Opposition — Austin Independent School District v. United States

In the Supreme Court_ of the

5 bout, | ¥

United States

OoctoBer Term 1978

No. 78-897

Texas Epucation AGENCY

(Austin Independent School District), et al.,

Petitioner,

v.

Unitep States or America, et al.,

Respondents,

and

Depra Estett Overton, et al.,

Intervenor-Respondents.

Opposition to a Petition for Writ of Certiorari to

the United States Court of Appeals for the

Fifth Circuit

(Mexican-American Intervenors)

Vitma 8. Martinez

Linpa HantTENn

Peter D, Roos

Mexican American Legal Defense and

Educational Fund (MALDEF)

28 Geary St., 6th Floor

San Francisco, CA 94108

GABRIEL GUTIERREZ

Attorney at Law

Suite 1588, Austin National

Bank Tower

Austin, TX 78701

Attorneys for Intervenor-

Respondents

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, GAN FRANCISCO 94105

INDEX

Page

Table of Authorities Cited . ii

Question Presented : seidioadblante 1

i al SL EE RR See! 2

meensom for Dewmyima thee Writ nasa. ccncccncecsecsscesssccssscesness 4

A. In This Case a Conclusion of Intention Segre-

gation Is Compelled, Irrespective of the Standard

Used to Ascertain Intent 0... eeseseeseseeees are q

B. Logie and This Court’s Precedents Support the

Use of the Natural and Foreseeable Test for

Ascertaining Intent to Segregate 20..0..0........cc00 10

C. Benign Motives Did Not Motivate the Segrega-

tion of Mexican American Pupils In Austin;

Even If Some Segregation Could Be Classified

as Benignly Motivated, Such Is Not Adequate

Justification for the Outcome ...0...20.........cceceeesees 14

D. The Circuit Court of Appeals Was Clearly Cor-

rect in Reversing An Order Which Kept Black

Children Segregated in Grades Kindergarten

ID OID ciecchtiretsniinsshipcriadtenaeniitpiipistainiiidsueaaiile 15

ES LOLA TL ERLE TCE TAH 17

\

TABLE OF AUTHORITIES CITED

Cases Pages

Board of Regents of the University of California v.

Bakke, ...... US. ....... 57 L.Ed.2d 750 (1978) ............0+0 15

Brown v. Board of Education, 347 U.S. 483 (1954) ...... 5

Burton v. Wilmington Parking Authority, 365 U.S.

III hid © GitsialisiatdeRsabdsbbadettninibacpdiecscsensnasonsnocancesse 15

Castaneda v. Partida, 480 U.S, 482 (1977) 0.0... 5

Clemons v. Board of Education of Hillsboro County,

Be Be EE CE, BOG) ccececsscsncccscnncascsassssesecncsvses 15

Davis v. School District of Pontiac, Inc., 443 F.2d 573

I IN iio catciabcsnpaivsudnuomsociaguinanesansadeevesebosennees 8

Dayton Board of Education v, Brinkman, 433 U.S. 406

I tl Teiiedeaindieh sited tdisenusehinsanidaptirbicvensghiahibocnseipevesdentnse 4,15

Hart v. Community School Board of Education, 512

I I IES IPED ec cebicossspncecnssenntharadionccsesbooossasoccoees 13

Hernandez v. Texas, 347 U.S, 475 (1954) ................ aloes 5

Kelley v. Guinn, 456 F.2d 99 (9th Cir, 1972) 00.00.0020... 9

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

ES EES RA en 3, 5,8

Littlejohn v. Berbling, 468 F.2d 389 (7th Cir. 1972) .... 12

Long v. Ford Motor Co., 496 F.2d 500 (6th Cir, 1974)... 12

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) 12

Monroe v, Pape, 365 U.S, 167 (1961) oo... ecceceseeeeeeenenees 11

Morgan v. Kerrigan, 509 F.2d 580 (1st Cir. 1974), cert.

a Ls ca acimssbtiebiacsosaseneseess 6,13

NAACP vy, Lansing Board of Ecueation, 559 F.2d 1042

ESTEE A ee 10

National Labor Relations Board v. Erie Resistor

SI WEEP MIAME, GER CRO) crcncccseescessstecssccntossnstnoénecsnasess 11

TaBLe or AutTuorities Crrep iii

Pages

Oliver v. Michigan State Board of Education, 508

F.2d 178 (6th Cir. 1974), cert. den, 421 U.S. 963

ID sadieatedicuussbusiciassiadseihiensataslaniesbuasissbeteatelicbincatangt 8, 12, 13, 15

Soria v. Oxnard School District, 488 F.2d 579 (9th Cir.

