United States v. Texas Education Agency (Austin Independent School District) Brief for Intervenors

    UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT 
NO.71-2509

IN THE

UNITED STATES OF AMERICA,

Plaintiff-Appellant,and
DEDRA ESTELL OVERTON, et a),.

Intervenors,
- vs -

THE TEXAS EDUCATION AGENCY, et al 
(AUSTIN INDEPENDENT SCHOOL DISTRICT)

Defendants-Appeilees.

Appeal from the United States District Court for 
the Western District of Texas 

Austin Division

BRIEF FOR INTER VENORS

GABRIEL GUTIERREZ
1010 East 7th Street 
Austin, Texas 78702

MARIO OBLEDO 
JIM HEIDELBERG 
ED IDAR JR.,
JOHN SERNA

211 East Commerce Street 
San Antonio, Texas 7820^

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
NORMAN J. CHACHKJN 
SYLVIA DREW

10 Columbus Circle 
Suite 2030
New York, New York 10019 
(212 i 586-8397

A.ttoineys for Intervenors



TABLE OF CONTENTS

Preliminary Sivitement ..............................  1

Stat omont of the Case
a. The Austin Independent School District 2

b. Procedural History of the Case .......... 5

c. The Pletns Submitted ......................  6

d. The District Court Orders .............  7

e. Intervention of Minority Patrons ......  8

ARGUMENT:

I. The District Court Erred in Finding 
an Absence of De Jure Segregation of 
Mexican-American Students ............... 9

II. The Desegregation Plan for Secondary
Schools Approved by the District Court 
Fails to Comport with Constitutional 
Requirements in a) Failing to Integrate 
Mexican-American Students at the Second­
ary Level and b) Integrating Black Stu­
dents by Closing All-Black Schools and 
Busing their Students to Predominantly 
White Schools Thus Imposing the Full 
Burden of Desegregation on Black Students. 15

III. The District Court Erred in Ordering an 
Elementary Desegregation Plan which was 
Less than the Most Effective One for De­
segregating the S y s t e m ....... ..........  27

Conclusion 29



TABLE OF CASES
Page

Bnnhs v. Claiborne Parish School Board,
42 5 F . 2 d 1040 (5th Cir. 1970)................. 28,29

Bivins v. Bibb County Board of Education,
424 F . 2d 97 (5th Cir. 1970) .................  28

Brice v. Landis, 314 F.Supp. 974 (N.D.
Cal. 1 9 6 9 ) ......................................  20

Carr v. Montgomery County Board of Education,
429 F.2d’332 (5th Cir. 1 9 7 0 ) ................. 23

Chapa v. Odem Independent School District,
Civ. No. 66-C-92 (S.D. Tex., July 28, i
1967) (unreported)............................. 17i

Choctaw County Board of Education v. United
States, 417 F.2d 845 (5th Cir. 1969) . . . .  23

Cisneros v. Corpus Christie Independent 
School District, 324 F.Supp. 599
(S.D. Tex., 1 9 7 0 ) ..............................  17

Delgado v. Bastrop Independent School District 
Civil Action No. 388 (W.D. Tex., June 15,
1948) (unreported..............................  16

Gonzalez v. Sheely, 96 F.Supp. 1004 (D.Ariz.
1 9 5 1 ) ............................................  1 7

Green v. County School Board, 391 U.S. 430
( 1 9 6 7 ) ...........................................  27

Green v. The School Board of the City of 
Roanoke, No. 1093 (W.D. Va., Aug. 11,
1970), affirmed, No. 15, 110 (4th Cir.,
June 10, 1971)...................................  21,22

Guey Hcung Lee v. Johnson, No. A-203, Oct.
Term, Aug.25, 1971, slip o p ..................... 1 7

Haney v. County Board of Education of Sevier
County, 429 F.2d 364 (8th Cir. 1970) . . . .  21

l ii



Hernandez v. Driscoll, Civ. No. 1304 (S.D.
Tex., 1957), 2 Race Rel. L. Rep. 329 
( 1 9 5 7 ) .......................................... j , 17

Hernandez v. Texas, 347 U.S. 475 (1954). . . .j . 16
i I

Hightower v. West, 430 F.2d 552 (5th Cir. 1970). 28ii
Ililson v. Ousts, 425 F.2d 219 (5th Cir. 1970) ,\ . 28

!
1,00 v. Macon County Board of Education, No.

30154 (5th Cir., June 29, 1971), not yet
r e p o r t e d ......................................... 23

Mendez v. Westminster School District, 64 F.Supp.
544 (S.D. Cal. 1946), aff'd, 161 F.2d 774
(9th Cir. 1947)..................................  16

Quarles v. Oxford Municipal Separate School 
Dist., No. WC 6962-K (N.D. Miss., Jan.7 
1970)   20

Singleton v. Jackson Municipal Separate School 
District, 426 F.2d 1364 (5th Cir. 1970). . .

Smith v. St. Tammany Parish School Board,
302 F.Supp. 106 (E.D. La. 1969) ............

Swann v. Charlotte-Mecklenburg Board of
Education, 431 F.2d 138 (4th Cir.1970) . . .

Swann v. Charlotte-Mecklenburg Board cf
Education, 402 U.S.l (1971)...................

United States v. Board of Education of Baldwin 
County, Ga., 423 F.2d 1013 (5th Cir.1970). .

United States v. Board of Education of Webster 
County, 431 F.2d 59 (5th Cir. 1970) . . . .

29

22

28

19,29

28

28

iii
/



UNITED STATES COURT or APPEALS 
FOR THE FIFTH CIRCUIT 

No. 71-2508

IN TIIE

UNITED STATES OF AMERICA
Pinintiff-Appellant,

DEDRA ESTELL OVERTON, et ai.,
Intervenors,

- vs -

THE TEXAS EDUCATION AGENCY, et al., 
(AUSTIN INDEPENDENT SCHOOL DISTRICT)

Defendants-Appellees.

