Price v. Austin Independent School District Brief of Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

• NOS. 90-8154
_

SAMANTHA PRICE, et al.,

Plaintiffs-Appellants, 
v.

AUSTIN INDEPENDENT SCHOOL DISTRICT, et al.,

Defendants-Appellees.

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

Austin Division

BRIEF OF APPELLANTS McMURTHY, WILLIAMS AND POWELL

JULIUS LEVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
NAPOLEON B. WILLIAMS, JR. 
99 Hudson Street 
New York, New York 10013 
Tel: (212) 219-1900

LYDIA GARDNER 
702 San Antonio Street 
Austin, Texas 78701 
Tel: (512) 478-1600

Attorneys for Appellants 
McMurthy, Williams and Powell



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

NOS. 90-8154

SAMANTHA PRICE, et al.,

Plaintiffs-Appellants,
v.

AUSTIN INDEPENDENT SCHOOL DISTRICT, et al.,

Defendants-Appellees.

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

Austin Division

BRIEF OF APPELLANTS McMURTHY, WILLIAMS AND POWELL

CERTIFICATE OF INTERESTED PARTIES

The undersigned counsel certifies that the persons listed 
below have an interest in the outcome of this case. This 
representation is made in order that any judge of this Court will 
have the requisite information to evaluate possible grounds for 
disqualification or recusal.

Plaintiffs: Brandon and Ryan McMurthy by their parents
Allan and Nancy McMurthy as next of kin

i



Reginald Robert Williams by his mother Joanne 
Williams as next of kin 

George Bertram Powell by his mother Elaine 
Powell as next of kin

Plaintiffs: Elias Flores Harrington by his parents, Rebecca
Flores and James Harrington as next of kin 
Central Texas Chapter, ACLU

Applicant to 
be added as 
plaintiff or 
plaintiff-
intervenor: Adrienne M. Overton by her father Volma

Overton, Jr. as next of kin
Defendants: Dr. John Ellis, Superintendent of Austin

Independent School District 
Nan Clayton, School Board President, Austin 

Independent School District 
Ed Small, School Board Member 
Gary McKenzie, School Board Member 
Bernice Hart, School Board Member 
John Lay, School Board Member 
Austin Independent School District

Attorneys
for

Plaintiffs: Julius L. Chambers, Napoleon B. Williams,
Jr., Lydia Gardner

Attorneys
for

Defendants: David Van Os
William H. Bingham; James R. Raup; John H.

McMurthy, Williams and Powell

ii



REQUEST FOR ORAL ARGUMENT

Counsel for appellants McMurthy, Williams and Powell believes 
that oral argument would be helpful in aiding the Court to identify 
and resolve the complex issues surrounding school desegregation 
lawsuits.



Page
Certificate of Interested Parties ......................  i
Request for Oral Argument ...............................  iii
Table of Contents ........................................  iv
Table of Authorities ..................................... v
Jurisdiction .............................................  1
Issues on Appeal .........................................  2
Statement of the Proceedings Below .....................  3
Statement of Facts .......................................  3
A. AISD's Efforts to Create a Black Section of Austin 3

1. The 1970 Action to Desegregate the AISD ..... 3
2. The 1979 Order of the District Court ........  4
3. The 1928 City Plan and Gubbels Report to

Move All Black Residents into East Austin . 5
B. The 1980 and the 1987 Pupil Assignment Plans ....  7

1. The Enrollment Statistics ....................  7
2. The Board's Rationale for the 1987

Neighborhood Plan ........................... 9
3. The Failure of the School Board to Investigate

Less Segregative Alternatives .............  9
C. The Legacy and Perpetuation of Black Residential

Concentrations in East Austin ...................  10
D. Resegregating the Schools Which Were Segregated

Before 1979 .......................................  11
E. Implementation and Operation of the 1987 Plan .... 12

1. Summary ........................................  12
2. AISD's Use of Segregated Bus Routes and Rides 13

TABLE OF CONTENTS

iv



3. Length of Bus Rides ...........................  13
4. Racial Identifiability of Schools by

Administrators ..............................  13
5. Racial Identifiability by Faculty Members ... 14
6. Resegregation of the Schools That Were

Minority Schools Before 1979 ................ 14
Summary of Argument ...................................... 15