1973), cert. den. 416 U.S. 951 (1974) oct cceeeoeee 13

Swann v, Charlotte-Mecklenberg Board of Education,

I le WE sai cerchipececians a) caastvntencanncstdartastnaiotictin 8, 16

United States v. Board of School Commissioners of

Indianapolis, Ind., 474 F.2d 81 (7th Cir, 1973), cert.

SN A GRID ictal lasthcasisencinnschensintnmihenanbscnbiiias 6, 8, 12, 13

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

530 (8th Cir. 1975), cert. den., 423 U.S. 946 ............ 6, 8,13

United States v. Texas Education Agency, 467 F.2d 848

CEN ais PPD CANMIIUNIE ED cece ieisceinccestnencsidiniensasesunsbnonis passim

United States v. Texas Mducation Agency, 532 F.2d

Doe Creme Cle, BGTG) CARE TD) cccvsssccocecsscsccsecnscssessosonse 2,3

United States v. Texas Education Agency, 564 F.2d

162 (5th Cir. 1977) (Austin ITT) ........................ 2, 3, 6, 7, 14

Washington v. Davis, 426 U.S, 229 (1976) oo. 3

STATUTES

20 United States Code 1702(a) (4) ........cccccccescsseseseeeeseees 17

20 United States Code 1702 (a) (5) ..........-.scesecsssesesssseseees 17

42 United States Code § 1983 uu... tccsessssssesseeesseeee 11

§§ 21.451-21.460 Texas Education Code (SB 121) ...... 15

OrHerR AUTHORITIES

Brest, “The Supreme Court, 1975 Term—Foreword:

In Defense of the Anti-Discrimination Principles”,

Be REGS Y, BAW Tee W es 1 CIBC) scsenssesesscccenccenccchocsvecconessvveoses 13

Hart, Punishment and Responsibility (1968) ............... 11

W. Prosser, The Law of Torts (4th Hd, 1971) ..0.0000000.... 11

Restatement 2d of Torts (1965) .00...........cccccssceseeseeeeeeeeeees 11

In the Supreme Court of the

United States

Ocrosper Term 1978

No. 78-897

Texas Epucation AGrEncy

(Austin Independent School District), et al.,

Petitioner,

v.

Unirep States or America, et al.,

Respondents,

and

Depra Este. Overton, et al.,

Intervenor-Respondents.

Opposition to a Petition for Writ of Certiorari to

the United States Court of Appeals for the

Fifth Circuit

(Mexican-American Intervenors)

The Mexican American Intervenors respectfully oppose

the Petition for a Writ of Certiorari requested by the

Austin Independent School District (ATSD).

QUESTION PRESENTED

The characterization by the AISD of the issues presented

is argumentative and misstated. The sole issue is whether

2

the AISD engaged in acts of intentional segregation against

Mexican American school children.

STATEMENT OF THE CASE

As set forth in Petitioners’ statement of the procedural

history of the case, there have been two (2) Distriet Court

opinions’, four (4) Cireuit Court opinions’, and one (1) per

curiam remand by this Court.’ Various characterizations of

these opinions by the Petitioners are, however, incorrect.

First, contrary to assertions by the Petitioners, the

entire court of fourteen (14) judges in Austin IT found the

ATSD to have been guilty of intentional discrimination

against Mexican American students and that the District

Court erroneously ruled to the contrary. Six (6) judges

speaking through Judge Wisdom outlined the major acts

which constituted that finding. 467 F.2d 852, 861-69. The

remaining eight (8) judges concurred in this finding, but

differed with respect to remedial directions. As those eight

judges stated in their special concurrence,

We concur in the result reached in the opinion pre-

pared by Judge Wisdom to the extent of reversing and

remanding the case to the district court with direction

that the dual school system and all discriminatory

segregation against Mexican and black students be

eliminated “at once”...