Appeal from the United States District Court for 
the Western District of Texas 

Austin Division

BRIEF FOR INTERVENORS

Preliminary Statement

This is an appeal from the unreported order of the United 

States District Court for the Western District of Texas, Austin 

Division, entered by Judge Jack Roberts, July 19, 1971. The 

opinion incorporated by reference an opinion and order entered 

June 20, 1971.

t



,,f the Tf cw ^J B ^ . ° a £ g O S £ - ^ g t

(1) vi hot her the District Court erred in finding an absence 
o£ an in.-c segregation against Her.i con-American student s in the

Austin school system.
(2) Whether the District Court erred in approving a 

desegregation plan for tho junior and senior high schools which.

(a) leaves Mcxican-American students in ethnically isolated 

schools, and (b) integrates black and Anglo students by closing 

all formerly black schools thereby placing the entire burden of

the desegregation process on black children.
(3) Whether the District Court erred in adopting an 

elementary desegregation plan which maintains racially and ethni­
cally identifiable schools and integrates the students only on a 
part-time basis where an alternative plan promised full integra­
tion and elimination of racially identifiable schools.

St at enient of the Case

a . The Austin Independent School District

There are approximately 54,974 students in the Austin school 

district— 35,496 Anglos (65%), 11,194 Mexican-Americans (20%) and 

G,284 blacks (15%). During the 1970-71 school term there were 

74 schools in the district— 8 high schools, 1 1  junior high schools 

and 55 elementary schools. Twenty-three of these schools (2 high

2



.school:"-, 3 junior high schools and 18 elementary schools) had

a ma jority of black and/or Mexi can-Americar; students. The vast 

majority of the nonwhito population in Austin is located in the
I :

eastern quadrant of 

found in this area.

the City, and all 23 minority;schools
U /

Those schools are as follows):

are

!
JStudents_____________ i Year

School Total # Black # Mex-Am. # Anglo Opened

High Schools

Anderson 938 916 7 15 1953
(98) (.5) (1.5)

Johnston 1,919 619 1,195 105 1960
(32) (62) (6)

J unior High Schools

Allan 1,039 437 557 45 1899(42) (54) (4)
Kcaling 739 721 17 1 1913

(98) (2)
Martin 818 90 702 26 1967

(ID (86) (3)
Elementarv Schools

Allison 711 163 566 52 1955(21) (71) (8)
Becker 816 58 556 202 1936(7) (68) (25)
Blackshear 664 653 11 1903(98) (2)

1/ Compiled from Defendants' are for 1970-71. Exhibits 79 and 13. Enrollment figures



Schoo1
Studonts Year ' 

OpenedTotal # HI a ok ;;l= Mox-Am. # Anqlo

I.rookc 586 10 559 17 1954
(2) (95) (3)

Camokoll 595 563 30 2 1939
(95) (5)

Cova 1 ] c* 923 184 662 77 1940
(20) (72) (8 )

Maplewood 522 302 65 155 1951
(58) (1 2 ) (30)

Mathows 434 76 150 208 1916
(17) (35) (48)

Metz 797 4 772 2 1 1916
(97) (3)

Norman 329 325 2 2 1970
(99) (.5) (.5)

Oak Springs 457 445 1 1 1 1958
(97) (3)

Ortega 617 363 235 19 1959
(59) (38) (3)

Palm 755 3 724 28 1892
(96) (4)

Rosewood 292 278 1 2 2 1936
(95) (4) (1 )

St. Johns 162 153 6 3 1958
(94) (4) (2 )

Sims 576 563 13 1956
(98) (2 )

Winn 450 3 22 425 1906
(1) (5) (94)

Zavala 581 17 557 7 1936
l! (3) (96) (1)

4



b. Procodura ] History o f the Case

black students were segregated by law until 1955 when the 

Austin rchool system adopted a plan of integration based on 

geographic after ounce xones with free choice and modified ope:, 

enrol 1 rent. In February of I960, the school system was notified 

by the Department of Health, Education and Welfare that the 

plan did not satisfy requirements of Title IV of the Civil 

Rights Act of 1964 (Plaintiff's Exhibit 7(c), p. 2). Pursuant 

to that finding the United States Office of Education in Dallas,
i

Texas, operating under Title IV of the Civil Rights Act, survived 

the Austin school system and proposed an alternate plan of inte­

gration. On January 8 , 1969, the school board rejected the HEW 

proposals and voted instead to retain with minor modifications

the freedom of choice plan then in operation (Plaintiff's 

Exhibit 7(d), p. 9 and 7(e)). On February 25, 1969, HEW rejected 

this plan pointing out that students and faculties of eight 

schools would remain predominantly black and ten schools would 

continue to have an enrollment of 90% or more Mexican-Americar 

and/or black students (Plaintiff's Exhibit 7(e)). On March 6 , 

1769, the Austin School Board responded refusing to alter its 

plan (Plaintiff's Exhibit 7(g)). HEW transferred the case to 

the Office of General Counsel for processing under section 602 

of the Civil Rights Act of 1964. Further efforts by the Dallas 

Center to develop a mutually acceptable plan proved

5



.

