467 F.2d 848 (5th Cir. 1972), 71-2508, United States v. Texas Ed. Agency

Docket Nº:71-2508.
Citation:467 F.2d 848
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. TEXAS EDUCATION AGENCY et al. (Austin Independent School District), Defendants-Appellees.
Case Date:August 02, 1972
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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467 F.2d 848 (5th Cir. 1972)

UNITED STATES of America, Plaintiff-Appellant,


TEXAS EDUCATION AGENCY et al. (Austin Independent School District), Defendants-Appellees.

No. 71-2508.

United States Court of Appeals, Fifth Circuit.

August 2, 1972

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Joseph D. Rich, Atty., David L. Norman, Asst. Atty. Gen., Brian K. Landsberg, John D. Leshy, Attys., U.S. Dept. of Justice, Washington, D. C., Seagal Wheatley, U.S. Atty., San Antonio, Tex., Bruce Davis, Atty., Civil Rights Div., U.S. Dept. of Justice, Washington, D. C., for the United States.

Sylvia Drew, New York City, Mario G. Obledo, John E. Serna, San Antonio, Tex., for intervenors Dedra Estell Overton and others.

James McCoy, Asst. Atty. Gen. of Tex., Austin, Tex., for Tex. Ed. Agency.

J. M. Patterson, Jr., Donald S. Thomas, Austin, Tex., for Austin Indept. School Dist.

Albert W. Alschuler, Mark Z. Levbarg, F. Patrick Hubbard, American Civil Liberties Union, Austin, Tex., amicus curiae.


WISDOM, Circuit Judge, with whom JOHN R. BROWN, Chief Judge, and GEWIN, GOLDBERG, DYER, and SIMPSON, Circuit Judges, join:

Before 1954, the year Brown I 1 was decided, and for some years thereafter the Austin Independent School District (AISD) segregated black and white school children. The law of the land, since Brown I and II, requires the conversion of a dual system into a unitary system. Every judge on this Court understands that there is no school district where this conversion has been simple. We realize too that this conversion of a dual system to a unitary system is very difficult in metropolitan areas where there is not only an accelerated population growth, as in Austin, but there is also a movement of whites to the suburbs or to the periphery of the city. The involved process of attaining a unitary system is exceptionally difficult in Austin and in some other cities in the southwest where, in addition to other obstacles, Mexican-Americans in many cities in Texas are an identifiable ethnic minority. They are as much entitled to the benefits of the Equal Protection Clause of the Fourteenth Amendment as blacks or whites. Cisneros v. Corpus Christi Independent School District, No. 71-2397, 5 Cir., 459 F.2d 13; Alvarado v. El Paso Independent School District, 5 Cir. 1971, 445 F.2d 1011 [71-1555, June 16, 1971]. The district judge in the instant case recognized this fact and so stated in his memorandum opinion. Unfortunately, a fatal defect in the decree is that it fails to give effect to the legal consequences of the Court's recognition of Mexican-Americans as a separate minority group. (This is not to minimize the ineffectiveness of the decree in giving relief to blacks.) See generally, Fiss, The Charlotte-Mecklenburg Case-Its significance for Northern School Desegregation, 38 U. of Chi.L.Rev.

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697 (1971); Rangel and Alcalo, De Jure Segregation of Chicanos in Texas Schools, 7 Harv. Civil Rights and Liberties Rev., 370 (1972).

"The reconciliation of competing values in a desegregation case is, of course, a difficult task with many sensitive facets but fundamentally no more so than remedial measures courts of equity have traditionally employed." Swann v. Charlotte-Mecklenburg Board of Education. 2 The school board is "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. New Kent County School Board, 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716.


