League of United Latin American Citizens, Council No. 4386 v. Midland Independent School Dist., s. 86-1710

Decision Date27 March 1987
Docket NumberNos. 86-1710,86-1775,s. 86-1710
Citation812 F.2d 1494
Parties, 38 Ed. Law Rep. 61 LEAGUE OF UNITED LATIN AMERICAN CITIZENS, COUNCIL NO. 4386, and the Black Advisory Council, Organizations Incorporated Under the Laws of the State of Texas, Etc., Plaintiffs-Appellees, v. MIDLAND INDEPENDENT SCHOOL DISTRICT, Joseph Golding, Ronald Britton, Joyce Sherrod, Joseph Reed, Fred Newman, Parker Humes, Billy Jackson, All in Their Official Capacities, Etc., Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Patrick E. Higginbotham, Circuit Judge, filed a dissenting opinion.

Cotton, Bledsoe, Tighe & Dawson, Charles Tighe, Rick Strange, Julia E. Vaughan, Midland, Tex., for defendants-appellants.

Rolando L. Rios, San Antonio, Tex., for plaintiffs-appellees.

Appeals from the United States District Court for the Western District of Texas.

Before WISDOM, RUBIN and HIGGINBOTHAM, Circuit Judges.

WISDOM, Circuit Judge:

This appeal concerns minority vote dilution. 1

Blacks and Mexican-Americans in Midland, Texas, join hands in this class action to prevent their votes being diluted by an at-large system of voting in the election of trustees to the Board of Trustees for the Midland Independent School District (MISD) 2 An election system violates Sec. 2 of the Voting Rights Act of 1965, as amended, if members of a protected class have "less opportunity than other members of the electorate to participate in the electoral process and to elect representatives of their class". 42 U.S.C. Sec. 1973(b). After the suit was filed, the parties agreed to the trial judge's order eliminating the at-large system. The defendants then submitted a "3-4 Plan", calling for the election of three members at-large and four from single-member districts. The plaintiffs objected to the 3-4 Plan. The district court found that the 3-4 Plan impermissibly diluted the plaintiffs' votes and ordered a seven single-member district plan, incorporating two districts the plaintiffs had proposed and allowing the defendants to draw the five remaining single-member districts. The defendants filed a Motion for Clarification and Reconsideration, and suggested a "5-2" Plan calling for three districts: the two single-member districts recommended by the plaintiffs and one district of five members elected at-large by the voters, predominantly Anglo, residing within that district. The trial judge summarily rejected the 5-2 Plan, reconsidered his original opinion, and again ordered that the MISD be divided into seven single-member districts. The defendants appealed. After oral argument on appeal to this Court, the United States Supreme Court rendered its decision in Thornburg v. Gingles, the first substantive Supreme Court interpretation of Sec. 2 of the Voting Act of 1965 as amended in 1982. 3 Because of that decision, we vacated the judgment of the district court and remanded the case for reconsideration. On remand, the parties augmented the record, the district judge reconsidered the case, and in an opinion closely keyed to the record adhered to his original judgment in favor of the 7-0 Plan.

We hold that the district court was not clearly erroneous, 4 and made no error of law. While the district court stated in its opinion that the decision was based on both constitutional and statutory grounds, it is clear that, if the plan does not conform to the Voting Rights Act, it must fail.

We therefore affirm basing our opinion solely on the Voting Rights Act.

I. The Background

Based on his study of Texas statutes and the record, the trial judge concluded that Midland County had a long history of discrimination against minorities--both Black and Hispanic. Indeed, in 1975 this Court, after having ordered desegregation of schools in earlier litigation, directed the district court to take necessary steps "immediately ... to completely dismantle the dual system in the elementary grades". 5

The population of Midland County is 113,600. The population of the MISD is 80,685: 12,238 (15.17 percent) Hispanics and 7,002 (8.68 percent) Blacks, for a combined minority population of 19,865 (24.62 percent). The student population of the MISD is 17,753: 4,507 (25.39 percent) Hispanics and 1,896 (10.68 percent) Blacks, for a combined minority student population of 6,403 (36.07 percent).

The district court found that both minorities were the victims of "oppressive discrimination" that has had "lingering effects on the election system", touching "the rights of Hispanics and Blacks to register, to vote, and to otherwise participate in the election process," presumably including elections to the School Board. Of the 113,000 persons living in Midland County 79,439 or 69.9 percent are of voting age. Mexican-Americans are 11.9 percent of the county's voting age population and Blacks make up 7.8 percent. Together, Mexican-Americans and Blacks constitute 19.7 percent of the total voting age population. As of April 1985, there were 49,658 persons (62.5 percent of the population) registered to vote in Midland County. Of the Mexican-American population, 38.1 percent are registered to vote compared with 65.8 percent of the remaining population. Of the 49,658 registered voters in the county, 3,614 or 7.3 percent are Mexican-Americans. There is an unregistered potential of 5,882 Mexican-Americans in the county. Only three persons that were Hispanic or Black have been elected to the Midland School Board. According to the 1980 census, a higher percentage of the minorities fall into a lower socio-economic status than whites. The record supports the district court's finding that both minorities lag behind whites in the areas of education, median family income, percent below the federal poverty line, housing overcrowding, value of housing, and employment.

II. Gingles

A. The Gingles decision is important in many respects. Of first importance is its recognition of the intent of Congress, through the language and legislative history of the 1982 Amendment to Section 2 of the Voting Rights Act of 1965, that a voting violation may be proved "by showing discriminatory effect alone". 6 This amendment was the response of Congress to the plurality opinion in Mobile v. Bolden which, changing a formidable burden of proof to an intolerable burden, 7 had held that the Fifteenth Amendment guarantees the right to register and to vote, but does not protect against dilution; the Fourteenth Amendment protects against dilution only when it can be shown that the diluting mechanism was intended to have a racially discriminatory purpose. 8 Gingles, relying on the Voting Rights Act, as amended, established as the "relevant legal standard [for voting dilution] the 'results test' applied by White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 and by other federal courts before Bolden ". 9

B. Gingles sets forth the criteria to be applied in determining whether there is a violation of Sec. 2 of the Act. The opinion quotes from the Senate Judiciary Committee majority Report the following "typical factors" of the "totality of circumstances" to be considered in applying the results test:

"1. the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;

"2. the extent to which voting in the elections of the state or political subdivision is racially polarized;

"3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;

"4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process;

"5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;

"6. whether political campaigns have been characterized by overt or subtle racial appeals;

"7. the extent to which members of the minority group have been elected to public office in the jurisdiction.

"Additional factors that in some cases have had probative value as part of plaintiffs' evidence to establish a violation are:

"whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group.

"whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard practice or procedure is tenuous."

S.Rep. 28-29.

III. Trial Court and Gingles

The district judge examined each of the factors listed by the Senate Judiciary Committee and referred to by Justice Brennan as relevant in considering the totality of circumstances. Briefly stated, the trial court made the following findings. (1) The MISD has a history of past discrimination. (2) Voting for school trustees has been racially polarized. (3) At-large voting, the numbered place system, and the requirement that a candidate be elected by a majority vote have enhanced the opportunity for discrimination against the minority vote. (4) There was no proof that there ever was a slating process. (5) Although there are two minority groups in Midland, both have suffered the same adverse social and economic effects Justice Brennan described in discussing the black minority in Gingles. (6) There was no proof of overt or subtle racial appeals in political campaigns. (7) "Few minority candidates have dared to try to be elected." Since the adoption of the majority vote requirement, no minority member has been elected to the Board in a contested election against an Anglo.

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