1

i-.:i ;:icco;-,:. ful and the school board was brought to hearing .in June

V' /.). Pol lowing a decision against the. school board, federal

: v.ds wcre suspended and the United States Department of Justice

. .:b ajquon t ly filed suit against the district in 7'tugust of 1970.»
The district court directed the Department of Justice to

i
see); the assistance of the Department of Health, jEducation and

i
Welfare in preparing a comprehensive plan for the school system(
to ho subir.itted by May 14, 1971. Both parties submitted their 

proposals at that time,

c . The P]ans Subnit tod

The school board plan proposed to integrate the junior and 

senior high schools by closing the existing predominantly black 

schools at that level and assigning their student populations 

to predominantly v.’hite schools in non-contiguous areas. The 

system would build three additional high schools which would 

serve an integrated population upon completion in 1973. Under 

that plan no high school would have more than 32% black student 

population and no junior high school would have more than a 40% 

black student population. The Mexican-American students, how- 

l"'V r ’ W °Uld Continuo to constitute over 50% of the population in 

secondary schools in which they presently constitute 

the majority (see Defendants' Exhibit 33). No provision

V ‘,n "ad° ln th° plan for integration of the Mexican-American 
5 ,:;Ulat^ n °n a secondary level. The school board plan 

0len‘";ntnry education would divide all schools into

- 6 -



11. (• 0 civ;-- < '.’Id include four Anglo, one Mexicari­

boo 1 p;-r cluster. Students in cluster

leurnina, resource centers in fine

the school year. When not participating in the programmed

cultural exchange activities, the students would be segregated 

in their normal neighborhood schools.(See Defendants’ E x h . 40)

The HEW plan proposed to convert the all-black Anderson High 

School to a junior high school and to close the all-black Healing 

Junior High School. Zone lines would then be altered to bring 

about the desired distribution of students according to the ratio 

existing in the system as a whole. No school at the high school 

level under this plan would have a majority of black or Mexican-

American students. At the junior high school level only Anderson and 

Martin would continue to have a majority of black and Mexican-America 

students respectively. (See Plaintiffs Exhs. 24 and 26). The IIEW 

plan for elementary schools would cluster four Anglo, one Mexican- 

Anerican and one black school on a permanent basis; four of the 

school'; would be utilized for grades 1 through 4 , the remaining two 

schools to be used as fifth and sixth grade centers (Tr. 590). 
d • The District Court Orders

ino district court rejected the HEW proposals for junior 
kigh schools and elementary schools because of their heavy

7



<1 ;:

wolilt's, i t  four:c. M } pro-

ius se y i n t e r ; a r m s

• * <: •'• 1 1 11 - j f . i ) . ; s tucu'•it:; and sncr-
(2) rcd\ co parent.o ] >-> >“ 4-  -» e* L t. .1.ci pat ion in ,
tax scIiool health faci li l.ies since sb
home; (4) eliminate opportunities for
tics after school; (5) cause anxiety in students and teachers 

creating psychological barriers to the learning process; (6 ) p 

shelter problems in inclement weather; (7 ) expose children to 

increased traffic hazards; (8 ) require financial expenditures 

which are non-productive educationally; and (9 ) create other 

problems stemming from community hostility to forced busing.
In addition, the court ordered the closing of the all-black 

Anderson High School, Kealing Junior High School and St. Johns 

Elementary School for the 1971-72 school term. 

c - Intervention of Minority Patrons

On August 3, 1971, the President of the United States

announced that he was opposed to the use of busing to desegre­

gate the schools and that he would direct the Department of 

Justice to disavow the HEW plans on appeal in this case. The 

Government appeal would, he indicated, be limited to certain 

narrow constitutional questions (see Exhibit b  to Motion to 

Intervene).

8



0:t •. IQ, 1971, .in i.ervent i on in this litigation was
1 cause ( Llio Pres iciont ’ s action in renouncing the plan 

.0 1. to-, by his < .v. n offici . tJ s. An order was entered by the 
■ t on Angus L ill permitting the intervention of, black and

i, i
i can-.-;:,oricon a tndontf. and their class, i I" Iij

i
IARGUMENT j

1• The District Court Erred in Find­
ing An Absence of De Jure Segrega- 
tgon of, ilex f can-Amorican Students .

T)va district court found in its order of June 28, 1971, that

the hoxican-Amorican students had not been discriminated against
ns an ethnic group by Austin school officials. That finding was

incorporated by reference in the order of July 19, 1971, which is

the subject of the instant appeal. The ruling was contrary to

the weight of the evidence presented below and was thus reverible 
error.

A 19**7 report to the Austin School Board on recommended school

site selections was appropriately prefaced with the statement that

[N)ot much ‘just happens,' everyone plans." (Defendants' Exh.91).

The Austin Independent School District has planned placement of

...lcan'Amorican students with the result that today Mexican-Amcrican

"tU‘’CntS eoag-i*« th0 maj°rity of 10 schools in the eastern quadrant 
the citv. Each of these schools was built with the knowledge

/
2 rco>eJOGC'r-lloHi?itS AllanMand Martin dr .Highs, Allison, Becker■- lc, hathews, Metz and Zavala Elem.Schls. (Def.Exh.79)

9



>V p.

of. t

ou 1 .1 he use a  predomina: it!y Me X  J can-7: m eric an stud or:

C  t  J ' ■ .* *• i «t r i  i n a bo ;1) ulari os, r cnovat ing o l d schoo
; *-
c  v. • • now • r hools, ;3 s  well a s putt or ns o x  assig

and : :  ;  f lievo a l l  pc'epetuat e c i tlie s e p a r a t ion.

t i n Cit y  P 1  a  n , i i  ng Co a ::nission h a s  f o l l o w e Q a  p r a c t

p r o ; .. j  t i n g res :i u anti a  1 s o g r e g a t ion b y r a c e a n d  e t h

origin. See for example minutes of the meeting of February 4,1938, 

wherein it approves sites selected for 3 '’racial" housing projects, 

one Negro, one Mexican and one white (Plaintiffs' Exh. 16). The 

Austin school board has cooperated in this plan by placing schools 
for Mexican-Aruerican children in the resulting residential areas. 

Tims minutes of a school board meeting in October, 1935 (Plaintiffs'

Exh. 6(c) read as follows:
New Schools for Mexiccin Children

For many years it has been the desire of the 
Austin School Board to provide for the large 
group of Spanish speaking citizens of Austin 
a suitable, well-equipped school built as near 
the center of their population as possible.^/

Similarly, minutes of October 11, 1938 and September 11,1939 meeting

refer to the purchase of a site for "the new Mexican school" (Plf.

