447 F.2d 441 (5th Cir. 1971), 71-1061, United States v. State of Texas

Docket Nº:71-1061.
Citation:447 F.2d 441
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. STATE OF TEXAS et al., and Dr. J. W. Edgar, Commissioner of Education, et al., Defendants-Appellants.
Case Date:July 09, 1971
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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447 F.2d 441 (5th Cir. 1971)

UNITED STATES of America, Plaintiff-Appellee,

v.

STATE OF TEXAS et al., and Dr. J. W. Edgar, Commissioner of Education, et al., Defendants-Appellants.

No. 71-1061.

United States Court of Appeals, Fifth Circuit.

July 9, 1971

Crawford C. Martin, Atty. Gen. of Texas, James C. McCoy, Asst. Atty. Gen., Pat Bailey, Atty., Austin, Tex., for defendants-appellants.

Roby Hadden, U.S. Atty., Tyler, Tex., Brian K. Landsberg, Alexandra Polyzoides, Attys., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and INGRAHAM and RONEY, Circuit judges.

BY THE COURT:

The Order of November 24, 1970, 1 is hereby affirmed. The Order of April 20, 1971, 2 is hereby affirmed except that the District Court shall modify said Order as follows:

1. With respect to School Transportation, paragraph C(3) shall provide that in no event shall this paragraph be construed as requiring any fixed percentage of students of a minority group on a particular route or run.

2. With respect to Extra-Curricular Activities, it shall be provided that any school district aggrieved by the proposed reduction or the reduction of Minimum

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Foundation Program Funds, or the proposed suspension or the suspension of accreditation shall have the right to petition the United States District Court for the Eastern District of Texas, in which this suit is pending, for such relief as said Court may deem proper.

3. With respect to Faculty and Staff, it shall be provided that any school district aggrieved by the proposed termination or the termination of Minimum Foundation Funds or the proposed suspension or the suspension of accreditation shall have the right to petition the United States District Court for the Eastern District of Texas, in which this suit is pending, for such relief as said Court may deem proper.

4. Paragraph E(6) under Faculty and Staff shall be stricken with the provision that the Order shall not be construed to have any effect upon the state or federal remedies available to any individual members of Faculty or Staff for discriminatory action by a school district in assignment, demotion, dismissal, reassignment, payment or other employment conditions.

5. With respect to Student Assignment, paragraph F(1) shall be amended to add at the end of the sentence the words, 'except where required to comply with constitutional standards.'

6. It shall also be provided with respect to Student Assignment that if a school district which is reviewed pursuant to paragraph F(3) is the subject of a school desegregation suit or a courtapproved plan of desegregation, a copy of the report required by paragraph F(3) shall be submitted to the District Court having jurisdiction of such suit or plan.

7. Because of the interdistrict operation of the Order in this case, this Court directs that the Order of April 20, 1971, shall include the following paragraph:

'Nothing herein shall be deemed to affect the jurisdiction of any other district court with respect to any presently pending or future school desegregation suits.'

8. We direct that the Texas Education Agency file copies of this Order Agency file copies of this Order in the State of Texas in which there is a school desegregation suit or courtapproved plan in sufficient numbers to permit may such court to file a copy in each such cause. The Clerks of each such District Court are hereby directed to file said copies in each school desegregation cause pending in their District.

This case is remanded to the District Court with directions to re-enter the Order of April 20, 1971, as modified herein.

Affirmed in part; modified and remanded with directions.

APPENDIX

EXHIBIT 'C'

Filed: Apr. 20, 1971

ORDER

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION

UNITED STATES OF AMERICA versus STATE OF TEXAS, ET AL.