Table of Contents cont'd Page

ARGUMENT:
I. APPELLEE-DEFENDANT AISD IS BOUND BY THE 1979 

FINDINGS OF THE DISTRICT COURT BELOW HOLDING 
THAT AISD BEARS A PRIMARY RESPONSIBILITY IN 
CAUSING BLACK RESIDENTIAL CONCENTRATION IN 
EAST AUSTIN AND IN CREATING A BLACK PART OF
TOWN ...........................................  17
A. General ..................................  17
B. The Binding Effects of Collateral

Estoppel on the 1979 Findings .....  19
II. APPELLEE AISD FAILED TO DISCHARGE ITS

CONSTITUTIONAL OBLIGATION TO ERADICATE THE 
VESTIGES OF ITS PAST DISCRIMINATORY ACTIONS 
AND HAS ACTED IN VIOLATION OF ITS FURTHER 
CONSTITUTIONAL DUTY NOT TO PERPETUATE OR 
RE-ESTABLISH THE DUAL SCHOOL SYSTEM OR ITS
EFFECTS .........................................  21

CONCLUSION ................................................ 2 8
Certificate of Service ..................................  29

TABLE OF AUTHORITIES

Allen v. McCurry, 449 U.S. 90 (1980) ...................  19
Bernhard v. Bank of America Nat. Trust & Savings Ass'n,

19 Cal.2d 807 (1942) ...............................  20

v



Table of Authorities (cont'd) Page

Blonder-Tongue Laboratories, Inc. v. University of
Illinois Foundation, 402 U.S. 313 (1971) ......... 20

Columbus Board of Education v. Penick, 443 U.S. 449
(1979) ............................................... 21,23,25

Davis v. Board of School Commissioners of Mobile
County, 402 U.S. 33 (1971) ........................  25

Dowell v. Board of Education of the Oklahoma City
Public Schools, ___ F .2d ___ (10th Cir.), October
6, 1989, cert, granted, 58 U.S.L.W. 3614,
March 16, 1990 ...................................... 24,25

Green v. County School Board, 391 U.S. 430 (1968) ....  25
Keyes v. School District No. 1, 413 U.S. 189 (1973) ... 27
Martin v. Wilks, ___ U.S. ___, ___ U.S.L.W. 4616,

June 12, 1989 ....................................... 21
Montana v. United States, 440 U.S. 147 (1979) .........  20
Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1971) .... 20
Pate v. Dade County School Board, 588 F.2d 501

(5th Cir. 1979)   20
Riddick v. School Board of Norfolk, 784 F.2d 521 

(4th Cir.), cert, denied, ___ U.S. ___, 107
S.Ct. 420 (1986)   24

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402
U.S. 1 (1971)   23,25,27

United States v. Texas Education Agency (Austin I), 467
F . 2d 48 (5th Cir. 1972) ............................ 23

United States v. Texas Education Agency (Austin II),
532 F . 2d 380 (5th Cir. 1976) ......................  23,26,27

United States v. Texas Education Agency (Austin III),
564 F . 2d 162 (5th Cir. 1977) .....................  24,26

vi



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

NOS. 90-8154 

SAMANTHA PRICE, et al.,

Plaintiffs-Appellants, 
v.

AUSTIN INDEPENDENT SCHOOL DISTRICT, et al.,

Defendants-Appellees.

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

Austin Division

BRIEF OF APPELLANTS McMURTHY, WILLIAMS AND POWELL

JURISDICTION
The memorandum opinion and order of the district court below 

entering judgment against plaintiffs-appellants was a final order 
of the district court within the intendment of 28 U.S.C. §1291 
providing for jurisdiction in the courts of appeals from final 
decisions of the district courts.



