Morales v. Shannon, 73-3096
Decision Date | 23 July 1975 |
Docket Number | No. 73-3096,73-3096 |
Citation | 516 F.2d 411 |
Parties | Genoveva MORALES, as next friend of Daniel Morales, a minor, et al., etc., Plaintiffs-Appellants, v. E. P. SHANNON, Individually and as Principal of Robb Elementary School, UvaldeCounty, Texas, et al., Defendants-Appellees. |
Court | U.S. Court of Appeals — Fifth Circuit |
Jesse Gamez, San Antonio, Tex., Sanford J. Rosen, Drucilla S. Ramey, Vilma S. Martinez, San Francisco, Cal., for plaintiffs-appellants.
Grant Cook, Houston, Tex., for defendants-appellees.
Appeal from the United States District Court for the Western District of Texas.
Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
This school desegregation case seems simple at first blush. It involves a complaint on behalf of Mexican-American students as to the elementary schools in the Uvalde, Texas school district. There are twelve Negro students and one student of Oriental descent in the system but they have not complained. The system has only one high school and one junior high and thus no desegregation problem as such is present as to those. There is no complaint as to kindergarten, a Headstart program.
The desegregation issue in the district court was limited to four elementary schools: Robb, Dalton, Benson, and Anthon. The record has been supplemented in this court to update enrollment and assignment data and it now appears that Batesville, an elementary school located 21 miles south of Uvalde, was consolidated into the Uvalde system in 1973 after the record was closed in the district court.
The difficulty of the case will be seen in the issues. The first, did the district court err in finding no segregatory intent, involves de facto rather than de jure segregation. Second, error is alleged in the failure to find that the grouping of students by ability, as was done in the high and junior high schools, is constitutionally proscribed on the basis of discrimination. Third, error is alleged in the refusal to find discrimination in the failure to provide a bilingual-bicultural educational program, and fourth, in failing to find discrimination in teacher and staff hiring and assignment. In addition to standing alone as assignments of error, as we understand the position of appellants, the second, third and fourth assignments are also asserted in support of the first, i. e., the failure to find segregatory intent. They are, however, of no help in this regard.
The student body composition and assignment in the system will be seen in the following table which reflects the school year 1972-73 for the senior and junior high schools and 1974-75 for the elementary schools:
Name of Grades No. of % of No. of No. of Total School Mexican- M.A. Anglo Negro American ----------- ------ -------- ----- ------ ------ ----- Sr. High 7-12 514 50.5 501 3 1018 Jr. High 7-8 373 59.7 252 0 625 West Garden K 275 87.86 35 3 313 Robb K-6 548 95.97 19 4 571 Dalton 1-6 185 31.3 403* 2 590 Benson 1-6 198 60.0 132 0 330 Anthon K-6 353 97.2 10 0 363 Batesville K-6 223 88.49 29 0 252 ----- 4062 *Inclues one student of Oriental descent
I
With respect to the first issue, segregatory intent, we are governed by Keyes v. School District No. 1, Denver, Colorado, 1973, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548, which supervened our holding in Cisneros v. Corpus Christi Independent School District, 5 Cir. (en banc), 1972, 467 F.2d 142, to the extent that Keyes requires, as a prerequisite to a decree to desegregate a de facto system, as Uvalde admittedly is from the Mexican-American standpoint, proof of segregatory intent as a part of state action. We said not in Corpus Christi, holding cause and effect a sufficient basis, but the Supreme Court held to the contrary in Keyes. For example, Justice Brennan, for the majority, said:
"We emphasize that the differentiating factor between de jure segregation and so-called de facto segregation to which we referred in Swann is purpose or intent to segregate."
413 U.S. at 208, 93 S.Ct. at 2697, 37 L.Ed.2d at 563.
Indeed a good deal of the burden of Justice Powell's special opinion is addressed to this. He summed up the holding of the majority in Footnote 15 of his opinion as follows:
413 U.S. at 230, 93 S.Ct. at 2708, 37 L.Ed.2d at 575-76, n. 15.
The district court here, applying the teaching of Keyes, found no segregatory intent with respect to student assignment. We hold that this finding is clearly erroneous.
The facts are that as early as 1907, there was a "Mexican School" in the system apparently as the result of the language problem. Later there were two elementary schools populated by Mexican-American students (East Garden and West Garden). We can take 1954 as a modern point of departure. In that year the Robb School was constructed in the Mexican-American neighborhood and the Dalton school in the Anglo section. Benson was already in existence (constructed in 1937), and was centrally located. East Garden (later closed) and West Garden (now for Headstart) were the original Mexican schools. In 1966, Anthon was constructed to replace West Garden. At this point, freedom of choice was the assignment rule but a survey showed that there would be overcrowding and a capacity imbalance as to the elementary schools if freedom of choice was continued. A neighborhood or proximity-to-school assignment system was thereupon imposed.
The imposition of the neighborhood assignment system froze the Mexican- American students into the Robb and Anthon schools. There could have been no other result and this is strong evidence of segregatory intent. This evidence becomes overwhelming when considered in tandem with an additional fact. The Uvalde system consists of the City of Uvalde plus a rural area and freedom of choice assignment was continued as to the approximately 300 students residing in the rural area. Of these, 154 Anglo students opted for the Dalton school. The mandatory assignment of these students to Robb and Anthon might well have desegregated those schools.
Having concluded that the district court was clearly erroneous in finding no segregatory intent, we remand to the district court with direction that the remedy outlined in Cisneros v. Corpus Christi, supra, 467 F.2d 142, 152-54, be implemented.
II
The law of this circuit as to the ability grouping issue is set out in McNeal v. Tate County School District, 5 Cir., 1975, 508 F.2d 1017. There we said:
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Bolden v. City of Mobile, Alabama, Civ. A. No. 75-297-P.
...the tort standard as proof of segregatory intent as a part of state action in school desegregation findings. Morales v. Shannon, 516 F.2d 411, 412-13 (5th Cir. 1975), cert. den. 423 U.S. 1034, 96 S.Ct. 566, 46 L.Ed.2d 408 (1975). Recently, citing Morales, supra, Cisneros v. Corpus Christi I......
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U.S. v. Texas Ed. Agency (Austin Independent School Dist.), 73-3301
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