Ross v. Houston Independent School Brief for Appellees
Public Court Documents
May 1, 1982
79 pages
Cite this item
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Brief Collection, LDF Court Filings. Ross v. Houston Independent School Brief for Appellees, 1982. 307f494f-c39a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/125979df-b20f-4b5e-8140-7c3dd449fd12/ross-v-houston-independent-school-brief-for-appellees. Accessed October 25, 2025.
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HOUSTON ' INDEPENDENT I
SCHOOL ,DISTRICT/ ET AL,
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Defendants-Appellees,
'• ‘ '/■. *■•/;•• vV ’ 'On Appeal From the'-United States District Court
- For the Southern 'District of Texas
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■ : i :t,;V' BRIEF FOR" THE APPELLEES
■ HOUSTON. INDEPENDENT SCHOOL DISTRICT, ET A]
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WILLIAM KEY'-WILDE
| KELLY FRELS v, ,. ''
TIMOTHY T. COOPER -
2900 SouthJTower Pennzoil Place
Houston, Texas 77002.'
(713) 223-2900 .
Attorneys for Appellees,
' Houston. Independent' School
District, et al
CERTIFICATE OF INTERESTED PERSONS
The undersigned, counsel of record, certifies that the
following listed persons have an interest in the outcome of
this case. These representations are made in order that the
Judges of this Court may evaluate possible disqualification
or possible recusal.
1. The Plaintiff, Delores Ross, and her mother, Mrs.
Mary Alice Benjamin;
n 2. The Plaintiff, Benva Delois Williams and her
father, Marion Williams;
3.r —
i
The Plaintiff, Ndapanda Nyamu, and her mother,
Mrs. Beneva Delois Williams Nyamu;
4. Weldon H. Berry, Jack Greenberg, James M. Nabrit,
III, Lowell Johnston and Bill Lann Lee, attorneys
for the Appellants;
H 5 • The National Association for the Advancement of
Colored People;
6 •
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The Houston Independent School District, whose
General Superintendent is Billy R. Reagan and
whose Superintendents are Ms. Patricia Shell, Mr.
Joseph Angle and Dr. Michael Say;
7. The members of the Board of Trustees of the
Houston Independent School District: Ray A.
Morrison, President, Mr. Tarrant Fendley, Vice-
President, Ms. Cathy Mincberg, Secretary, Mrs.
Marquis Alexander, Mr. Wiley Henry, Dr. J. C.
Jones, Mrs. Bobby Ann Peiffer, Ms. Tina Reyes, and
Mrs. Elizabeth Spates;
8 . Bracewell & Patterson, attorneys for the Appel
lees .
/
9TTCSK
Kelly Frels
1
STATEMENT REGARDING ORAL ARGUMENT
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The Defendants, the Houston Independent School Dist
rict, et al, believe that oral argument is necessary. This
case involves important issues of desegregation law pre
sented in the context of a large, mostly minority, urban
school district beset by the problems of mobility and trans
portation, demographic change, and special educational
needs. This case also involves a very belated request by
the Original Plaintiffs to change their theory of the case
and seek to institute a metropolitan remedy.
Because the issues in this case are important and in
many aspects, novel, the Defendants feel that oral argument
will prove helpful to this Court.
!
10TTCSD
11
TABLE OF CONTENTS
Certificate of Interested Persons .................. i
Statement Regarding Oral Argument .................. ii
Table of Contents .................................. iii
Index of Authorities ............. ................. v
Statement of the Issues ............................ 1
Statement of the Case .............................. 2
(i) Course of proceedings and disposition in
court below .............................. 2
(ii) Statement of the Facts .................... 5
Summary of the Argument ........................... 14
Argument ........................................... 15
I. INTRODUCTION ............................. 15
II. THE HISD IS A UNITARY SCHOOL DISTRICT ___ 15
A. The Remaining One Race Schools are
not Vestiges of the Formerly Dual
System .............................. 19
B. The HISD has Taken all Practicable
Steps to Desegregate the Schools .... 23
III. THE DISTRICT COURT WAS CORRECT IN DENYING
THE APPELLANTS' MOTION FOR LEAVE TO AMEND
AND TO ADD ADDITIONAL PARTIES ........... 36
A. The District Court Properly Denied
the Original Plaintiffs' Motion for
Leave to Amend Their Complaint ....... 37
B. The Proposed Additional Defendants
are not Necessary Parties .......... 47
C. The Proposed Defendants Should Not
be Joined Under Rule 21 ............ 49
Conclusion 50
Certificate of Service ............................. 51
10TTCSA
IV
INDEX OF AUTHORITIES
A. Cherney Disposal Co. v. Chicago and Suburban
Refuse Disposal Co., 68 F.R.D. 383 (N.D.
111. 1975), rev'd on other grounds, 484
F.2d 751 (7th Cir. 1973), cert, denied,
414 U.S. 1131, 94 S.Ct. 870 (1974)............... 39
Adams v. United States, 620 F.2d 1277 (8th
Cir. 1980), cert, denied, 449 U.S. 826.
101 S.Ct. 88 (1980).............................. 37
Axnco Engineering Co. v. Bud Radio, Inc. 38
F.R.D. 51 (N.D. Ohio 1965)...................... 48,49
Anderson Moorer, 372 F.2d 747 (5th Cir. 1967)..... 49
Barr Rubber Products Co. v. Sun Rubber Co.,
425 F.2d 1114 (2nd Cir. 1970), cert, denied,
400 U.S. 878 , 91 S.Ct. 118 (1970)___777777..... 49
Beloit Corporation v. Kusters, 13 F.R. Serv.
2d 174 (S.D.N.Y. 1969)........................... 41
Benger Laboratories. Ltd. v. R. K. Laros Co.,
24 F.R.D. 450 (E.D. Pa. 1959) .77777.777 ........ 49
Brown v. Board of Education, 349 U.S. 294,
75 S.Ct. 753 (1955).......................... 14,16,35
Calhoun v̂ _ Cook, 522 F.2d 717- (5th Cir. 1975)....... 32,37
Calhoun v. Cook, 525 F.2d 1203 (5th Cir. 1973)....... 24
Carr v. Montgomery County Board of Education,
377 F.Supp. 1123, (M.D. Ala. 1974), aff'd,
511 F.2d 1374 (5th Cir. 1975), cert.“denied,
423 U.S. 986, 96 S.Ct. 394 (5th Cir. 1975)...... 32
Chromalloy American Corporation v. Alloy
Surfaces Co., Inc., 351 F.Supp. 449 (D.
Del. 1972)___ 7777............................... 45
Conklin v . Joseph C. Hofgesang Sand Company,
Inc. , 565 F. 2d 405 (6th Cir. 1977)............. 42,44
County of Marin v. United States, 150 F.Supp.
619 (N.D. Cal. 1957), rev'd on other
grounds, 356 U.S. 412, 78 S.Ct. 880 (1958)...... 39
v
Data Digests, Inc. v. Standard & Poor's
Corporation, 57 F.R.D. 42 (S.D.N.Y. 1972)....... 41
Daves v. Payless Cashways, Inc., 661 F.2d
1022 (5th Cir. 1981)............................. 42
Davis v . Board of School Commissioners of
Mobile County, 402 U.S. 33, 91 S.CtT
1289 (1971)....................................... 23
Davis v. East Baton Rouge Parish School
Board, 570 F.2d 1260 (5th Cir. 1978),
cert, denied, 439 U.S. 1114, 99 S.Ct.
1016 (1979)....................................... 17
Dunn v. Koehring Company, 546 F.2d 1193
(5th Cir. 1977).................................. 41
Dyke v. Gulf Oil Corp., 601 F.2d 557 (Emerg.
C .A . 1979)........................................ 48
Eckels v. Ross, 402 U.S. 953, 91 S.Ct.
1614 (1971)....................................... 3
Fair Housing Development Fund Corporation
v. Burke, 55 F.R.D. 414 (E.D.N.Y. 1972)...... 47,49,50
Foman v. Davis, 371 U.S. 178, 83 S.Ct.
227 (1962)................................ 36,38,39,46
Freeman v . Continental Gin Company, 381
F.2d 459 (5th Cir. 1967)........................ 39,40
Goss v. Revlon, Inc., 548 F.2d 405 (2nd Cir.
1976), cert, denied, 434 U.S. 968, 98
S.Ct. 514 (1977)................................. 43
Green v. County School Board of New
Kent County, 391 U.S. 430, 88 S.Ct.
1689 (1968)....................................... 16
Hall v . Aetna Casualty and Surety Co., 617
' F . 2d 1108 (5th Cir. 1980)........................ 39
Harkless v . Sweeney Independent School
District, 554 F.2d 1353 (5th Cir. 1977).......... 38
Hayes v . New England Millwork Distributors,
Inc. , 602 F. 2d 15 (1st Cir. 1979)................. 43
vi
Horton v . Lawrence County Board of Education,
578 F . 2d 147 (5th Cir. 1978)................. 18,19,23
Johnson v . Sales Consultants, Inc., 61
F.R.D. 369 (N.D. 111. 1973)...................... 45
Kuhn v . Philadelphia Electric Company, 85
'F.R.D. 86 (E.D. Pa. 1979)........................ 45
La Chemise La Coste v. General Mills,
Inc., 53 F.R.D. 596 (D. Del. 1971),
aff'd 487 F. 2d 312 (3rd Cir. 1972)............... 47
Ladwig v. Travelers Insurance Company, 254
F . 2d 840 (5th Cir. 1958)......................... 41
Lamar v. American Finance System of Fulton
County, Inc., 577 F.2d 953 (5th Cir.
1978)............................................. 41
Milliken v. Bradley, 418 U.S. 7117, 94
S.Ct. 3112 (1974)................................ 43
Milliken v. Bradley, 433 U.S. 267, 97 S.
Ct. 2749 (1977).................................. 34
Pasadena City Board of Education v.
Spangler, 427 U.S. 424, 96 sTct.
2697 (1976)....................................... 19
Plaquemines Parish School Board v. United
States, 415 F.2d 817 (5th Cir. 1969).............. 34
Pollux Marine Agencies Inc. v. Louis
Dreyfus Corporation, 455 F.Supp. 211
(S.D. N.Y. 1978)................................. 38
Quality Education for all Children,
Inc. v. Board, 385 F.Supp. 803 (N.D.
111. 1974)........................................ 16
Reisner v. General Motors Corporation,
511 F.Supp. 1167 (S.D.N.Y. 1981)................. 41,45
Ross Eckels, 317 F.Supp. 512 (D.C.
Tex. 1970).................................... 2,5,24
Ross v. Eckels, 434 F.2d 1140 (5th Cir.
1970)........................................... 2,5,24
Vll
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1 ■;L'J
i Ross v. Eckels, F.Supp. (S.D. Tex.. No.
10,444 , Aug. 6, 1971)..........................
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Ross v. Peterson, 5 Race Rel. L. Reo. 703
(S.D. Tex. 1960), aff’d sub nom., HISD
v. Ross, 282 F.2d 95 (5th Cir. 1960) .
stay and cert, denied, 364 U.S. 803,
81 S.Ct. 27 (1960).......................
' . j
Ross v. Rogers, 2 Race Rel. L. Reo. 1114
(S.D. Tex. 1957)..........................
n
Salwen Paper Company v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 79 F.R.D.
130 (S.D. N.Y. 1978)..........................
Sims v. Mack Truck Corporation, 488 F.Supp.
592 (E.D. Pa. 1980).......................
r Stout v. Jefferson County Board of
Education, 537 F.2d 800 (5th Cir. 1976).......
1 ■:{
l -J
Swann v. Charlotte-Mecklenburg Board Of
Education, 402 U.S. 1, 91 S.Ct. 1267 (1971)....
Tasby v. Estes, 572 F.2d 1010 (5th Cir.
1978).....................
passim
1 f. 17
; .ji j Tasby v. Wright, 520 F.Supp. 683 (N.D.
Tex. 1981).........................
1 i Thomson Newspapers, Inc. v. Toledo
Typographical Union, 20 F.R. Serv.
2d 78 (E.D. Mich. 1974)..................
Troxel Manufacturing Company v. Schwinn
Bicycle Company, 489 F.2d 968 (5th
Cir. 1973)........................
United States v. Board of Education of
Valdosta, Georgia, 576 F.2d 37 75th
Cir. 1978), cert, denied, 439 U.S. 1007,
99 S.Ct. 622 (1978).............................. 18
United States v. Board of School
Commissioners, 506 F.Supp. 657 (N.D.
Ind. 1979) aff’d in part, 637 F.2d 1011
(7th Cir. 1980)....................... 28
vixi
United States v. Texas, 447 F.2d 441 (5th
Cir. 1971) (C .A . 5281)........................... 43
Vaca Sipes, 386 U.S. 171, 87 S.Ct. 903
(1967)............................................ 43
Washburn v . Madison Square Garden Corp.,
340 F.Supp. 504 (S.D.N.Y. 1972)................. 46
WISP HISD, 583 F.2d 712 (5th Cir. 1978)........... 3
Zenith Radio Corporation v. Hazeltine
Research, Inc., 401 U.S. 321, 91 S.
Ct. 795 (1971)................................... 38
Zucker v. Sable, 426 F.Supp. 658 (S.D.N.Y.
1976)............................................. 41
MISCELLANEOUS
Bell, Brown v . Board of Education and the
Interest Convergence Dilemma, 93 Harv.
L. Rev. 518 (1980)............................... 35
3A Moore's Federal Practice § 19.07-9 [2]
(1982)............................................ 48
6 Wright & Miller, Federal Practice &
Procedure §1484 (1971)........ 7 ................. 38
6 Wright & Miller, Federal Practice &
Procedure: Civil §1487 (1971)................... 45
7 Wright & Miller, Federal Practice &
Procedure: Civil §1688 (1971)..7............... 49,50
10TTCSC
ix
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 81-2323
DELORES ROSS, et al §
§
Appellants §
§
v* §
§HOUSTON INDEPENDENT §
SCHOOL DISTRICT, et al §
§Appellees §
Appeal From the United States District Court For The
Southern District of Texas, Houston Division
BRIEF FOR APPELLEES
Statement of the Issues
1. Whether the District Court was correct in finding that
the HISD is a unitary school district, specifically finding that
the remaining one race schools are not vestiges of a former dual
system and that all practicable steps have been taken to eliminate
the vestiges of a dual system.
2. Whether the District Court correctly exercised its
discretion in denying the Original Plaintiffs' Motion for Leave to
Amend their Complaint, filed well after the hearing on unitary
status, wherein they sought to invoke a totally new theory of
liability involving numerous new parties.
STATEMENT OF THE CASE
(i) Course of Proceedings and Disposition in Court Below
Initially filed in 1956, this case alleged that the Houston
Independent School District ("HISD" or "District") unconstitution
ally operated a segregated school district. The District Court
entered an order declaring the dual school system to be unconsti
tutional. Ross v. Rogers, 2 Race Rel. L. Rep. 1114 (S.D. Tex.
1957). In 1960, the District Court ordered the implementation of
a grade per year desegregation plan. Ross v. Peterson, 5 Race
Rel. L. Rep. 703 (S.D. Tex. 1960), af f' d sub nom. , HISD v. Ross,
282 F. 2d 95 (5th Cir. 1960), stay and cert, denied, 364 U.S. 803,
81 S.Ct. 27 (1960).
Other orders_ designed to speed up the desegregaion process
were implemented in 1965. In July 1967, the United States inter
vened as a Plaintiff. On September 5, 1967, the District Court
adopted a freedom of choice desegregation plan.
In 1969 the Original Plaintiffs and the United States made a
motion for further relief, and the District Court ordered the
implementation of an equi-distant zoning plan along with other
requirements. Ross v. Eckels, 317 F. Supp. 512 (D.C. Tex. 1970).
The Plaintiffs appealed, and this Court affirmed the District
Court's decision as to the zoning of the elementary schools, but
modified its order by pairing 24 elementary schools, rezoning
another, and implementing a geographic capacity plan for the
secondary schools. Ross v, Eckels, 434 F. 2d 1140 (5th Cir.
1970) .
