier conclusion that petitioner had engaged in

intentional discrimination against Mexican-American

students in the Austin schools.

STATEMENT

The United States instituted this school desegregation

suit in the United States District Court for the Western

District of Texas pursuant to Section 407 of the Civil

Rights Act of 1964, 42 U.S.C. 2000c-6. On September 4,

1970, the district court entered an interim order directing

petitioner to implement desegregation procedures in non-

student assignment aspects of school operations.

Following a six-day trial in 1971 the district court held

that petitioner had not discriminated against Mexican-

Americans (Pet. App. 128-129), but that the dual school

system historically maintained for blacks had not been

eliminated (id. at 131). It entered an order approving

a plan to close two predominantly black secondary

schools and to reassign their students to predominantly

Anglo schools (id. at 120-123).

The court of appeals, sitting en banc, reversed. Six

judges joined an opinion detailing a history of discrimina-

tion by petitioner (United States v. Texas Education

Agency, 467 F. 2d 848, 852-875 (5th Cir. 1972) (en banc)

(hereafter referred to as Austin /)). These six judges

concluded that petitioner had engaged in invidious

discrimination against Mexican-Americans as well as

blacks, and that the district court's findings were clearly

erroneous. The other eight judges concurred in the result,

concluding that “discriminatory segregation exists against

Mexican-American students and that the proposed part-

time integration plan of the school district is inadequate

as a desegregation plan” (id. at 885). The court remanded

the case to the district court with directions to identify

those schools that were segregated as a result of racial or

ethnic discrimination and to eliminate the effects of the

segregation by using specified desegregation techniques

listed on a priority basis (id. at 884-885).

On remand the district court once more concluded that

petitioner had not discriminated against Mexican-

Americans (Pet. App. 100); it approved a plan to

desegregate the sixth grade of the black elementary

schools (id. at 107).

The court of appeals again reversed and held, for the

second time, that petitioner had discriminated against

both blacks and Mexican-Americans (Pet. App. 70), and

that the partial desegregation plan approved by the

district court for black students was constitutionally

inadequate (id. at 73). The school district’s petition

for certiorari was granted by this Court and the judgment

of the court of appeals was vacated and the case

remanded for reconsideration in light of Washington v.

Davis, 426 U.S. 229 (1976) (id. at 45-50).' The court

'In our response to the certiorari petition in Austin I], we observed

that it might be “useful” for this Court to remand the case for

reconsideration in light of its intervening decision in Washington v.

Davis, and thus, we did not oppose the granting of certiorari. See

Brief for the United States, Texas Education Agency v. United States,

No. 76-200, O.T. 1976 at 13. However, we also stated (ibid.) that if

the Court

‘ were to undertake plenary review of this case, we would

urge that the judgment of the panel be affirmed, in light of the

evidence of extensive intentional discrimination against

Mexican-Americans.

Because the court of appeals in Austin J/// correctly analyzed that

evidence in light of Washington v. Davis, we believe further review by

this Court is unwarranted.

of appeals, applying the criteria of Washington v. Davis

and Village of Arlington Heights v. Metropolitan

Housing Development Corp., 429 U.S. 252 (1977),

reaffirmed its earlier conclusion that petitioner had

engaged in intentional discrimination against Mexican-

Americans (Pet. App. 41), and remanded the case to the

district court to reconsider a remedy in light of this

Court’s decision in Dayton Board of Education v.

Brinkman, 433 U.S. 406 (1977) (ibid.).

ARGUMENT

The court of appeals has fully complied with this

Court’s mandate to reconsider its decision in Austin // in

light of Washington v. Davis and its reaffirmance of

Austin II is correct.

Petitioner contends that in reaffirming its two prior

findings of intentional discrimination by petitioner against

Mexican-Americans, the court of appeals failed to apply

the standards set out in Washington v. Davis and

Arlington Heights because the court has “again found

unconstitutional segregation of Mexican-Americans solely

by the application of a foreseeable consequences standard

to disproportionate impact” (Pet. 2). That characteriza-

tion of the court of appeals’ opinion in Austin II// is

unfounded.” In fact, the court expressly acknowledged its

duty under Washington v. Davis to ascertain whether the

discrimination was purposeful, and in making that inquiry

2In view of the court of appeals’ explicit rejection of a mechanical

application of the foreseeable consequences test in Austin III (Pet.

