U.S. v. Texas Ed. Agency (Austin Independent School Dist.)

• Citation: 564 F.2d 162
• Decision Date: 21 November 1977
• Docket Number: No. 73-3301,73-3301
• Parties: UNITED STATES of America, Plaintiff-Appellant, Dedra Estell Overton et al., Intervenors-Appellants, v. TEXAS EDUCATION AGENCY et al. (AUSTIN INDEPENDENT SCHOOL DISTRICT), Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 162

564 F.2d 162

UNITED STATES of America, Plaintiff-Appellant, Dedra Estell Overton et al., Intervenors-Appellants, v. TEXAS EDUCATION AGENCY et al. (AUSTIN INDEPENDENT SCHOOL

DISTRICT), Defendants-Appellees.

No. 73-3301.

United States Court of Appeals,

Fifth Circuit.

Nov. 21, 1977.

Mario G. Obledo, Sanford Rosen, MALDEF, San Francisco, Cal., Jim Heidelberg, San Antonio, Tex., Gabriel Gutierrez, Jr., Samuel T. Biscoe, Austin, Tex., Jack Greenberg, Melvyn R. Leventhal, Kellis E. Parker, Sylvia Drew, Bill Lann Lee, New York City, for Overton et al.

William S. Sessions, U. S. Atty., San Antonio, Tex., John L. Hill, Atty. Gen., Austin, Tex., Brian K. Landsberg, Joseph D. Rich, Attys. Dept. of Justice, Washington, D. C., for United States.

Donald S. Thomas, William H. Bingham, Jr., Austin, Tex., for Austin Independent School District.

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

Before WISDOM, COLEMAN and TJOFLAT, Circuit Judges.

WISDOM, Circuit Judge:

In accordance with the mandate of the Supreme Court in Austin Independent School District v. United States, 1976, 429 U.S. 990, 97 S.Ct. 517, 50 L.Ed.2d 603, we have reconsidered the Austin School case, United States v. Texas Education Agency, 5 Cir. 1976, 532 F.2d 380 (Austin II ), in light of Washington v. Davis, 1976, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597. We reaffirm our reversal of the district court's judgment.

After restudy of our two earlier decisions and the record, we again hold that the evidence overwhelmingly supports the conclusion that the Austin School Board, Austin Independent School District (AISD), engaged in acts showing a pervasive intent to segregate Mexican-Americans. Dayton Board of Education v. Brinkman, --- U.S. ----, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977), however, as we read it, compels the remand of the case for a hearing so that the AISD may submit and the district court approve a tri-ethnic desegregation plan consistent with the decisions of this Court and of the United States Supreme Court.

I.

Seven years after the Attorney General of the United States initiated this tri-ethnic school desegregation suit under the Civil Rights Act of 1964, 42 U.S.C. § 2000c-6, it comes to this Court for the third time, this time on remand from the Supreme Court.

In United States v. Texas Education Agency, 5 Cir. 1972, 467 F.2d 848 (en banc), Austin I, this Court held, with respect to black students, that "the AISD has not dismantled the state-imposed (segregated school) system based on race". The district court had entered an order approving a plan that closed black secondary schools. The students in those schools were assigned to Anglo secondary schools. This plan scattered blacks of secondary school age through the district, but put the entire burden of transportation on blacks. We held, "The AISD has not fulfilled its 'affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch' ". 467 F.2d at 870.

With respect to Mexican-American students, we held that the district court was clearly erroneous in finding that the AISD had not practiced segregation against that identifiable ethnic minority. We held that through various actions AISD officials "caused and perpetuated the segregation of Mexican-American students within the (Austin) school system". 467 F.2d at 865-866. We ordered that the school system "be converted to a unitary system on a tri-ethnic, desegregated basis". 467 F.2d at 871. The en banc court of fourteen was unanimous in holding that AISD intentionally discriminated against Mexican-Americans and was divided only as to how desegregation should be accomplished.

