699 F.2d 218 (5th Cir. 1983), 81-2323, Ross v. Houston Independent School Dist.

Docket Nº:81-2323.
Citation:699 F.2d 218
Party Name:Delores ROSS, et al., Plaintiffs-Appellants, v. HOUSTON INDEPENDENT SCHOOL DISTRICT, et al., Defendants-Appellees.
Case Date:February 16, 1983
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 218

699 F.2d 218 (5th Cir. 1983)

Delores ROSS, et al., Plaintiffs-Appellants,

v.

HOUSTON INDEPENDENT SCHOOL DISTRICT, et al., Defendants-Appellees.

No. 81-2323.

United States Court of Appeals, Fifth Circuit

February 16, 1983

Page 219

Weldon H. Berry, Houston, Tex., Jack Greenberg, Bill Lann Lee, James M. Nabrit, III, Lowell Johnston, New York City, for Ross, et al.

Bracewell & Patterson, William Key Wilde, Kelly Frels, Timothy T. Cooper, Houston, Tex., for Houston Ind. School.

Irving Gornstein, Washington, D.C., for U.S.A.

Appeal from the United States District Court for the Southern District of Texas.

Before RUBIN and JOHNSON, Circuit Judges, and DUPLANTIER [*], District Judge.

ALVIN B. RUBIN, Circuit Judge:

In 1956, two years after the Supreme Court decided Brown v. Topeka Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed.2d 873 (1954) (Brown I), a group of parents of black children enrolled in the Houston Independent School District (HISD) filed this suit to desegregate its schools. After twenty-five years of court proceedings and twelve years of operation under a court-ordered desegregation plan, the district court has now decided that the school district has eliminated all vestiges of de jure segregation and has become unitary. The vestiges of all discriminatory practices have been eliminated in every aspect of school operations, but efforts at integration have failed in one aspect alone: the district has not achieved integrated student attendance. The district court found, however, that the homogeneous student composition of the schools does not stem from the unconstitutional segregation practiced in the past but from population changes that have occurred since this litigation commenced, and that the geography of the school district, traffic conditions, and population patterns make further efforts to eliminate all one-race schools impractical.

The district court found that HISD has eliminated the vestiges of state-imposed

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segregation within the boundaries of this large and sprawling school district, whose black and Hispanic population increases annually while its white population dwindles, although desegregation has provided an integrated learning environment for few of the successors of the black children who originally brought this action. We conclude that the district judge did not err in deciding that lack of effort does not account for the student attendance patterns in HISD. Because that court's findings of fact are not clearly erroneous and its decision is supported by the record, we affirm.

The district court also denied the plaintiffs-appellants leave to amend the complaint so as to add twenty-six additional parties and seek interdistrict relief from both the HISD and adjacent school districts, not previously parties to the suit, on the ground that the new claim came too late to be considered in this proceeding. We affirm that action without prejudice to the assertion of such a claim in an appropriate suit.

I.

HISD is now the fifth largest school district in the nation. During the 1978-79 school year, 201,960 students enrolled in its 226 schools--170 elementary, 34 junior high, and 22 senior high schools. It is one of nine school districts located in the city of Houston and one of twenty districts in Harris County. Defined by statute long before Brown I, its boundaries meander in and out of Houston's city limits. Three of the school districts serving Harris County also include territory in adjoining counties and three more districts serving students in the metropolitan area are wholly or in large part outside Harris County, but directly south of and adjacent to HISD. In 1978-79, HISD's students were 36% of the total student population served by HISD and the eleven surrounding school districts; however, 71% of the area's black and 60% of the area's Hispanic students were enrolled in HISD schools.

During the twelve years since 1970 when the first desegregation plan took effect, residential segregation within the district 1 has increased dramatically. In addition, there have been major changes in the population of the district. While the number of black families has increased only moderately, white families have moved from the district 2 and Hispanic families have moved into it. In most instances, black neighborhoods remain adjacent to Hispanic neighborhoods.

Concomitant with these demographic changes, the ethnic composition of the student population has changed. Sixteen schools that in 1970 were at least 90% white, for example, have now become at least 90% black. During the 1969-70 school year, the student population was 53.1% white, 33.5% black, and 13.4% Hispanic. By 1978-79, the percentages had changed to 30.8% white, 45% black, and 24.2% Hispanic. In the 1981-82 school year, 26% of the HISD student population was white; 74% was black and Hispanic. By 1985-86, according to 1979 projections, enrollment will be 20% white, 38% black, and 42% Hispanic.

