Fort Bend Independent School Dist. v. City of Stafford, 80-1635

• Decision Date: 30 July 1981
• Docket Number: No. 80-1635,80-1635
• Citation: 651 F.2d 1133
• Parties: FORT BEND INDEPENDENT SCHOOL DISTRICT, et al., Plaintiffs-Appellees, v. CITY OF STAFFORD, et al., Defendants-Appellants. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1133

651 F.2d 1133

FORT BEND INDEPENDENT SCHOOL DISTRICT, et al., Plaintiffs-Appellees, v. CITY OF STAFFORD, et al., Defendants-Appellants.

No. 80-1635.

United States Court of Appeals, Fifth Circuit.

Unit A

July 30, 1981.

Olson & Olson, William A. Olson, Houston, Tex., Charles L. Michulka, Stafford, Tex., for defendants-appellants.

Reynolds, Allen & Cook, Michael K. Swan, Hoover, Cox & Miller, Dermot Rigg, Houston, Tex., for plaintiffs-appellees.

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

Before BROWN, WISDOM and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

This appeal brings before us for the second time one of the more unusual lawsuits spawned by the lengthy process of school desegregation in this circuit. In this case the Fort Bend Independent School District (FBISD), which has never been the defendant in a desegregation suit or the subject of a court-ordered desegregation plan, has come into court in the posture of a plaintiff seeking a judicial determination that despite FBISD's longstanding and good faith efforts to dismantle its segregated school system, the district has not yet purged itself of all vestiges of its former discriminatory practices. FBISD contends that because its school system remains tainted by discrimination, the efforts of the town of Stafford to establish a new school district encompassing that part of FBISD located within the town should be enjoined under Wright v. Council of the City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972), and United States v. Scotland Neck City Board of Education, 407 U.S. 484, 92 S.Ct. 2214, 33 L.Ed. 75 (1972). On the first appeal of this case, we reversed the district court's order enjoining the establishment of the Stafford Municipal School District and remanded the case for a determination of the question whether FBISD had attained unitary status. Fort Bend Independent School District v. City of Stafford, 594 F.2d 73 (5th Cir. 1979). In the course of proceedings on remand, the parties stipulated that FBISD had been a unitary school system since the academic year 1969-70 in all respects except in the area of employment of minority faculty members and professional staff. The evidence introduced at the hearing before the district court following our remand was, therefore, confined to the question whether FBISD had adequately remedied past racial discrimination in the employment of teachers and other professional personnel.

The relevant aspects of the record developed on remand may be summarized briefly. During the academic year 1964-65 immediately preceding the commencement of FBISD's desegregation efforts, the district employed 36 minority teachers, who formed approximately 18% of the district's faculty. All but one of these teachers were black. The number of black teachers employed by the district declined markedly in the next few years. By the academic year 1968-69, the first year in which FBISD operated no one-race schools, the district employed only 24 black teachers; these teachers constituted about 9.8% of the district's faculty. Although the faculty of the district grew substantially during the decade following the 1964-65 school year, the number of black teachers employed by the FBISD continued to decline, both in terms of absolute numbers and as a percentage of the district's faculty, through the academic year 1974-75. A number of black teachers were also demoted during the period immediately following desegregation.

At the hearing following our remand of this case, Lawrence Elkins, superintendent of FBISD, testified as to the circumstances surrounding the departures and demotions of black teachers formerly employed by FBISD. Mr. Elkins testified that at the time the district's desegregation plan was implemented, district officials generally perceived black teachers formerly assigned to black schools to be unqualified to assume equivalent positions in desegregated schools. Although Mr. Elkins denied that this perception reflected racial prejudice, he acknowledged that the district's administrative officers generally believed the black teachers were inferior because of the education and training they had received in segregated schools. Mr. Elkins' testimony indicated that a number of black teachers employed by FBISD at the time desegregation began may have been indirectly pressured to resign or retire from the district because of their awareness that the district would not consider them qualified for equivalent positions in the desegregated schools. ¹

Mr. Elkins further testified that in the years immediately following desegregation, FBISD did not formally recruit applicants for teaching positions in the district by interviewing at colleges or universities. Mr. Elkins would seek applicants primarily by requesting referrals from his friends and colleagues in education. Mr. Elkins acknowledged that since most of his professional acquaintances were white, this process produced few minority applications for teaching positions in FBISD.

