Tasby v. Wright, 82-1121

• Decision Date: 11 August 1983
• Docket Number: No. 82-1121,82-1121
• Citation: 713 F.2d 90
• Parties: 12 Ed. Law Rep. 1060 Eddie Mitchell TASBY, et al., Plaintiffs-Appellees, and Dallas Metropolitan Branches of the NAACP, et al., Intervening Plaintiffs-Appellees, v. Linus WRIGHT, General Superintendent, Dallas Independent School District, et al., Defendants-Appellants, and Donald E. Curry, et al., Intervening Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 90

713 F.2d 90

12 Ed. Law Rep. 1060

Eddie Mitchell TASBY, et al., Plaintiffs-Appellees and Dallas Metropolitan Branches of the NAACP, et al Intervening Plaintiffs-Appellees, v. Linus WRIGHT, General Superintendent, Dallas Independent School District, et al., Defendants-Appellants and Donald E. Curry, et al., Intervening Defendants-Appellants.

No. 82-1121.

United States Court of Appeals Fifth Circuit.

Aug. 11, 1983.

Edward D. Cloutman, III, Dallas, Tex., for Tasby, et al.

E. Brice Cunningham, Dallas, Tex., for Elana Brice Cunningham and Richard Dockery.

Thomas I. Atkins, NAACP Sp. Contribution Fund, Brooklyn, N.Y., for NAACP.

James Albert Donohoe, Dallas, Tex., for Brinegar, et al.

Robert H. Thomas, Mark Martin, P. Michael Jung, Dallas, Tex., for Linus Wright, et al.

William R. Allensworth, George W. Bramblett, Jr., Patricia S. Koning, Dallas, Tex., for Donald E. Curry, et al.

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

Before GARZA, RANDALL and GARWOOD, Circuit Judges.

RANDALL, Circuit Judge:

This school desegregation case was originally filed almost thirteen years ago in October, 1970. ¹ The long factual and procedural history of this litigation is set forth in our earlier opinions, Tasby v. Estes (Tasby II), 572 F.2d 1010 (5th Cir.1978), cert. dismissed, 444 U.S. 437, 100 S.Ct. 716, 62 L.Ed.2d 626 (1980); Tasby v. Estes (Tasby I), 517 F.2d 92 (5th Cir.), cert. denied, 423 U.S. 939, 96 S.Ct. 299, 46 L.Ed.2d 271 (1975), and we see no need to repeat that history here. We note only that the case has come a long way in the intervening years and that it has now reached the point where the major portion of the district court's judgment is the result of the parties' own agreement.

I. PROCEEDINGS IN THE DISTRICT COURT.

In Tasby II, we were concerned with the substantial number of one-race schools ² left in existence under the desegregation plan approved by the district court, and with the absence of specific findings as to the feasibility of using the techniques approved by the Supreme Court in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), to desegregate further the Dallas Independent School District ("DISD"). 572 F.2d at 1014. We remanded the case to the district court for

the formulation of a new student assignment plan and for findings to justify the maintenance of any one-race schools that may be a part of that plan. The district court is directed to include in its plan a majority-to-minority transfer option with adequate transportation. As for the remaining provisions of its order here under review, the district court is to reassess such provisions in light of the remedy it fashions with respect to school assignments.

Id. at 1018.

On remand, the district court held an extensive hearing and rendered a sensitive, thorough opinion in an attempt to address our concerns. Tasby v. Estes, 520 F.Supp. 683 (N.D.Tex.1981). The court concluded that the mandatory transportation technique suggested in Swann was not feasible within the DISD because of substantial time and distance problems, as well as a shortage of enough anglo students to go around. ³ 520 F.Supp. at 733, 735, 739. It directed the parties to develop a plan that would obtain greater desegregation within the school system and would attempt to eliminate the achievement gap between anglo and minority students.

The parties entered into a stipulation addressing four areas of judicial concern. ⁴ The DISD agreed: 1) to implement modifications to the majority-to-minority transfer program and to consider suggestions in formulating a majority-to-minority publicity program; 2) to consider and develop programmatic remedies to "reduce and hopefully to eliminate the achievement disparity between minority and anglo students," and to allocate fifty dollars annually per "ethnic minority student ... in predominately ethnic minority (more than 75%) schools" to be used for these programmatic remedies; 3) to improve the facilities at the Nolan Estes Educational Plaza; and 4) to expand and improve the magnet school program. 10 Record at 1967. The district court approved this stipulation and included it in the court's final judgment.

