Ross v. Houston Independent School Brief for Appellees
Public Court Documents
May 1, 1982

79 pages
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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 April 27, 2025.
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Defendants-Appellees, '• ‘ '/■. *■•/;•• vV ’ 'On Appeal From the'-United States District Court - For the Southern 'District of Texas »■'' Houston Division 1 ■ : i :t,;V' BRIEF FOR" THE APPELLEES ■ HOUSTON. INDEPENDENT SCHOOL DISTRICT, ET A] J- T ? ..i l| 3 T J SKjSJjg :%•?/ V-̂ls ivoS ' *V>.̂V/yV,̂ 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 • L* 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 £1 ij 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 —Ti 1 ■;L'J i Ross v. Eckels, F.Supp. (S.D. Tex.. No. 10,444 , Aug. 6, 1971).......................... n1 i\... J j 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) . -2- 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 -3- 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 -9- 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, -10- 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 -11- 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 -12- 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 -15- 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 -18- 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) -20- 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