373 F.Supp. 1264 (W.D.Tex. 1973), W-71-CA-56, Arvizu v. Waco Independent School Dist.

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
Citation373 F.Supp. 1264
Date27 April 1973
PartiesPete D. ARVIZU et al. v. WACO INDEPENDENT SCHOOL DISTRICT et al. Patricia Ann BAISEY et al. v. The BOARD OF TRUSTEES OF the WACO INDEPENDENT SCHOOL DISTRICT et al.
Docket NumberW-71-CA-72.,W-71-CA-56

Page 1264

373 F.Supp. 1264 (W.D.Tex. 1973)

Pete D. ARVIZU et al.

v.

WACO INDEPENDENT SCHOOL DISTRICT et al.

Patricia Ann BAISEY et al.

v.

The BOARD OF TRUSTEES OF the WACO INDEPENDENT SCHOOL DISTRICT et al.

Nos. W-71-CA-56, W-71-CA-72.

United States District Court, W.D. Texas, Waco Division.

April 27, 1973

Supplemental Opinion and Order July 30, 1973.

Page 1265

[Copyrighted Material Omitted]

Page 1266

Guadalupe Salinas, John E. Serna, San Antonio, Tex., Mario G. Obledo, Alan B. Exelrod, San Francisco, Cal., for Pete D. Arvizu et al.

Minor L. Helm, Jr., Waco, Tex., for Waco Independent School Dist. and Bd. of Trustees of Waco Independent School Dist. et al.

John W. Walker, Little Rock, Ark., Sylvia Drew, New York City, New York, for Patricia Ann Baisey, et al.

MEMORANDUM OPINION AND ORDER

ROBERTS, District Judge.

These desegregation suits have been brought by private black (Baisey, et al.) and Mexican-American (Arvizu, et al.) plaintiffs against the Waco Independent School District (WISD) and its Board of Trustees. The cases have heretofore been consolidated by this Court and were heard as a single cause during the nearly two weeks of presentations by the parties. This Court having heard all evidence, testimony, stipulations and argument presented by the parties, now sets forth its findings of fact and conclusions of law in this Memorandum Opinion and Order.

I. DISCRIMINATION AS TO BLACKS

Before Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and for several years thereafter, the WISD operated a racially segregated dual school system. The first formal recognition by the WISD of its legal obligation to dismantle its old dual school system came in June 1963, with the reading of a desegregation statement at a meeting of the Board of Trustees. In the early 1960's a lawsuit was filed to compel desegregation of the WISD. The resulting Order, McGrue v. Williams, Civil Action No. 2291, (W.D. Texas, Dec. 2, 1964) established a plan for the gradual termination of official imposition of a dual school system in Waco.

We are now, over eight years later, presented with the question whether the

Page 1267

efforts of the WISD have been sufficient to meet its 'affirmative duty to take whatever steps might be necessary to convert to a unitary system in which discrimination would be eliminated root and branch.' Green v. County School Board of New Kent County, 391 U.S. 430, 437-438, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968). We are compelled to hold that the WISD has not yet become a unitary school system. The vestiges of segregation can still be found all to often in the WISD. Most black students continue to attend racially identifiable black schools. Those schools continue to be racially identifiable not only by their student bodies, but also commonly by the race of their principals and the predominance of black teachers and staff. Certain school facilities historically identifiable as black facilities continue in their racial identifiability. Moreover, the facilities of minority-dominated schools are often under utilized, while predominately white schools are frequently overcrowded.

During the Court-ordered desegregation plan of 1964-1969, the WISD took no affirmative steps to desegregate the school system in any meaningful way. Since 1964, no black school has lost its racial identifiability and no facilities have been fully desegregated. The school system has not, in short, been rid of the vestiges of segregation.

The WISD presently employs basically a 'neighborhood school' concept with a 'freedom of choice' type of transfer policy, whereby students may transfer to any school which is open for additional enrollment. With the limited exception of black students from the La Vega area who are transported to predominantly white schools, and students in the other areas who are transported by bus for safety reasons, no free transportation is provided students who wish to transfer into schools outside their neighborhood zone.