467 F.2d at 883.

Secondly, although Austin J was rendered at a time when

there was uncertainty surrounding the de jure-de facto

1. Neither District opinion is reported. The first opinion appears

at p. 108 of the Appendix; the second opinion appears at p. 94 of

the Appendix.

2, 467 F.2d 848 (5th Cir. 1972) (Austin 7); 5382 F.2d 380

(1976) (Austin 17); 564 F.2d 162 (1977) (Austin ITT); a fourth

opinion denying en banc reconsideration from Austin IIT is re-

ported at 579 F.2d 910 (1978).

3. 429 U.S. 990 (1976).

3

distinction, it was the clear finding of all fourteen judges

that the AISD had engaged in acts of segregation which

were neither innocent nor adventitious. See Judge Wis-

dom’s opinion, 467 F.2d at 861-69; note also the above

language in the concurrences which called for the dismantle-

ment of “discriminatory segregation”’—not mere “segre-

gation.”

After having its opinion in Austin I “reversed” by the

District Court, purportedly on the basis of this Court’s

intervening decision in Keyes v. School District No. 1,

Denver, Colorado, 413 U.S. 189 (1973), a panel, speaking

through Judge Wisdom, reversed the District Court a see-

ond time. 532 F.2d 380 (Austin IT). For the second remand

the Cireuit Court, although alluding to the proof relied upon

in Austin I, intimated that such proof was unnecessary to

its holding. A petition for a writ of certiorari was filed with

this Court in response to the Austin IT holding. The United

States, Plaintiff in this case, did not oppose the petition,

expressing concern about the intimation that the factual

basis undergirding the Austin decision was unnecessary.

This Court granted the petition and remanded to the Fifth

Cireuit for reconsideration in light of Washington v. Davis,

426 U.S. 229 (1976).

The Petitioner’s analysis of the Austin IIT decision, 564

F.2d 162 (1977), which followed remand, grossly misstates

the thrust of that decision. Rather than “treat as irrelevant”

the District Court’s finding of no intent*, the decision holds

for the third time that such finding is clearly wrong. The

charge that the Cireuit Court was duplicitous in its analysis

is belied by the factual findings of the Court en bane and

by each of the supervising decisions that the segregation of

Mexican American children was intentional.

4. Page 9 of Petition.

4

REASON FOR DENYING THE WRIT

At this juncture of the litigation, the sole issue, with one

minor exception’, is whether the Court of Appeals properly

concluded that the AISD had committed acts of intentional

segregation of Mexican American children. Issues concern-

ing the scope of relief are not at issue at the present time.°

The Petitioners would have this Court believe that there

are two issues presented in this case which should be of

interest. The first issue is whether the “foreseeability” test

is appropriate to measure segregatory intent. The second

issue is whether a “benign” motive justifies intentional

segregation on the basis of race, As interesting as these

issues may be, neither is determinative of the propriety of

the Cireuit Court’s holding. Further, both issues have been

addressed, by this Court and by various lower courts; as

such, it would serve no useful purpose to further review

them.

A. In This Case a Conclusion of Intentional Segregation Is Com-

pelled, Irrespective of the Standard Used to Ascertain Intent.

For approximately the past ten (10) years lower courts

have been sifting through factual presentations seeking to

ascertain whether non-statutory segregation was inten-

tionally caused. Rarely has direct evidence of intent to.

segregate been available. In the absence of direct evidence,

certain factual patterns have come to be recognized as the

segregatory devices utilized by school districts to maintain,

albeit imperfectly, separation between Anglo students and

others. These devices include, inter alia, school placement,

optional zones in changing neighborhoods, gerrymandered

5. See discussion infra at p. 15.

6. The Fifth Cireuit remanded for consideration of the remedy

in light of Dayton Board of Education v. Brinkman, 433 U.S. 406

(1977) ; the diseussion concerning remand is found at 564 F.2d

174-76,

5

school boundaries, use of portables and segregated faculty.

