U.S. v. Texas Ed. Agency

• Decision Date: 13 May 1976
• 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: U.S. Court of Appeals — Fifth Circuit

Page 380

532 F.2d 380

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.

May 13, 1976.

Mario Obledo, MALDEF, Sanford Rosen, San Francisco, Cal., Jim Heidelberg, San Antonio, Tex., Gabriel Gutierrez, Jr., Austin, Tex., Jack Greenberg, Sylvia Drew, 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 the U. S.

Sal Levatino, Austin, Tex., for School Bd., Austin Independent School Dist.

Donald S. Thomas, Austin, Tex., for defendants-appellees.

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

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

WISDOM, Circuit Judge:

The United States and various black and Mexican-American intervenors have challenged the student assignment policies of the Austin Independent School District (AISD). This is the second time this case has come before us. In 1972, our en banc Court remanded the case to the district court with directions to eliminate all discriminatory segregation against black and Mexican-American students and to establish a unitary school system in Austin. United States v. Texas Education Agency, 5 Cir., 467 F.2d 848 (Austin I ). At the time of that decision, the AISD was 65 percent Anglo, 20 percent Mexican-American, and 15 percent black. Eighty-three percent of the black students and 58 percent of the Mexican-Americans attended schools that contained over three-fifths minority ¹ students. The district court, on remand from our en banc decision, adopted the desegregation plan submitted by the AISD. This plan has had two years of operation to prove itself. The school system is now 62 percent Anglo, 23 percent Mexican-American, and 15 percent black. Forty-two percent of the black Austin students and 45 percent of the Mexican-Americans still attend schools that are over three-fifths minority. Progress has been made. But the AISD is far from a unitary system.

This Austin case differs from the one we considered in 1972 in two respects. First, we must weigh the effect of the Supreme Court decision in Keyes ² on the burdens of the plaintiffs and defendants. Second, we must measure the constitutional sufficiency of the new desegregation plans the AISD and the intervenors have submitted.

I. PROCEDURAL HISTORY

This school desegregation case was filed in August 1970 by the United States against the Texas Education Agency and seven school districts, including the AISD. The complaint alleged that (1) historically, the defendants had operated a dual system based on race, and continued to do so, and (2) the defendants discriminatorily assigned Mexican-Americans to schools identifiable as Mexican-American schools or as schools intended for blacks and Mexican-Americans. Certain blacks and Mexican-Americans intervened on their own behalf and as representatives of those similarly situated.

After the parties and the United States Department of Health, Education, and Welfare were unable to agree on a desegregation plan, the district court consolidated a hearing that took place June 14 to June 21, 1971. The court held that there had been no de jure discrimination against Mexican-Americans and afforded them no relief. It then held that the "vestiges of a dual system continue to exist with respect to blacks" and adopted, with minor modifications, the AISD plan for establishing a unitary school system in Austin. The high schools and junior high schools were to be desegregated primarily by busing about 2200 blacks to previously predominantly This Court, sitting en banc, reversed and remanded the case to the district court with directions to eliminate the unconstitutional segregation of Mexican-American and black students "at once". 467 F.2d at 883. We held that the AISD had caused and perpetuated the segregation of blacks within the school system and that it had not dismantled this dual system. The Court further held that the educational status of Mexican-American students was inferior to that of their Anglo counterparts and that Mexican-Americans in Austin were a separate ethnic minority within the ambit of the Equal Protection Clause. Because school authorities, by their actions, contributed to the segregation of Mexican-Americans in the Austin schools, we held that these students were denied the equal protection of the laws.

white schools. The elementary schools were "clustered" into groups of six schools each. One week per month the students of each cluster were to meet together to engage in certain planned activities. The district court found "that elementary students would be in a desegregated environment as much as twenty-five (25) percent of the school year".