On remand, the district court was at a disadvantage in carrying out the mandate in Austin I in view of the decision of a majority of our Court rejecting a motion to clarify the remedy (the vote was nine to five). ¹ 5 Cir., 470 F.2d 1001. The district court also had to consider the Supreme Court's supervening decision in Keyes v. School District No. 1, Denver, Colorado, 1973, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548. The district court reiterated its earlier holding that "the AISD . . . has engaged in discriminatory assignment of black students to promote segregation". The court ordered the black high school and junior high school closed, again throwing the burden of busing only on the blacks. The district court held that its finding of past intentional segregation of blacks constituted a prima facie case of intentional segregation of Mexican-Americans. It concluded, however, that the AISD had rebutted this prima facie case by demonstrating that there was no intentional discrimination against Mexican-American students. Nevertheless, the court included them in the limited desegregation remedy it approved for blacks. That remedy was to desegregate one grade in the black elementary schools the sixth leaving segregation untouched in the district's other grades and schools. Mexican-American children were left in their segregated facilities, except for those who attended the Sixth Grade Center. The district court approved certain worthy bilingual and bicultural programs.

The unique limitation on desegregation to the sixth grade in black schools, which the AISD proposed and was approved by the district court, raises a fair inference that the AISD intended to continue extensive segregation of Mexican-Americans. The AISD suggests that the 1974 Education Amendments,20 U.S.C. § 1701 et seq. (1976 Supp.), somehow support this blanket exclusion. There are two answers to this contention. First, as the AISD in its own brief correctly observes:

"the provisions of this chapter are not intended to modify or diminish the authority of the courts of the United States to enforce fully the fifth and fourteenth amendments to the Constitution of the United States." 20 U.S.C. § 1702(b).

Second, the 1974 amendments do not support the wholesale exclusion of entire grades from a desegregation plan. They merely "find" that "the risks and harms created by excessive transportation are particularly great for children enrolled in the first six grades". 20 U.S.C. § 1702(a)(5) (emphasis added). This legislation does not purport to prohibit desegregation of children at such grade levels, but points out the obvious; as the Supreme Court said in Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 31, 91 S.Ct. 1267, 28 L.Ed.2d 554, age is one factor in evaluating the "practicalities" of a transportation plan.

In United States v. Texas Education Agency, 5 Cir. 1976, 532 F.2d 380 (Austin II ), the district court's finding of de jure discrimination against blacks was not appealed. We again reversed the district court's holding that the AISD had not subjected Mexican-American students to intentional discrimination. We held that the plaintiffs had made out an unrebutted prima facie case of segregation of Mexican-American students. We further held that the Sixth Grade Plan part time desegregation for some was "constitutionally insufficient". We instructed the district court to "draft a comprehensive tri-ethnic desegregation plan" that would "conform to one of the approaches outlined by Dr. Finger in his written submission of August 14, 1972, and in his testimony". 532 F.2d at 399. (Dr. Finger was the court-appointed expert in Swann.) The Finger Plan, submitted by the Mexican-American intervenors, envisioned the conversion of the Austin school system to a 4-4-4 or a 5-3-4 grade structure in which all students "in elementary schools that are over 50 percent minority would be bused to elementary schools that are over 90 percent Anglo", and middle school students "in schools that are over 90 percent Anglo would be bused to schools that are over 50 percent minority". 532 F.2d at 395. High school integration would be accomplished "by selecting, for each high school, feeder schools that would maximize the integration of that high school". Id.

The AISD petitioned for a writ of certiorari. The United States, in its brief on certiorari, had doubts about this Court's rationale in Austin II, but contended that the judgment was correct in holding "that the AISD engaged in pervasive acts of discrimination against Mexican-Americans". The Supreme Court granted certiorari, vacated our decision, and remanded the case to us "for reconsideration in light of Washington v. Davis." We now review our decision in Austin II in light of this mandate.

II.

We note at the outset, our determination that the AISD practiced intentional discrimination against black students is not in issue; the AISD did not appeal the district court's finding to this effect in Austin II. 532 F.2d at 392. Moreover, because Washington v. Davis is concerned with the evidentiary showing necessary to establish an equal protection violation in those situations where there has been no law specifically requiring segregation, that decision is inapplicable "where a statutory dual system has ever existed", Keyes v. School District No. 1, Denver, Colorado, 1973, 413 U.S. 189, 201, 93 S.Ct. 2686, 2694, 37 L.Ed.2d 548, 559. ² Our concern here, therefore, is with the effect of Washington v. Davis on our holding that the AISD unconstitutionally discriminated against Mexican-American students.

In Washington v. Davis the Supreme Court held that otherwise neutral state action does not violate the fourteenth amendment's equal protection clause "solely" because it has a disproportionate impact on a racial minority. Instead, courts must "adhere to the basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose ³". 426 U.S. at 240, 96 S.Ct. at 2048. The use of the word "solely" was clarified by Mr. Justice White, organ of the Court. He was careful to point out that a racially disproportionate effect may be an important...