ISSUES ON APPEAL
1. The principal issue on appeal is whether 
the AISD's neighborhood school pupil assign­
ment plan perpetuates the vestiges of the 
AISD's prior intentional discriminatory 
actions fostering racial residential patterns 
in Austin and maintaining a dual school system 
thereby racially segregating the elementary 
students assigned to its schools under the 
neighborhood school pupil assignment plan.
2. A second issue on appeal is whether 
AISD'S failure to offer evidence controverting 
plaintiffs' evidence showing the persistence 
and continuing legacy of AISD's prior joint 
actions with the Austin City Council, as found 
by the district court in its 1979 memorandum 
opinion and order, in concentrating blacks and 
Mexican-Americans in East Austin, constitutes 
a failure by AISD to offer any evidence to 
show that it is not responsible for the 
segregation caused in the school system by the 
neighborhood school plan.
3. A third issue on appeal is whether the 
district court erred in holding that its 1979 
findings that AISD was responsible for 
engineering the concentrations of black and 
Mexican-American residents in East Austin and 
that plaintiffs' uncontroverted evidence 
showing no appreciable change in the 
concentrations over the intervening ten years, 
were irrelevant because they failed to show 
intentional discrimination.
4. A fourth issue on appeal is whether the 
district court was clearly erroneous in 
upholding the validity of AISD's neighborhood 
school plan despite its adverse segregative 
effects, despite its perpetuation of AISD's 
historic discriminatory actions, and despite 
the failure of AISD to examine and consider 
less segregative alternatives.
5. A fifth issue on appeal is whether the 
district court erred in ignoring 
uncontroverted evidence that the vestiges of 
the AISD's prior dual school system had not 
been eliminated and that said vestiges 
operated, under the neighborhood school system 
to resegregate the school system.

2



STATEMENT OF THE PROCEEDINGS BELOW

Plaintiffs commenced this action August 10, 1987. On August 
10, 1987, plaintiffs filed a motion for a preliminary injunction 
enjoining the enforcement of the AISD's 1987 neighborhood school 
pupil assignment plan. The district court denied the motion and 
plaintiffs filed an appeal from the denial of the preliminary 
injunction.

On February 25, 1988, this Court affirmed the district court's 
judgment denying the motion for preliminary relief. A trial was 
held in the district court beginning on November 6, 1989, and 
concluded on November 8, 1989.

On January 12, 1990, the district court rendered judgment for 
defendants in a memorandum opinion and order. The district court 
filed an amended memorandum opinion and order on January 19, 1990. 
The plaintiffs filed a notice of appeal on February 9, 1990.
Plaintiffs Salinas did not appeal the judgment below.

STATEMENT OF FACTS

A. AISD'S EFFORTS TO CREATE A BLACK SECTION OF AUSTIN.
1. The 1970 Action to Desegregate the AISD.
Efforts to desegregate the Austin Independent School District 

(AISD) through judicial action began on August 7, 1970 with a
lawsuit filed against the AISD by the United States. See. Record 
Excerpts p. RE-233 (Docket Sheet of U.S. v. Texas Education Agency, 
et al) . The action was not commenced as a class action and was

3



never certified as a class action. Id. The district court denied 
intervention by minority parents but this Court permitted their 
intervention upon appeal. Thereafter, the district court, 
apparently without any additional order, permitted the individual 
minority representatives to continue their intervention in the 
district court. No class was ever certified. Id.

2. The 1979 Order of the District Court.
On November 5, 1979, the district court for the Western 

District of Texas, Austin Division, following a lengthy trial, 
filed a memorandum opinion and order in which the court found that 
the AISD, in addition to operating a de jure dual school system for 
black schoolchildren, had actively cooperated with the City Council 
of Austin, over a period of several decades, to implement a 1928 
City Plan of Austin "to segregate blacks (residing in Austin) by 
concentrating them in one community —  East Austin." U.S. v. Texas 
Education Agency, Record Excerpts p. RE-208.

In addition, the AISD formed, in 1947, its own Gubbels 
Committee to further promote the concentration of blacks in East 
Austin through segregative school policies and other actions. 
Record Excerpts, p. RE-209. The history of this action is 
recounted in the 1979 Memorandum Opinion and Order.

The district court found that during the early history of the 
AISD in the late 19th century and early 20th century, "blacks 
resided in substantial numbers in communities in all parts of the 
city .... (and) that black elementary schools were located

4



throughout the city to serve these communities." Record Excerpts 
p. RE-207.

During this time, the district court found that "there was a 
predominance of the black (as well as the white) population located 
east of Congress Avenue." Id.

The district court further found that the joint actions of the 
AISD and the City of Austin drastically changed the racial 
composition of residential patterns in Austin as a result of the 
AISD's intentional efforts, along with the City of Austin, to 
create, foster, and promote East Austin as the black part of town.

3. The 1928 City Plan and Gubbels Report to 
Move All Black Residents into East Austin.

The 1928 City Plan implemented by the AISD and the City of
Austin contained the following important provision:

There has been considerable talk in Austin as 
well as other cities, in regard to the race 
problem. This problem cannot be solved 
legally under any zoning law known to us at 
present. Practically all attempts of such 
have been proven unconstitutional.