Exhibit 6c) and discuss a request by one school not to be assigned

certain "Mexican students." (Plaintiffs' Exh. 6f)

Dual zones were 
children assigned to

drawn in several areas with Mexican-Americar. 

one school and Anglo children to the other

L / This was accomplished in 1960 with the 
High School which opened with and continues
• • v 1 c 11 -Arne near, students.

opening of the Johnston 
to house a majority cf

10



331) . \7 c. r ()

.i!)• v  : to •' groo;

,;Oli

. xicv'i! • /.marxcan

redrawn in several 

students who had been

til ' - ■j ip i ted sci*< els. .Mian dun; ;u: Iliei'h h J a 50% An glo

i i! V ' ' L .' ’ • '.Mi'- ric..n populaL ion in 1 9 5 (> (Tr. 523) . Tt i - -ij w. rned

down V l 1 c . V  V - 2 •cur ar. 1 was r-enlaced i 11 1957. When th e new All an school

open arl *■ / ci i c bciiiv.iarias wenco chang ed with the. result th at the hi lan

popu lati on } j o c r* ni.o 72 0 Me;>; icun-American and only 2.35 Ang lo. (Tr . 463,

523, 374 ) When s cl i o o 1 s were abandoned in the blexican-.Ame rica n

residential arons, new schools were kui.lt in the same area to replace 

then (Tr.722). Zavala v/as built to replace Comal (Tr. 722) See

also plaintiffs’ Exh. 12 where the school board states that Allison 

school was built; to replace an old building to serve the same 

community at the same location. Thus, when the University Junior 

High School with a 70% Anglo, 30% Mexican-/American population was 

discontinued in 1967 (Tr. 374) Martin Junior High School was built 

to replace it, and opened with a 90% Mexican-American enrollment.
(Tr. 477). Mr. Cunningham, Director of Pupil Placement, testified 

that the school board's interest was in "taking care of the numbers 

. . . not . . .  in a salt and pepper or a cinnamon mix." Yet he 

testified that he has "kept track" of students by race or ethnic 
origin throughout his tenure in that job (Tr. 328). Where conditions 

of overcrowding occurred in the Mexican-American schools the school 

board chose to build additions rather than relocate schools away 

from ethnic concentrations (See Defendants' Exh. 13).

f ron;
While the school board maintains that this isolation resulted 
residential patterns for whrch they were not responsible,

11



! > r r i i -niu ;;.. m te.tl
. . Is wiiich

{ • . V  • ; ' .. o f r-; 1 •

o'. hurt i i .• s '■Iinol o ! *

at . X: e 111 s . Vt!ii3.o til

cm:•iloyvd i s vastly b

in thc sys tom (3% of

of the etude nt popul

rc* closest to them (Tr. 396) .

' eerie m m  demons ten to an active participat:

rial:; in the isolation of Mexican-American 

proportion of Mexican- American personnel

r/o

assigned with marked regularity to the predominantly Mexican-Ameriear- 
schools. Tims in 1970-71, 15 of 2 3 Mexican-American teachers (65%) 

at the high school level were assigned to the Johnston High School;
A of 1] Mexican-^American junior high school teachers (35%) were 

assigned to Allan and Martin Junior High Schools; 38 of 49 Mexican- 

Ameri can teachers at the elementary level (77%) were assigned to 

the schools with a majority of Mexican-American children (Defendants1 

Exh. 79).

The same pattern of assignment prevails in clerical staff 

assignments. In 1970-71 at the high school level, 2 of 3 Mexican- 

American clerical workers were assigned to Johnston; 2 of 3 Mexiean- 

American clerical workers at the junior high level were assigned to 

Martin; 4 of 5 Mexican-American clerical workers at the elementary 

level were assigned to schools with a majority of Mexican-American 
students (Defendants' Exh. 14).

Experts, Dr. George Sanchez and Dr. Jorge Lara-Braud testified,

1> ised on their experience in the system, that the schools in Austin 

had been segregated by ethnic origin. A Mexican-American

"tudi.nt testified that lie believed the schools were segregated

12



] .  ( T r . 75,  04 , 05 ,  9 1 ,  95)

■ or di seriir.i-nation are contained in the

j,. do-.-, which interveners have been unable
they did not have a complete..,ar i a- in full d(:t;*.il becauseto sum

copy c;.f the record, ariid because or

vn» lie the evidence of do jure segr

Austin r e p r i n t s  merely the tip. of an iceberg, the remainder of 
Vbiel: intervenors would expose and amplify should further hearings 
he held, the record is sufficiently clear to warrant reversal of 
the district court's finding. t

The pattern of isolation outlined above comports with the 
findings of a recently issued Report entitled Mexican-American 
Education Study, United States Commission on Civil Rights, Apn3 
of 1971. The Commission found theit 66% of the Mexican American 
pupils in the Slate of Texas attend schools which are predominantly 
Mexican-American (Id. at 25). The ratio of Anglo^to Mexican- 
American teachers in Texas as a whole is 17 to 1. Assignment 
of Mexican-American teachers is similarly restricted; more than 
CO;', of the approximately 5,000 Mexican-American teachers in the 
State of Texas are in schools with an enrollment of 80% - 100% 

Mexican American students (Id. c.t p.44). An earlier Commission 
studv in this area indicated that as a result of the unequal

4/ The ratio in Austin is worse - 27 to 1 (Defendants' Exh.79)

13



: ] C ?' • O A Vice provided M r :cnn-Aio r i'" ,ns in tno Sfcr. i

• • * .. • ’ r. f 1 .• i.-Jji: •. aro i »'iu:t i o n a l l y 1 1 liter vto (The

*» Qr p ;i o n  o n  C  3vil R.i.giivc, 1961, p - 26)•

TP', ‘.MrlcS < ;t f i: ••: if v/cd t o  r:tand, premises to

-. ,-rp ..‘tun . ■ ruth d i •':. - r i i r i n a t o r y t r oat: no' st and v/i
1 1  prejudice

t...: • present and iul i;;x' lc*atil riches of a substnmtial segment

or the Austin cor.-,.m i  ty to an integrate-:d equal educational

opportunity.

i

- 14 -

/



r i .