Each of these commonly recognized devices was utilized in

Austin and each succeeded in preserving a degree of segre-

gation which would not have existed without it. Only a

Court which chooses to blind itself to the import of these

patterns could fail to find that they constituted an effort to

maintain ethnic segregation.”

Before summarizing the use of these devices in Austin, it

is important to recognize that there was direct unrefuted

evidence of segregatory acts of a sort rarely found in the

desegregation cases. The record reflects, for exaraple, that

the Comal Street School was built to “take care of the large

number of non-English speaking students at Palm, Metz,

and Bickler.’”* Likewise, 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

7. Such a Court would also be foteed to blind itself to the

history of discrimination against Mexican Americans in Texas

which no doubt served as the foundation for a policy of segregation.

On the same day that this Court rendered its decision in Brown v.

Board of Education, 347 U.S. 483 (1954), it also struck down a

policy of exclusion of Mexican Americans from juries in Texas.

Hernandez v. Texas, 347 U.S. 475 (1954) ; in so ruling, the Court

observed :

Here the testimony of responsible officials and citizens con-

tained the admission that residents of the community dis-

tinguished between “white’’ and “Mexican.” The participation

of persons of Mexican descent in business and community

groups was shown to be slight. Until very recent times,

children of Mexican descent were required to attend a segre-

gated school for the first four grades. At least one restaurant

in town prominently displayed a sign announcing, “No

Mexieans Served.” On the courthouse grounds at the time of

the hearing, there were two men’s toilets, one unmarked, and

the other marked “Colored Men” and “Hombres Agqui’’ (“Men

Here’’).

_ 847 U.S. 475, 479-80 (FN omitted). See also Castaneda v.

Partida, 430 U.S. 482 (1977), ef. Keyes v. School Dist. No. 1,

413 U.S. 189 (1973).

8. Pre-trial Order, Attachment A, p. K-I.

6

population as possible.’® 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 Street, had been

transferred to Bickler School, except one boy who is being

allowed to complete the 7th Grade.” This latter document

contradicts assertions in Petitioner’s Petition that only lim-

ited English speaking students were sent to Bickler.

In addition to these examples of direct evidence of seg-

regatory intent, the Court in Austin III found that the

School District had maintained dual overlapping zones. It

is unrefuted that these zones were only found between pre-

dominantly Anglo and predominantly 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 segregatory device. See e.g, Morgan v. Ker-

rigan, 509 F.2d 580, 589 (1st Cir. 1974), cert. den., 421 U.S.

963; United States v, Board of School Commissioners of In-

dianapolis, 474 F.2d 81, 86 (7th Cir. 1973), cert. den., 413

U.S. 920; United States v. School District of Omaha, 521 F.2d

530, 540-43 (8th Cir, 1975), cert. den., 423 U.S. 946.

Petitioners do not dispute the Cireuit Court’s findings

that these dual zones (a) were only found between Anglo

and Mexican American schools, and (b) contributed to seg-

regation; rather, they offer justification that shows the wis-

dom of the Cireuit Court’s conclusion that these zones were

diseriminatorily motivated. As to the West Avenue (Mexi-

can-American) and Pease (Anglo) zones, the ATSD merely

asserts (without citation) that when the Mexican American

students learned English they went to Pease (p. 23, Peti-

tion). This admission reaffirms what was previously an in-

9, Def. Ex. 125, p. 5; Gov. Ex. 6C, August 8, 1935.

10. Gov. Ex. 6F, Sept. 25, 1939.

7

ference—that students of different races were tracked to

respective schools!

The justification for the Zavala (Mexican American)—

Metz (Anglo) open zone is a limp protest that Mexican

Americans were not required to go to the Mexican school

(p. 22, Petition)."' This, of course, confuses the issue. This

device has been seen by the authorities as a means by which

Anglo students could escape attendance, otherwise com-

pelled, with Mexican American students.

