United States v. Texas Education Agency, 71-2508.
| Decision Date | 03 January 1973 |
| Docket Number | No. 71-2508.,71-2508. |
| Citation | 470 F.2d 1001 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. The TEXAS EDUCATION AGENCY et al. (Austin Independent School District), Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Joseph D. Rich, David L. Norman, Attys., U. S. Dept. of Justice, Washington, D. C., Seagal Wheatley, U. S. Atty., San Antonio, Tex., Bruce Davis, Brian K. Landsberg, Attys., Civil Rights Div., U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellant.
Sylvia Drew, New York City, Mario Obledo, John 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, Central Texas Chapter, American Civil Liberties Union, Austin, Tex., amicus curiae.
Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.*
The motion of Overton et al., intervenors in the within matter, to clarify the mandate issued by this court on August 2, 1972, 467 F.2d 848, is denied.
"This case is an example of how a reviewing court can pass the buck, give the school board a delay, and confuse the district court on remand." So the dissenting judges stated in commenting on the majority's misnomer, entitled "Remedy". 467 F.2d 888.
The necessity for the Court's facing the issues is clearer now than when the case was decided. The intervening appellants (representing both black and Mexican-American school children), the appellee (Austin Independent School District), and the trial judge concede that they are in a state of confusion as to the Court's cryptic message.
Six days after the decision was rendered, the AISD filed a "motion for clarification and stay of mandate". The Court denied the stay on August 23, 1972. The appellants point out that the AISD's motion for clarification may still be pending, and if so join in that motion. Now, two months later, after a hearing that compounded the confusion, the appellants have filed a motion for clarification in which, as to the crucial questions, the appellee joins.
If there were any doubt about the need for clarification, it should be resolved by the AISD's brief. The AISD agrees with the intervenors. I quote from the AISD's brief:
B. Mexican-American Students. Defendant-appellee agrees that the constitutional standard and burden of proof by which, on remand, the district court should judge the lawfulness of the concentrations of Mexican-American students in individual schools of the district is left in doubt by the majority opinion of this Court and should be clarified. Exactly onehalf of the circuit judges sitting in this case have expressly declined to adopt the views of Judge Wisdom on this matter, United States v. Texas Education Agency, 467 F.2d 848 (5th Cir. 1972) (Special Opinion of Judge Godbold), yet have joined in a majority opinion that contains no discussion of this issue. The standard articulated by an eight-judge majority in Cisneros v. Corpus Christi Independent School District, 467 F.2d 142 (5th Cir. 1972) can hardly be considered authoritative, not only because one of that majority, Judge Thornberry, is not sitting this case but because another, Judge Ingraham, has in this case taken the opposite position by joining in both the majority opinion by Judge Bell and the special opinion by Judge Godbold.
The district judge turned to the confused lawyers for enlightenment. He was as puzzled as they. I quote what he said to the lawyers:
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Morgan v. Kerrigan
...786, 39 L.Ed.2d 1; United States v. Texas Education Agency, 5 Cir. 1972 (en banc), 467 F.2d 848, motion to clarify mandate denied, 5 Cir. 1973, 470 F.2d 1001. Without merely aggregating black and other minority students, the guidelines prescribed at pp. 72-76 of the plan (in conjunction wit......
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...Austin I in view of the decision of a majority of our Court rejecting a motion to clarify the remedy (the vote was nine to five). 1 5 Cir., 470 F.2d 1001. The district court also had to consider the Supreme Court's supervening decision in Keyes v. School District No. 1, Denver, Colorado, 19......
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