Tri-
Hc'a-J

n
c.

J ‘,! 1 l_o IT a I
:'}•'.!_ l c_11
> ri. n l: s .

• meat i'.-i c-lon f o r  rcecvK ; •, >* School r.
'. : i c; i ' • ' : j  ‘ '

. • . • i \ . • i . . • ;\ . ' » . • ]  I t'.S
i.o Com''ort 
. ) Fa i i .icf

( ■  ‘ s a t  r : •

V. A  %. 3 . • . i f i ' • - ■

;; C i v  \ ; ]< iL School ;■,
1 ; i . i <. • 1 \ . • ! ' : ■' . 1  o i ' Ih:.t J? OC?cl i l  .IC/i

i

Sen io r  11 i<0i Schoo l  Plan Musi

i

f

P r o v id e  f o r
(.qra i : ion t o  Comport w i th Corn t i t u t i o n a l

The junior and senior high school plan proposed by the

board and adopted by the court would not alter the attendance 

patterns of Mexican-American students at the secondary level

(Tr. 913, 1026). Projected enrollments in 1373 will be

follows:
Anglo Mexican-Arneric an Black

Johnston II. S. 7% 61% 32%

Allan Jr. 11. S. 6 .9% 52.2% 40.9%

Martin Jr. II. S . 6 .2% 61.7% 32. 1 %
(Def. Exh. 33)

While the school board clearly recognized the educational benefit 

of tri-ethni.c integration (see Defendants 1 Exhibit 40 wherein 

they commend their elementary plan to the court on that basis), 

it did not consider itself under a constitutional obligation to 

provide this educational opportunity. If, as interveners have 

u*gucd in the first section of this brief, the Austin school sys­

tem. has followed administrative policies and customs resulting

15 -



1 :. t :. O a n o  re

opportun ity  a t  the scoouv 

th •• lav.

l .clean pi 3.s , then the

:.xi- Arri;'.:r icun s arc f u l l y  p

i.v 1 - r : i :,j o lec t ion .  c l  nunc o f  tlie Fourteenth Amendment i f  they 
m  • .* :,i:L jeet to d i s c r i mi nation as an identifiable ethnic group. 
H u m  r.do:: v. To:: ‘ s, 347 U .S. 475 (1954) .  Although Hernandos
involved jury discrimination, its rationale is fully applicable 
in all instances where a state or other agency singles out 

Moxienn-Americans for special detrimental treatment.

A number of decisions have enjoined discrimination in public 

schools against Mexican-Americans on this basis. The first 

federal decision in the area of Mexican-American segregation was 

Kendo?: v. V.’cstminstor School District, 64 F.Supp. 544 (S.D. Cal.1946), 

afr 1 d , 161 F.2d 774 (9th Cir. 1947). The court held, that the equal 

protection of the laws pertaining to the public school system in 

California is not met by providing "separate schools [with] the 

same technical facilities" for Mexican-American children. The 

court observed that "[a] paramount requisite in the A.merican system 

of public education is social equality. It must be open to all 

children by unified school association regardless of lineage." 

Thereafter, a federal district court in Texas in Delqado v. Bastrop

Illi— School District, Civil Action No. 380 (W.D. Tex., June 
la, 19-,0) (unreported), held that the segregation practices affect­

ing Mexican-Americans of the district were arbitrary, discriminatory

16 -



i .

ill y] •

V. (■; 1 “lit T !. '•

; school district stipuleiwl that

\:i . ! r.nyue , ioficicu oics must be on

!. r : Indent.;::, •:]:ere>:;y denying school

- -- ':'X Si”) 1 C t  .. V £ 2’O <L\£ \\ •; C 1*2.2x i C ':: • 2)f-Ox • r

u * ; x x r i c i c n c x  argument** J
i.c*t Mexicon~7\n\ericans wore enjoined 

Shoo 1 v , 90 F.Supp. 1004 (I'. Ariz. 1951); Chapa 

•■•-jllO.t .S^^ool District, Civ. No.66-C-92 (S.D. Tex.,

O A •• T - > v* *1 t r 
—  - j -  .J. ,

af X

.Inly 28,1967) (unrepor to J ) ; and F ernandez v . Driscoll, Civ. No.

1584 (S.D. Tex., 1957), 2 Race Rel. L. Rep. 32S (1957). Rost 

recently the United States District Court for the Southern District 

of Texas found the Corpus Christie Independent School District had 

created a do AH££ segregated school system against Rexican-Arnericans 
and blacks and ordered a plan which would integrate both minorities 

into the overall system. Cisneros v. Corpus Christie Independent

School Dj strict, 324 F.Supp. 599 (S.D. Tex., 1970), appeal pending,.
No. 71-2397 (5th Cir.).

Kr. Justice Douglas recently denied a stay of an integration 
order affecting Chinese-Americans in San Francisco stating,

— -°'"a v ‘ of- Education was not written for Blacks alone

The of our school desegregation cases extends to all
racial minorities treated invidiously by a state or any of its

agencies Johnson, No. A-203, Oct. Term
nug. 25, 1971 Slip Opin., at 2.

Accordingly, the district court oruer should be reversed and

- 17 -



t ’.1 ;:m r o v i o s  for the dist-i.- ' ’  ' "  ^  TV

t ; :  iit ratio: ;  approx5 r:: c j

ni by Ci.r. a v;ho] e .