App. 8-9), we believe there is no need for this Court to stay action on

this petition pending its decisions in Dayton Board of Education v.

Brinkman, No. 78-627, O.T. 1978, and Columbus Board of Education

v. Penick, No. 78-610, O.T. 1978, both of which challenge findings of

discriminatory intent allegedly based solely on utilization of a

foreseeable consequences test. The petitioners in Columbus and

Dayton have also argued that the remedies in those cases do not

comport with the guidelines articulated by this Court in its prior

Dayton decision. However, the court of appeals has remanded this

case to the district court for the specific purpose of affording it the

opportunity to formulate a remedy in accordance with Dayton.

it looked to the types of evidence identified as relevant in

Arlington Heights (Pet. App. 20-23).

At the beginning of its opinion in Austin //] the court

of appeals made clear its understanding that dispropor-

tionate impact by itself will not support a finding of

intentional discrimination (Pet. App. 26):

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. * * * We are well aware that some official

actions on which a plaintiff hinges an allegation of

unconstitutional! discrimination have historically been

motivated by racially and ethically 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 discrimina-

tion. In those circumstances, that a discriminatory

result was the natural and foreseeable consequence of

In addition to mischaracterizing the basis for the court's decision

in Austin J/I, petitioner throughout its brief misstates the issue

under consideration on remand (Pet. 12-13, 19, 27). That issue was

not—as petitioner erroneously claims—whether the school district

had rebutted a prima facie showing of intentional discrimination

against Mexican-Americans, but rather whether the evidence upon

which the court relied in Austin / and Austin //] demonstrated the

requisite racially discriminatory intent to constitute a prima facie

case. Washington v. Davis does not turn on rebuttable presumptions:

its concern is with the prerequisites for a finding of invidious

discrimination. In remanding Austin // for reconsideration in light of

Washington v. Davis this Court presumably intended for the court of

appeals to reexamine the record for evidence of improper purpose or

inteft and to make explicit its conclusions on that issue. The court of

appeals dutifully carried out that task, and petitioner's incorrect

contention that the “real question in the case” (Pet. 13) is whether it

has rebutted a prima facie showing should not obscure the substantial

evidence of segregative intent identified by the court of appeals.

the actions is insufficient to infuse the challenged acts —

with the type of discriminatory intent required by

Washington v. Davis and Arlington Heights.

While recognizing that disproportionate impact stand-

ing alone is not dispositive on the issue of discriminatory

intent, the court of appeals heeded this Court’s suggestion

in Arlington Heights, supra, 429 U.S. at 266, that such an

impact is “an important starting point” in determining

intent (Pet. App. 32). Thus, the court began its factual

analysis in Austin III by pointing out the substantial

degree of racial isolation of Mexican-Americans that

persists in the Austin schools where almost 40% of the

Mexican-American students attend schools where the

minority enrollment exceeds 90% (id. at at 31-33). The court

then turned its attention to the other evidentiary factors

held relevant in Arlington Heights on the issue of dis-

criminatory intent.‘

‘In discussing the facts (Pet. 19-27), petitioner implies that the

court of appeals usurped the fact-finding function of the district

court. That suggestion is incorrect. The court of appeals explicitly

states in its opinion in Austin JI] and in its opinion denying the

petition for rehearing that it is reversing because the district court

employed an erroneous legal standard in finding no intentional

discrimination against Mexican-Americans (Pet. App. 10, 34-35

n.17). Alternatively, the court holds that even under the “clearly

erroneous standard” the district court’s finding of no intentional

discrimination’ would warrant reversal (ibid.). Thus, the court in

Austin III exercised what this Court in Dayton Board of Education

v. Brinkman, supra, 433 U.S. at 417-418, has identified as the

proper function of an appellate court:

On appeal, the task of a court of appeals is defined with

relative clarity; it is confined by law and precedent, just as are

those of the district courts and of this Court. If it concludes that

the findings of the district court are clearly erroneous, it may set

them aside under Fed. Rule Civ. Proc. 52(a). If it decides that

the district court has misapprehended the law, it may accept that

court’s findings of fact but reverse its judgment because of legal

errors.