In our studies in Austin we have found 
that the negroes are present in small numbers, 
in practically all sections of the city, 
excepting the area just east of East Avenue 
and south of the City Cemetery. This area 
seems to be all negro population. It is our 
recommendation that the nearest approach to 
the solution of the race segregation problem 
will be the recommendation of this district as 
a negro district; and that all facilities and 
conveniences be provided the negroes in this 
district, as an incentive to draw the negro 
population to this area. This will eliminate 
the necessity of duplication of white and 
black schools, white and black parks and other 
duplicate facilities. Record Excerpts p. RE- 
208 .

5



The district court recited numerous intentional actions taken 
by the AISD in locating and constructing schools, as well as in 
assigning school attendance zones, for the purpose of creating 
racially segregated residential neighborhoods in Austin and 
maintaining AISD's dual school system. See. 1979 Memorandum 
Opinion and Order, Record Excerpts. RE-170.

In addition, the district court found that the AISD had failed 
to show that its past intentional segregative actions "had no 
influence on the segregated black housing patterns in Ausin or the 
current segregation of black students in AISD schools," Record 
Excerpts, p. RE-215. Also, RE-204-210.

In light of its exhaustive findings of the AISD's systematic 
and systemwide steps to segregate the neighborhoods of Austin and 
to maintain a dual, racially segregated school system, the 
district court "conclude(d) that the Austin Independent School 
District actions have had a systemwide impact as to black students 
and a substantial impact as to Mexican-American students in East 
Austin." Record Excerpts. p. RE-215.

As part of its holding, the district court's order recited 
that a "comprehensive desegregation remedy, including Mexican- 
Americans in East Austin ...(was) required," Record Excerpts, p. 
RE-215, and requested the parties to agree upon an acceptable 
desegregation plan.

6



B. THE 1980 AND THE 1987 PUPIL ASSIGNMENT PLANS.
1. The Enrollment Statistics.
In 1980 the United States, the AISD defendant, and the 

individual intervenors-plaintiffs, Overton, et al., entered into 
a consent decree in which the AISD was required to use mandatory 
busing to desegregate its schools. The plan went into effect for 
the 1980-1981 school year but was abandoned by AISD in 1987, the 
year in which AISD approved future assignment of elementary 
students in grades K-5 to neighborhood schools.

Prior to the adoption of the 1987 neighborhood school student 
assignment plan, the AISD had 64 elementary schools of grades K- 
6. Of these schools, 17 were grades K-3 schools, 4 were grades K- 
4 schools, 28 were grades K-6 schools, 12 were schools with grades 
K and 4-6, 2 were grades 5-6 schools, and 1 was a grade 4-6 school. 
Enrollment was approximately 20% black, 30% Mexican-American and 
50% white. Approximately 33,744 pupils were enrolled in grades K- 
6. See Exhibit P-3, Record Excerpts pp. RE-83-84.

Under the 1987 neighborhood school student assignment plan, 
the AISD had 65 elementary schools. Four schools were K-3 schools, 
forty-five schools were grade K-5 schools, fourteen schools were 
K-6 schools, and one school was a grade 4-5 school. Id.

The most drastic changes under the neighborhood school student 
assignment plan occurred in the racial composition of the student 
enrollment. The 1987 plan required 13 elementary schools to have 
a minority enrollment of 90% or more. The chart below depicts the 
percentage racial and ethnic enrollment in the 13 schools before

7



and after implementation of the 1987 neighborhood school student 
assignment plan.

CHART A
Combined Minoritv%

Enroll B% M-A% 1987-88 1986-87
PK-5 Allan 512 25 66 91 68
PK-6 Blackshear 499 58 40 98 75
PK-5 Brooke 376 8 83 91 68
PK-6 Campbell 410 71 27 98 62
PK-5 Govalle 602 34 62 96 71
PK-6 Metz 531 1 97 98 72
PK-5 Oak Springs 332 66 30 96 69
PK-5 Ortega 335 28 68 96 62
PK-6 Sanchez 494 1 95 96 71
PK-5 Sims 469 78 20 98 72
PK-5 Zavala 432 20 77 97 63

Allison 634 11 84 96 95
Winn 610 78 12 90 90

Under the 1987 student assignment plan, 6,256 minority
elementary pupils, or 37% of the combined black and Mexican-
American elementary students, were enrolled, during the 1987-1988
school year, in the 13 minority schools.