: U h oreson teu  by 113JV7 o f

• V- ' . p . i •• ' e nn  - l : ;  -; • • p'; | V] o j-y. • n t s  i n  i.: o n t . i g u o u

I
i * i ' . s  T* ¥  r ' *• ( h r .  5 -! 5 , 573) . T h e y  do n o t  u r g e

the uetuaJ II;.w zones or percentages projected since their use 
v:ouid result in continued racial or ethm.c identif iabrlit-y o_ 
a number o f  schools (nc-e G o v ' t  rtxhs. 22 and 2d) .

18



t"ire burden of

... , L’.o t>Ooiuxnan t 1 '; blaek /.edorson

;__ , i ,Tr,,-iic!]* ::i -rij Schools closed as a part of

^ • ■ [. * r* i '.it.ioM ' t.:s j or secondary schools. Pilose

t*Io.. 1 n j w<• re agrctf to by the parties prior to trial. (See 

Submission of July lb, 1071. ) V.’hile the court recognized that

unfair burden was thus placed on the black community, it held t 

necessity of preserving continuity of zone lines, feeder patterns 

and facilitating transportation efficiencies outweighed the 

inconvenience* to the black students. Moreover, the prospect cf 

v.’hi to flight would bo reduced by closing rather than integrating 

these facilities. This rationale cannot support the closings as 

a matter of lav/ or on the facts of the case.

In Swann v. Charlotte-Mecklenburg Board of Education, 402

U.S. 1 (1971), when the Court wrote with respect to creation of 

unitary systems through the exercise of the equity power residing 

In the federal courts "to correct, by ei balancing of the indi­

vidual and collective interests, the condition that offends the 
5/

Consti tution 

results, but

those result

'■'■nth respect

," it envisioned situations in which not only the 

also the means used by school boards to achieve 

s would he free of discriminatory motive or effect 

to the black community, its students and teachers.
i, < concobt certainly embodies the view that the black community



t /: e 

close 

f o r

’: a . cu ;

Several 
potenlini 

yregution

c\y .pc l lint* .i i.'cuni:;t; >)'CCS, bo m;ode to

• . ‘ » on fir j  r -; nor should

r, - V ■' 2 C >) i which :

• 3; : e i.nr i ii .' black <'.o• e-nuni t.y— decisiona
. . ! ;; i: their status ay second-class citizens

lower federal courts have been quick to recognize 

for discriminatory i rap lemon tation of unitary 

plans where formerly black schools are singled out!
closing or conversion to special education centers rather 

for use as integrated facilities. In Brice v. Landis, 314

Sup p. (N.?:. Ca] 1969), the court wrote:

It is true that in the pending case the plan above 
described purports to bring about, after a fashion 
and in one sense, desegregation of the defendant 
District's schools. The question remains, however, 
whether the plan is actually a good faith, reason­
ably adequate plan, under the circumstances here 
presented to implement these constitutional 
principles.

Certainly, if the means selected by the district 
to accomplish its purpose, themselves involved sub­
stantial elements of racial discrimination, its 
entire plan becomes suspect concerning whether it is 
really a good faith, reasonably adequate implementa­
tion of these principles.

C «■ ’ i r 1 o

6962-K (N.D.

‘llllll* that

u.aa Ly r m

Separate School Dist.. No. WC 

hiss., Jan. 7, 1970), hold, as did Brice v. Landis, 

the closing of a formerly all-black school was rnoti- 

-al discrimination. There, the court wrote:

20



a. n 1 : •; case- n  : t  a r c s  ti tat t h i s
1 • f , ; '; • 1 ; f  i f  r.ot bo tor:. run fed

' , t r ■ 1 • as I h i :  Com t 1- ' O til 1

' " • I . ; i •» , . j _! f;
' i f  v - - ' •
i:o r  tho

; 1 (  l ' y ’ ■: J • irO V: .• ] * j /iff i  c y'* t l ie  c o l -
ro cc:,: • the w h i t e  sec !  :: cus o f

1 ' J  ' • { > •- 1 '••urt-c- ■ - > -‘.i. •> iJ 11 l- v- iiW.* V. ill c.. p eop le
t  : , i  >, 1 j ] 1 ; . / l.Q .1 c - t h e i r  cn.i lu ron cm to  the

'Uct. SOC..IC . I  t } ini'k tha t  i s  tho r e ason and

• /
' l l  tag  j t f o r  v.’hat it . is ,

j
(Slip op.

" cu i t  Court o f  Appi u.i s in a recent decision, Haney

-d o f  Educa t .ion o f Sevier County, 429 F. 2d 364

(J.'J70) , following the rationale in Brice, supra, indicated that:

lief that decision: 
L facilities are

No twi. L hs tand i ng ... our f irm be 
concerning utilisation of schoc 
committed to the discretion of the school board 
(within constitutional permissible limits) we 
think there .is a heavy burden on the school board, 
and in the instant case on the District Court 
nance .its Order makes mandatory the utilization 
?  ̂10 Lockesburg facilities to explain the clos-
ing of facilities formerly used for the instruction 
o± blacK students. (id. at 372.)

in almost all or tho cases whore federal courts have considered 

the propriety of black school closings, the controlling ques­

tions have boon whether the schools to bo closed were physically 

inadequate structurally or in terms of site to warrant their 

0 1 -con.inuation and tho impact of such school closings on the 

niatrict to accommodate its enrollment in other facilities.

!n a son V, T n j n h q o i  hoard of the city of Roanoke K o .

1 0 , 3  W -B - V" -  ll- 1970>‘ iLCaraed on its r e n n e t s  eC .