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The HISD immediately implemented the plan ordered by the
Fifth Circuit except for the pairing of elementary schools. The
HISD filed an Application for Writ of Certiorari with the United
States Supreme Court to reverse the pairing order. At that time,
the Supreme Court had before it the case of Swann v. Charotte-
Mecklenburg Board of Education, 402 U.S. 1, 91 S. Ct. 1267 (1971)
(hereinafter "Swann"). On April 20, 1971, Swann was decided, and
on May 3, 1971, the HISD's Application for Writ of Certiorari was
denied. Eckels v. Ross , 402 U.S. 953, 91 S. Ct. 1614 (1971).
While the Writ of Certiorari was pending, the District Court
entered its Amended Decree of September 18, 1970, which, as later
modified, is the order under which the HISD operates today.
(Record, Docket No. 257, hereinafter "R. No."). A motion by the
to modify the pairings was denied, and the schools were fully
paired in 1971-72.
"̂he failure of the pairings to maintain the desired integra
tion together with unhappiness in the HISD community led the HISD
to appoint a community task force to study alternatives to the
Pa^r^n<?s* As a result of this task force's recommendations, the
HISD proposed the Magnet School Plan to the District Court as an
alternative to the pairings. The plan was unopposed by any party
and was approved by the District Court on July 11, 1975. In the
the District Court also depaired the 24 elementary schools.
(R. No. 371).
The controversy over the formation of the proposed Westheimer
Independent School District (WISD) was a protracted affair of
eight year's duration which ended with this Court upholding the
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District Court's injunction in 1978. WISP v. HISD, 583 F.2d 712
(5th Cir. 1978) .
The Hispanic intervenors first sought to intervene in 1971,
and intervention was granted in 1975 . (R. No. 373). No finding
of discrimination against Hispanics by the HISD has ever been
made. The Houston Teachers Association (HTA) was granted leave to
appear as amicus curiae in 1977. (R. No. 634).
On June 9, 1978, the District Court ordered the HISD to file
a plan for achieving unitary status. (R. No. 709). That plan was
filed August 9 , 1978 , (R. No. 712) , and a hearing concerning the
plan was held on September 29, 1978. A hearing began on June 4,
/
1979, concerning whether the HISD had reached unitary status. At
that trial, which lasted 17 days during June and October, 1979,
all parties were given a full opportunity to present any evidence
concerning the status of HISD's desegregation efforts. The
Original Plaintiffs presented no proposed findings and no evidence
to the District Court.
On September 28, 1979, the District Court ordered the Texas
Education Agency (TEA) to study the challenges faced by HISD and
other urban school districts and to develop a plan to meet these
challenges and provide for voluntary cooperation and sharing of
educational opportunities. (R. No. 763). As a result of this
, the TEA filed its plan for voluntary educational
cooperation on March 31, 1980. (R. No. 780a). The Voluntary
Interdistrict Education Plan (VIEP) is currently in operation in
Houston and Harris County.
-4-
On May 15 , 1980 , the United States filed a Motion for Leave
to Amend its Complaint and a Motion to add 22 surrounding school
districts plus several other governmental entities to the case.
(R. No. 784). The HISD and many of the parties sought to be added
opposed the Motion. (R. No. 787). On June 9, 1980, the Original
Plaintiffs filed virtually the same Motion as the United States
had filed the previous month. (R. No. 792). Those Motions were
t>Y the District Court on June 10 and 11, 1981 for the same
reasons. (R. Nos. 804 and 807) . Both the United States and the
Plaintiffs filed Motions to Alter or Amend the District
s decisions, (R. Nos. 810 and 808) , and the HISD opposed
both Motions. (R. Nos. 821 and 813).
On June 17, 1981, the District Court entered an order de
claring the HISD to be a unitary school district and denying the
Motions to Alter or Amend its prior decisions concerning the
amendment of the complaint and addition of other parties. (R.
No. 818)
(ii) Statement of Facts
The history of desegregation in the HISD from 1956 through
1969 is contained in Ross v_̂ Eckels, supra, 317 F. Supp. at
513-515. As stated previously, this Court modified the District
Court's 1970 decree and ordered a comprehensive plan for the HISD.
I
In approving the equidistant zoning plan for the elementary
schools, this Court stated that there would be 15 all or virtually
all black elementary schools remaining in the HISD. Ross v.
Eckels, supra, 434 F.2d at 1148. Numerous one race white
-5-
elementary schools were approved under the Fifth Circuit's
affirmance of the District Court's plan. 317 F. Supp. at 525-530.
The pairing of the 24 elementary schools, however, resulted
largely in pairing Hispanic and black students and required the
busing of those students. (Transcript of June and October, 1979,
Hearings, pp. 1456 , 1457 , hereinafter "Tr."; R. No. 818, p. 5).
The pairings were not popular with the patrons of the HISD and
eventually resulted in a decrease in the number and percentage of
anglo students attending the paired schools because in most
instances a significant number of anglo students moved from the
attendance areas. (Tr., pp. 1456, 1457, 1976). The failure of
the pairing to maintain integration over its five-year history
prompted the HISD's General Superintendent, Mr. Billy R. Reagan,
to recommend to the Board of Education that a tri-ethnic community
task force be appointed to consider an alternative to the
pairings. As a result, on November 25, 1974, the HISD's Board of
Education authorized the naming of the Task Force for Quality
Integrated Education (QIE) . The Task Force for QIE was asked to
develop a program that would: (1) stall or stop the flight of
residents from urban schools by offering quality education, (2)
promote integration, (3) offer more educational opportunities for
students of the District, and (4) bring about an alternative to
the pairing of schools which was not meeting the needs of the
District. (Tr. pp. 1737-1742; R. No. 361, p. 3).
The tri-ethnic Task Force for QIE spent many hours in study,
research and discussion from the time of formation until its
report was presented to the Board of Education on February 24,
-6-
1975. The Task Force for QIE, through sub-committees, conducted
an intense review of the District's operations, conducted com
munity hearings and visited other school districts which were
operating under desegregation orders which utilized the various
techniques enumerated in Swann. Numerous consultants were made
available to the Task Force for QIE, including representatives of
the Community Services Department of Justice Department. (Tr.
pp. 1737-1742; R. No. 361, p. 3; Transcript of September 29, 1978,
Hearing, hereinafter "1978 Tr.", pp. 196-198). The other parties
to the lawsuit were continually kept abreast of developments and
given the opportunity to provide input. The Task Force for QIE
recommended the development and implementation of a program of
magnet schools.
As a result of the Task Force's report, the HISD's Board of
Education appointed a tri-ethnic Administrative Task Team to
develop the Magnet School Plan for presentation to the HISD Board
and the Court. The major goals of the Magnet School Plan were to
provide quality education, increase the percentage of students
attending integrated schools, and decrease the number of one race
schools. (R. No. 361). This plan was approved by the District
Court on July 11, 1975, (R. No. 371), and Phase I was implemented
at the beginning of the 1975-76 school year. Phases II and III of
the Magnet School Plan were implemented in 1976-77 and in 1977-78.
The HISD has yearly evaluated and made changes in order to make
the Magnet School Plan more effective in meeting the expressed
purposes of the plan.
-7-
Since the implementation of the September 18 , 1970 Amended
Decree, it has not been necessary for the District Court to ever
be called upon to order the HISD to take action in meeting newly
enunciated judicial standards applicable to desegregation. The
development of the Magnet School Plan is one example. Several
other examples of the HISD's commitment to providing equity of
access to education are also illustrative. When the Supreme Court
found Hispanics to be a separate minority which could be subject
to discriminatory action as an identifiable ethnic group, the
District took several actions even though there has never been a
finding of discrimination against Hispanics as a separate ethnic
group within the HISD. First, in order to prevent ethnic
isolation of Hispanic students, the District amended its
majority-to-minority transfer provisions to include Hispanics and
provided free transportation for the transferring students.
Secondly, the District recognized Hispanic teachers as a separate
ethnic group for purposes of assignment, again to prevent the
ethnic isolation of Hispanic teachers.
A most significant example of the HISD's commitment to
achieving and maintaining a desegregated school system was its
opposition to the proposed Westheimer Independent School District
(WISD) . First in 1970-73 and then in 1976 to 1978 , the HISD
shouldered the laboring oar in the opposition to this divisive and
disruptive movement. The Original Plaintiffs did participate to
some degree in fighting the proposed WISD in 1970-73 , but did
virtually nothing in 1976-78. While the HISD's opposition to the
WISD was not supported by many groups in the Houston community,
-8-
the HISD did not capitulate in its efforts to prevent a result
that would have fostered racial and ethnic isolation and would
have seriously depleted the tax base of the HISD which, in turn,
would have delimited the educational opportunities for the
remaining students, the overwhelming majority of whom would be
minority.
During the 1970's the HISD developed many educational and
support programs to improve the educational opportunities for all
students. Operation Fail Safe, a parental involvement program,
was initiated in 1977 to help improve the achievement of students
who were having difficulties in school. (Tr. pp. 1828-1834; HISD
Exhibit Nos. 86-88, Hearing of June and October, 1979, hereinafter
"Ex. No."; See R. No. 755 for Exhibit List of HISD for 1979
Hearing) . The Basic Skills Program was instituted to help all
students improve their academic performance. These programs and
others reversed an eight year downward trend of test scores at the
elementary level and resulted in achievement of national norm
scores for grades one through six in 1978. (HISD Ex. 103).
In 1977, to assure minority participation in the District's
governance, the HISD converted from at large membership on the
school board to single member districts. (Tr., pp. 1710-1714).
Additional financial and educational resources were utilized
at various schools with high concentrations of students from low
socio-economic backgrounds and/or low achieving students. The
District embarked on an intensive nation-wide search for qualified
teachers for critical subjects such as math, science, bilingual
education, and special education. In 1978, the HISD also
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instituted the Second Mile Plan, an incentive pay plan designed to
reduce teacher turnover and stabilize faculties. All of these
activities were accompanied by the implementation of the magnet
schools, Majority-to-Minority (M to M) transfers, faculty
desegregation, the facilities improvement program, desegregration
of extracurricular activities, expansion of transportation
provided to students, and other aspects of the 1970 Court Order.
In 1979 , the HISD operated a total of 226 schools — 170
elementary, 34 junior high or middle schools and 22 senior high
schools. (R. No. 747 , p. 14). The student enrollment for the
1978-1979 school year, was 201,960 students, of whom 45% were
black, 24.2% Hispanic and 30.8% anglo or other. (R. No. 747,
P* 14) . This compares to a student ethnic percentage in
1969-1970, the year before the comprehensive Court Order, of 33.5%
black, 13.4% Hispanic and 53.1% anglo or other. (HISD Ex. No. 6,
Hearing of September 29, 1978, hereinafter "1978 Ex. No."), The
present enrollment for 1981-82 is 44.3% black, 29.7% Hispanic, and
26% anglo or other, (with 2.6% of anglo being Asian-Americans).
(See Appendix "A", the current enrollment figures). In 1979, the
projected ethnic enrollment for 1985-86 was 48.8% black, 31.4%
Hispanic and 19.8% anglo or other. (R. No. 747, p. 14). Because
of a dramatic influx of Hispanic families into the Houston area,
those projections have now been revised to reflect a projected
enrollment in 1985-86 of approximately 38% black, 42% Hispanic,
and 20% anglo or other.
The number of one race schools has decreased greatly since
the implementation of the Court Order in 1970. (Ex. Nos. 57, 58,
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60 , 63 , 64 , 65 , 66). On a bi-racial basis, there were 162 one
race schools in 1970-71 and 122 such schools in 1978-79. On a
tri-ethnic basis there were 133 one race schools in 1970-71 and
101 such schools in 1978—79. (Ex. No. 64) . This substantial
decrease in one race schools, which results in over one half of
the schools being integrated, has taken place in spite of the fact
that in 1978-79 under 30% of the students in the District were
anglo.
During this same period, the students availing themselves of
the tri-ethnic transfer (M to M) has steadily increased from 2,388
in 1970-1971 to 12,759 in 1978-79. (Ex. No. 96).
By 1979, the Magnet School Plan was expanded to 48 campuses:
31 elementary, 7 junior high schools and 10 high schools. In
1978-79, a total of 7,557 students transferred to the magnet
schools, and of these 3,411 are black, 1,544 Hispanic and 2,602
white. (Ex. No. 68) . The total number of students attending
schools with magnet programs, excluding the cluster centers, was
42,093. The cluster centers also provided part-time programs for
another 27,300 students with 7,200 participating in the Outdoor
Learning Centers, 17,700 taking part in the Anderson, Briargrove,
Port Houston and Sinclair centers, and 2,400 attending the People
Place Center. The total number of students impacted by the magnet
school programs in 1979 in the HISD was 69,393. (Ex. No. 68).
The maps submitted by the HISD at the 1979 hearings, showing
the elementary school zones for 1969-70, 1970-71, 1975-76 and
1978-79, dramatically reflect the growth in the minority popula
tion attending the HISD schools. (Ex. Nos. 35-50). These maps
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also show the extensive natural integration of neighborhoods being
experienced in Houston, together with the effects of the Dis
trict's efforts to further integrate the schools through the
tri—ethnic transfers and the Magnet School Plan. These graphic
depictions are augmented by the study of Dr. Barton Smith of the
University of Houston, whose study was based on census tracts and
zip code zones. (Ex. No. 70).
These various maps and other evidence demonstrate that
noncontiguous pairings would have to be employed to achieve a
greater degree of desegregation without disturbing the naturally
integrated schools or those integrated through the tri-ethnic or
magnet school transfers. A review of the maps and existing
transportation routes reveals that the time and distance of travel
from one noncontiguous zone to another in congested Houston
traffic would be extensive and beyond any conceivably reasonable
requirements. (Ex. Nos. 35-50; 1978 Ex. Nos. 21-26A).
When considering the various desegregation plans submitted in
1969 and 1970, the District Court made projections of student
enrollment for each school within the HISD. The student
attendance at most of the schools the first year of the plan,
1970-71, was within the projections. Some one race black schools,
however, did not attain the 10% white enrollment projected. The
overwhelming reason for this was that the white students either
moved, attended private school, or simply did not attend school.
(Tr., pp. 1456 , 1457) .
The HISD resisted political and other challenges designed to
change the Court approved zone lines and enacted and enforced a
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strict policy requiring the students to attend their designated
schools. See, Ross v^ Eckels (S.D. Tex., No. 10,444, August 6,
1971) . The District Court found that the HISD did all that was
practical in the circumstances to enforce the requirements of the
Court Order relating to student attendance. (R. No. 818, p. 27).
While the 1970 projections of this Court and the District
Court were not met in some schools, this is more than offset by
the overwhelming number of schools which have become integrated
which this Court did not project would be integrated. (Ex.
Nos. 62 and 66). Many of these schools have become integrated by
the changing housing patterns of Houston. (Tr., pp. 571-790).
Numerous others have, however, become integrated because of the
HISD's encouragement of tri-ethnic transfers and because of the
magnet schools. There were only five one race white elementary
schools in the District in 1978-79. (Ex. No. 64). At the present
time there are only 2 such schools, and one of them, Briargrove,
serves as a Cluster Center under the desegregation plan. (See
Appendix "A"). In fact, the approved transfers for the 1982-83
school year will result in a single one race white school
(Ashford, located on the far western edge of the HISD) and rela
tively few schools with over 35% or 50% white students. (See
Appendix "B").
A number of formerly all white schools have become one race
black schools. Each of these schools changed racial composition
by virtue of housing patterns or other factors over which the HISD
had no control. None of these schools became one race due to
discriminatory acts by the HISD. (Tr., pp. 571-790).
-13-
SUMMARY OF THE ARGUMENT
The HISD has done all that is practicable to desegregate the
schools. Its faithful implementation of the zoning plans and
M-to-M transfers, approved by this Court, along with its initia
tion of the Magnet School Plan, has significantly decreased the
racial isolation in the HISD. The number of one race schools has
been decreased greatly in spite of declining anglo enrollment.
The District Court correctly held that the remaining one race
schools in the HISD are not vestiges of a former dual school
system. The District Court also correctly held that even if the
one race schools were vestiges, the implementation of the
techniques mentioned in Swann is not practicable in the HISD
because of a variety of factors.