Similar drastic shifts in white enrollment occurred. Prior to
1987 , there were 10 elementary schools with ai white enrollment of
70% ior more. Upon implementation of the 1987 plan, 16 schools had
a white enrollment of 70% or more. Exhibit P-3, at RE-83-84.

The 16 schools were: Barton Hills, Bryker Woods, Casis,
Gullett, Highland Park, Sunset Valley, Boone, Doss, Hill, Kocurek, 
Lee, Menchaka, Oak Hill, Patton, Pillow, and Summitt. Twenty-five 
percent of all students in grades k-5, or approximately 8,694, were 
enrolled in these 16 schools. Id.

8



In addition to the 13 schools which had minority enrollment 
of 90% or more, there were eight other schools with a percentage 
black enrollment between 56% and 78%. The distribution of the 
black enrollment at the 8 schools was as follows: 56%, 58%, 66%,
70%, 71%, 78%, 78%, and 78%. Id.

Thirteen elementary schools had a Mexican-American enrollment 
between 51% and 97%. The distribution of the Mexican-American 
enrollment at the schools was as follows: 51%, 53%, 55%, 62%,
66%, 68%, 68%, 68%, 77%, 83%, 84%, 95%, and 97%. Id.

Overall, the 1987 neighborhood school student assignment plan 
made more schools predominantly black, predominantly Mexican- 
American, and predominantly white.

2. The Board's Rationale for the 1987 Neighborhood Plan.
The principal reasons advanced by AISD for abandoning the

1980-1981 plan and for adopting the 1987 neighborhood school 
student assignment plan were to reduce the length of bus rides and 
the amount of time students spent riding on the buses, and the need 
to construct 13 new schools.

3. The Failure of the School Board to Investigate
Less Segregative Alternatives.__________________

When the 1987 neighborhood school student assignment plan was 
adopted, the AISD school board knew that this plan, when 
implemented, would perpetuate segregated housing patterns which the 
AISD and Austin City Council had created since 1928. The school 
board also knew that these housing patterns would, when used as a 
criteria for school assignment, cause the resegregation of the 
elementary schools.

9



When the plan was approved, the AISD school board failed to 
consider specific alternative plans which would further reduce the 
number of racially identifiable elementary schools or the number 
of predominantly one-race schools. Court Exhibit 10, at pp. 51, 
69.

The AISD also failed to consider mandatory busing 
desegregation plans which prohibited busing for students whose bus 
ride exceeded a maximum prescribed amount. Id., at pp. 48, 49.
C. THE LEGACY AND PERPETUATION OF BLACK

RESIDENTIAL CONCENTRATIONS IN EAST AUSTIN.
The district court based its 1979 findings on the results of 

the 1970 census. In 1970, the black population for Austin was 
29,816, RE-111. Blacks comprised 11.8% of the total population. 
There were two areas of black concentration —  the large area in 
East Austin and a much smaller area named St. Johns. The AISD's 
prior discriminatory actions in support of the 1928 City Plan and 
the Gubbels Report had eliminated, by 1970, other areas of 
substantial black residential concentration. See. the 1979 
Memorandum Opinion and Order, at RE-170. The cumulative effect of 
the AISD's actions over the years was to merge the areas of black 
residential concentration in St. Johns and East Austin.

The East Austin area of black residential concentration was 
encompassed in the 1970 census tracts 4, 8, 9 and 2102. Rabin, at 
RE-111. This area was located east of highway 35, north of Fifth 
Street, South of Manor Road, and ran east to Bluestein.

The St. Johns area was located north of East Austin and 
occupied the southwest corner of census tract 18.02. Id.

10



The area between East Austin and St. Johns was a moderate 
income white area. In 1970, 26,436 of the city's black population 
of 29,816, a total of 88.7%, lived in black residential areas east 
of highway 1-35. RE-112.

The 1980 census data showed an overall increase in the various 
population groups in Austin. The black population increased to 
42,112, and the black percentage of the population increased from 
11.8% to 12.2% in 1980, a percentage increase of less than 1/2 
percent. See. Exhibit 9. Also, RE-111.