At the beginning of the 1972-1973 school year the racial composition of students in the WISD was:

Anglo 10,774 58.3%
Black 5,261 28.4%
Mexican-Americans 2,470 13.3%

Of the 35 schools operated by the WISD, 15 are predominantly (over 50%) minority (black and Mexican-American) schools. Of these, all are over 60% Minority, and 7 of the 15 are made up of over 90% Minority students. At the beginning of the 1972-1973 school year, 59.5% Of the black students in the WISD attended identifiably black schools. Specifically, the following schools appear to be racially identifiable black schools:

High Schools % Black
Jefferson-Moore 87
Jr. High Schools
South 46
West 51
Wiley 99
Elementary Schools
Brook Avenue 78
Hines 98
Nalley 74
Oakwood 100
Sanger Avenue 46
Smith 99.2

Of these ten racially identifiable black schools, five were denominated as 'colored' schools in the old dual school system of the WISD: Hines, Oakwood, Smith, Wiley and Moore (predecessor to Jefferson-Moore). The only conclusion we can draw from the above described evidence and statistics is that Waco simply has not converted its segregated dual school system into a unitary one. The freedom of choice transfer policy of the WISD (under which free transportation is not generally available) has been unequivocally rejected by the Supreme Court where it is not effective to dismantle the old dual school system. Green v. County School Board of New Kent County, supra; Monroe v. Board Page 1268 of Commissioners of the City of Jackson, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968) Likewise, a 'neighborhood school' system, appearing on its face to be neutral, is unacceptable where it fails to 'counteract the continuing effects of past school segregation resulting from discriminatory location of school sites or distortion of school size in order to achieve or maintain an artificial racial separation.' Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 28, 91 S.Ct. 1267, 1282, 28 L.Ed.2d 554 (1971). The WISD has failed, as to the above described racially identifiable black schools, to rebut the 'presumption against schools that are substantially disproportionate in their racial composition,' Swann, 402 U.S. at 26, 91 S.Ct. at 1281. The conversion of the WISD to a unitary school system necessarily requires that the ten presently identifiable black schools in the Waco school system be divested of their racial identifiability, and that the black and white students of Waco be assured the constitutionally guaranteed benefits of an education not tainted by the vestiges of State-imposed segregation. II. DISCRIMINATION AS TO MEXICAN-AMERICANS The formulation of an appropriate legal framework for analyzing the status of Mexican-American students is a task not free of difficulty. Out uncertainty regarding the Supreme Court's disposition of Keyes v. School District No. 1, 445 F.2d 990 (10th Circuit 1971), cert. granted, 404 U.S. 1036, 92 S.Ct. 707, 30 L.Ed.2d 728 (1972), and out attempt to understand and apply properly and consistently with pre-existing Supreme Court precedent, the Fifth Circuit's analysis in Cisneros v. Corpus Christi Independent School District, 467 F.2d 142 (5th Cir. 1972) and United States v. Texas Education Agency (Austin Independent School District), 467 F.2d 848 (5th Cir. 1972), have rendered the question subject to legitimate dispute. We believe, however, that a proper legal analysis of the status of the Mexican-American student should basically follow the approach set out herein. Five schools in the Waco School system appear to have disproportionately large numbers of Mexican-American students:

Junior High Schools % Mexican-American
South 31% (with 46% Black)
Elementary Schools
Bell's Hill 57% (with 7% Black)
Gurley 44% (with 4% Black)
South Waco 54% (with 33% Black)
Sul Ross 50% (with 34% Black)

The Fourteenth Amendment, of course, prohibits segregation in public schools resulting from state action. As the Fifth Circuit has noted, two distinct factual determinations are required to support a finding of unlawful segregation: 'First, a denial of equal educational opportunity . . ., defined as racial or ethnic segregation. Secondly, this segregation must be the result of state action.' Cisneros, supra at 148 of 467 F.2d. There can be no gainsaying the fact that many Mexican-American students attend the five schools with disproportionate numbers of Mexican-American students. Our calculations indicate that approximately 35.6% Of the Mexican-American students in Waco attend these disproportionately Mexican American schools. Another 12.6% Of Waco's Mexican-American students attend the ten racially identifiable black schools. Indisputably, this concentration of Mexican-Americans in certain schools is the result of residential housing patterns. Mexican-American citizens and students are most heavily concentrated in South Waco. Plaintiffs do not seriously contend that state action created the pattern of residential concentration of Mexican-Americans, and Plaintiffs concede that no history of statutorily imposed segregation of Mexican-Americans can be shown in this case. Our inquiry cannot stop here, however. We fully recognize that state action may be shown through governmentally sanctioned discrimination in the laws or official practices of the community under consideration. Likewise, Page 1269 state action may be shown by the 'rigid superimposition of a neighborhood school plan upon the historic pattern of marked residential segregation,' where that plan produces 'inevitable segregation.' Cisneros, supra at 149. Absent a history of statutorily-imposed segregation of Mexican-Americans, the presumption of discrimination disappears, and each case involving alleged discrimination against Mexican-Americans must be determined on an ad...

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