The HISD's implementation of various educational programs
assures equal access to educational opportunities as is the
mandate of Erown.
The Original Plaintiffs' Motion for Leave to Amend their
Complaint and to Add Additional Parties comes too late. The
Original Plaintiffs waited to file their Motion, at the very
least, more than three years after they were apprised that
interdistrict transfers of black students occurred in Harris
County. They waited over seven months after the the 1979 hearing
concerning HISD's desegregation status to file their Motion.
Indeed, they only sprang to life when it became apparent that HISD
was a unitary school district. The belated attempt to avoid such
a ruling, along with prejudice to the HISD, were sufficient
reasons for the District Court to deny their Motions.
-14-
ARGUMENT
I.
INTRODUCTION
twenty—six years, this desegregation case comes to this
Court for a decision concerning whether the HISD has done all that
is practicable to purge itself of the vestiges of its former dual
school system. After considering the many actions voluntarily
undertaken by the HISD to eradicate the vestiges of the dual
system and provide equity of access to education, the many
demographic changes in the HISD, and the attendant practical
problems of implementing a desegregation plan in such a location,
the District Court determined that the HISD is a unitary school
district and has done all that is practicable to eliminate the
vestiges of its former dual system.
II.
THE HISD IS A UNITARY SCHOOL DISTRICT
The Original Plaintiffs challenge only the student assignment
portion of the District Court's Memorandum and Order of June 17,
1981. No challenge is made of the District Court's findings
concerning faculty assignment, transportation, extra curricula
activities or facilities. Those issues will not, therefore, be
addressed in this Brief. Suffice it to say that the District
Court's findings are correct and supported by ample evidence.
The crux of the Original Plaintiffs' argument is that more
racial mixing of students must be undertaken by the HISD. In
Section I of their Brief, the Original Plaintiffs recite many
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standards concerning student assignment which have been discussed
in various contexts. The Original Plaintiffs conclude that the
HISD is not unitary because it has not attempted to utilize all
the student assignment techniques mentioned in Swann. (Brief for
Appellants, p. 25, hereinafter "Brief").
The Original Plaintiffs' contention that utilization of
pairing, rezoning, clustering, and/or cross-town busing is re
quired is erroneous. Swann does not say that utilization of the
techniques discussed is required; it merely says their utilization
is permissible. To infer such an inflexible requirement is
directly contrary to the long line of cases which hold that local
conditions must be analyzed and considered in fashioning an ap
propriate remedy because no two desegregation .cases are alike.
Green v • County School Board of New Kent County, 391 U.S. 430, 88
S.Ct. 1689 (1968); Brown v. Board of Education, 349 U.S. 294, 75
S.Ct. 753 (1955) hereinafter "Brown II"); Quality Education for
a11 Children, Inc, v. Board, 385 F.Supp. 803 (N.D.I11. 1974). As
the Supreme Court has stated:
There is no universal answer to complex problems of
desegregation; there is obviously no one plan that will
do the job in every case. The matter must be addressed
in light of the circumstances present and the options
available in each instance. Green v. County School
Board of New Kent County, supra, 391 U.S. at 439“! 88
S.Ct. at 1695. ’
Accord, Swann, supra.
The Original Plaintiffs also cite Tasby v. Estes, 572 F.2d
1010 (5th Cir. 1978) for the proposition that the techniques of
Swann must be considered prior to a declaration of unitary status
and that time and distance studies must be undertaken. First,
-15-
this Court had already remanded Tasby specifically for considera
tion of the Swann techniques. Second, the general approach taken
by this Court is that practicable alternatives must be examined if
a substantial number of one race schools remain. No specific
alternatives are mandated. Davis v . East Baton Rouge Parish
SchoQl Board, 570 F.2d 1260 (5th Cir. 1978), cert, denied, 439
U.S. 1114, 99 S.Ct. 1016 (1979).
Notwithstanding the Original Plaintiffs' arguments, in the
case sub judice there has been utilization of some of the Swann
techniques and a great deal of consideration given to possible
utilization of other Swann techniques by both the HISD and the
District Court. As will be more fully discussed later, the tech
niques of rezoning, pairing and clustering have been utilized in
the HISD; and these and other techniques such as non-contiguous
pairing and further mandatory transfers have been considered by
the HISD and the District Court on several occasions. The
uncontroverted and extensive evidence submitted to the District
Court in 1979 supports its finding that further expansion of such
techniques are not practicable in the HISD. Never in the past
decade have the Original Plaintiffs asked for any modifications in
the present desegregation plan, and never have they made any
proposals for improvement or modification of the plan. In fact,
at the hearing held in 1979, the Original Plaintiffs presented not
one shred of evidence that the HISD was not unitary or that
utilization of other student assignment methods was practicable.
In contrast, the HISD made a lengthy presentation and submitted
overwhelming evidence that unitary status had been achieved.
-17-
The several cases cited by the Original Plaintiffs regarding
utilization of various tools such as pairing (Brief, p. 24) are in
no way relevant to this case because those cases all involve
school districts that are much smaller than the HISD, have dif
ferent demographics and mobility rates than the HISD, and involve
vastly different circumstances and problems.
In constructing a unitary school system, it is not required
that there be a racial balance in all of the schools. Swann v.
Charlotte Mecklenburg Board of Education, supra, 402 U.S. at 24,
91 S.Ct. at 1280; Horton v . Lawrence County Board of Education,
578 F .2d 147 (5th Cir. 1978); United States v. Board of Education
of Valdosta, Georgia, 576 F.2d 37 (5th Cir. 1978), cert, denied,
439 U.S. 1007, 99 S.Ct. 622 (1977).
The United States Supreme Court has recognized that difficult
problems may exist in "metropolitan areas with dense and shifting
population, numerous schools, congested and complex traffic
patterns." Swann, supra, 402 U.S. at 14, 91 S.Ct. at 1275 . The
Court has also observed that in "metropolitan areas minority
groups are often found concentrated in one part of the city", and
"certain schools may remain all or largely of one one race until
new schools can be provided or neighborhood patterns change."
Swann, supra, 402 U.S. at 25, 91 S.Ct at 1280, 1281.
Where the presence of one race schools is due to factors such
as changing housing patterns, the school district is not respon
sible for integration or desegregation of those schools. Horton
Xjl Lawrence County Board of Education, supra. Even in former dual
systems, one race schools may remain if the district explains that
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r~!
their composition is not the result of action by the school
district or if nothing practicable can be done to integrate them.
Swann, supra, 402 U.S. at 26, 91 S.Ct. at 1281. A school district
also cannot be required to rearrange its attendance boundaries
each year to ensure a particular racial balance in the schools.
Pasadena City Board of Education v. Spangler, 427 U.S. 424 , 96
S.Ct. 2697 (1976); Horton v.
LJ supra.
1 A. The Remaining One Race
1 j Formerly Dual System
The Original Plaintiffs begin their argument with conclusory
allegations regarding the number of black students in HISD attend
ing 90% minority schools and the number of one race black schools
in the HISD. (Brief, p. 26). The Original Plaintiffs then claim
that the HISD argued that white flight was the cause of the
"continuing existence of previous patterns of racial segregation"
in the HISD. (Brief, p. 26). From these premises, the Original
Plaintiffs argue that the HISD has not done all it can reasonably
do to reduce the number of one race schools.
First, the Original Plaintiffs reference no portion of the
Record to support their allegation that the HISD made such a white
flight argument. There is no such reference because no such
argument was made by the HISD. In fact, Mr. Billy Reagan, General
Superintendent, testified at length that the present composition
of the HISD was due in large part, not to white flight, but to
differences in birth rates. (1978 Tr. , pp. 37 , 207-215). While
the Original Plaintiffs might like the Record to reflect that HISD
-19-
case.made such a white flight argument, that is simply not the
The District Court, likewise, did not "adopt" this view.
Second, the Original Plaintiffs' arguments regarding the
numbers of minority students in one race schools is neither
relevant nor helpful in discussing the issues. In citing con-
clusory figures to bolster their total lack of evidence before the
District Court, the Original Plaintiffs ignore the hundreds of
pages of testimony and many exhibits which explain the composition
of HISD's schools and why some of them remain one race.
The District Court specifically found that the "one race
schools remaining in the HISD are not vestiges of the dual sys
tem." (R. No. 818, p. 30) . This finding is supported by the
Record. The testimony of Mr. John Eaton, Assistant Superintendent
for Administrative Services, traced in great detail the historical
evolution of Houston housing patterns, in several cases beginning
in the 1830's. (Tr., pp. 488-505). His testimony delineated a
long history of certain heavy concentrations of black and Mexican-
American residents within HISD and the City of Houston. A review
of that testimony, given in conjunction with Exhibit 34, substan
tiates that the former black schools (under the dual system) which
have remained predominantly black are located in virtually all
black areas which have become much larger and that the schools
which have changed from predominantly white to predominantly black
are located in areas of the HISD which have had a change in
housing patterns.
The HISD also presented this evidence in the form of maps
(Ex. 35-50) and school profiles (Ex. Nos. 54 a-d, 55 and 56)
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prepared by Mr. Lon Wheeler, Executive Director of Pupil Transfer.
The maps depict the changes in housing and attendance patterns
which have occurred in the HISD since 1968-69 (Tr., pp. 520-550).
The school profiles furnish a detailed history of attendance at
each school by ethnicity, indicate whether the court projections
of 1970 were met and why, and explain the reasons each school is
one race or integrated. (Tr. , pp. 571-790; Ex. Nos. 54 a-d, 55,
and 56).
All of the 21 schools cited by the Original Plaintiffs as
being all black schools since 1960 are explained by the evidence
presented by the HISD. Fourteen of those schools, Dunbar, Easter,
Fairchild, Grimes, Highland Heights, Rhodes, Sanderson, Wesley,
Key, Ryan, E. 0. Smith, Kashmere, Worthing and Yates, were rezoned
or paired in 1970 and were projected to be desegregated on a
bi-racial basis. 317 F.Supp. at 528 , 529; 434 F.2d at 1148.
Eight of the schools, Blackshear, Clinton Park, Douglass,
Langston, Reynolds, Sunnyside, and Whidby, were projected by this
Court to remain virtually all black. 434 F.2d at 1148.
testimony of Messrs. Eaton and Wheeler establishes that
all of the 21 schools questioned by the Original Plaintiffs are
now located in all black areas of the City. (Tr. , pp. 571-790;
Ex. Nos. 54a, 54b, 54c, 54d). The present racial makeup of these
schools, then, is not the result of -the former dual system, but is
due to the concentration of the black population in certain areas
of the HISD. The testimony of Messrs. Eaton and Wheeler explains
that many of the remaining one race black schools were at one time
integrated or projected to be integrated, but all are now one race
-21-
because of housing patterns. (Tr. , pp. 571-790; Ex. Nos. 54 a-d,
55, and 56).
The District Court specifically found that HISD did every
thing practical to insure that students attended their assigned
schools. (R. No. 818, p. 27). The pairings simply did not work
because the anglo students (and many Hispanics) went to private
schools, moved to other districts, or simply did not go to school.
(Tr., pp. 1456, 1457, 1976; R. No. 818, p. 25).
Dr. Barton Smith, a professor of economics at the University
of Houston, also testified concerning his study of the changes in
the geographic distribution of the black and Hispanic population
within the HISD. (Tr., pp. 1135-1397). His study (HISD Ex. No.
70) and testimony corroborates Messrs. Eaton and Wheeler's tes
timony. Among Dr. Smith's conclusions were the following:
Clearly most areas within the Houston Independent School
District are now at least partially integrated due to
significant improvements in minority access to housing
throughout the district . . .
. . . areas of Black and Hispanic concentration appear
to cross with a major north-south Black corridor and and
east-west Hispanic corridor that intersects approxi
mately at the CBD [central business district] . This
means that many schools are apt to have significantly
less than 90% Blacks or Hispanics, but over 90% minori
ties (both Black and Hispanic) . . . traditional minori
ty areas appear to be becoming more concentrated and
consolidated. The latter phenomenon means that simply
because of the demographic changes that are occurring
more minority dominated (one race) schools may emerge
■ while at the same time all White/ Non-Hispanic schools
are gradually disappearing completely. (Ex. No. 70, pp.
25-27). ^
Mr. Eaton also testified that there was no factor that contained
any racial or ethnic group in any area of the HISD. (Tr., p. 497).
-22-
of this evidence was in no way contradicted or questioned
by any party. The Original Plaintiffs introduced no evidence at
the 1979 Hearing. In fact, the Original Plaintiffs did not even
attempt to challenge these facts in their Brief to this Court.
Instead, they attempt to obfuscate the issues by misstating the
HISD position.
Since the remaining one race schools are not vestiges of the
former dual system, there is no legal requirement for further
actions with respect to those schools. Swann, supra; Horton v.
Lawrence County Board of Education, supra.
B. The HISD Has Taken All Practicable Steps to Deseareaate the
Schools -------------2-------
Even if the District Court had found that some of the re
maining one race schools in the HISD were vestiges of the former
dual system, it also found that further actions to eliminate some
or all of the one race schools would not be practicable. The
Original Plaintiffs' complaint, however, is that all the
techniques mentioned in Swann have not been utilized in HISD and
that the reasons for not utilizing them are inadequate. The
Original Plaintiffs' factual assumptions and assertions, however,
as well as their legal analysis, are simply incorrect.
First, there is no requirement in Swann that all of the
techniques discussed in the case be utilized in any particular
case. Practicable and realistic steps must be taken. Davis v.
Board of School Commissioners of Mobile County, 402 U.S. 33, 91
S.Ct. 1289 (1971). As this Court stated in upholding the deter
mination that Atlanta had become a unitary school district:
-23-
It would blink reality and authority, however, to hold
the Atlanta School System to be nonunitary because
further racial integration is theoretically possible and
we expressly decline to do so.
Calhoun v̂ _ Cook, 525 F.2d 1203 (5th Cir. 1973) .
Second, as was previously stated, the utilization of the
various techniques discussed in Swann, and now proposed by the
Plaintiffs, has, in fact, occurred and has been
considered on several other occasions. The first occasion was
during the development of the 1970 Court Order. The initial plan
proposed by the Original Plaintiffs was one which would have
attempted to place a set ratio of white students in each of the
schools and would have required massive cross-town busing. This
plan was rejected by the District Court. Ross v. Eckels, 317 F.
Supp. 512 (S.D. Tex. 1970). (See pp. 515 and 516 for the District
Court's discussion of the practical problems of this approach.)
This Court also rejected the Original Plaintiffs' proposal and
ordered the pairing of 24 elementary schools. This Court
implicitly determined that these pairings, along with a geographic
capacity plan at the secondary level, which still left 15
virtually all black elementary schools and many one-race white
schools, were the only practicable additions to the District
Court's implementation of an equi-distant zoning plan. Ross v.
Eckels, 434 F.2d 1140 (5th Cir. 1970) (See pp. 1147-48).
Due in large part to the rapid changes in residential
patterns which occurred after this Court's 1970 decision, the
P^itings of the 24 elementary schools in 1971 resulted largely in
the pairing of minority students. (Tr., pp. 1456, 1456, 1976).
-24-
The pairings did not significantly reduce the amount of racial
isolation in the HISD. Accordingly, in 1975, the HISD established
a task force of community and school people to examine possible
alternatives to the pairings and to examine other means of
increasing integration. This task force spent many hours studying
various possibilities. The task force was given a review of the
various techniques of desegregation - specifically including
Pa-f r-f / both contiguous and non—contiguous, and clustering — by
Mr. Kelly Frels, one of the HISD's attorneys. (Tr., p. 1741; HTA,
Exhibit 12) . Other cities were visited and many other plans
studied. (R. No. 361). Mr. Billy Reagan, who instituted the task
force in late 1974, related that:
. . . after the task force started functioning in
November that sometime in mid-December Mr. Frels did
present the task force a detailed briefing on alter
natives and the way the alternatives would have to
function. And those alternatives included additional
pairing, additional zoning, and the different types of
remedies that were available that could be submitted to
the ̂ Court as an alternative . . . the task force did
deliberate on a number of issues, and their recom
mendations reflect that they deliberated on a number of
alternatives. And I do know that they did visit, I
guess, eight or ten other school systems in the country,
Atlanta, Memphis, I believe, San Francisco, Chicago,
Cleveland, and the school systems - large metropolitan
school systems or metropolitan areas that had either
undergone or were attempting to undergo some sort of
desegregation plan. (Tr., p. 1741).