The 1980 census map shows that, from 1970 to 1980, a 
relatively small number of blacks in East Austin moved to other 
areas of the City. RE-111-113, 117-118. See. Exhibit 9. More
importantly, the black concentrations in East Austin and St. Johns 
expanded toward each other. The expansion marks a transitional 
phase in the creation of a greatly enlarged area of black 
concentration east of highway 1-35 that has emerged out of the 
black concentration in East Austin fostered by the AISD. Id.
D. RESEGREGATING THE SCHOOLS WHICH WERE SEGREGATED BEFORE 1979.

All 16 of the predominantly minority schools resulting from 
implementation of the AISD's 1987 neighborhood school student 
assignment plan are located in the enlarged area of concentration 
established by St. Johns and East Austin east of highway 1-35. 
See. Defendants' Exhibit 53 (the proposed school district 
boundaries and assignment plan of February 23, 1987). See RE-112.

The number of black residents living in the area east of I- 
35 increased from 26,436 in 1970 to 34,231 in 1980. This

11



represents approximately 80.7% of the city's black population. 
Approximately, a fifth to a third of the small number of black 
residents living in the outlying areas in Austin west of highway 
1-35 were people who had not lived in Austin during the preceding 
five years and hence were not people who had moved out of the black 
concentration in East Austin into the outlying areas. See Record 
Excerpts Rabin, p. RE-113.

During the 1970 and 1980 census years, the proportion of black 
residents of Austin living in East Austin declined from 88.7% to 
80.7%, i .e.. a drop of 8% in 10 years. At a rate of decline of 8% 
over 10 years, the concentration of black residents in East Austin 
will achieve parity with other areas of Austin in 120 years. See. 
Record Excerpts Rabin, p. RE-118.
E. IMPLEMENTATION AND OPERATION OF THE 1987 PLAN.

1. Summary.
In AISD's implementation of the 1987 neighborhood school 

student assignment plan, the number of bus rides for white students 
was not reduced. Record Excerpts Stolee, p. RE-132. Plaintiffs' 
Exhibit 22. Rather, the AISD's implementation of the plan had the 
effect of reducing bus rides only for black and Mexican-American 
students. Id. Moreover, bus rides were mostly segregated, Record 
Excerpts Stolee pp. RE-133-136, see. Plaintiffs' Exhibit 26, and 
the race of students attending AISD's elementary schools could be 
ascertained on the basis of the race of the teachers or 
adminstrators at the schools. Record Excerpts Stolee, pp. RE-137- 
140, Plaintiffs' Exhibits 65-73.

12



2 . AISD's Use of Segregated Bus Routes and Rides.
Over 59 percent of all students transported to school in the 

AISD in 1986 were assigned to buses that were 90 percent or more 
minority (Black and Hispanic). See. Plaintiffs' Exhibit 47. Also. 
Record Excerpts Stolee p. RE-135. For 1988, the percentage was 
48.8. In 1986, the year prior to the adoption of the 1987 plan, 
46.3% of all transported pupils were on buses that had a total of 
3.1% black students. In 1988, 48.8% of all transported pupils were 
on buses with virtually no black students. Id. pp. RE-134-135. 
See. Plaintiffs' Exhibits 26, 27, 28.

3. Length of Bus Rides
In 1986, the duration for the average bus trip was 33.1 

minutes. In 1988, under the neighborhood school student assignment 
plan, the duration for the average bus trip in 1988 was 31.67 
minutes, a decrease in time of only 1.43 minutes. Record Excerpts 
RE-137.

4. Racial Identifiabilitv of Schools by Administrators
Of the nine elementary schools that are more than 50% black 

(Winn, Norman, Sims, Campbell, Pecan Springs, Oak Springs, 
Blackshear, Blanton, Andrews), eight had black principals in 1989. 
The eight black principals are more than half of the fifteen black 
administrators and principals in AISD's elementary schools 
systemwide. Record Excerpts Stolee, pp. RE-137-138. Also. 
Plaintiffs' Exhibits 65, 66.

Eleven of the fifteen elementary schools with a Mexican- 
American enrollment of 50% or more had Mexican-American principals

13



or administrators. Record Excerpts Stolee, p. RE-138. See. 
Plaintiffs' Exhibits 67, 68. Fifteen of the fifteen elementary
schools with a minority enrollment above 90% had minority 
principals or administrators. Brooke had two minority
administrators. Ortega, however, had none. Id.