The en banc Court in Austin I and the panel in Austin ITI

further discussed at some length the gerrymandering of

school boundaries and school site selection which contributed

to the segregation of Mexican American children, The Court

singled out for discussion the situation surrounding the

building of O’Henry Junior High School in 1953, The evi-

dence showed that it was built as a predominantly Anglo

school and that in order to provide “relief” for Anglo

students living in the Allan Junior High School neighbor-

hood, the boundaries were adjusted so that many of these

students could attend O’Henry, The predictable result was

to further isolate Mexican American students. 564 F.2d

at 173. The Court noted a similar occurrence surrounding

the dispersal of students at the University Junior High

School site after it was reclaimed by the University of Texas.

Appendix “C” to the Austin I decision provides a further

picture of intentional segregation through site selection.

This chart describes the ethnic makeup of all schools which

opened after 1954. Twenty-four (24) of thirty (30) schools

opened with an enrollment in excess of 90% Anglo or

minority. 467 F.2d at 882. This unbroken pattern, observed

by the Circuit Court, raises a strong inference of intentional

11. No record citation is found in support of this contention.

All the record evidence is to the contrary (Transcript 22, 36).

8

segregation of minority children.” Nothing in the record

successfully rebuts this inference.

Adding further to the above-stated evidence of intentional

segregation, the Court observed that its review of school

boundary lines corresponded with ethnically and racially

segregated neighborhoods, 467 F.2d at 863, n. 32. This fur-

ther buttresses the inference of intentional gerrymander-

Inge,

Petitioner’s response to these findings is to broadly

ascribe neighborhood school motivations to this segregatory

pattern. Some of the acts viewed in isolation might be

susceptible to a neighborhood school argument; however,

the pattern of activities which inevitably enhanced segre-

gation, viewed in light of the direct evidence of segregation,

necessarily compelled an unrebutted inference of improper

motivation. See e.g. Davis v. School District of Pontiac,

Inc., 443 F.2d 573, 576 (6th Cir. 1971), United States v.

Board of School Comm’rs of Indianapolis, Ind., 474 F.2d

81, 84 (7th Cir. 1973). It was clearly erroneous for the

District Court to have ruled to the contrary.

Various courts have found faculty segregation especially

probative on the issue of intent since it is so fully within the

power of the school district to control.* Appendix “A” to

12. This Court has several times noted the segregative power

that school boards have through the use of site selection. Swann v.

Charlotte-Mecklenberg Board of Education, 402 U.S. 1, 21 (1971),

Keyes v. School District No. 1, 413 U.S. 189, 201-202 (1973).

13. This court observed in Swann v. Charlotte-Mecklenberg

Board of Education, 402 U.S. 1, 18, that “Independent of student

assignments 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.”

See also United States v. Board of Comm. of Indianapolis, 474 F.2d

81, 87 (7th Cir. 1973), cert. den., 423 U.S. 946; Oliver v. Mich-

igan State Board of Education, 508 F.2d 178, 185 (6th Cir.

1974) ; cert. den., 421 U.S. 963 (1975) (Kalamazoo) ; United States

9

the Austin I decision shows that Mexican American faculty

members were generally assigned to predominantly minority

schools. While Mexican Americans constituted only three

percent (3%) of the total professional staff of the school

district, fifteen percent (15%) of the teachers at pre-

dominantly minority Johnston High School were Mexican

American. Indeed, fifteen (15) of the twenty-three (23)

Mexican American high school teachers taught at Johnston,

although Johnston only constituted one (1) of eight (8)

high schools. At the elementary school level, Mexican Ameri-

can teachers are found at only fourteen (14) of the Dis-

trict’s fifty-five (55) schools, and of those fourteen, only

four are predominantly Anglo. All of the remaining ten

(10) sehools at which Mexican American faculty were found

had 1...«0rity enrollments in excess of seventy-five percent

(759) and eight (8) had minority enrollments in excess of

ninety percent (90%).

In this brief summary we have obviously not set forth

all of the evidence presented to show segregatory intent.

What we have tried to show is the existence of well-recog-

nized segregatory patterns which virtually all courts have

found to undergird a finding of intentional segregation.