After all of these actions were taken, it was determined that
the magnet school concept had the promise of being the most
successful and beneficial. A hearing was held before the District
Court in 1975 concerning this proposal, but, for whatever reason,
the Original Plaintiffs and their counsel, Mr. Weldon Berry, did
not attend that hearing. (Another attorney attended for a short
-25-
time and informed the Court that the Original Plaintiffs did not
oppose the plan). After the hearing, the District Court approved
the depairing of the 24 schools and the implementation of the
Magnet School Plan. (R. No. 371).
The use of the techniques mentioned in Swann was again
considered by the District Court in its Order of July 17, 1981.
The Original Plaintiffs presented no evidence whatsoever to rebut
the HISD's presentation and offered no proposed plan or any
further practicable steps which could be undertaken. The District
correctly analyzed the possible use of the Swann techniques
and, because of their impracticability, rejected them.
While the Original Plaintiffs highlight the fact that 70% of
the black students attend 90% minority schools, they themselves
show that the number of 90% black schools has decreased since
1969-70 from 66 to 55 and the percentage of black students attend
ing 90% black schools has decreased from 70% to 56%. (Brief,
pp. 19, 20). This progress has occurred in spite of the fact that
the percentages of black and Hispanic students attending the HISD
has increased dramatically since 1969-70. In 1969-70, the anglo
percentage was approximately 53% (1978 Ex. No. 6) , and for the
1981-82 school year, the percentage of anglo or other students in
the HISD is .only 26 percent. (See Appendix "A").
The Original Plaintiffs contend that the District Court did
not make specific findings regarding the practicability of other
desegregation techniques (Brief, p. 26). Apparently they did not
read pages 20 through 32 of the District Court's June 17, 1981
Order, wherein the Court explains in great detail why further
-26-
court intervention would be impracticable. Those findings are
supported by the voluminous amounts of uncontroverted evidence
submitted by the HISD.
%
In its findings, the District Court first stated that the
demographic makeup of the HISD has changed substantially since the
implementation of the 1970 Court Order and that the number of one
race schools has been reduced considerably since that time. The
Court went on to cite testimony from various witnesses regarding
the problems associated with the suggestions of pairing or other
similar possibilities. For example, Mr. Billy R. Reagan testified
in the 1979 hearing that pairing of schools had previously been
tried and had failed. (Tr., pp. 1773-74). "Knowing what I know",
Mr. Reagan said, " [to advise the Court to] to create a pairing
situation, I would consider myself to be guilty of malpractice in
education... I think that folly would prove totally disastrous.
I think you would have the same results that you had in our first
experiment with pairing." (Tr., pp. 1772-1774). Mr. Joseph
/ Superintendent for Area Administration, also so testified.
(Tr., pp. 1456, 1457).
The housing pattern maps (Ex. Nos. 35-50) show and the
District Court found that, because of the natural integration
which has occurred in many areas of the HISD (R. No. 818, p. 24),
the schools which would need to be paired are those on the extreme
western and eastern ends of the HISD (i.e. , some of the schools
depicted on the time and distance studies). Otherwise, naturally
integrated schools would be disturbed. The need for and
desirability of not disturbing desegregated schools has been
-27-
recognized by the courts. United States v. Board of School
Commissioners, 506 F.Supp. 657 (N.D. Ind. 1979) aff'd in part, 637
F• 2d 1011 (7th Circ. 1980); Tasby v. Wright, 520 F.Supp. 683 , 705
(N.D. Tex. 1981). The United States' witness, Dr. Gary Orfield,
testified that already desegregated schools should generally not
be disturbed. (Tr. , p. 2245) . He even went on to assert his
belief that "pairing adjacent schools is a very misguided policy."
(Tr., p. 2256) .
The Original Plaintiffs also contend that no time and dis
tance studies were undertaken. As with many of their arguments,
this is erroneous. At the September 29, 1978, hearing, several
specific examples of the time and distance of representative runs
throughout the HISD were analyzed and explained. (1978 Ex.
Nos. 21-26A; 1978 Tr. , pp. 86-99). These representative studies
show, as the District Court found, that the travel time between
those areas in the central and east ends of the HISD and the west
end of the HISD is considerable.
Mr. Reagan also testified that "due to the fantastic increase
in congestion in the city, that we are extending our time about 15
to 17 minutes per [bus] route per year." (1978 Tr. , p. 99). He
went on to state that "transportation is the number one concern of
the parent in terms of the time and the distance" and that "our
number one complaint about our magnet program, and also our M to
M... is transportation." (1978 Tr., p. 91). Since this testimony
and these exhibits are damaging to their case, the Original
Plaintiffs have valiantly tried to ignore them. They cannot,
-28-
however, be ignored, and they support the District Court's
findings.
Citing the testimony of Dr. Gary Orfield, a witness for the
United States, the Original Plaintiffs allege that there was
"ample credible evidence" that other desegregation tools could
work. (Brief, pp. 28, 29). Dr. Orfield, however, based his bald
assertion that "more could be accomplished" in HISD on an
admittedly incomplete and cursory review of pupil enrollment
statistics. He admitted that he had not fully studied the HISD's
case and was in no position to propose a plan for the HISD (Tr. ,
p. 2300, 2360, 2377). He admitted that his comparison of several
other districts utilizing magnet schools with the HISD was not
relevant to the HISD's situation. (Tr., p. 2380). He admitted
that it was impossible to desegregate all of the HISD schools to a
level he would consider adequate. (Tr., p. 2310, 2320). He
admitted that he did not know the pupil assignment requirements of
the HISD and stated that "You [HISD] may have a freedom of choice
plan for all I know." (Tr., p. 2372). Dr. Orfield admitted that
the comparative study he utilized to claim that HISD's
desegregation efforts were not successful was not a comprehensive
study and included many school districts with dramatically
different demographics and problems than the HISD. (Tr.,
pp. 2376-2382). In short, Dr. Orfield's testimony was, in the
words of one of the court appointed counsel for the children in
the HISD, like that of "the man that was passing the funeral. He
didn't know the deceased, but decided to stop and say a few words
anyway." (Tr., p. 2257).
-29-
Dr. Orfield's testimony gave no support for the development
of any mandatory pairing or other such plan. It was based on an
incomplete review of numbers and reflects an academician's theo
retical hope and desire for greater racial mixing of students. A
review of his testimony makes it eminently clear that Dr. Orfield
has a personal desire to mix students, whether or not it is
legally necessary or practicable and with no regard for the
educational consequences. Problems of implementation and the
possibility of resegregation apparently do not concern him. In
summary, his testimony does not support the Original Plaintiffs'
argument that more can be done. Even if Dr. Orfield's ideas
concerning his optimum desegregation levels - 50% white and 50%
minority - were attempted, the impact on the HISD would be
negligible, if not harmful. (Ex. No. 114).
The Original Plaintiffs seek to bolster the paucity of
evidence supporting their position by referring to a "study" done
by Mark Smylie of Vanderbilt University (Brief, p. 29) . The
Original Plaintiffs did not see fit to produce this person as a
witness at trial and subject him to cross examination, and this
belated attempt to introduce evidence should be ignored. Even a
cursory review of the "study", however, shows it to be an invalid
exercise. The study asserts that the implementation year of the
KISD's desegregation plan (1970) was 1980. Given such a funda
mental error in the premise of the "study", any "conclusions" made
by the study are incorrect and irrelevant.
The Original Plaintiffs also argue that concern over white
flight is not a valid reason for not pursuing their desired, but
-30-
unspecified, mandatory plan of mixing of students. Once again,
the Original Plaintiffs do not correctly state either the law or
the HISD's position. This Court has, of course, held that while
concern over white flight cannot be used to avoid desegregation,
consideration of ways to minimize white boycotts and of the
problem of resegregation are valid factors to consider when trying
to analyze various acceptable alternatives. Stout v . Jefferson
County Board of Education, 537 F.2d 800 (5th Cir. 1976).
In the case sub judice the District Court specifically found
that the use of other techniques, such as non-contiguous pairing,
would be counterproductive to desegregation efforts. (R. No. 818,
pp. 23-27). The HISD presented significant evidence concerning
this very real problem. (Tr., p. 977, 1457,. 1716, 1771-1779,
1976 , 1977 , 2852-2854; Ex. No. 70) . Instead of analyzing the
HISD s case correctly or making any evidentiary presentation, the
Original Plaintiffs sat mute at the 1979 hearings and now seek to
make a case by citing a plethora of platitudes which have no
bearing on the HISD's situation.
The Atlanta case is very similar to this one. In Atlanta a
plan was approved by this Court and the school system declared
unitary in spite of the fact that many of the techniques of Swann
had not been used. This Court stated:
Appellants^ urge that existing precedent will not allow
us to affirm this adjudication of unitary status to a
school district which has never utilized noncontinuous
pairing, has never bussed white children into pre
dominant black schools and in which over 60% of its
schools are all— or substantially all— black. These
contentions appear to be supported by substantial
precedent. However, for today and in Atlanta, the
unique features of this district distinguish every prior
-31-
school case pronouncement. . . . The district court also
found that Atlanta's remaining one-race schools are the
product of its preponderant majority of black pupils
rather than a vestige of past segregation. These
findings are not clearly erroneous. The aim of the
Fourteenth Amendment guarantee of equal protection on
which this litigation is based is to assure that state
supported educational opportunity is afforded without
regard to race; it is not to achieve racial integration
in public schools. (Citations omitted.) Conditions in
most school districts have frequently caused courts to
treat these aims as identical. In Atlanta, where white
students now comprise a small minority and black citi
zens can control school policy, administration and
staffing, they no longer are. See Swann v. Charlotte-
Mecklenburq Board of Education (Part V) , 402 uTs-: T “at
122, 91 S.Ct. 1267 at 1279, 28 L.Ed.2d 554 at 570
(1971). Calhoun v. Cook, 522 F.2d 717,719 (5th Cir. 1975). ~ ----
In approving a desegregation plan which allowed many one
race schools to remain, an Alabama district court found that
the one race schools were located "deep in black residential
areas." Carr v. Montgomery County Board of Education, 377
F.Supp. 1123 , 1132 (M.D. Ala. 1974), aff'd, 511 F.2d 1374
(5th Cir. 1975), cert, denied, 423 U.S. 986 , 96 S.Ct. 394
(1975). Since the schools continued to exist without any
discriminatory actions by the school district, the plan was
approved. The court found that the one race schools could
not be practically and workably desegregated. The court
emphasized that the system as a_ whole is to be examined to
determine whether it is unitary - "individual schools are not
looked to for that purpose." 377 F.Supp. at 1138. The Carr
court went on to find that the six indicia of a unitary
school district - faculty, staff, transportation, extracur
ricular activities, facilities, and student body — were met.
-32-
It is, then, not surprising that in their Brief the
Orig'inal Plaintiffs completely ignored the issue of
educational opportunities in the HISD. Since access to equal
educational opportunities was at the heart of Brown I, the
HISD feels the issue is of major importance. The Original
Plaintiffs apparently do not. The Original Plaintiffs'
counsel, Mr. Weldon Berry, clearly enunciated their lack of
concern about the quality of education several times during
the 1979 hearing. At one point, Mr. Berry alluded to the
fact that if the HISD had somehow "properly" mixed students,
the District Court would not have to listen to "the avalanche
of statistical data regarding the quality of your educational
program." (Tr., p. 2099). In response to this observation,
Judge Robert O'Conor stated: "This Court is interested in
the quality of education." (Tr., p. 2099).
Ift its Order, the District Court found that the academic
achievement of- HISD students had greatly improved "due to the
importance the District attaches to providing equal access to
quality education." (R. No. 818, p. 30) . The evidence
presented by the HISD proves this point. Mr. Reagan
testified at length concerning the implementation of the
Basic Skills Program (1978 Tr. , p. 65; Tr., p. 1802), the
formation of Operation Fail Safe (Tr., pp. 1828-1834; HISD
Ex. Nos. 86-88), the monitoring programs to measure student
achievement (1978 Tr. , pp. 51-56; Tr. , pp. 1900-1910; HISD
Ex. Nos. 99-101) , expenditures per pupil at various schools
(Tr., pp. 1785-87; Childrens' Ex. Nos. 1 and 2), diagnostic
-33-
reading programs (Tr. , p. 1807), efforts to increase student
attendance (Tr., pp. 1808-1820; HISD Ex. No. 83 and 84), the
Schools Facility Improvement Program, a $300 million dollar
effort (1978 Tr. , pp. 99-158; Tr., pp. 1720-1730), evaluation
of faculty members, (Tr., pp. 1870-1880; Ex. Nos. 92 and 93),
achievement score improvements (Ex. 103), the development of
fundamental schools (Tr., pp. 1940-1942), and socioeconomic
factors affecting achievement (Tr., p. 1914).
Mr. Larry Marshall, Deputy Superintendent for
Alternative Education, testified at length concerning various
educational components which have been developed for all
student and specifically for minority students. (Tr., p.
1498-1605). Ms. Faye Bryant, Assistant Superintendent for
Magnet Schools, testified about their development and their
educational components. (Tr., pp. 942-1134). Mr. Angle
testified about the implementation of the Second Mile Plan
designed to stabilize faculties at schools with high turnover
rates, and about the factors which have led to the HISD's
reaching unitary status. (Tr., pp. 1398-1497).
While the Original Plaintiffs evince no interest in the
educational quality of the HISD's programs, it has been held
that remedial educational programs may be ordered by the
courts as part of a desegregation plan in order to ' help
remedy the past vestiges of segregation and to provide equal
educational opportunities. Milliken v. Bradley, 433 U.S.
267, 97 S.Ct. 2749 (1977); Plaquemines Parish School Board v.
United States, 415 F.2d 817 (5th Cir. 1969). In the case sub
-34-
judice, the District Court has not had to order the HISD to
develop these various programs. The HISD has undertaken them
voluntarily in an effort to assure equal educational
opportunities for all students.
A recent law review article by a prominent black law
professor, Derrick Bell, is instructive of the need to
consider the quality of education. Professor Bell notes that
the usual remedies in major school cases have not guaranteed
black children a better education than in pre-Brown days. He
goes on to observe:
This approach to the implementation of Brown, however,
has become increasingly ineffective; indeed, it has in
some cases been educationally destructive. A preferable
method is to focus on obtaining real educational effec
tiveness which may entail the improvement of presently
desegregated schools. . . .
. . . But successful magnet schools may provide a lesson
that effective schools for blacks must be a primary goal
rather than a secondary result of integration. . . .
If the decision [Brown] . . . is to remain viable, those
who rely on it must exhibit the dynamic awareness of all
the legal and political considerations that influenced
those who wrote it.
Bell, Brown v. Board of Education and the Interest - Conver
gence Dilemma, 93 Harv. L. Rev. 518, 530-533 (1980).
The development of a quality integrated educational
program has been achieved in the HISD, a large, urban school
district, in spite of the fact that the demographics have
changed dramatically, in spite of the high mobility rate of
students, in spite of those who would dissect the district
along racial lines, and in spite of all the outside forces
which mitigate against such an achievement. The
-35-
accomplishments of the HISD have been made without prodding
by the courts because of a real commitment to providing a
quality education available to all students and to doing all
that is practicable to provide an integrated environment.
Silent for almost ten years, the Original Plaintiffs, armed
with no evidence, ask this Court to cavalierly ignore the
facts of the case, the work of the HISD, and the
practicalities of the situation in order to make a futile and
counterproductive attempt at the forced mixing of students.
The Constitution does not require such futile and damaging
efforts and neither should this Court.
III.
THE DISTRICT COURT WAS CORRECT IN DENYING THE APPELLANTS'
MOTION FOR LEAVE TO AMEND AND TO ADD ADDITIONAL PARTIES
The Original Plaintiffs have several complaints regarding the
District Court's denial of their Motion for Leave to Amend their
Complaint to add additional parties. As with their analysis of
the unitary status issue, the Original Plaintiffs once again
incorrectly analyze the law and seek to divert attention from
their own lack of diligence.