Procedural History

On August 7, 1970, the United States, under authority of the Civil Rights Act of 1964, 3 filed suit against the Texas Education Agency and the Austin Independent School District (AISD). 4 The original complaint charged that the AISD (1) "has traditionally operated and continues to operate a dual school system based on race" (i. e. segregated schools for blacks and whites) and, moreover, (2) is "discriminating against Mexican-American students", by assigning them to schools "that are identifiable as Mexican-American schools and schools that are attended almost exclusively by Mexican-American and Negro students". The Government asked the district court to "enjoin the defendants . . . from discriminating against black and Mexican-American children . . . on the basis of race and ethnic origin and require them to take affirmative action to disestablish that dual system of schools based on race and ethnic origin and to correct the effects of past discrimination based on race and ethnic origin". On the same day, the district court ordered the AISD, with the assistance of the Texas Education Agency and the Department of Health, Education, and Welfare (HEW) to develop and submit a desegregation plan. If the parties could reach no agreement, the order required them to submit their respective plans to the Court. 5

A hearing was held on August 27, 1970, at which the Government presented an interim desegregation plan prepared by HEW, and the defendants presented an alternative plan. After the hearing, the district court orally ordered the HEW interim plan put into effect immediately. On September 4, 1970, the court entered a written order to the same effect that also contained standards similar to those in the decree formulated in Singleton v. Jackson Municipal Separate School District, 5 Cir. 1969, 419 F.2d 1211. These standards include provisions relating to faculty and staff, selection of schools, transportation of students,

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majority-to-minority transfers, and attendance outside the system. The court ordered HEW to make a comprehensive study of the AISD and to prepare a plan for the complete desegregation of all schools. The Court required AISD to cooperate with HEW, the plan to be submitted by December 15, 1970. If the parties failed to agree, they were to submit their respective plans to the Court on December 15, 1970. The district court granted four extensions of the deadline for the filing of plans. Finally, on May 14, 1971, each of the parties submitted a plan.

The trial on the merits lasted from June 14, 1971, to June 21, 1971. On June 28, 1971, the Court issued a "Memorandum Opinion and Order". The Court recognized that "Mexican Americans constitute a separate ethnic group", but held that the Government "failed in maintaining its burden of proof" that there had been de jure discrimination against Mexican-Americans. 6 As to black students, the Court held, "the Government has made no showing that in the period from 1955 to the present the AISD has intentionally perpetuated segregation of blacks; the record instead indicated that during this period the school administration's official acts have not been motivated by any discriminatory purpose 7 . . . but . . . vestiges of a dual system continue to exist with respect to blacks".

The Court gave the parties until July 16, 1971, to review and revise their plans in light of its ruling. The Court also offered "guidelines" for use of the parties in formulating plans. First, the Court encouraged the parties to agree on a mutually acceptable plan, stating, "It will be far more desirable for all concerned to have the parties combine the best elements of their separate plans than to have the Court draw its own plan". Second, "the Court [encouraged] the parties to combine the best elements of both their plans with a view toward minimizing bussing". Third, the parties were told to "avoid plans which include Anderson [a 98 percent black high school] as a junior or senior high school". Finally, the Court declared that, although it had found no de jure segregation of Mexican-Americans, it "will nevertheless consider the effect upon this ethnic minority of any plan submitted by the parties".

On July 15, 1971, the parties filed a "Report and Submission". The parties agreed in light of the Court's "Guidelines" to the plan previously submitted by the defendants for the desegregation of the high schools. There was disagreement

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as to the proper method for desegregating the junior high schools and the elementary schools. On July 19, 1971, the district court issued another "Memorandum Opinion and Order" rejecting the recommendations of HEW and adopting, with minor modifications, the AISD plan.

The Government appealed. The parties, intervenors (see footnote 5), and amicus curiae submitted briefs. A panel of this Court heard oral argument. This Court, on its own motion, determined to consider the case en banc. The en banc Court has had the benefit of the transcript of the oral argument, the original briefs, and supplemental briefs.


The Austin School System

The Austin Independent School District encompasses the City of Austin and certain outlying areas of Travis County, Texas. The district is 30 miles long from north to south and 25 miles wide from east to west. During the 1970-71 school year, the school system had a total of 74 schools-8 high schools, 11 junior high schools, and 55 elementary schools. A total of 54,974 children attend public school-14,684 in high school, 10,779 in junior high school, and 29,511 in elementary school. Of these, 35,496 or 65 percent are white; 11,194 or 20 percent are Mexican-American and 8,284 or 15 percent are black. Of the 2,768 teachers and professionals employed by the school system, 2,267 or 82 percent are white; 418 or 15 percent are black; and 83 or not quite 3 percent are Mexican-American. (Because of the importance of the facts, especially the ethnic composition of the schools, to which we must often refer, we attach to this opinion Appendix A containing a complete breakdown of the ethnic composition of the...

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