These findings have been made irrespective of the formal

methodology utilized to ascertain intent. It is thus mani-

festly unnecessary to evaluate the natural and foreseeable

method for ascertaining intent to arrive at a conclusion

in the instant case that the segregation existent in the

AISD is de jure.

v. School District of Omaha, 521 F.2d 530, 537-38 (8th Cir. 1975),

cert. den., 423 U.S. 946; Kelley v. Guinn, 456 F.2d 99 (9th Cir.

1972).

14. At the time, Mexican American students constituted twenty

percent (20%) of the District enrollment.

3

>

j

10

B. Logic and This Court's Precedents Support the Use of the

Natural and Foreseeable Test for Ascertaining Intent to Seg-

regate.

In its most recent opinion, the Fifth Circuit utilized

language that indicated that it was measuring at least some

acts to determine if they were part of a pattern which

naturally and foreseeably led to segregatory consequences.

Through this standard evidentiary approach, the Court was

able to conclude that an inference arose that those acts

were intentionally motivated. These findings provided a

firm foundation in addition to those findings based on direct

evidence of segregatory intent (cited, in part, above) for

a ruling that the Defendants should have a heavy burden

of rebuttal. The AISD challenges the propriety of using

this standard tool for raising an inference of intent to

segregate. Their challenge violates both logic and a long

line of precedent.

The most commonly accepted method for proving intent

has been through a presumption drawn from the natural

and foreseeable consequences of acts. This is understand-

able since realistically no other reliable mechanism exists.

This 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 prac-

ticing 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 increas-

ing or perpetuating school desegregation.

NAACP v. Lansing Board of Education, 559 F.2d 1042,

1047-48 (6th Cir. 1977) [FN omitted].

As the Cireuit Court acknowledged, it has long been the

rule in the area of torts that an actor is held to intend the

11

reasonably foreseeable results of his actions. W. Prosser,

The Law of Torts, §8 (4th Ed. 1971); Restatement 2d of

Torts, §8A, comment (b) (1965). Likewise, in the area of

criminal law a foreseeability standard has long prevailed.

Hart, Punishment and Responsibility, 120-21 (1968). This

Court has ruled that a presumption of intent to interfere

with union rights under the National Labor Relations Act

arises from conduct which does so interfere, observing that

“|. . [T]he employer in such cases must be held to intend

the very consequences which foreseeably flow from his

actions and if he fails to explain away, to justify, or to

characterize his actions as something different than they

appear on their face, an unfair labor practice charge is

made out.” National Labor Relations Board v. Erie Resistor

Corp., 373 U.S. 221, 228 (1963). More directly, as the Cireuit

Court in the instant case observed, the holding in Monroe v.

Pape, 365 U.S. 167, 187 (1961) adopts the foreseeability

standard in litigation, such as this, which is predicated upon

42 U.S.C. § 1983.

While the natural and foreseeable standard is the only

logical approach for determining intent, it has not been

held either by the Cireuit Court in this case or by those

authorities above cited as creating an irrebuttable or conclu-

sive presumption. The failure to recognize this fact is the

source of the School District’s mistake in arguing that the

test and the de jure standard are inapposite, It might be

true, as the AISD argues, that if a court were to conclusively

presume that racial imbalance was the product of inten-

tional acts, the court would be measuring a de jure require-

ment against a de facto standard. However, if a court were

to conclude that racial imbalance in a school system had

naturally flowed from the building program of the District,

it could and should infer intent without adopting a de facto

12

standard. The burden would be shifted to the District to

show non-racial reasons for the imbalance. This was the

approach utilized in the instant case,

As observed by the Court in Oliver v. Michigan State

Board of Education, 508 F.2d 178 (6th Cir, 1974) (a school

desegregation case adopting the natural and foreseeable

test) :

The regimen of presumption of intent established by

objective facts and affirmative defense to rebut the

inference of improper intent follows the practice in

employment discrimination cases. See McDonnell

Douglas Corp. v. Green, 411 U.S. 792 [citations omit-

ted] (1973); Long v. Ford Motor Co., 496 F.2d 500

(6th Cir. 1974),

Likewise, in United States v. Board of School Commis-

sioners of Indianapolis, Ind., 474 F.2d 81, 88 n. 8 (a school

desegregation case adopting the natural and foreseeable

standard), the Court noted:

We note that such inferences are not unique to this

area of the law. The doctrine of “conscious paral-

lelism” in anti-trust law involves a similar inference

of intent from objective factors. See Anti-Trust

Developments, 1955-1958, at 22-24. See also Littlejohn

v. Berbling, 468 F.2. 589, 408 (7th Cir. 1972).

