Valdespino v. Alamo Heights Independent School Dist.
| Decision Date | 11 March 1999 |
| Docket Number | No. 98-50227,98-50227 |
| Citation | 168 F.3d 848 |
| Parties | 132 Ed. Law Rep. 718 Robert VALDESPINO; Brenda Rolon, Plaintiffs-Appellants, v. ALAMO HEIGHTS INDEPENDENT SCHOOL DISTRICT; Ethyl Wayne; In her official capacity as a member of the Board of Trustees of the Alamo Heights Independant School District, San Antonio, Texas, Harry Orem, In his official capacity as a member of the Board of Trustees of the Alamo Heights Independent School District, San Antonio, Texas; Stephen P. Allison; In his official capacity as a member of the Board of Trustees of the Alamo Heights Independent School District, San Antonio, Texas; Anne Ballantyne, In her official capacity as a member of the Board of Trustees of the Alamo Heights Independant School District, San Antonio, Texas; Thomas A. Kingman, Dr., In his official capacity as a member of the Board of Trustees of the Alamo Heights Independent School District, San Antonio, Texas; Terri Musselman, In her official capacity as a member of the Board of Trustees of the Alamo Heights Independant School District, San Antonio, Texas; Vicki Summers, In her official capacity as a member of the Board of Trustees of the Alamo Heights Independant School District, San Antonio, Texas, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jose Garza, Edinburg, TX, Mark Stanton Smith, Heard & Smith, Judith A. Sanders-Castro, Les Mendelsohn & Associates, San Antonio, TX, for Plaintiffs-Appellants.
C. Robert Heath, Amy Wellington Flinn, Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, Austin, TX, for Defendants-Appellees.
Appeal from the United States District Court for the Western District of Texas.
Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.
The panel hereby withdraws its previous opinion and substitutes the following.
Plaintiffs-Appellants claim that the at-large, by-place, majority-vote elections for positions on the AHISD board of trustees dilute their votes as Hispanics in violation of Section 2 of the Voting Rights Act of 1965. See 42 U.S.C. § 1973 (1994) (as amended). The district court found that the Plaintiffs failed to make out a vote dilution claim because they could not prove, under the first Gingles threshold factor, that Hispanics are a "sufficiently large and geographically compact [group] to constitute a majority in a single-member district." Thornburg v. Gingles, 478 U.S. 30, 50, 106 S.Ct. 2752, 2766, 92 L.Ed.2d 25 (1986). All the issues on appeal involve proof of the first Gingles factor. In particular, we reject the appellants' contention that a "majority" may be less than 50% of the citizen voting-age population. As appellants' other contentions fare no better, the judgment is affirmed.
The School District conceded at trial that the Plaintiffs' demonstration district 1 did comprise a majority of Hispanic voting-age citizens according to 1990 census data. The School District, however, presented evidence that demographic changes between the 1990 census and the 1997 trial had eliminated that majority. AHISD is a small district in which a few strategic land-use changes could and did significantly alter the district's population and neighborhood ethnic mix.
The School District's evidence was presented in expert testimony by Dr. Bill Rives, a demographer. Using the 1990 census data as a baseline, Rives investigated post-1990 changes in the school district's housing stock to determine how the population had changed in the Plaintiffs' demonstration district and in the school district at large. He testified that this methodology is "by far the most popular demographic estimation technique" and is especially appropriate for small areas.
Rives testified that two main trends combined to leave the Plaintiffs' demonstration single-member district "underpopulated" in 1997. Since 1990, the demonstration district had lost population (and the proportion of Hispanics in the demonstration district declined) because a large apartment complex had closed, been renovated, and reopened with a smaller number of residents. Simultaneously, the population of the school district at large had increased because of substantial new residential development in the Lincoln Heights area (formerly a quarry and cement plant), outside the demonstration district. As a result of these changes, the Plaintiffs' demonstration district no longer approached one-seventh of the school district's population, and thus could not be a proper single-member district.