The parties were unable to agree on a plan with respect to two items of concern mentioned by the district court, and their continuing disagreement forms the basis for this appeal. First, the court had asked the parties to address the feasibility of obtaining greater desegregation by adjusting contiguous attendance zones. In particular, the court was concerned about the continuing existence of predominately anglo schools. ⁵ The plaintiffs suggested alterations in the attendance zones of naturally desegregated schools, while the DISD and the Curry and Brinegar intervenors rejected any such alterations. They suggested, instead, reliance on the majority-to-minority transfer and magnet school programs. The district court approved the plaintiffs' proposal with a minor variation not relevant here.

The second area of disagreement involves the Minority Neighborhood Option Plan ("MNOP"), which was proposed by the Black Coalition. The Coalition, a new party to this litigation, is a group of minority parents who desired the option of having their children remain in neighborhood 4-8 centers; in essence, they sought to opt out of the mandatory busing ordered by the district court in 1976. The plaintiffs, the NAACP and the Cunningham intervenors opposed adoption of this plan because they believed that it would resegregate a significant portion of the 4-8 schools. The Coalition, the DISD, and the Curry and Brinegar intervenors insisted that minority members have the right to opt out of a desegregated system. The district court refused to accept the MNOP plan because it could not reconcile such a plan with traditional legal principles favoring maximum desegregation or with this court's concern about the continued existence of one-race schools.

The DISD, and the Curry and Brinegar intervenors have appealed from the district court's decision. All three challenge the district court's: 1) failure to find that the DISD has converted to a unitary school system; 2) rejection of the MNOP plan; and 3) alteration of the attendance zones for Woodrow Wilson and Thomas Jefferson High Schools, in an attempt to desegregate further Bryan Adams and W.T. White High Schools. The Curry intervenors have also appealed the court's revision of the DISD minority hiring and promotion goals.

Before we proceed to address these contentions, we believe it worthwhile to note what has not been appealed. First of all, the parties who have been urging increased desegregation--the original plaintiffs, the NAACP and the Cunningham intervenors--appear to be satisfied with the district court's decision. The NAACP initially filed an appeal but subsequently withdrew it because the organization determined that the court's decision, if not an optimum solution, was constitutionally permissible. Thus, no one has challenged on appeal the court's conclusion that systemwide mandatory transportation is not feasible or the adequacy of the court's order as a remedy for past constitutional violations. On the other side of the litigation, the Black Coalition has not appealed the court's rejection of its MNOP plan; this court is urged to require approval of the plan solely by the DISD and the Curry and Brinegar intervenors. Similarly, the Curry intervenors are the only parties to challenge the personnel revisions; the DISD has informed this court that it can "live with" the district court's changes. Finally, the appellants' objections to the court's alteration of attendance zones in North and East Dallas concern less than one-percent of the DISD students.

In light of the present impressive level of agreement in this case, we can only say that the district court has done a commendable job with what was once a massive undertaking. With the exception of the alteration of the East Dallas attendance zones, the district court's decision is affirmed.

II. UNITARY STATUS.

When this case was last before us in 1978, the DISD had acknowledged that the "creation of the all black East Oak Cliff subdistrict and the existence of a substantial number of one-race schools militate[d] against the finding of a unitary school system." Tasby II, 572 F.2d at 1014. The DISD has now decided that it is time for judicial supervision of the Dallas school system to end; therefore, it maintains that the district court should have declared the school system to be unitary. ⁶ On the record before us, we cannot say that the district court erred in failing to make such a declaration for the purposes of this proceeding.

The appellants insist that the DISD is like the school systems in Houston and Atlanta, both of which have been declared unitary. Ross v. Houston Independent School District, 699 F.2d 218 (5th Cir.1983); Calhoun v. Cook, 522 F.2d 717 (5th Cir.1975). Of course, the fact that we held that the district courts' determinations of unitary status were not clearly erroneous, see Ross, supra, 699 F.2d at 226, in those cases does not necessarily indicate that the converse is true in this case. We must "keep in mind that each school district is unique," Ross, 699 F.2d at 227, and we note that there are important differences among the three cases. For example, the plaintiffs in Ross had not come up with any proposal that would have further desegregated the Houston school system. The same cannot be said in this case. The Ross court was presented with

the undisputed fact that HISD is unitary in every aspect but the existence of a homogeneous student population; the intensive efforts that have been made to eliminate one-race schools; and the district court's conclusion that further measures would be both impractical and detrimental to education ....

699 F.2d at 228. Here, there remains some dispute about the DISD's overall...