The Original Plaintiffs initially make several general
statements regarding their belated motion. The Original
Plaintiffs' reference to the language of Foman v. Davis, 371 U.S.
178, 83 S.Ct. 227 (1962), on page 34 of their Brief, is misleading
inappropriate. The Original Plaintiffs' attempt to convince
this Court that their failure to timely seek leave to file an
-36-
Amended Complaint is a mere "technicality" or "misstep" is pure
sophistry designed to bolster an untenable position.
The Original Plaintiffs' assertion, in footnote 7, that
Calhoun v\ Cook, supra, 522 F.2d 717 (5th Cir. 1975), stands for
the proposition that it would be error to declare the HISD unitary
if an interdistrict case was pending, is incorrect. In Calhoun,
this Court made no such finding, but merely stated that final
dismissal of the case would be postponed until the metropolitan
case was resolved. In the case sub judice, the District Court has
decreed that it would retain jurisdiction of the case for at least
three years.
The Original Plaintiffs next allege that the District Court's
denial is "unprecedented" and that no court has refused to hear a
request for an interdistrict plan. Such a seemingly profound
observation is merely hollow rhetoric, is, in fact, ‘incorrect,
adds nothing helpful to the analysis of this issue, and is ap
parently being utilized in an attempt to avoid the fact that the
Original Plaintiffs simply did not act with required diligence.
See, Adams v̂ _ United States, 620 F.2d 1277 (8th Cir. 1980), cert.
denied, ___ U.S. ___, 101 S.Ct. 88 (1980).
A - The District Court Properly Denied the Original Plaintiffs'
Motion for Leave to Amend Their Complaint
On June 10, 1980, the Original Plaintiffs sought leave of the
District Court to amend their Complaint, pursuant to Rule 15,
Federal Rules of Civil Procedure, to allege inter-district segre
gation of school children in metropolitan Houston. The Original
Plaintiffs first complain that their Motion was denied "without a
-37-
hearing or even time for movants to respond to procedural objec
tions." There is, however, no requirement that there be a hearing
for this type of Motion. In fact, the Local Rules of the Southern
District of Texas specifically provide that a hearing will be held
only if one is requested by a party or the court. (See
Appendix "C"). No such request was made by the Original Plain
tiffs. There is also no provision requiring that the movants be
allowed a response to any opposition, but the Original Plaintiffs
got such a chance through their later Motion to Alter or Amend the
District Court's decision. (R. No. 808).
The grant or denial of leave to amend is committed to the
discretion of the trial court. Zenith Radio Corporation v.
Hazeltine Research, Inc. , 401 U.S.321, 91 S.Ct. 795 (1971); Foman
v. Davis, supra. On appeal, therefore, review of the lower
court's decision concerns whether the trial court abused that
discretion. Harkless v . Sweeny Independent School District, 554
F.2d 1353 (5th Cir. 1977).
In support of their request for leave to amend, the Original
Plaintiffs did no more than recite the statement in Rule 15 (a)
that leave to amend "shall freely be given when justice so re
quires." It must, however, be remembered that the proviso:
... necessarily implies justice to both parties. Thus,
the Court must "examine the effect and timing of the
proposed amendments ... to determine whether they would
prejudice the rights of ... the other part[y] to the
suit." 6 C. Wright and A. Miller, Federal Practice &
Procedure §1484, at 420 (1971). Pollux Marine Agencies
Inc. v. Louis Dreyfus Corporation, 455 F.Supp. 211. 215
(S.D. N.Y. 1978).
-38-
Accord, Hall v. Aetna Casualty and Surety Co., 617 F.2d 1108 (5th
Cir. 1980).
The prejudice to the other party which will lead to a denial
of a motion to amend includes: when new and extensive discovery
will be needed, when the amendment would cause undue delay in the
final disposition of the case, when new parties and new causes of
action are added, or when the party seeking amendment has known
about the issues it seeks to raise, but has unduly delayed in
amending its pleadings. A^ Cherney Disposal Co. v. Chicago and
Suburban Refuse Disposal Co. , 68 F.R.D. 383 (N.D. 111. 1975) ,
rev'd 9 R other grounds, 484 F.2d 751 (7th Cir. 1973), cert,
denied, 414 U.S. 1131, 94 S.Ct. 820 (1974); County of Marin v̂ _
United States, 150 F.Supp. 619 (N.D. Cal. 1957), rev'd on other
grounds, 356 U.S. 412, 78 S.Ct. 880 (1958); See, Foman v^ Davis,
supra.
This Court considered a defendant's request for leave to
amend which was filed after summary judgment was entered against
in Freeman v. Continental Gin Company, 381 F.2d 459 (5th Cir.
1967). In discussing Rule 15(a), this Court stated:
As this court has observed before, this "is not a
mechanical absolute and the circumstances and terms upon
which such leave is to be 'freely given' is committed to
the informed, careful judgment and discretion of the
Trial Judge . . . [citation omitted] . . . Where the
trial court has had a reason for refusing to allow
amendment, this court has left its action undisturbed,
[citations omitted] 381 F.2d at 468. (emphasis added)
The Original Plaintiffs argue that the District Court's
findings of undue delay and prejudice to the HISD are unsupported
and that the decision is an abuse of discretion. (Brief, p. 36).
-39-
The Original Plaintiffs also argue that the District Court did not
adequately allow them to explain their delay, that it allegedly
did not consider their "uncontradicted" affidavit, and that their
affidavit evidence was ignored. (Brief, p. 37) . The contention
that the affidavit by Mr. Weldon Berry, Attorney for the
Plaintiffs, was • uncontroverted is a patent falsity. The HISD's
Opposition to the Original Plaintiffs' Motion to Alter or Amend
incorporates by reference its Opposition to the United States'
Motion to Alter or Amend which contains an affidavit by Mr. Kelly
F.rels substantiating that Mr. Frels discussed the issue of the
transfer of black students from the Spring Branch Independent
School District to other school districts with Mr. Berry on June
8, 1977, a full three years before the Original Plaintiffs' Motion
was filed. (R. No. 812, Affidavit by Kelly Frels). The Original
Plaintiffs contention that it was May 13, 1980, before they knew
of the existence of alleged interdistrict violations, therefore,
cannot stand.
The appellants also blame the HISD's refusal to turn over the
results of its interdistrict investigation for any delay. The
Original Plaintiffs did not even ask for the results and chose not
to file a motion to produce. Furthermore, the Federal Rules of
Civil Procedure contain no rule which requires that a party
prepare a potential adversary's case. The same information
reviewed by the KISD was available to the Original Plaintiffs;
they simply chose not to go look at the records.
The Freeman court, in discussing the various reasons which
justify the denial of leave to amend, stated:
-40-
It is clear that lack of diligence is reason for
refusing to permit amendment . . .
The motion to amend in this case was made more than
three years after the events in question had occurred.
It was made fourteen months after the filing of
Freeman's original answer . . . and more than eight
months after the court had granted summary judgment. . .
A busy district court need not allow itself to be
imposed upon by the presentation of theories seriative.
Liberality in amendment is important to assure a party a
fair opportunity to present his claims and defenses, but
"equal attention should be given to the proposition that
there must be an end finally to a particular litiga
tion." [citation omitted] 381 F.2d at 469.
In Ladwig v . Travelers Insurance Company, 254 F.2d 840 (5th
d r . 1958), this Court upheld the denial of leave to amend after
trial and said:
• • • it is sufficient to say that in denying plain
tiff's request, presented nearly four years after the
claimed accident occurred and after the trial on an
entirely different theory had been fully completed, the
court used, he did not abuse, his discretion in refusing
plaintiff's request for . . . an opportunity to later
retry the case on entirely new pleadings. 254 F.2d at 842.
Leave to amend is routinely denied where there has been
unjustified and undue delay. Lamar v. American Finance System of
-Fulton County, Inc. , 577 F.2d 953 (5th Cir. 1978); Dunn v^
Koehring Company, 546 F.2d 1193 (5th Cir. 1977); Reisner v^
General Motors Corporation, 511 F.Supp. 1167 (S.D.N.Y. 1981); Sims
v. Mack Truck Corporation, 488 F.Supp. 592 (E.D. Pa. 1980); Zucker
v. Sable, 426 F.Supp. 658 (S.D.N.Y. 1976); Data Digests, Inc, v^
Standard ^ Poor's Corporation, 57 F.R.D. 42 (S.D.N.Y. 1972);
Beloit Corporation v. Kusters, 13 F.R. Serv.2d 174 (S.D.N.Y.
1969) .
-41-
In Daves v. Payless Cashways, m e . , 661 F.2d 1022, 1025 (5th
Cir. 1981), this Court upheld the denial of leave to amend filed
on the eve of trial and stated:
At some point in the course of litigation, an
unjustified delay preceding a motion to amend goes
beyond excusable neglect, even when there is no evidence
of bad faith or delatory motive. Liberality in pleading
does not bestow on a litigant the privilege of
neglecting her case for a long period of time.
(citations omitted).
Likewise, in Conklin v . Joseph C. Hofgesang Sand Company,
_Inc_;_, 565 F .2d 405, 407 (6th Cir. 1977) , the court, in denying
leave to amend an answer to allege a statutory exemption after
trial, observed:
The ̂ chronology of the case shows clearly the undue
dilitoriness of the defendant, and, as the trial judge
noted in his memorandum opinion, it was clear that
defendant's attorney had failed to investigate the
matter or do any legal research thereon until after the
hearing.
The delay in the case sub .judice is unjustified and undue.
At least by June 8, 1977, the Original Plaintiffs' attorney was
apprised of transfers of black students in Spring Branch. (R.
Nos. 812, 813). In 1978, the District Court ordered a submission
by the Department of Justice concerning legal authorities relating
to interdistrict relief. (R. No. 709). Mr. Robert Hall, attorney
for the HTA, made a presentation to the District Court in
April 27 , 1978 , in which he argued that there was need for a
metropolitan plan of desegregation. (R. No. 710). As early as
1969, deposition testimony referred to county or interdistrict
transfers of students. (R. No. 224, pp. 86, 87; R. No. 288, pp.
44 , 45). With all of this information available to them, the
-42-
Original Plaintiffs cannot reasonably claim that they did not know
of any of the facts which formed the basis for their Motion.
Since 1971, the case of United States v. Texas, 447 F.2d 441
(5th Cir. 1971) (C.A. 5281), has governed the entire State of
Texas, except for school districts under separate orders, and it
specifically governs the interdistrict transfer of students. In
1974, the case of Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112
(1974), set the legal standard for interdistrict desegregation and
created a great deal of interest in the issue across the nation.
The basis for the Original Plaintiffs' Amended Complaint includes
allegations regarding statutes and county resolutions enacted in
the early 1950's allegedly encasing the HISD. All of the
foregoing are in the nature of legal standards and/or actions of
which the Original Plaintiffs should have been aware. It is
consistently held that lack of knowledge of the law is not an
excuse for delay in filing a motion to amend pleadings. Hayes v.
New England Millwork Distributors, Inc. , 602 F.2d 15 (1st Cir.
1979); Goss Revlon, Inc., 548 F.2d 405 (2nd Cir. 1976), cert.
denied, 434 U.S. 968, 98 S.Ct. 514 (1977).
The Original Plaintiffs' claim that because a "widespread
pattern" of interdistrict violations must be shown they were not
in a "position" to seek interdistrict relief until May 13, 1980,
is fatuous. It is akin to arguing that one was incapable of
filing a case before the running of the statute of limitations
because all of the evidence had not yet been gathered. That is
precisely the purpose of the discovery process. The fact of the
-43-
matter is that in the case sub judice the Original Plaintiffs have
done nothing for a long period of time.
With all the experience in desegregation litigation possessed
by the Original Plaintiffs' counsel and the NAACP, it is implausi
ble that they were unaware of the alleged transfer of black
students from certain school districts to others. Even if they
were unaware, there is no justifiable excuse for such lack of
knowledge. Some degree of diligence is required. Conklin v.
Joseph Hofqesamq Sound Company, Inc., supra. The Original
Plaintiffs took no action of their own in the early 1970's or even
in 1977 or 1978 to pursue any investigation of possible inter-
district violations. They did not even file any proposed findings
in the 1979 hearings. In short, they sat on their rights. It was
only when the Original Plaintiffs saw the obvious - that the HISD
was unitary - that they sprang into action.
The Original Plaintiffs also argue that they cannot "under
stand" any prejudice to the HISD. The preparation and trial of an
entire new and massive case which, by the Original Plaintiffs' own
request, would delay a finding of unitary status for possibly many
years, would seem to be adequate prejudice. The District Court
held that it was. (R. No. 804, p. 10).
This type of prejudice is recognized by the courts as being a
valid basis for denying a motion to amend. As one court stated in
denying such a motion:
The case has been pending for more than two and one-half
years, and . . . [the Defendant] already has had to
defend against one theory at both the district court and
the appellate court levels. The District Court would
have been justified in concluding that to put . . . [the
-44-
Defendant] through the time and expense of continued
litigation on a new theory, with the possibility of
additional discovery, would be manifestly unfair and
unduly prejudicial. Troxel Manufacturing Company v.
Schwinn Bicycle Company, 489 F.2d 968 , 971 (6th CiFT
1973), cert, denied, 416 U.S. 939, 94 S.Ct. 1942 (1974).
Accord, Kuhn v . Philadelphia Electric Company, 85 F.R.D. 86 (E.D.
Pa. 1979); Johnson v. Sales Consultants, Inc., 61 F.R.D. 369 (N.D.
111. 1973); Chromalloy American Corporation v. Alloy Surfaces Co.,
-*-nc • • 351 F.Supp. 449 (D. Del. 1972); 6 Wright & Miller, Federal
Practice & Procedure: Civil §1487 (1971) .
Prejudice will also inure to the clients of the educational
systems in and around Houston,: the students. Institution of the
massive piece of litigation sought by the Original Plaintiffs will
only result in trauma, discord, ill will, and disruption of
educational programs. -The Voluntary Interdistrict Education
Program (VIEP), established in response to the District Court's
order, will be emaciated before it has had a realistic chance to
develop and improve. Years of hard work at attempting to stabil
ize the HISD and emphasize education and basic skills will be
rendered meaningless as the HISD is thrown again into the
emotional turmoil which such litigation naturally brings. The
ultimate losers will be children, whose education together with
the efforts of the HISD to insure the equality of that education
ke relegated to a position of virtual unimportance.
Courts have also held that leave to amend may be denied if
the moving party makes its motion in bad faith or with a dilatory
motive. Reisner v. General Motors Corporation, supra. In the
case sub judice, at the eleventh hour, when the District Court
-45-
indicated that it would rule on the unitary status of the HISD,
the Original Plaintiffs stepped forward to reassert their interest
in this litigation. Given their ten years of inactivity, it is
obvious that the Original Plaintiffs' frantic filing of motions
was to avoid a ruling on the HISD's unitary status. The Original
Plaintiffs are attempting to obfuscate the issue of whether the
HISD has become desegregated.
There is yet another reason the District Court was correct in
denying the Original Plaintiff's Motion. Where a motion to amend
is futile and clearly cannot result in a valid cause of action, it
is proper to deny the motion. Foman v. Davis, supra; Salwen Paper
Company v. Merrill Lynch, Pierce, Fenner &_ Smith, Inc., 79 F.R.D.
130 (S.D.N.Y. 1978); Washburn v. Madison Square Garden Corp., 340
F.Supp. 504 (S.D.N.Y. 1972).
The Plaintiffs' own pleadings acknowledge that the most
recent alleged cross-district transfer occurred during the 1964-65
school year, over seventeen years ago. On its very face, the
proposed amendments would be time barred by either the statute of
limitations or by laches. The violations alleged are those of a
tortious nature, and actions such as these, brought under 28
U.S.C. §1983 are governed by the Texas two year statute of limita
tions, Article 5526, V.A.T.S. Even if that statute were not
applicable, the action would be barred by laches. Since the
amendment, therefore, would be futile, it was properly denied.
The Original Plaintiffs sought the initiation of massive
litigation involving a totally new theory requiring an extra
ordinary amount of discovery and preparation by over thirty
-46-
parties. All this was requested, seven months after the hearings
concerning HISD's unitary status and at a time when a voluntary
inter-district plan was being implemented. One can hardly
conceive of a more paradigmatic case for the denial of leave to
amend.