In a recent article in the Harvard Law Review, Paul

Brest offers two policy reasons why a rebuttable presump-

tion triggered by the natural and foreseeable test makes.

especial sense in the school desegregation context. Brest

states :

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 under-

lying the myriad of decisions that determine the extent

13

of school desegregation—decisions concerning such

matters as the drawing of attendance 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 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 Principles”, 90

HARV. LAW REV. 1, 29-30 (1976).

The panel in the instant case, as well as each of those

cases which has expressly adopted the natural and foresee-

able standard, has used it as a rebuttable presumption, See

e.g. Morgan v. Kerrigan, 509 F.2d 580, 588-89 (1st Cir.

1974), cert. den., 421 U.S. 968; Hart v. Community School

Board of Education, 512 F.2d 37, 50-51 (3rd Cir, 1975);

Oliver v. Michigan State Board of Education, 508 F.2d 178,

(6th Cir. 1974) ; cert. den, 421 U.S, 963 (1975) ; United States

v. Board of School Commissioners, 474 F.2d 81, 88 (7th

Cir. 1973), cert. den., 413 U.S. 920 (1973); United States v.

School District of Omaha, 521 F.2d 530, 535-36 (Sth Cir.

1975), cert. den., 423 U.S, 946.

Contrary to assertions made by Petitioners, there is no

circuit which has requested the ‘natural and foreseeable’

test. The cases cited (N. 4, Petitioner’s brief) from the

Ninth Circuit merely reaffirm that intent is a necessary

element in establishing liability in a desegregation case.

Soria v. Oxnard School District, 488 F.2d 579 (9th Cir.

1973), cert. den., 416 U.S. 951 (1974). They do not purport

to set a standard or methodology for ascertaining intent.

The natural and foreseeable standard was used properly

in the instant case.

14

Contrary to statements by Petitioners, the AISD justifica-

tions were obviously weighed by the Circuit Court and found

wanting. While it is true that the Circuit Court did not take

specific findings and conclusions of the District Court and

make declarations of “erroneous” or “not erroneous”, such

was not possible since specific findings and conclusions were

not made by the District Court. A review of that Court’s

opinion” will quickly make clear the impossibility of impos-

ing such a burden on the Circuit Court; rather, as is apparent

from the extensive review of the evidence in Austin J and

the reappraisal of that evidence in Austin IIT, the Cireuit

Court has performed a monumental task of measuring the

District Court’s general conclusions against the evidence,

Criticism by the AISD of the Cireuit Court on that score

widely misses the mark.

C. Benign Motives Did Not Motivate the Segregation of Mexican

American Pupils in Austin; Even if Some Segregation Could

Be Classified as Benignly Motivated, Such Is Not Adequate

Justification for the Outcome.

The AISD petition would leave the Court with the impres-

sion that all intentional segregation practiced by the Dis-

trict had the end of remediating English language problems.

A review of the evidence previously outlined would show

that most segregatory acts performed by the District were

not narrowly limited to limited English speaking students.

The gerrymandering of school boundaries or the placement

of schools at points assuring segregated student bodies, for

example, are not language specific; rather, they struck at

all Mexican American children irrespective of linguistic

proficiency.

It further is difficult to believe that benign motives led

to the segregation of limited English speaking students

15. Appendix, p. 94.

15

when in fact state law prohibited teachers from speaking

a language understandable to the students and instruetion

was provided only in English."®

Finally, if one were to accept the argument that “bene-

volence” was one of the motivating factors for some of

the acts of segregation, such would be an insufficient legal

justification. Clemons v. Board of Education of Hillsboro

Co., 228 F.2d 853, 859 (6th Cir. 1956); Oliver v. Michigan

State Board of Education, 508 F.2d 178, 182-83 (6th Cir.