Looking first to “the historical background” of official

actions taken by petitioner with respect to Mexican-

Americans, Arlington Heights, supra, 429 U.S. at 267, the

court of appeals found the evidence—both direct and

circumstantial—to demonstrate’ pervasive purposeful

segregation of Mexican-American students in the Austin

school system dating back six decades (Pet. App. 34-38).°

That segregative race consciousness rather than race

neutrality motivated petitioner’s actions was apparent to

the court from such evidence as (1) the construction of

Comal Street School specifically for those Mexican-

Americans attending the only three schools in the district

having more than twenty Mexican-American students; (2)

the construction of Zavala School “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” and (3) the removal of all but

one Mexican-American pupil from Winn School in

response to a complaint from Anglo parents about

“Mexican” pupils at Winn (Pet. App. 9, 35-37).°

‘Petitioner attempts to minimize the significance of the evidence on

which the court relies in Austin /// by pointing out that it was “set

out in the minority opinion in Austin I” (Pet. 19, 20), a case which

petitioner claims “was decided under an erroneous legal standard”

(id. at 19).

The importance of the facts cited in Austin /// is in no way

diminished by their having first appeared in an opinion in which only

six of the fourteen judges sitting en banc i in Austin I joined. The other

eight judges fully agreed that petitioner was guilty of intentional

discrimination against Mexican-Americans and disagreed only as to

the appropriate remedy. Moreover, even if petitioner were correct

that the court applied an erroneous legal standard in Austin /, the

error would be in the standard, not in the facts to which it was

applied.

‘The court of appeals also pointed out that the Mexican-American

school had attendance zones overlapping those of predominantly

Petitioner maintains that the district court was correct

in excusing these acts of segregation as “a humane and

compassionate attempt by the School District * * * to

meet the special education needs” of Mexican-American

children (Pet. 22). The court of appeals properly rejected

that contention for the third time in Austin /// (Pet. App.

34 n.17). Racial animus is not a prerequisite to a finding

of invidious discrimination. In the years prior to this

Court’s decision in Brown v. Board of Education, 347

U.S. 483 (1954), separate schools, housing, and other

facilities for blacks and whites were also thought by some

to be in the best interests of both races. But such

“humane” considerations are not controlling where equal

protection has been denied. See Buchanan v, Warley, 245

U.S. 60, 80-81 (1917). Moreover, as the court pointed out

in Austin III, bilingual instruction for Mexican-American

students was introduced only comparatively recently in

the Austin schools; it certainly could not have justified the

establishment of separate schools for Mexican-Americans

at a time when teachers were prohibited by state law from

conducting classes in Spanish (Pet. App. 34-35 n.17).’

In addition to the direct evidence of intentional

discrimination reflected in the historical background of

Anglo schools (Pet. App. 34-35).

Much of this direct evidence of segregative intent is contained in

petitioner's own documents and records. Such contemporaneous

statements are “highly relevant” in illuminating a decision-making

body's intent. Arlington Heights, supra, 429 U.S. at 268.

’Petitioner strains to transform its “humane and compassionate use

of then accepted and proper educational techniques” (Pet. 14)

into the sort of neutral “purpose the government is constitutionally

empowered to pursue” approved in Washington v. Davis (Pet. 14-15).