Desegregation of HISD began in February 1956 when a group of black parents and students filed a complaint charging that the district and its officers were operating a dual public school system by means of overlapping racially segregated attendance zones. In November 1957, the district court entered an order declaring void certain Texas civil statutes that had fostered the dual system 3 and restraining and enjoining defendants from requiring segregation. Ross v. Rogers, 2 Race Rel.L.Rep. 1114 (S.D.Tex.1957). Three years later the district court

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ordered implementation of a grade-per-year voluntary transfer plan by which black or white students could elect to enter the school within their attendance zone which served the other race. No separate provision was made for Hispanics. Ross v. Peterson, 5 Race Rel.L.Rep. 703, 709 (S.D.Tex.), aff'd sub nom. Houston Indep. School Dist. v. Ross, 282 F.2d 95 (5th Cir.), cert. denied, 364 U.S. 803, 81 S.Ct. 27, 5 L.Ed.2d 36 (1960). The Board of Education accelerated this voluntary transfer plan in 1965 so that it became effective with respect to two grades, rather than only one, each year, but dual schools continued under court order through the end of the 1966-67 school year. Ross v. Eckels, 11 Race Rel.L.Rep. 216 (S.D.Tex.1965).

In July 1967, the district court granted the United States Government's motion to intervene as a plaintiff pursuant to Section 902 of the 1964 Civil Rights Act, 42 U.S.C. Sec. 2000h-2. Two months later, in September 1967, the district court instituted a freedom of choice plan for school attendance pursuant to United States v. Jefferson County Bd. of Educ., 380 F.2d 385 (5th Cir.) (en banc), cert. denied, 389 U.S. 840, 88 S.Ct. 77, 19 L.Ed.2d 104 (1967). At the same time, the court ordered integration of transportation, physical facilities, athletics, and other extracurricular activities. Ross v. Eckels, 12 Race Rel.L.Rep. 2005 (S.D.Tex.1967). HISD operated under this freedom of choice plan through the 1969-70 school year. Dissatisfied with the plan, the plaintiffs-appellants moved for supplemental relief in February 1968; the Government made a similar motion in February 1969. The district court held hearings on these motions in June 1969. On July 23, 1969, the court made an oral finding that the freedom of choice plan did not meet the requirements of Green v. New Kent County Bd. of Educ., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968) and Singleton v. Jackson Mun. School Dist., 419 F.2d 1211 (5th Cir.1968) (per curiam), rev'd in part sub nom. Carter v. West Feliciana Parish School Bd., 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 530 (1970), and directed HISD to devise a new desegregation plan.

In May 1970, after considering seven plans offered by the parties, the district court adopted an equidistant zoning plan for assignment of students that was scheduled to begin in September 1970. Zone lines were to be drawn equidistant between adjacent schools, with adjustments made to accommodate school capacities, city street patterns, and natural boundaries. Students were to attend schools in the zones where they resided at the time of enrollment regardless of change of residence during the year, unless they elected majority-to-minority transfers. On appeal, we prescribed several modifications in the plan. We ordered the district court to adopt a geographic capacity plan for the junior and senior high school levels, to pair twenty-four contiguous elementary schools and rezone another, and to assure transportation and priority for students electing majority-to-minority transfers. Ross v. Eckels, 317 F.Supp. 512 (S.D.Tex.), modified, 434 F.2d 1140 (5th Cir.1970) (per curiam), cert. denied, 402 U.S. 953, 91 S.Ct. 1614, 29 L.Ed.2d 123 (1971). In September 1970, the district court amended its decree to implement the changes ordered by this court. 4

The elementary school pairing ordered in 1970 resulted largely in pairing and busing black and Hispanic students and in pairing schools attended by such students. This occurred for two reasons. While Hispanic students were classified as white for purposes of pairing schools, 5 many non-Hispanic white families moved from the paired attendance areas or enrolled their children in private schools. White, black, and Hispanic parents all opposed transportation of their children from neighborhood to paired schools. The failure of pairing to achieve integration over a five-year period prompted

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HISD's General Superintendent, Billy Reagan, to recommend to the Board of Education (the Board) that a tri-ethnic community task force be appointed to consider an alternative to pairing. In November 1974, the Board authorized a Task Force for Quality Integrated Education. The task force was asked to develop an alternative to pairing that would promote...

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