CIVIL ACTION No. 5281

On November 24, 1970, this Court entered an order in this case then styled United States of America v. State of Texas, et al., Civil Action No. 1424, Marshall Division, requiring inter alia that the Texas Education Agency, the State Commissioner of Education and their officers, agents, employees, successors reevaluate all of their activities and practices relating to the desegregation of public elementary and secondary education within the State of Texas; upon completion of this re-evaluation the defendants were required to file a plan stating specific actions which they would take pursuant to their affirmative obligations under Title VI of the Civil

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Rights Act of 1964 and the Fourteenth Amendment to the Constitution. On January 15, 1971, the defendants filed their plan. Plaintiffs filed a response to this plan on February 1, 1971, incorporating both objections to defendants' plan and recommendations for what the defendants were legally required to accomplish by this plan. An evidentiary hearing was held on February 1 and 2, 1971. A further hearing was held in Tyler on April 12, 1971, the case then, and hereafter, being styled Civil Action No. 5281, Tyler Division.

The Court has carefully considered the submissions of the respective parties and the evidence presented at the hearings, in light of the defendants' affirmative duty to take 'whatever steps might be necessary to * * * (eliminate) racial discrimination * * * root and branch.' Green v. County School Bd. of New Kent County, 391 U.S. 430, 437-438, 438, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968), Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). In this regard the duty of the state appears to be two-fold: First, to act at once to eliminate by positive means all vestiges of the dual school structure throughout the state; and second, to compensate for the abiding scars of past discrimination.

Accordingly, it is hereby ORDERED that the State of Texas, Dr. J. W. Edgar, Commissioner of Education of the State of Texas, the Texas Education Agency, their officers, agents, employees, successors and all other persons in active concert or participation with them (hereinafter referred to as defendants) shall fulfill those duties as follows:

A. Student Transfers

(1) Defendants shall not permit, make arrangement for or give support of any kind to student transfers, between school districts, when the cumulative effect in either the sending or receiving school or school district will be to reduce or impede desegregation, or to reinforce, renew, or encourage the continuation of acts and practices resulting in discriminatory treatment of students on the ground of race, color, or national origin.

(2) The Texas Education Agency shall review all student transfers and shall notify the sending and receiving districts promptly of all transfers which do not appear to comply with the terms of this Order.

(3) If, after receiving notice of the Texas Education Agency's refusal to approve transfers, the receiving district shall continue to accept the transfer of students, or if the sending district shall refuse to provide suitable educational opportunities for these students, defendants, after 15 days notice to the President of the Board of Trustees and the Superintendent (if the district has such an official), shall refuse to transfer the funds, based on the average daily attendance of the transfer students involved to the account of the receiving district, and shall, thereby, terminate and refuse to grant or continue paying to the offending district a percentage of state funds equivalent to the district's entitlement based on the average daily attendance of the students transferring in violation of this Order.

(4) Defendants shall also refuse to distribute to the offending district any transportation funds which might accrue on account of transfer students accepted in violation of this Order. If the offending district continues to refuse to deny transfers which adversely affect desegregation, the Texas Education Agency shall warn the district that its accreditation status is in danger. This warning shall remain in effect for ten days, at which time, if the offending district has failed to correct its violations, the Texas Education Agency shall suspend the district's TEA accreditation.

B. Changes in School District Boundaries

(1) Defendants shall not permit, make arrangements for, approve, acquiesce in, or give support of any kind to changes in school district boundary lines--whether by detachment, annexation, or

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consolidation of districts in whole or in part-- which are designed to, or do in fact, create, maintain, reinforce, renew, or encourage a dual school system based on race, color, or national origin.

(2) Defendants shall require the board of trustees of any school district desiring to annex or consolidate with a nearby district, in whole or in part, or desiring to change its boundaries in any other manner such as is described, for example, in Part II-A(2) of the Court's Order of November 24, 1970, to report said intention to the Commissioner of Education for the State of Texas at least 15 days prior to the effective date of such action, and shall take appropriate measures to insure compliance with this requirement.

(3) Whenever the Commissioner shall receive notice that a district or a portion of a district is to be detached from, annexed to, or consolidated with another district, he shall institute an immediate investigation as to the effects of such projected change of boundaries on the desegregation status of all of the school districts concerned. He shall...

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