B. The Proposed Additional Defendants are not Necessary Parties
The issue currently before this Court is the status of
desegregation within the HISD; specifically, whether the HISD has
achieved unitary status. (R. No. 818, p. 7; See R. No. 1, the
Original Complaint). In September of 1978 and in June and October
of 1979, every party had the opportunity to present any evidence
concerning their views as to HISD's unitary status.
The Original Plaintiffs seek to join the additional parties
under Rule 19(a), Federal Rules of Civil Procedure. This is not
possible, however, since Rule 19 can only be utilized to bring in
parties necessary to a complete and just adjudication of the'
issues presently before the Court. As the court stated in La
Chemise La Coste v. General Mills, Inc. , 53 F.R.D. 596 , (D. Del.
1971), aff'd, 487 F.2d 312 (3rd Cir. 1972):
It amounts to a misapplication of Rule 19 (a) to add
parties who are neither necessary or indispensable and
who are not essential for just adjudication in order to
be able to assert against them claims that are foreign
and unrelated to the claims asserted in the pleadings
and on a separate cause of action entirely . . . In
applying these standards for joinder under Rule~T9(a),
the Court must base its decision on the pleadings as
they stood at the time of joinder. (emphasis added).
These additional parties need not be added since the existing
parties are adequate to a resolution of whether the HISD is a
unitary school district. In Fair Housing Development Fund
-47-
.1
Corporation v. Burke, 55 F.R.D. 414 (E.D.N.Y. 1972), the plain
tiffs challenged a town's zoning ordinances and requested the
addition of twelve incorporated villages, located within the town,
who were alleged to control their own land use. In denying the
proposed addition of the parties pursuant to Rule 19, the court
stated that the primary consideration regarding joinder is to
determine if any judgment will be adequate in the absence of the
parties sought to be joinded. The court went on to find that the
proposed parties did not have any powers outside their boundaries
and that there would be nothing incomplete about the relief to be
given between the then present parties to the suit. See also,
Dyke Gulf Oil Corp. , 601 F.2d 557 (Emer. Ct. App. 1979); 3A
Moore's Federal Practice 519.07-9 [2] (1982).
The Original Plaintiffs admit that the proposed additional
parties are not necessary to the issue of intradistrict desegre
gation in HISD (Brief, p. 43; See, R. No. 812, p. 3) . What they
actuality, seeking is a change in the theory of their
case. Since the Motion to Amend under Rule 15 comes too late, the
use of Rule 19 is unnecessary and not appropriate. See, Amco
Engineering Co. v. Bud Radio, Inc. , 38 F.R.D. 51 (N.D. Ohio 1965).
The Original Plaintiffs' use of the Richmond, Virginia case
(Brief, p. 44) is inapposite here. First, it is respectfully
submitted that the analytical approach taken by the court in that
case is incorrect. The case sub judice was brought by the
Plaintiffs, and they sought relief against only the HISD. To that
end, any change in the theory of the case and the remedy requested
must be governed by Rule 15. Second, the motion to add parties in
-48-
the Richmond case came much earlier in that litigation than did
the motion in this case. For all of the reasons previously
stated, the motion to amend the complaint and for joinder of other
parties was correctly denied by the District Court. Amco
Engineering Co. v. Bid Radio, Inc., supra.
As stated, the issues which were before the District Court
were the issues pled by the Plaintiffs themselves and involved the
desegregation of the HISD, not the alleged segregative acts across
district lines in metropolitan Houston. The additional parties
the Original Plaintiffs seek to join were not necessary to the
resolution of the Plaintiffs' own issues.
C. The Proposed Defendants Should Not be Joined Under Rule 21.
The Original Plaintiffs also argue that Rule 21 is appropri
ate. for bringing in the proposed parties. Even when Rule 21 is
considered alone, the decision whether to join new parties is
committed to the sound discretion of the court. Anderson v.
Moorer, 372 F.2d 747 (5th Cir. 1967); Fair Housing Development
Fund Cor£. v_̂ Burke, supra; 7 Wright & Miller, Federal Practice
and Procedure: Civil §1688 (1971). The same reasons supporting
denial of leave to amend are applicable to the request to add
parties under Rule 21.
The courts have, as with motions to amend, denied motions
under Rule 21 when they come too late. Barr Rubber Products Co.
v. Sun Rubber Co., 425 F.2d 1114 (2nd Cir. 1970); cert, denied,
400 U.S. 878 , 91 S.Ct. 118 (1970). Thompson Newspapers, Inc. v.
Toledo Typographical Union, 20 F.R. Serv. 2d. 78 (E.D. Mich.
1974); Benqer Laboratories, Ltd, v. R. K. Laros Co., 24 F.R.D. 450
-49-
(E.D. Pa. 1959); 7 Wright & Miller, Federal Practice and Pro
cedure: Civil §1688 (1971) .
The Court in Fair Housing Development Fund Corporation v.
Burke, supra, denied a motion to add parties to that case pursuant
to Rule 21. The court found that the motion, made after "an
enormous amount of pretrial discovery" had been completed would
"introduce many complicated issues into an already complicated
case." 55 F.R.D. at 420. The court noted that prejudice and
delay would result from such a joinder and that the parties sought
to be joined were not necessary to afford full and complete
relief.
Since 1970 , the HISD has, in undisputed good faith, sought
after and has achieved unitary status. If this Court were to
permit the addition of these parties at this critical juncture, a
decision on unitary status might be delayed, and the HISD would be
prejudiced. In this case, the HISD has reached unitary status,
the District Court exercised its sound discretion in denying
the Original Plaintiffs' request to add parties.
CONCLUSION
For all of the foregoing reasons, the orders of the District
Court should be, in all things, affirmed.
Respectfully submitted,
Bracewell & Patterson
William Key Wilde
Kelly Frels
Timothy T. Cooper
Attorneys for the Defendants - Appellees9TTCSL
-50-
XICIN3ddY
HOUSTON INDEPENDENT SCHOOL DISTRICT
PUPIL .ACCOUNTING DEPARTMENT
October 2, 1981
TEXAS EDUCATION .AGENCY FALL SURVEY 1981-82
1981 TOTALS .AM.INDIAN .ASLAN or 3LACK, not of HISP.ANIC WHITE, not of TOTALS
______________ or .ALASKAN PAC.ISL. Hispanic Prig.____________Hispanic. Prig._______
1980 ELEMENTARY 64 . 1 2387 2 . 2 47072 43.6 34781 52.2 23671 21.9 10797
1981 ELEMENTARY 54 . 1 271S 2 . 6 45317 43.0 36545 34.7 20710 19.6 10534!
1930 SECONDARY S9 . 1 1704 2 . 0 39504 46.4 18966 22.5 24822 29.2 3505.
1981 SECONDARY 101 • . 1 2362 2.7 40061 46.0 20736 23.9 233 14 27.3 8712-
1980 SPECIAL SERV. 4 .4 526 31.9 170 16.3 313 50.9 ioi:
1981 SPECIAL SE5V . i .3 26 2 . 1 456 36.9 227 13.5 524 42.4 123*
1980 GRAND TOTAL 123 . 1 409 S 2 . 1 37102 44.9 53917 27.3 48306 25.1 194041
1981 GRAND TOTAL 159 . 1 5103 2 . 6 85334 44.3 57533 29.7 45043 23.3 19370;
John 0. Taylor, Director
Pupil Accounting 3
I i
lJ
~L
HOUSTON INOl'I’I-NWiNT SCHOOL DISTRICT
PUPIL ACCOUNTING DEPARTMENT
October 2, 1981
TEXAS EDUCATION .AGENCY FALL SURVEY 1981-32
ELEMENTARY AM. INDIAN ASIAN or 3LACX,not of HISPANIC WHITE, not of TOTALS
or ALASKAN PAC.ISL. Hispanic Orig. Hispanic Orig.
ALCOTT 1040 97.9 17 1 . 6 3 . 5 1062
ALLEN 446 93.7 14 3.0 6 1.3 466
.ALMEDA 40 11.4 127 36.1 185 32.5 332
ANDERSON 1 . 1 40 4.9 335 43.7 100 12.3 315 39.0 311
ASHFORD 43 4.3 13 2 . 0 36 4.0 804 39.2 901
.ASKEW 2 < 2 58 5.4 176 16.3 126 1 1 . 6 719 66.3 1031
ATHERTON 37S 95.7 17 4.3 392
BARRICK 10 1 . 2 233 33.3 543 63.0 836
BASTLAN 880 98.0 IS 1.7 3 .3 S98
BELL 94 12.7 168 22.3 49 6 . 6 427 57.9 738
3ENBROOK 5 1 . 0 13 3.4 131 24.3 374 70.3 32S
3ERRY 1 . 1 336 30.4 629 37.0 133 12.3 1104
3LAC<SHEAR 333 1 0 0 . 0 853
BONHAM 36 6 . 8 149 13.0 72 3.7 331 6 6.5 823
BONNER 17 2.5 69 1 0 . 1 363 53.7 229 33.7 630
BOWIE 829 93. S 55 6 . 2 3 . 5 337
B RAEBURN 53 16.2 37 2S. 6 60 17.6 133 40.6 340
BRI.ARGRQVE 1 .3 12 3.1 10 2 . 6 7 7 S.7 340 88.3 383
BRISCOE 1 . 1 790 97.4 20 2.5 311
BROCK 127 44.1 160 53.6 1 .3 233
3RCCKLINE 2 22 2.3 117 1 2 . 0 649 66.3 132 13.7 972
3RCWNING 2 . 3 1 7 389 91.3 32 7.3 424
BRUCE 105 17.4 307 SO.3 132 50.1 10 1.7 604
BURBANK 12 1 . 1 2 SO 22.3 491 44.2 357 32.2 1 1 1 0
3URNET 1166 98.2 77 1.3 1137
3URRUS 1 . 1 623 35.6 67 9.2 37 5.1 730
CAGE 2 .4 476 92.4 37 7.2 312
CARNEGIE 468 1 0 0 . 0 468
CHATHAM 331 96.7 15 2.9 i .4 349
CLINTON PARK 133 96.3 1 .3 3 2.7 139
CODWELL 733 95.7 4 .3 29 3.8 763
CONCORD 476 97.0 7 1.4 3 1 . 6 491
CONDIT 3 .3 22 3.5 24 6 . 0 46 1 1 . 6 3C3 76.1 393
m n n'.k A /f 113 13.2 336 64.0 199 22.3 370
CORNELIUS 1 . 1 5 y 273 55.6 33.2 219 23.4 '72
CRANFORD 3"4 33.3 49 10.9 2S 3.6 443
CRCCXETT 12 3.7 307 93.3 3 2.5 32'
CUNNINGHAM 30 6 .* 33.6 1 7 " 29.9 7 7 7 29.3 "4 7
DECHAUMES 1 . 2 3 . 5 2 . 3 202 31.5 435 6 " . 7 544
OECAV.ALA 1 . 1 355 99.9 336
XDSCN ~ 3 10.3 s o : 68.9 32 1 1 .3 69 3 . 22 '23~23
•4
HISD - PUPIL ACCOUNTING - TEA FALL PURVEY 1981 Page 2
AM.INDIAN ASLAN or SLACK, not of HISPANIC WHITE, not of TOTALS
or .ALASKAN PAC. ISL. Hispanic Orig. Hispanic Orig.
DOGAN 443
DOUGLASS 1 . 1 838
DCW 5 2.7
DURHAM 6 1.4 134
DURKEE 2 .2 43 4.6 179
EASTER 433
EIGHTH AVE. 1 .4 79
ELIOT 22
ELROD 39 6.3 198
EMERSON 22 3.8 34
FAIRCHILD 896
FIELD SS 3.2 1 1
FOERSTER 1 . 1 34 4.3 401
FONDREN 2 .7 4 1.4 S3
FOSTER 732
FRANKLIN 3
FRCST 1106
GARDEN OAKS S 1.4 37
GARDEN VILLAS 4 . 6 3 .4 313
GOLFCREST 44 6 . 0 72
GORDON 1 . 6 3 3.1 12
GREGG 3 . 6 367
GREGORY/LINC. 222 27.6 413
GRIMES 733
GRISSCM 2S 2 . 1 649
HARPER 34
HARRIS, J.R. 2 7 1 1 2
HARRIS, R.P. 1 .1 34 4.2 277
KARTSFIELD 396
HARVARD 3 .S 33
HELMS 4 .9 46
HENDERSON, J R . 1 1 1.4 41
HENDERSON rN.Q. 444
HEROD 1 .3 23 9.2 48
HIGHLAND HTS. 321
HOBBY 8 1.0 707
HCHL 5 .9 338
HOLDEN 126
HORN 1 1
HOUSTON GARDENS 1 _ 2 334
ISAACS 479
JANCWSKI 7 .3 23
JEFFERSON 2 .3 6
JONES, ANSON 113 20.7 114
JONES, J.WILL 411
32.2 93 17.2 3 .6 S39
98.2 10 1.2 4 . 5 853
213 96.4 2 .9 223
43.3 89 20.9 146 34.4 42S
19.0 236 27.2 461 49.0 941
33.6 79 14.0 74. .4 564
34.3 137 59.6 13 5.7 230
2.0 1092 96.0 23 2.0 1137
31.3 70 11.3 314 30.6 621
22.1 122 32.1 152 40.0 380
98.3 ' .3 4 .4 907
1.6 473 70.5 132 19.7 671
30.7 80 10.1 275 34.3 791
19.3 148 49.3 33 23.6 297
93.0 9 1.1 7 .9 763
.3 1092 98.3 16 1.4 1111
99.0 5 .3 6 _ 5 1117
10.3 98 23.5 204 59.3 344
44.3 134 23.9 20 S 2S.3 711
9.9 476 63.2 138 13.9 730
7.6 4S 28.7 91 53.0 137
73.4 97 19.9 20 4.1 . 437
52.0 1S7 19. S 7 .9 304
98.9 ? .3 6 .8 763
34.6 414 34.9 100 3.4 1133
33.0 123 37.9 9 4.1 221
3.6 1136 37.0 53 4.2 1303
34.1 266 32.7 233 23.9 313
95.6 24 3.9 3 . 5 623
5.6 463 73.5 91 13.4 590
10.1 322 70.9 82 18.1 454
5.1 646 79.9 110 13.6 308
97.3 10 2.2 4 54
13.9 43 14.2 183 60.4 303
93.1 16 4.6 3 2.3 34S
83.6 94 11.3 17 2.1 326
69.7 125 22.4 39 *.0 337
40.6 140 45.2 44 14.2 310
4. S 43 17.4 193 73.1 247
96.0 16 2.6 7 i.2 60S
63.1 222 31.6 2 .3 713
3.4 621 73.1 171 2 0.* 32*
. a 562 36.6 -a 1 2 . 2 649
20. 0 333 33.3 6 1 . 0 3*1
73.0 123 “tn - 24 4.3 565
5
KISS - PUPIL ACCOUNTING - TEA ".ALL SURVEY 1981
ELEMENTARY AM.INDIAN .ASIAN or
or .ALASKAN PAC. ISL. 3LACK, riot
Hisoanic Orof HISPANIC
U - __
WHITE, not of
Hisoanic Oricr TOTALS
KASBERE 343 97.1 1 1 2 . 0 3 .9 564KELSO 983 95.3 44 4.3 4 .4 1031KENNEDY 665 9S.4 21 3.0 1 1 1 . 6 697KOLTER 9 3.4 69 2S.7 32 11.9 133 59.0 253LAMAR 46 6 . 1 690 92.0 14 1.9 750LANGSTON 239 93.5 19 6 . 2 1 .3 309LANTRIP 3 .3 22 2 . 0 976 90.9 73 6.3 1074LAW 3S6 96.0 10 1.7 13 2.3 579LEE 234 9 4.4 14 3.6 243LBVIS 29 4.3 164 25.3 180 27.7 276 42.5 649LOCKHART 2 .3 734 98.3 3 1.0 3 .4 747LONGFELLOW IS 4.3 143 37.3 54 14.3 163 43.1 373LOOSCAV 3 . 6 S 1.0 470 96.0 12 2.4 490LOVE 39 10.3 252 66.7 37 23.0 373 'LOVETT 10 4.1 103 44.6 3 3.5 116 48.0 242MACARTHUR 302 72.2 102 24.4 14 3.4 413MACGREGOR 1 . 2 453 38.0 32 6.2 29 5.6 31SMCDADE 904 90.6 92 9.2 > 2 QQ Q,
MCNAMARA 2 .3 76 12.1 130 20.7 i27 20.2 294 46.7 629MADING 2 . 2 2 .2 963 93.2 9 .9 3 .5 981MEMORLAL 31 3.4 299 31.3 38 10.3 363MILAM 127 26.9 308 65.3 37 7.3 472MITCHELL 13 2.2 233 23.9 234 28.3 336 40.6 327MONTGOMERY 1 . 1 10 1 . 2 566 63.3 200 24.1 32 6.3 329NEFF 31 13.3 76 1 2 . 6 98 16.3 346 57.6 601NORTHLINE 4 . 6 77 12.4 256 41.1 236 45.9 623OAK FOREST 7 1 . 2 179 31.1 125 21.3 264 45.9OATES 51 13.3 252 66.0 79 20.7 382OSBORNE 655 94.7 26 3.7 1 1 1 . 6 692PARK PLACE 30 4.0 120 16.1 390 52.2 207 27.7 747P.ARKER 13 1.3 244 53.5 112 15.5 360 49.4 729PATTERSON 3 .7 21 3.0 152 31.4 265 62.9 421PECK 2S 3.3 331 76.3 48 11.1 27 6.3 451PETERSEN 3 .4 490 70.3 159 22.3 45 6.3 697PILGRIM 49 10.9 57 1 2 . 6 244 54.1 101 22.4 451PINEY POINT 26 7.7 148 44.1 90 26.3 72 21.4
PLEASANTS 565 96.1 15 3.9 530PLEASANTVT LLE 1 .2 4 .3 371 77.1 62 12.9 43 9.0 4S1PCE 9 1.4 249 33.7 123 19.1 263 40.3 644PORT HOUSTON 31 7.3 1 1 2.7 339 32.3 31 ".5 4i?RJGH 92 10.2 31 3.4 748 83.0 31 3.4 ■90 2RED 14 3.3 1 01 23.9 27 6.4 231 66.4REYNOLDS 560 iOO.O
RHOADS 543 99.2 2 i 2 .4RIVER r0AKS 1 -2 30 3.9 149 26.4 163. 23.9 201 33.5ROBERTS 10 2 ." 179 43.3 44 1 2 . 0 134 56.5 56"
lo
m ay - .“U^iL ACUAJMlNU - TEA FALL SURVEY I9S1
■
EL3ENTARY AM. INDIAN
or .ALASKAN
ASIAN or
PAC. ISL.