I

- 2 1  -



Ir .

vn ;■ i ' • O f  Lh - Cl 3y of Roanoke
ci.-serv ■ ■ most c> t -id s envois in

y • i xeixs • l y . so lend id brief, con-
; t£- of y j-.v.is) os: j..-ucy

; dish i c . 1 , \fi'::eh has boovi used only
e i see i . ■' 1. ,. n, C i- -J ', , L, the fact that Addison's
(• 1 O ■ b . i 1 ! os use overc cording in the throe remain-
iji•: hi ■ h s.ciiool r has not escaped this Court's
attorn. ton. The plaintii is' objection that the black
cos;:.: n it'' shot1 ‘d not be required, to shoulder the
larges t part of the burd on .involved in the desegre-
cat :i on >*) roce.s s lias merit , although the realities of
the ac t phys ical fact s makes such imposition
difficult to avoid. The- court docs! not feel that 
the school board or JJEV7 have [sic] presented suffi­
cient reasons to justify the conversion of such a 
splendid facility, even if the school officials do 
express good faith intentions to use the school for 
advanced and vocational classes. There is a cer­
tain student and community feeling about a school 
v.’hich such a conversion would drastically diminish. 
Therefore, both the school board and HEW high school 
proposals are rejected, and Lucy Addison is to 
retain its present status. (Slip op., p. 7.)

In .Smith v, St. Tammany Parish School Board, 30 2 F. Supp. 106, 

10G (L.D. La. 19.>9), the court rejected the school board's pro­

posal, stating:

Loth the plaintiff and the p.Taintiff-intervenor 
object to the proposed closing of the all-Negro 
Folsom Roscnwald School in Ward II which is an 
aaequate school facility. Its displaced students 
would be assigned to Folsom Consolidated, pres­
ently a predominantly white school with a capaci.ty 
of 3s0 students. The board's proposal would ser­
iously overtax the facilities of Folsom Consolidated 
which has, a projected enrollment for the 1969 school 
y oai of S2 :>. bo valid educational reason exists for 
abandoning the satisfactory educational facilities
i



School • • '• hi'j t. -1- ..

in 18

: mi ■ s r ’ . s d  u p .  • s i whi. t o  s
. ' V. * [ J 'i • J proposed c l o s in g

(' . , V ' f . G •, C f  O' • - o n e . ' .  •1V':U C;tE.:
: ,;Jiv r ' ’ ' i.onal a■ • : a i - 1 3 1 r a t  i v e  b a s x -

1 y di . I • \ a w O  i t t o r c r o r c

j  : .

. \ * (\ : • ' * : ■ 1 f Ed i o n  v .

t

y x t.ed S ta tus ,  417 J .  2 d

i l .  C i r .  1 -49) ,  : s choo l iJO:' rd  prop e s a l  to  c l o s e  a f o r p a r l y

c l;o o l v.’ as gran l e d  beea i 1 c r  , i t  was so i n f e r i o r  in  pays l e a l

t i e s  and ecuipmo nt tha t i t " cou ld not  even have co -ex i s  t e d

6 w i th  P i e s s y  v. Fergus t!
o n (417 F. 2d a t  846 ) .

This Court recently reversed a lower court decision V7ni.cn
approved the closing of several formerly black schools:

Hero, however, it is clear from the record and 
briefs that the primary reason for closing the 
schools was the county board's conclusion that 
the use of b 3 ack faci]i ties would lead whites 
to withdraw from the public system. Lee v .
Macon Countv Foard o f  Educat ion, No. 301.54 (5th 
C i r . ,  June 29, 1971; s l i p  op. a t  16 . )

In addition to factors such as condition of physical plant, 

sir.e of site and effect upon capacities of schools left open, 

courts have also concerned themselves with the extent to which 

white schools as well as black schools have been proposed for 

closing under any specific desegregation plan. For example, in

Ct r r  v.  Mont ofv.i.--y County Foard_o f  Educati on , 429 F. 2d 382 (5th

Ci r .  1970), t h i s  Court a f f i r m e d  a d i s t r i c t  c o u r t ' s  approva l  o f

P 1 -n that proposed closing three formerly black schools bacaus 
l

- 23



Oij. i.;; • r_ • c.J or-.ec!

Ci g t our<

. r c -

scu< o ! .: re c.

 ̂n i.cj

o; ;ed bee; they are

sites, white schools

con a . on should also be clos

: criteria set out in the cases discussed above, it 

. that the 'objective' reasons advanced by the court and 

• v •ol i sard for closing Anderson and Kealing are in fact

eh i.-ctivc excuses for not sending white pupils to formerly black 

. Mr. Arthur Cunningham., Director of Pupil Personnel 

*. •. c i find that the school system recommends that a high school 
i. fv.,- an enrollment of 2,500 pupils with -10 - 50 acres of land and 

th.it a gunior high have an enrollment of 1,000 to 1,500 pupils and
a _ •>2 5 a cres (1 .R . 381-335).

The Anderson site contains 2.0.4 acres and has a capacity for
6_/1,200 students. While its size may be inadequate for a senior 

high (Tr. 545 ) it is clearly within the desirable junior high
shoal size range. The predominantly white Austin High School 

Ly comparison, has only 16.4 acres, and a capacity of 1,600 — 1800, 
y«. f it has not been closed.

Healing, with 9.85 acres of land has twice the 
of the oredominantly white Fulmore Junior

•• f c.ndan t s ' Exh ibit .13,7
- 24



■ !. - j * • r. • : J • ct a- • • j r l: j.n
- i >} _ r,af'y r- --on stat ■ad f o r

•
!” . , a .“into: 9. - h-

• . ; a ■ i, .; ■ tc  {T . J . 93 7).

• L 1- j C v u' . C ? i * 1 i. July I:.., 19 73., o p in io n  s t cIl c u trie.

i: -h flchc c,l v.'a s i •s.s ib  la  to  in t. e cj 2: - a 1 * h 0 c ciu s c of its
s i c e ,  and because it is locat . d away from maj or traff ic arteries

t r a f f i o  a r t e r i e s  arc thu s sufficient to carry black s out of
1-- * *j cii ea >j■at not to carry whites in j s an illogical and blatant 1;
discriniiiiatory j us L i f i.ca t ion for the clocings. Superintendent
Davidson rr.ado a similarly Liased observation approving busing of
blacks out of segregated area s but finding cross busing 11 Fa S Oil n Q
as a dovieo (T.R. 7 G-1) .