Beginning in 1973, these practices changed. In that year FBISD established an affirmative action program designed to increase the number of minority teachers and administrative personnel employed by the district. In that year the district also hired a personnel director and began an organized recruiting program at teacher training institutions. Although at first, the district concentrated on large colleges and universities, FBISD later began visiting a number of smaller schools having predominantly minority enrollments. In 1976, finding that the district was still having difficulty attracting large numbers of minority applicants, FBISD promoted one of its black employees, an elementary school principal, to the position of Administrative Assistant for Personnel and placed this person in charge of the minority recruitment program. FBISD has also made plans to coordinate a student teacher program with a nearby college having a predominantly minority student body.

The testimony of several other persons familiar with techniques of recruiting educational personnel indicated that FBISD's current employment practices were non-discriminatory and consistent with recommended techniques for sound affirmative action programs. These witnesses generally attributed FBISD's difficulty in actually increasing the percentage of minority teachers employed in the district to factors outside the district's control: competition for talented minorities from other public and private employers and FBISD's suburban location which often means that a minority employee must relocate or commute a substantial distance.

On this record, the district court found nothing in the evidence involving FBISD's faculty assignment practices to indicate that the district's assignment of minority faculty members resulted in any racially identifiable schools. Although the court found that there were "slight maldistributions" revealed by the statistics concerning minority faculty, the court concluded that:

In no instance is the percentage of minority personnel so high or so low that the school is identifiable as a minority or black school .... Thus ... the slightly uneven distribution of certified personnel does not preclude unitary status in the areas of faculty and staff.

The district court did, however, find that the percentage of minorities employed on the faculty of FBISD was significantly less than the percentage of minority students enrolled in FBISD schools. The court found that although approximately 36% of FBISD's enrollment consisted of minority students, only 12.14% of the certified personnel (administrators, teachers, principals, counselors, etc. ...) were black, Mexican-American or members of other "minority" groups. Reasoning that in order for a school district to attain unitary status "the percentage of minority faculty must be approximately the same as the percentage of minority students," the district court concluded that the disparity between the percentage of minority teachers employed by FBISD and the percentage of minority students enrolled in the district prevented a determination that FBISD had achieved unitary status. Concluding that the establishment of a separate Stafford school district would "severely hinder" FBISD's efforts to reach this goal, the district court issued an injunction prohibiting the creation of the Stafford district. On this second appeal, Stafford urges that the district court applied an incorrect legal standard in its analysis of the question whether FBISD had sufficiently erased the effects of its prior discriminatory practices in the area of employment of faculty and other professional personnel to be deemed unitary; we agree and reverse.

The district court held that in order for a school district which has formerly operated a dual school system to attain unitary status, "the percentage of minority faculty must be approximately the same as the percentage of minority students." As authority for this requirement both the district court and FBISD cite United States v. Texas Education Agency, 467 F.2d 848 (5th Cir. 1972). Although our opinion in that case did direct the school board to "attempt to employ more Mexican-American teachers with the goal of attaining a ratio of Mexican-American teachers within the faculty that reflects more truly the ratio of Mexican-American students to the total population," 467 F.2d at 873, we did not hold that as a general rule such a ratio must be attained or maintained in order for a school district to be declared unitary. In that part of our opinion dealing with the faculty and professional staff of the Austin schools, we indicated that our principal concern was to fulfill meaningfully the mandate of United States v. Montgomery County Board of Education, 395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1969). The Supreme Court's opinion in Montgomery County approved a district court's remedial order which...