1974), cert. den., 421 U.S. 963 (1975); see also Burton v.

Wilmington Parking Authority, 365 U.S. 715 (1961) ; Board

of Regents of California v. Bakke, ........ SACS iscsiann , 07 L.Ed.

2d 750 (1978). One suspects that every act of segregation

or discrimination has, as in the instant case, been met by

a claim by the perpetrator of benign motivation. This Court,

as reflected in the above-cited authorities, has regularly

and summarily rejected this claim.

D. The Circuit Court of Appeals Was Clearly Correct in Revers-

ing an Order Which Kept Black Children Segregated in

Grades Kindergarten Through Five.

By its remand, the Fifth Circuit ordered the District

Court to conduct a Dayton hearing; it also reiterated its

ruling that the previous order by the District Court with

respect to the integration of black children was inappro-

priate.

16. Related to this claim is the argument by the AISD that

patterns of teacher segregation, which are manifested in the chart

at 467 F.2d at 876-79, are merely reflective of their efforts to pro-

vide bilingual programming. That chart shows student and staff

distribution in 1970-71. The first state-mandated bilingual program

ealled for programming at Grade 1 for the school year 1974-75.

(SB 121; presently § 21.451-21.460 Tex. Ed. Code). No evidence

in the record reflects a substantial initiative independent of the

state-mandated program.

16

The Plan adopted by the District Court for these children

starkly reflects the barriers that the Cireuit Court has had

to overcome in the instant case. That Plan exempted Grades

Kindergarten through 6, It also relied exclusively on the

one-way busing of the black children, The Cireuit Court

was clearly correct in finding this plan constitutionally

inadequate.

The thrust of the Petitioner’s argument on this issue is

that the School District provided the District Court factual

support for finding that the continued segregation of black

children in six grades met the conditions set forth in

Swann v. Charlotte-Mecklenberg Board of Education, 402

U.S. 1 (1971). A thorough review of the record belies this

contention, Rather than present any significant evidence

that geographic or other conditions unique to Austin pre-

cluded desegregation of these children, the school district

relied on general testimony by Dr. Davidson, the Superin-

tendent, that he did not consider busing of such children to

be educationally advantageous. Indeed, a blanket exclusion

of six grades could not be expected to rest on anything more

than a general opposition to a busing approach.

While it is clear that the practicalities of desegregation

must be taken into consideration, and in some situations one

race schools may be permissible, the School District is

under a heavy burden to justify such continued segregation.

Swann, supra, 402 U.S. 1, 26. Given an uncontroverted

history of ‘statutorily imposed segregation of black children,

the blanket exclusion of six grades from desegregation on

the naked assertions of disagreement with the educational

merit of busing cannot meet this burden. The Cireuit Court

clearly was correct in finding the District Court’s adoption

of the AISD plan improper.

17

The Petitioners also intimate that the inclusion of Grades

Kindergarten through Five in a desegregation plan violates

congressional policy. 20 U.S.C. 1702(a)(5) cited for this

proposition, states that “Congress finds that the risks and

harms created by excessive transportation are particularly

great for children enrolled in the first six grades.” [Em-

phasis added]. In 20 U.S.C. 1702(a)(4), Congress defines

“excessive transportation” in language similar to this

Court’s Swann limitation. “Excessive transportation” is de-

fined as that which “creates serious risks to their [students’]

health and safety, disrupts the educational process carried

out with respect to such students, and impinges significant-

ly on their educational opportunity.” [Emphasis added].

The record in no way supports a conflict with this congres-

sional policy.

CONCLUSION

For the above-stated reasons, Respondent Mexican

American Intervenors respectfully request this Court to

deny the Petition for Certiorari.

Respectfully submitted, °

Vitma 8. Martinez

Linpa HanTEeN

Peter D, Roos

Mexican American Legal Defense and

Edueational Fund (MALDEF)

28 Geary St., 6th Floor

San Franciseo, CA 94108

GABRIEL GUTIERREZ

Attorney at Law

Suite 1588, Austin Nationa

Bank Tower

Austin, TX 78701

Attorneys for Intervenor-

Respondents

DATE: January 23, 1979