3LACX, not of
Hisoanic Oriz
HISPANIC 'WHITE,
Hisoan
not of
lc Oris.
TOTALS
ROGERS, WILL 23 5.7 2S7 41.2 186 29.3 1S3 25.3 624
RCCSEVELT 0 170 23.6 463 64.2 38 1 2 . 2 721ROSS 1 . 2 300 72.9 123 13.7 36 3.2 683. * RUCXER . 4 . 7 2S7 42.7 341 36.6 602RUSK 14 3.3 2 .3 407 9S.3 4 .9 427RYAN 322 39.9 213 39.7 2 .4 537
r .J SANDERSON 58 3.7 367 8S.S 88 3.7 1 . i 1014
SCARBOROUGH 5 . 6 30 3.3 41S 52.3 336 42.3 736
" '1 SCOTT 547 32.7 1 1 1 16.8 3 . 5 661
; SCROGGINS : .3 3 .4 60 3.4 397 33.1 36 7.3 713
SHEARN 37 3.1 238 32.0 112 24.4 71 15.5 438
SHERMAN 2 . 2 36 9.7 791 39.2 3 .9 887
SINCLAIR 3 2.3 34 29.9 139 67.3 231SMITH 10 1.7 253 42.3 1 1 1 13.5 2.12 36.9 6Q1SCUTH4AYD 31 1.7 104 5.3 1S36 84.7 142 7.8 1313STE'/ENS 1 . 1 9 1.4 73 11.9 120 18.3 449 63.3 657
STEVENSON 4 .9 2 .4 403 39.3 40 3.9 451
— SUNNY SIDE S82 99.0 1 . 2 5 .3 383SUTTON 141 13.7 170 16.6 243 23.7 472 46.0 1026THOMPSON 67S 93.3 17 2.4 13 1.3 70STIJERINA 2 • im 947 97.3 19 2 . 0 963TRAVIS 7 1.3 3 .5 433 33.1 79 15.0 527TURNER 765 98.9 1 . 1 3 1 . 0 774TWAIN 17 7.0 45 13.8 90 57.3 33 36.7 240
WAINWRIGHT 2 .3 15 3.5 95 22.3 112 26.4 201 47.3 423
. - WALNUT 3EMD S .3 43 4.6 134 14.2 91 9.7 670 71.0 943WESLEY 636 94.9 29 4.3 c .3 670’.VEST UNIV. 5 .5 43 7.8 21 3.7 304 33.0 S73WHARTON 1 .3 5 1.3 ' S3 13.5 293 73.3 17 4.6 374WHIEBY 461 99.3 1 462
~ ' ’ WHITE 177 27.3 49 7.6 82 12.3 333 S2 . 1
; WHITTIER 4 .3 55 10.3 191 36.6 272 52.1 522’WILSON 23 9.9 61 2 1.S 34 29.7 1 1 0 33.9 233
1 WINDSOR VILL. 2 .3 35 4.9 393 55.4 118 16.6 162 22.3 710
.1 TOTAL elem. 54 . 1 27IS 2.6 43317 43.0 36S4S 34.7 20710 19.6 103341
7
i1 ■ pupil accounting - tea fall survey issi
SECONDARY AM. INDLAN .ASLAN or
or .ALASKAN FAC. ISL. BLACK, not of HISPANIC
Hisoanic Orie. WHITE, not of
Hisnanic O r i n .
TOTALS
AT7UCKS JR. 1 2 1 2 98.3 11 .9 4 .3 1 2 2'
AUSTIN SR. 1 . 1 46 2 . 6 257 14.6 1339 79.0 65 5.7 1738
BELLLARE SR. 1 5 7 6 . 6 230 11.3 200 8.4 1736 73.2 2373
3LAGC MIDDLE 1 . 1 13 1 . 0 507 37.9 330 24.6 488 36.4 1339
BURBANK JR. 1 . 1 6 . 5 367 31.2 347 46.S 236 21.7 1177
CARTER C.E.C. S* 119 89.5 14 10.5 133
CLIFTON MIDDLE 2 . 1 16 1 . 2 419 31.0 3C6 22.6 610 43.1 1353
CCM-IUNITY SR. 39 S3.4 17 23.3 17 23.3 /5
C.L.C. MIDDLE 1 .3 60 47.2 24 13.9 42 33.1 127
C.L.C. SR. 131 42.5 52 14.7 132 42.3 355
C.O.T.C. 143 61.7 47 19.5 43 13.7 240
CULLEN MIDDLE I . 1 1234 96.2 41 3.0 9 .7 1335
DAVIS SR. 1 . 1 71 4.9 316 36.0 321 57.2 26 1 . 8 1435
DEADY JR. 7 .3 6S 3.2 163 3.0 1230 62.2 342 26.3 2039
COWLING MIDDLE 25 1.3 1267 65.3 461 24.0 171 3.9 1924
EDISON JR. 3 . 2 4 .5 1356 97.3 30 2 . 2 1393
EL3!ING JR. 29 2.7 303 "3.7 199 13.2 33 5. .1 1090
FCMDRE-f MIDDLE 1 . 1 27 2.5 330 31.3 49 4.6 647 61.4 10S4
SONY IDLE JR. 1 . 1 20 2 . 2 290 31.9 234 25.3 363 40.0 902
FURR SR. 1 . 1 10 1 . 0 372 33.3 327 33.6 253 27.0 973
GULF COAST TR. 1 1 . 1 23 32.6 29 33.7 23 52.6 36
HAMILTON MIDDLE IS 1.3 18 1 . 6 393 34.0 437 37.3 25.5 1133
'HARPER L.S.C. 64 31.0 6 7.6 Q 11.4 7*9
HARRIS CO. YOUTH 38 3T.3 23 22.5 41 40.2 102
HART-LAN JR. 10 1036 7 5.6 204 14.9 120 3.3 i370
HEALTH PROF. SR. 2 .3 23 3.0 423 36.0 137 20.7 152 2 0. 0 739
HENRY JR. 3 .3 91 3.7 453 .45.7 495 47.3 1047
HOGG MIDDLE 19 1.3 135 13.2 1031 75.0 147 10.3 1402
HOLLA'D MIDDLE 2 .2 46 5.9 4S7 39.1 414 33.4 231 21.4 1170
HOUSTON SR. 23 1.2 14 . 7 526 26.4 637 32.0 791 39.7 1991
JACKSON JR. 1 . 1 30 3.5 120 3.4 1156 30.6 106 7.4 1433
JOHNSTON MIDDLE 2 .2 32 2.9 407 37.0 91 3.3 568 51.6 1100
JONES SR. ii .7 14S3 93.0 40 2.6 53 3.7 1562
JORDAN SR. 7 # 7 721 70.8 241 23.6 SO 4.9 1019
KASrMEPE SR. 1891 99.3 7 .4 ? 19C0
KEY JR. 993 96.1 40 3.S i . 1 1C3S
LAMAR SR. 70 3. S 326 41.0 293 14.5 326 41.0 9013
LANIER MIDDLE 2 . 1 63 4.2 679 44.9 336 22.5 430 23.5 1510
LAN ENFORCEMENT SR.l -3 155 37. 6 140 39.0 33 23.1 559
LEH SR. 2 . 1 215 3.0 236 10.3 21S 3.2 1933 '2.9 265,
LINCOLN MIDDLE 33 19.3 215 49.3 123 23.-6 11 ? A 430
LONG MIDDLE 4 .4 133 :11.3 192 17.0 210 IS.’ 337 32.1 1125
MADISON SR. 3 .2 1 1 . 5 1490 70.2 324 13.5 294 15.3 2124
MARSHALL MIDDLE 26 2. 0 223 17.6 1013 '3.2 2 9 "> ■> 1299
'•CRSiNCLDS MIDDLE i .i 2 ? 319 23.4 900 71.3 52 2 .5 1234
Special Education
8
HISD - PUPIL ACCOUNTING - tea FALL SURVEY 1931 Page 6
SECONDARY .AM. INDIAN
or ALASKAN
.ASLAN or
P.AC. ISL.
BLACK, not ot
Hisoanic Oris.
HISPANIC WHITE, not of
Hisoanic Orij».
TOTALS
MILBY SR. 2 .1 94 5.6 466 17.9 1230 49.1 764 29.3 2606
NIGHT 107 62.9 42 24.7 21 12.4 170
TON-GOING ED. 116 90.6 12 9.4 123
PERF. ARTS SR. S .3 153 26.6 57 9.6 375 63.0 595
PERSHING MIDDLE 2 .1 S3 3.9 496 36.3 130 11.1 648 43.1 1349
REAGAN SR. 138 3.0 445 25.7 322 47.6 324 13.7 1729
REVERE MIDDLE 1 . I 101 5.2 198 10.1 169 3.6 1433 76.0 1952
RYAN JR. 1273 99.5 6 .5 1279
SCARBOROUGH SR. 2 .1 34 4.1 213 15.9 232 17.3 338 62.6 1339
SHARPSTCWN MID. T . 5 1S2 10.3 252 17.0 153 10.3 911 61.7 1477
SHARPSTOWN SR. 4 # 2 208 3.9 221 9.5 134 7.3 1717 73.6 2334
SMITH MIDDLE 740 93.6 51 6.4 791
STERLING SR. 6 .4 1393 90.9 57 3.7 76 5.0 1532
TERRELL MIDDLE 23 2.3 750 92.5 29 3.6 9 1.1 311
THOMAS JR. 1326 96.1 26 1.9 27 2.0 1379
WALTRIP SR. 17 .8 627 30.3 364 17.6 1059 51.3 2067
'WASHINGTON SR. 21 1.2 1339 38.6 31 4.6 98 5.5 1759
'■WELCH MIDDLE 6 .4 72 4.5 535 33.1 130 11.1 322 50.9 1615
WESTBUF.Y SR. 38 3.4 576 22.5 213 3.3 1700 66.0 257“
WHEATLEY SR. 1 .1 1136 75.5 559 23.9 7 . 5 1504
WILLIAMS MIDDLE 591 96.2 14 2.3 9 1.5 614
WOODSON MIDDLE 1034 9S.3 26 2.4 25 2.3 1085
WORTHING SR. 1645 99. S 9 .5 1634
YATES SR. A*♦ .i 2412 97.8 22 .9 29 1.2 2467
TOTAL SECONDARY 101 .1 2362 2.7 40061 46.0 20736 23.9 23314 27.3 37124
*Special Education
HISD - PUPIL ACCOUNTING - TEA FALL SURAT. 1231 Page 7
i” 'ICE5 AM. INDIAN' .ASTAN or 3LACX or HflPA'l'C iVHITE. net at 'TOI\LSor ALASKAN PAC. ISL. Hisoanic Oriz. Hisoanic Oriz.
3AYCU PLACE 6 23.1 1 3.3 19 73.1 26
- X CNTR. RETARDED I .9 48 44.S 52 29.6 27 25.0 108
CH. MENTAL HL7H. 10 S3.3 1 S.9 6 35.5 17
CRITTENTCN 42 91.2 2 4.4 2 4.4 46
DAVIS 41 30.4 3 IS.7 2 3.9 51
EASTER SEALS 2 33.3 2 33.3 ? 33.3 6
GRADY INFANT 13 31.7 12 29.3 16 39.0 41
HARRIS CO.DET. 3 61. S 3 23.1 2 IS.4 13
HCMEBOUND I 1 . 0 30 29.4 26 25. S 45 44.1 102
HOPE CENTER ?tm 2 2 . 2 2 2 2 . 2 5 55.6 9
HOSPITAL 3 2.3 21 16.3 3 0 23.3 75 58.1 129
KCU.SCH.DEAF ? 23.6 5 71.4 7
INFANT PROG. RDS 5 62.S 3 37.5 3
INGRANDO 1 1 0 . 0 9 90.0 10
1 ■
1 MH4RA DAY HCSP. 4 44.4 1 1 1 . 2 4 44.4 9
PYRAMID HOUSE 1 1 0 0. 0 1
RESIDENTIAL PLACE 1 6.7 2 13.3 12 30.0 IS
RCCERS/GRADY HEC? 1 1.4 30 41.1 20 27.4 30.1 73
J , RaSKS/ORADY RDS 2 1.4 S3 57.2 33 26.2 ?7 13.2 145
ROGERS, r H . F15.MID .1 .4 :o 7.3 61 23.3 19 7.4 155 60.6 236
■ RONALD .MCDONALD 3 73.0 1 2S. 0 4
1 : THOMAS CARE CNTR. 28 2 1 . 1 13 13.5 37 65.4 133
. VILLA MARIE 17 60.7 S 17.9 . 6 21.4 23
SPEC. SERV. TOT.AL 4 .3 26 2 . 1 -56 36.9 227 13.3 524 42.4 1237
10
XIQN3ddV
L.J
PROJECTED ENROLLMENT IN SCHOOLS FOR 1932-33 WERE MUTE ENROLLMENT IS OVER 50%
ri Schoo1 1 Slack 1 | Hsr. % Asian i White 1 1 Total
i :i ASHFORD 19 2.0 40 4.4 45 4.9 813 S3.7 1194' -J Trs. 31-82 0 0 0 0 o* Trs. 82-33 0 0 0 1 0 0
1 ; ” ASKEW ISO 16.5 131 12.0 60 S. 6 71S 65.9 1089 10SO
'' i Trs. S1-S2
* Trs. 32-33
23
22
25
9
29
25
S2
56
rr*2 ” BELL 189 24.9 S3 7.7 98 12.9 413 54.5 758 737Trs. 31-82 130 IS* Trs. S2-33 SI 10 91
BONHAM 150 18.0 78 9.3 60 7.2 547 65.3 335 1002i ! Trs. 31-32 6 1 0 o* Trs. 32-83 0
BRAEBURN 96 28.1 63 13.4 58 17.0 123 36.5 34 2 426
; • » Trs. 81-82
* Trs. 82-83 0
BRIARGROVE 13 3.2 30 7.4 15 3.7 34 7 85.7 405 400
Trs. 81-82 5 3 8 *! . * Trs. 32-33 1 i
CONDIT 2S 6.2 50 12.5 25 6.2 — 301 75.1 401 504
' 1 Trs. 31-S2 10 LQ
|
* Trs. 32-33 S 5
ELROD 209 33.1 77 12.2 45 7.1 301 47.6 632 780
Trs. 81 -‘82 3 3( •
1 ! * Trs. 32-33 3 3
iJ GORDON 13 s.s 45 23.1 ( 10 6.5 37 56.9 155 2S2
Trs. 81-32 Q
I - -i * Trs. 82-33 o
HEROD 45 IS. 1 47 13.3 30 10.0 176 59.1 293 540
Trs. 31-82 7 7
* Trs. S2-S3 3 3
i HORN 13 5.1 45 17.8 13 ' 5.2 182 71.9 253 540
Trs. 31-82 o* Trs. 82-83 0
f '! KOLTER 70 25.9 33 13.0 10 3.7 155 57.4 270 354
. . Trs. 81-82 29 i 30* Trs. 32-33 20 2 22
- \ LOVETT ns 42.6 10 3.7 12 4.4 133 49.3 270 372
Trs. 31-82 91 2 93
* Trs. 82-S3 59 i 60
McNAMARA 142 22.3 138 21.6 79 12.4 279 45.7 63S 633
Trs. 81-82 3 3
* Trs. 82-83 0
NEFF 30 13.1 107 17.5 30 13.2 34 3 56.2 610 613
\ Trs. 81-82 4 4
* Trs. S2-S3 1 1 | i
’’PARKER 230 33.7 113 15.9 15 | 2.0 360 | 4S.4 '43 762
i "• Trs. 31-32 190 37 ! i S' !