Thirty-four elementary schools have a minority enrollment 
above 50%. Twenty-eight of the 40 minority administrators are in 
these 34 schools. Record Excerpts Stolee, p. RE-139. Twelve 
elementary schools have a nonminority enrollment of 75% or more. 
All twelve schools have nonminority administrators although Patton 
had one nonminority administrator and one minority administrator. 
Id. See. Plaintiffs' Exhibit 69.

5. Racial Identifiabilitv by Faculty Members.
The nine elementary schools with more than 50% black 

enrollment have the highest percentage of black faculty members. 
Record Excerpts Stolee, p. RE-140. See. Plaintiffs' Exhibits 70, 
71. Of the 12 schools with more than 60% Mexican-American 
enrollment, all had more than the average percentage of Mexican- 
American faculty members. Id. Plaintiffs' Exhibit 72.

6. Resegregation of the Schools That Were
Minority Schools Before 1979__________

As a result of the AISD's implementation of the 1987 plan, the 
schools which were predominantly minority elementary schools in 
1978-1979 became predominantly minority schools again. For 
example, Barton Hills in 1978 was 90.6% white. Under the 1980 
busing plan, it was 50.1% white. After the 1987 plan, it became

14



82.9% white. Record Excerpts Stolee, p. RE-141. Plaintiffs' 
Exhibit 79.

Blackshear School in 1978 was 2.3% white. Under the 1980 
busing plan, it was 18.9% white. After the 1987 plan, it became 
1.6% white. Id.

Brooke School in 1978 was 5.3% white. During the 1980 busing 
plan, it became 24.9% white. After the 1987 plan, it was 5.6% 
white. Id.

Bryker Woods School in 1978 was 87.5% white. During the 1980 
busing plan, it was 59.1% white. After the 1987 plan, it was 75.3% 
white. Id. RE-142.

Similar statistics are true for elementary schools Campbell, 
Casis, Cook, Cunningham, Govalle, Graham, Gullett, Highland Park, 
Metz, Norman, Oak Springs, Ortega, Sanchez, Sims, Sunset Valley, 
and Zavala. Record Excerpts Stolee, p. RE-142. See. Plaintiffs' 
Exhibits 79- 81.

SUMMARY OF ARGUMENT
The findings made by the district court below in 1979 against 

the defendant AISD are binding upon the AISD in the instant action 
through the operation of collateral estoppel. These findings show 
that defendant AISD bears a primary responsibility for the 
deliberate concentration of black residents in East Austin and the 
conversion of East Austin into the official black section of town.

The uncontroverted evidence shows that the concentration of 
black residents in East Austin and its transformation into the

15



black section of Austin is a continuing vestige of AISD's past 
racially segregative acts. Moreover, the uncontroverted evidence 
also shows that this concentration of black residents in the 
eastern part of Austin had not significantly been diminished by the 
time of the 1980 census, and would require approximately 125 years 
to be dissipated to the point where it would have been in the 
absence of discrimination.

In addition, the undisputed evidence shows that the AISD's 
neighborhood school pupil assignment plan operates in conjunction 
with the continuing vestiges of the AISD's prior intentional 
actions to make the same schools racially identifiable in 1990 that 
were racially identifiable in 1979 when the district court entered 
its judgment in the earlier desegregation action.

Finally, the uncontroverted evidence shows that the AISD 
failed to examine alternative pupil assignment plans which would 
have continued desegregation while simultaneously eliminating 
excessive bus rides and otherwise carrying out the alleged goals 
of the AISD's 1987 neighborhood school plan. Court Exhibit 10, pp. 
51, 68 and Court Exhibit 17, pp. 200-204.

Instead, the AISD not only adopted one of the most segregative 
pupil assignment plans available but also implemented the plan in 
a way that would produce the greatest degree of segregation in the 
resulting bus rides.

What is important about this case is the singular fact that 
AISD helped to create, and the district court in 1979 so found, 
East Austin as the official black section of town. The legacy of

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this unconstitutional action requires reversal of the judgment 
below.

ARGUMENT
I.