To correct for the underpopulation, Rives added territory to the demonstration district. He added a contiguous area to the north that had been included in some of the appellants' prior proposed demonstration districts. That northern area ran clear to the edge of the school district and had just about the right number of people to make a proper district. Furthermore, if it were not added to the Plaintiffs' district, the northern area would have to be attached to a different district via a mile-long, narrow strip of unpopulated land. After the northern area was added to the demonstration district population, Hispanics made up only 47.9% of the voting-age citizen population of the revised demonstration district. Even if the demonstration district were then partially depopulated (by 8.1% of the ideal population), this number would be 48.3%.
The general thrust of Rives's testimony had been clear for some time before trial. For example, in a November 1996 affidavit attached to the Defendants' Response to Plaintiffs' Motion for Partial Summary Judgment, Rives had explained that no additions to the Plaintiffs' proposed demonstration district could sufficiently increase the Hispanic population because "[t]here are no Hispanic-majority blocks that are adjacent to the proposed district." As the trial grew nearer, Rives updated his analysis, redoing calculations based on more recent data from the apartment complexes about the ethnicity of their residents. Ultimately, the district court relied on Rives's April 1997 Report.
Much of the controversy in the case comes from Rives's August 1997 Report. In July 1997, updated rental rolls became available from The Reserve, the large apartment complex within the Plaintiffs' demonstration district that had been renovated and reopened since the 1990 census. Rives then recalculated the results in his April 1997 report after learning that The Reserve had a slightly higher proportion of Hispanic residents than he had earlier believed. But he also corrected a calculation error in his April Report that had understated population growth in the school district at large. Nevertheless, he concluded that the revised data still did not yield a majority of Hispanics among voting-age citizens within the Plaintiffs' demonstration district. The August Report was given to the Plaintiffs in early August 1997, not long before the original trial setting. On August 22, however, the district court reset the trial for Monday, September 15.
The Plaintiffs' proffered expert witness, George Korbel, claims that he was surprised by the conclusions in Rives's August Report. In response, Korbel scrambled the week before the September trial date to conduct a door-to-door survey of the residents in a small area to the south of the demonstration district. He thought he could find there a high proportion of Hispanic residents that could increase their demonstration district's population without diluting its Hispanic majority. At 4:21 P.M. on Friday, September 12, the Plaintiffs faxed to the School District's counsel a letter disclosing the existence of this new survey. At 4:13 P.M. on Saturday, September 13, the Plaintiffs faxed the data from the survey.
On the Monday morning set for trial, September 15, the School District filed a motion to strike the survey on grounds of unfair surprise. The Plaintiffs' lawyer told the district court that their case in chief would rest entirely on 1990 census data, but that if Rives testified for the School District that more current data changed the Hispanic majority, then the Plaintiffs might use the recent survey as rebuttal testimony. The district court postponed until rebuttal any ruling on the motion to strike and granted a motion in limine to prevent mention of the survey during the case in chief or cross-examination. During the Plaintiffs' rebuttal, the School District renewed its objections to the survey evidence, and the district court granted the motion to strike. The Plaintiffs filed an offer of proof as to what their expert witness would have testified about the survey.
In its findings of fact and conclusions of law, the district court reiterated that Korbel's survey constituted unfair surprise and was excluded under Local Rule CV-16(e). To accommodate the Plaintiffs' objections to the lateness of Rives's August Report, the district court decided to rely solely upon the April Report, which it found to be "thoroughly documented, [with] a high degree of accuracy," and "clear, cogent, and convincing enough to override the presumptive correctness of the prior decennial census." Relying on Rives's report, the district court found that the Plaintiffs had not proved a demonstration district with less than 10% population deviation that included more than 50% Hispanics among its voting-age citizens.
On appeal, the Plaintiffs present three arguments: that they were not required to meet a "bright line" test of 50% Hispanic voting-age citizens in their demonstration district; that the School District's evidence did not adequately overcome the presumed accuracy of the 1990 census data; and that the district court abused its discretion in excluding Korbel's proposed rebuttal testimony about the last-minute, door-to-door survey.
This court reviews district court "findings on the Gingles threshold requirements for clear error." League of United Latin Am. Citizens v. Roscoe Indep. Sch. Dist., 123 F.3d 843, 847 (5th Cir.1997). See also Gingles, 478...
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