The en banc Court divided only on the issue of remedy. A majority of the Court directed the district court to eliminate the dual school system and itemized a hierarchy of desegregation tools that the court should consider using. Six judges dissented: "The majority opinion . . . (is) an example of how a reviewing court can pass the buck, give the school board a delay, and confuse the district court on remand." 467 F.2d at 888. This evaluation has to some extent been borne out by later events. The district judge admitted to the attorneys in this case that he was baffled by the majority opinion on remedy and asked for help in interpreting it. The response of the attorneys (of both the intervening plaintiffs and the AISD) was to move for clarification of this Court's mandate. The motion was denied over the dissent of five judges. United States v. Texas Education Agency, 5 Cir. 1973, 470 F.2d 1001 (en banc).

On August 3, 1972, the day after our en banc decision was issued, the district court ordered the parties to hold a pretrial conference within five days to discuss the possibility of joining in the submission of a single desegregation plan to that court. If no agreement could be reached, the AISD, the United States, and the intervenors were ordered to submit plans by August 14. The United States reported to the district court on that day that it was "unable to submit a desegregation plan at this time" and recommended to the court "that local officials be given the opportunity to formulate and submit a plan to the Court before the Court or other parties consider alternatives or modifications to such a plan". On the same day, the intervenors and the AISD filed desegregation plans. The government has yet to file any plan.

The AISD's plan would establish six sixth grade centers that would draw all sixth-graders in the school district. The intervenors' plan would require the busing of all kindergarten-to-fourth-grade students (K-4) at the predominantly minority schools in East Austin to new grade K-4 schools in West Austin, and the busing of all fifth-to-eighth-grade students at predominantly Anglo schools in West Austin to new grade 5-8 schools in East Austin. The plan would also close the one predominantly minority high school remaining in Austin (Johnston) and bus its students to the remaining high schools. The black intervenors added an objection to the 1971 closing of the black high school (Anderson) and black junior high school (Kealing) in Austin, and requested that the schools be reopened and used in any desegregation plan adopted by the court. The district judge conducted the trial for twelve days in May, 1973. He issued a "Memorandum Opinion and Order" on August 1, 1973.

The district court first held that, because the AISD had, in the past, intentionally segregated black students, it must now dismantle its dual system based on race. Second, the court held that its finding of past intentional segregation of blacks constituted a prima facie case of intentional The United States and the plaintiff-intervenors have appealed from this Memorandum Opinion and Order of the district court.

segregation of Mexican-Americans. It concluded, however, that the AISD had successfully rebutted this prima facie case by demonstrating that its racial policies had been unrelated to its treatment of Mexican-Americans and that there was an absence of segregative intent toward Mexican-Americans. The court, relying on Keyes v. School District No. 1, Denver, Colorado, 1973, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548, held that it would therefore be improper to order "all-out desegregation" of Mexican-Americans. The court then rejected the black intervenors' challenge of the closing of Anderson and Kealing schools and adopted, with minor modifications, the AISD's plan for establishing an integrated school system. Because Mexican-American students are an identifiable minority entitled to equal protection of the laws, the court further held that they were entitled to equal educational opportunities, including the setting up of special educational programs, such as bilingual and bicultural education.

II. SEGREGATION OF MEXICAN-AMERICANS

A. The Keyes Case

The Supreme Court held in Brown v. Board of Education, 1954,347 U.S. 483, 495, 74 S.Ct. 686, 692, 98 L.Ed. 873, 881, that educational facilities segregated on the basis of race are inherently unequal. In Keyes v. School District No. 1, Denver, Colorado, 1973, 413 U.S. 189, 195-98, 93 S.Ct. 2686, 2690-2692, 37 L.Ed.2d 548, 555-557, the Court extended this principle to the segregation of Mexican-Americans in the Denver school system. The unequal educational status of these minorities does not constitute a violation of the Equal Protection Clause of the Fourteenth Amendment unless it results from "state action". The term of art that has long described the state action requirement in the school desegregation context is "de jure segregation", which the Supreme Court has defined as "a current...