* Trs. 32-83 1 39 1* 5 ' j 55 1 i 36
RED 115 23.8
54
7.6 13 o • 4 i 2S2 | 65.2 | 446 492
Trs. 31-32 ' 65 1 i L 1 ! ! 6 b
* Trs. 32-33! 33 : - ! 1 | 1
* T r a n s f e r ? as 5-13-32
” Magnet School s
P'.ipil T r a n s f e r
" a y 19 , 1952
Department
PROJECTED ENROLLMENT IN' SCHOOLS FOR 1932-83 WHERE WHITE ENROLLMENT IS OVER 30%
* T r a n s f e r * 15 "-IS--22
Magnet Sca00Is
P*sp i I T r a n > f c r r*c p a r t “C"
PROJECTED ENROLLMENT IN SCHOOLS FOR 19S2-83 WERE WHITE ENROLLMENT IS OVER 35%H
f. '
C - U - 1 D 1 *» % 1 H**"~ X , \ z i z r . *.o. i *. - 9. Total Caoacitv
ALMEDA 47 12.7 133 36.4 189 50.9 571 390
Trs. 81-32 1 1
n * Trs. S2-S3 1 1
(■ i ANDERSON 370 43.3 118 13.8 46 S .4 321 57. S 8S5 7S7
Trs. 81-82 5 4 9
* Trs. 82-83 3 2 S
t .! BARRICK 12 1.4 * 293 34.9 533 63.7 840 822
Trs. 81-82 0
* Trs. 82-83 0
. BENBROOK 24 4.5 140 26.2 7 1.3 364 68.0 535 570
Trs. S1-S2 0 0
* Trs. 82-33 5 3
n BONNER 74 10.9 3S2 56.0 20 2.9 206 30.2 6S2 672
i ' j Trs. 81-82 3 3
* Trs'. 82-33 5 3
r CUNNINGHAM 2S6 34.0 230 30.5 55 7.3 213 28.2 754 730
Trs. 31-32 0 0
* Trs. 82-33 1 1
-p DECHAUMES 3 . 5 205 32.5 5 .3 417 66.2 630 ' 714
Trs. 81-82 0
* Trs. 32-83 0
DURHAM ’ 137 43.3 94 21.8 8 1.8 143 33.1 432 624
i ! Trs. S1-S2 125 11 156
; * Trs. 32-83 S4 2 36
DURKEE 182 19.1 260 27.2 45 4.7 468 49.0 935 1062
■ Trs. 81-82 29 67 96
* Trs. 82-83 6 14 20
EMERSON 86 22.0 129 33.0 25 6.4 151 58.6 391 516
• Trs. 81-82 2 2l : * Trs. 82-83 2 2
. FOERSTER 420 50.3 86 10.3 37 4.4 292 3S.0 833 900
Trs. 31-82 1 1
* Trs. 82-83 0
GARDEN OAKS 38 11.2 101 29.7 7 2.1 194 S7.0 340 420
. Trs. 81-82 11 5 16
* Trs. 82-83 4 3 7
LEWIS 173 26.6 195 50.0 33 5.4 247 38.0 650 684
Trs. 81-32 21 4 ' 25
* Trs. 82-83 16 5 21
. ■** LONGFELLOW 147 38.3 69 1S.0 20 5.2 148 3S.5 384 362
Trs. 31-S2 126 . 36 19 181
* Trs. 82-83 S3 26 109
MITCHELL 245 29.1 250 29.8 21 2.5 324 38.6 S40 840
Trs. S1-S2 7 14 21
* Trs. 32-83 5 11 14
NORTHLINE S9 13 • " 279 42.9 .9 276 42.S 630 61S
Trs. 31-82 u -> 16
* Trs. S2-S3 9 9
i
"OAK FOREST 132 31.4 I2S 22.1 9 1.3 261 45.0 5S0 362
f Trs. S1-82 I'S 33 43 276
* Trs. 32-83 S3 23. ■ 106
** Magnet Schools
Pupil Transfer Department s - : o - s :
PROJECTED ENROLLMENT IN SCHOOLS FOR 1932-33 WHERE WHITE ENROLLMENT IS OVER 33
C " Schos I BlacV * Hsn. Asian * White * Total Canac i r.v
(J PATTERSON 24 5.6 141 32.3 5 1.1 260 60.5 430 426
Trs. SI-32 0
— A * Trs. 32-S5 1 ' 1
i'l **POE 255 38.0 126 13.9 n 1.7 275 41.4 665 675
Trs. 51-S2 241 81 8 330
n * Trs. S2-S3 123 38 10 171
‘♦RIVER OAKS 142 24.9 M1' 165 28.9 55 9.6 208 36.6 570 S73!: 1UJ Trs. 31-32 172 101 122 395
* Trs. S2-S3 10S 77 2 130 314
♦♦ROBERTS 160 41.6 48 12.5 12 3.1 165 42.8 3S5 400
!:J Trs. S1-S2 172 hi 9 12 203
* Trs. 82-83 95 ' 8 3 53 159
n RUCKER 6 1.0 262 42.5 348 56.5 616 630
! . J Trs. 31-S2 0
* Trs. 82-33 0
n SCARBOROUGH 32 3.9 435 53.0 346 42.2 320 S04
i .
L J Trs. S1-S2 3 8
* Trs. 32-33 3 3
■; ~! SINCLAIR 12 4.1 96 32.5 187 63.4 29S 337
1 Trs. 31-S2 4 29 35
* Trs. 32-33 2 16 18
K. SMITH 261 42.8 115 13.8 12 2.0 222 36.4 610 736•--}: i1 j J
Trs. 31-32 1 2 3
' Trs. S2-S3 0
STEVENS S2 12.2 128 19.1 11 1.6 4S0 67.1 671 726
■ Trs. 81-32 3 2 10
♦ Trs. S2-S3 S 1 9
TWAIN 43 19.2 97 33.S 20 3.0 35 34.0 250 330
Trs. 81-S2 19 5 22
* Trs. 82-83 12 i 13
♦♦KAINWRIGHT 99 22.6 121 27.7 17 3.9 200 45.8 437 412
• Trs. 81-82 66 44 32 142
* Trs. 82-83 6 6 12 •
- J WHITTIER 39 10.S 21S 38.2 6 1.1 283 50.2 365 540
f-j Trs. 81-82 0
♦ Trs. S2-S3 0
♦♦WILSON 63 21.3 91 28.4 28 8.7 133 41.6 320 273
Trs. 81-S2 SS 16 \ 29 103
♦ Trs. S2-S3 52 27 44 123
Trs. S1-S2
♦ Trs. S2-S3
MIDDLE AND JU <I0R HIG 1 SCHO0I S
BLACK 581 41.3 322 22.9 3 .6 495 33.2 1406 1912
Trs. S1-S2 323 211 356 •
* Trs. S2-S3 530 137 467
\ i *-CLIFTON 439 31.7 320 23.1 20 1.5 60S 43.7 1334 1530
Trs. S1-S2 2-3 203 40 316
♦ Trs. S2-S3 223 149 — -7 454
i FONTILLS 515 31 .0 263 26.4 - - 2.2 410 40.4 1013 1368
■ _i Trs. S1-S2 S 61 69
* Trs. S2-S3 6 20 26
* Transfers as 5-1S-32
■' Magnet Schools
Pupil Transfer Department 5-20-32
PROJECTED ENROLLMENT IN SCHOOLS FOR 19S2-S3 WHERE WHITE ENROLLMENT IS OVER 35?i
School 1 Black 'j Hsp. h Asian i 'a White i TuLal Curj«ic i L y
HENRY
Trs. S1-S2
Trs. S2-S3
107
9
3
9.2 495 42.S s .4 S51 47.6 1158
9
3
1630
SAM HOUSTON
Trs. 81-82
Trs. 82-83
684
75
41
24.5 795
40
13
28.5 27 1.0 12S4 46.0 2790
115
54
2S59
LAMAR
Trs. 81-82
Trs. 82-33
718
846
583
35.7 334
S3
32
19.1 78
1
3.9 S31
9
41.3 2011
929
675
2497
SCARBOROUGH
Trs. SI-32
Trs. 82-33
215
36
15
16.2 230
86
37
17.3 60 4.3 825 62.0 1350
122
52
1974
WALTRIP
Trs. 81-32
Trs. 82-83
630
434
272
50.4 532
201
169
18.4 20 1.0 1043 50.2 2075
635
441
2823
Trs. S1-S2
Trs. S2-S3
•
Trs. 81-82
Trs. S2-S3
1
Trs. 31-S2
Trs. S2-83
Trs. S1-S2
Trs. 82-83
Trs. 81-82
Trs. 82-83
Trs. 81-S2
Trs. S2-S3
Trs. 81-S2
Trs. S2-S3
Trs. 81-82
Trs. S2-83
Trs. 31-82
Trs. S2-S3
-
Trs. S1-S2
Trs. S2-S3
m
Trs. 31-S2
Trs. 32-83
|
1 1
i •
I 1
Trs. 21-82
Trs. 32-33
i
______ 1 i
1 :
T r a n s f e r s a s S - I S - S 2
Magnet Schoo l s
I ••)
! J
n
L .. i
a
a
u
* i
i i
APPENDIX "C"
f '
Li
! ■ iIJ
(_j
i 'i_
default for a period of 60 days without the plaintiff s having moved for default judgment, the action may be summari
ly dismissed with prejudice.
D. Appeals: Record and Transcript on Appeal. Within
10 days after filing of notice of appeal, counsel for appel
lant shall complete the Transcript Information Sheet, send
the original to the Court of Appeals, a copy to the District
Clerk and, if a transcript is required, a copy to the court
reporter. Counsel will prepay the estimated fee to the
court reporter, if required to do so pursuant to Section 7o3
of Title 28 U.S.C.A. (Rule 10(b), Rules of Appellate Pro
cedure); or will within such 10 day period make application^
to the Court to proceed in forma pauperis (Rule 24, Rules o-
Appellate Procedure). Counsel for the appellant, within 10
days following notice of appeal, shall designate to the
Clerk that portion of the record desired for the appeal an
send copies of all filings to other parties.
Filing and docketing fees should be paid before the
record on appeal is forwarded to the Court of Appeals.
A motion for extension of time for filing the record on
aoDeal or the transcript will not be entertained by this
Court but may be filed with the Court of Appeals.
RULE 15. MOTIONS IN CIVIL CASES.
A. Generally. Every opposed motion presented for
filing shall state with particularity the relie^ or order
sought and shall contain an averment that movant has con
ferred in person or by telephone with opposing counsel,
including the dates on which such conferences occurred, an
that counsel are unable to reach an agreement upon the dis
position of the matters raised by the motion. A ^ P ^ a t e
proposed order granting the relief soughtshall accompan,
the motion. Memorandum of legal authorities may also be
filed with the motion when deemed appropriate by counsel.
ExceDted from the requirement of prior conference with P
posTng- counsel are the following motions: Rule 12(b) , (c) ,
(e) and (f) Fed.R.Civ.P. motions as well as motions fo.
summary judgment.
B. Written Submission. Whe
required by the individual Judge,
fix a submission date which will
ten (10) working days and not mor
days following the date of filing
submitted to the Judge on "Submis
sidered on that day or thereafter
mit without the necessity of a pe
sel.
R written submission is
every opposed motion wi.
be a Monday not less than
e than thirty (30) calenda:
Such motion will be
sion Day" and will be con-
as circumstances may per-
rsonal appearance by coun-
- 13-
(1) Responses. Responses to such motions, unless
otherwise ordered by the Judge, will be filed with the
Clerk no later than the "Submission Day." Failure of
counsel timely to respond may result in the granting of
the motion.
(2) Any requests for oral presentation of a mo
tion must accompany the motion to be filed and will be
considered after the submission date. Unless notified
by the Clerk, counsel will presume that no oral hearing
is permitted.
C. Oral Submission. When oral presentation is re
quired by an individual Judge, the motion will be filed in
accordance with these Rules, and counsel will be notified by
the Clerk of a date for oral presentation without the re
quirement of a "Submission Day."
D. Unopposed Motions. If any motion is unopposed by
all counsel of record, counsel may simply so state conspic
uously on the face of the motion. In such event, the motion
will be submitted forthwith by the Clerk to the Judge for
approval, and will be granted routinely, unless the Judge is
of the view that the granting of such motion is not in the
interest of justice.
E. Motions to Consolidate. A motion seeking the
consolidation of two or more cases shall: (1) contain in the
caption the case numbers and styles of the cases sought to
be consolidated; (2) be filed in the case of the earliest
number. In addition, counsel will furnish copies sufficient
for filing in the respective cases. The motion to consoli
date will be considered by the Judge with the lowest num
bered case and must comply with paragraphs A through E of
this Rule.
F. Hearing Procedure. Notwithstanding any other
provision in this Rule, any Judge of this Court may, at any
time or place, entertain and decide any motion, shorten or
extend the period for its submission, or permit or require
the submission of additional argument, authorities, or sup
porting material. If the Judge, on deciding the motion,
determines that the motion or the opposition thereto is
completely wanting of support in fact or law, or that the
motion or opposition thereto is characterized by fraud or
chicanery, the Judge may award to the prevailing party its
costs, including reasonable attorneys' fees, or make such
order as justice may require.
RULE 16. PHOTOGRAPHING, BROADCASTING AND TELECASTING IN
COURTROOMS.
All forms, means and manner of taking photographs, or
of broadcasting or televising on or from the floor of any
- 14 -
CERTIFICATE OF SERVICE
The undersigned hereby certifies that two true and
correct copies of the foregoing Brief for Appellees have
been sent to the following counsel of record by placing a
copy of same in the United States Mail, Certified, Return
Receipt Requested, on this the _ - day of May, 1982, and
addressed as follows:
Lowell Johnston
10 Columbus Circle
Suite 2030
New York, N.Y. 10019
Mr. Weldon H. Berry
Attorney at Law
711 Main Street
Houston, Texas 77002
Kelly Frels
10TTCSB