Moreover, the evidence is clear that closing of And arson am
Mealing will overcrowd existing schools, necessitating the purcha 
of portable units (Def. Ex h . 33).

ho testimony v:as offered relating to declining school populc 
as a basis for this action.

While the record is sparse on objective reasons for closing 
these schools there arc numerous references to the subjective non- 

vorkabi lity of sending white students to formerly black schools 

03.n. 7r (, 709, 781, Ct. order of June 28, 1971, July 19, 1971).

In the light of the above data the board had no compelling 
education'll justification as interpreted by existing data for

t

- 2 5 -

ion

— *»





>o . . .  1  . . .O pj

;: • I i! 1 V: acini and ethnic

• fcjrj integrated educational experience

el cm-; ntary r. tudents. 

between their home no 

cl us ter a m '.int; e n (nt::.

tel: h out a 1.1 e cl tran s p o r tin g g t u cl c n t s 

ghborhood and tlie schools in the chirrere 

The essential difference between plans

is

be

that the school board plan would operate 

is (a maximum of 25% of the school year)

on a part-time 

whereas the E3V7 ml

provides for permanent integration. The goal of the cesegrega 

lion process is to create unitary school systems in which tlier 

are not white schools and minority schools but just schools,

Green v._Corn4-1 * School Hoard, 391 U.S. 430 (1967). Since the

neighborhood schools under the school district's plan would

retain their racial or ethnic identifiab.ility where they would 

not in the Hi"..' plan, the HEW plan clearly promises to be more

e ffeetivc in creating a unitary syste;
trict coin:t accepted the school board
con stituLi ■d rcvcrsible error since tli
its "heavy . . . burden to explain its '
ben: of feetivc plan." Groo!) v. Coun t

> c -  C l



r o .

s ).■ u

v. Oazt

L i ; —■ ■ .tie_9Lr—liXIiSiLi ..

1 . .. Cl lu : 3 (5th;c i r. 1.970) ; Kigh!oj;i-

952 (51h t’ i y; # L970) ; Un \  t . d Sta.tea v .__Board r

■ d o r  C or : : . ; , 4 31 F. 2d 59 (5 1:]i C ir 1970);  Hi] so

2d. 219 (5th Cir. 1970) ; Bank s V. C la ib o rn e  Pa r i

5 F . 2d 1040 (5 th Cir. 1970). As the court said
( • t  ( n  i  > n y*  O1 ‘ ‘ Sty l» r ■> i. (I , par! t i.iuG integ ration is "not a

substitute for disestablishing the dual system" although it may 

ho a"ber.eficial adjunct" (430 F.2d at 557). Interveners have 

no objection to utilization of the tri-cultural programs proposed 

by the /uistin School Board in the context of permanently desegre­

gated elementary schools. Superintendent Davidson testified that 

this could be dona (Tr. 959).
zy

The objections listed by the court and by the school
y

board to the Fi.d plan are that the plan is inaccurate in several 

particulars, burdensome administratively, costly, and education­

ally disruptive. These same objections wore raised by the school 

:-o..rd in Sv.'ann v . c h a r io t  t o -Hocklenbnrg Board of Educat ion,  431

Order of Jul y  19, 1971.
L\,f. s l a n t s  ' E x h ib i t  C>2 .

_ 2!



: !• Circuit reversed Lh

' : • :: cl emon far y on the u round.

: ' -crease o a l l  pvo i . I s  then a c inq

> •. • - f > • — '  f y * * • 1 -  < • • ] T-> '.II''- ' • T »» . > • v 'w  * -  • » - v '  _l- •- v  . . .» . j._/ ».• . . .  ... , •• »,

t-:: v ;••..! , t he U;.i i cod Stares Supreme Court 

•L court order v.»iIh regard to eleir.ent.urv

The r< : -dy for such segregation may be admin­
istratively awkward, inconvenient, and even 
bizarre in some situations and may impose 
burdens on some; but all awkwardness and 
inconvenience cannot be avoided in the interim 
period when remedial adjustments are being 
made to eliminate the dual school systems.
402 U.fJ. 1, 23.

.0ir.ee the l i b p l a n  was the only plan before the Court 

vuij cii gives promise of ending the segregated school system, th 

Court should order its adoption despite the administrative dif­

ficulties its implementation will present. Banks v. Claiborne

School Board, 425 F.2d 1040, 1043 (5th Cir. .1970);

son Municipal Separate School District, 426 

B.2d 1204, 1369 (5th Cir. 1970).

CQMCLU.OIOM

lnt- r w n o r s  pray that tire district court order be re

* • Sided for further hearings with instructions that:

(■ ) Tne 111:"." plan be adopted as the elementary dose:
o p-ubs tant i vo edu c .'! ' I’ecLmt: .si.’ on ore possible the

l

_ 29 _



' j'i*.:,’L ’• n be rto^cr ed and utilized a.
i;h;i r. Lae sy; L:)■;; and

t i .ir • 'r v e n o m  be allowed to augment, if necessary 

luv; v.'iLii j.cr-jard to do jure: scorocjation or Mexican

o rx c a n  struct*.

Respectfully submitted,

1 ■ c" v
JACK GRREKBliRG 
CHARLES STEPHEN RALSTON 
NORMAN J. CHACHKIN 
SYLVIA DREW

10 Columbus Circle 
Suite 2030
New York, New York 10019

MARIO OELEDO 
JIM HEIDELBERG 
ED IDAR J R . ,
.JOHN SERNA

211 East Commerce Street 
San Antonio, Texas 78205

GABRIEL GUTIERREZ
1010 East 7th Street 
Austin, Texas 78702

Attorneys for Intervonors.

t 30