But this effort to blur the conceptual distinction between “benign

motive” and neutral purpose must fail. A neutral purpose is by

definition a non-racial purpose. Here the alleged “benign motive” was

blatantly racial: its express object was to group Mexican-American

children in separate schools on the theory that they would do better

in such segregated facilities. Governments are not constitutionally

empowered to maintain dual school systems in the belief that it is

beneficial to educate the races separately.

the school district’s policies toward Mexican-American

students, the court of appeals in Austin //I found

considerable circumstantial evidence of segregative intent

in other actions by petitioner, including its decisions

pertaining to school construction and abandonment,

Swann v. Charlotte-Mecklenburg Bd. of Education, 402

U.S. 1, 21 (1971), and teacher assignment, Swann, supra,

402 U.S. at 18.8 For example, when Johnston Senior High

School and Martin Junior High School were built, the

district selected sites that maximized Mexican-American

enrollments and it rejected more central locations

that would have produced less isolation (Pet. App. 38).°

Overcrowding in predominantly Anglo elementary

schools was alleviated by building new schools, but

overcrowding in the Mexican-American schools was

alleviated by the use of portable classrooms (Pet. App. 38

& n.18).

The court of appeals pointed out that the school district

has for the most part assigned its few Mexican-American

teachers to schools with predominantly Mexican-

*Petitioner asserts that decisions as to construction, abandonment,

site selection, and attendance zones are but “elements of the

neighborhood school policy” (Pet. 16), but the court of appeals

properly recognized that such decisions have in fact been devices for

manipulating a facially neutral “neighborhood school” policy to

create and maintain segregated schools (Pet. App. 33). In the face of

that finding “the mere assertion of * * * a [neighborhood school]

policy is not dispositive.” Keyes v. School District No, 1, 413 U.S.

189, 212 (1973).

°The rejection of alternatives that would have had a less segregative

impact or no such impact is highly probative on the question of

intent. See United States v. School District of Omaha, 521 F. 2d 530,

538 n.13, 540 n.20, 542-543 (8th Cir.), cert. denied, 423 U.S. 946

(1975); Morales v. Shannon, 516 F. 2d 411, 413 (Sth Cir.), cert.

denied, 423 U.S. 1034 (1975); Oliver v. Michigan State Board of

Education, 508 F. 2d 178, 182, 184-187 (6th Cir. 1974), cert. denied,

421 U.S. 963 (1975). See generally Note, Reading the Mind of the

School Board: Segregative Intent and the De Facto/De Jure

Distinction, 86 Yale L. J. 317 (1976).

10

American enrollments, thereby reinforcing the segregated

identity of those schools (Pet. App. 39). When desegrega-

tion plans were implemented for black students in Austin

in 1955 and the 1960's they permitted black students to

transfer to Mexican-American schools but not to Anglo

schools, and “Mexican-Americans were invariably as-

signed to black schools but not Anglo schools” (Pet.

App. 40).

As this Court recognized in Arlington Heights, supra,

429 U.S. at 266, on occasion “a clear pattern, unex-

plainable on grounds other than race, emerges from the

effect of state action” even where the governing policies

appear neutral on their face. In the instant case the record

contains evidence not only of facially neutral policies

carried out in a way that increased the isolation of

Mexican-American students, but of non-neutral, explicitly

racial policies directed to that end. While it may be that

no single decision by the school district compels the

conclusion that it engaged in pervasive intentional

discrimination against Mexican-Americans, an examina-

tion of the whole range of evidence deemed relevant in

Washington v. Davis and Arlington Heights \eads

inexorably to that conclusion. In Austin /I/ the court of

appeals conducted such an examination and found

substantial evidence of invidious intent. Further review by

this Court is unwarranted.'°

Petitioner also challenges the court of appeals’ remand to the

district court for reconsideration of an appropriate remedy in light of

this Court's decision in Dayton Board of Education v. Brinkman. In

Dayton, supra, 433 U.S. at 420, it was held that where constitutional

violations are 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 incremen-

tal segregative effect these 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 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.

CONCLUSION

The petition for certiorari should be denied.

Respectfully submitted.

WADE H. McCreg, Jr.

Solicitor General

Drew S. Days, III

Assistant Attorney General

BRIAN K. LANDSBERG

MILDRED M. MATESICH

Attorneys

FEBRUARY 1979

The district court has not had an opportunity to apply that standard

in this case. Indeed, it has not even considered a remedy for the

desegregation of the Mexican-American schools. In these cir-

cumstances, the court of appeals was entirely correct in sending the

case back to the district court for its consideration of the question of

appropriate relief. There is no reason for this Court to deal with that

issue at this time.

DOJ-1979-02