APPELLEE-DEFENDANT AISD IS BOUND BY THE 1979 
FINDINGS OF THE DISTRICT COURT BELOW HOLDING 
THAT AISD BEARS A PRIMARY RESPONSIBILITY IN 

CAUSING BLACK RESIDENTIAL CONCENTRATION IN EAST 
AUSTIN AND IN CREATING A BLACK PART OF TOWN

A. General
The present appeal is not an attempt by plaintiffs to maintain 

a racial balance in the school system in the face of changing 
residential or demographic patterns. Nor is this a case in which 
plaintiffs are trying to restore the busing desegregation plan 
previously required by the court in its 1979 order. Plaintiffs 
seek neither the restoration of the 1979 plan nor the right to 
dictate to the AISD which school assignment plan the school 
district should implement. Rather, plaintiffs concede, for the 
purposes of this litigation, that the initial choice of school plan 
is to be left to AISD's discretion and control. Plaintiffs 
contend, however, that once the AISD has chosen its plan, then the 
plan must pass constitutional muster, i.e.. it cannot be one which 
perpetuates the prior effects of the AISD's discriminatory acts or 
otherwise builds upon the continuing vestiges of AISD's prior 
discriminatory actions.

The issue in this case is also not whether the AISD is unitary 
or has been declared unitary. Rather, the issue is whether 
substantial vestiges of the AISD's prior discriminatory actions

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exist and, if so, whether the AISD's school assignment policy, 
through the interaction with these continuing vestiges, is having 
a significant, adverse, segregative effect upon the school system 
and the lives of the children within it.

This appeal is also not about whether the federal court should 
maintain continuing jurisdiction over a school case after the 
expiration of an untold number of years. Nor is it a case in which 
the court is being asked to maintain continuing supervision over 
some aspect of the operation of the school system.

Rather, this is a case in which plaintiff has presented 
undisputed evidence showing continuing vestiges of AISD's prior 
racially discriminatory actions, and defendant has failed to offer 
any rebuttal evidence whatsoever on the issue.

This appeal is not about the power of the court to exercise 
continuing jurisdiction over the school district or to have the 
AISD periodically report to the court or to have AISD's actions 
pre-cleared by the court before they go into effect.

Finally, this is not a case in which the plaintiff 
schoolchildren are bound by an earlier judgment rendered in a class 
action. No class action has ever been certified. Although the 
parties to the consent decree in United States and Overton v. Texas 
Education Agency recited that the action was a class action, the 
recital was untrue. This is confirmed by the docket in the case. 
Moreover, the United States did not bring the Overton case as a 
class action and the district court neither authorized the

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intervention of the Overton plaintiffs nor certified the action as 
a class action.
B. The Binding Effects of Collateral Estoppel 

On the 1979 Findings._______________________
Defendant AISD is bound by the findings of the district court 

in United States, and Overton v. Texas Education Agency (AISD). A- 
70-CA-80. From July 11, 1979 to July 27, 1979, the district court 
conducted a lenghty trial in United States, and Overton v. Texas 
Education Agency (AISD). supra. after which it made extensive 
findings concerning the history of discrimination by the defendant 
Austin Independent School District (AISD) in its Memorandum Opinion 
and Order, dated November 5, 1979.

The defendants in the present action were defendants in United 
States, and Overton v. Texas Education Agency (AISD). supra. As 
defendants therein, they had a full and fair opportunity to 
litigate the issues of discrimination raised in that case and found 
by that court in its November 4, 1979 Memorandum Opinion and Order.

In our legal system, "once a court has decided an issue of 
fact or law necessary to its judgment, that decision may preclude 
relitigation of the issue in a suit on a different cause of action 
involving a party to the first case". Allen v. McCurry. 449 U.S. 
90, 94 (1980) .

The Supreme Court emphasized in Allen v. McCurry. supra. that 
"collateral estoppel relieve(s) parties of the cost and vexation 
of multiple lawsuits, conserve(s) judicial resources and ... 
encourage (s) reliance on adjudication". Id. 449 U.S. at 94. 
Moreover, the Supreme Court has affirmed that collateral estoppel

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may be invoked against litigants in the first lawsuit by parties 
in the second lawsuit who were not parties in the first lawsuit. 
See. Blonder-Tongue Laboratories. Inc, v. University of Illinois 
Foundation. 402 U.S. 313 (1971); Parklane Hosiery Co. v. Shore. 439 
U.S. 322 (1979) ; Montana v. United States. 440 U.S. 147 (1979) ; 
Bernhard v. Bank of America Nat. Trust & Savinas Ass'n. 19 Cal.2d 
807 (1942).

The findings of fact and conclusions of law by the district 
court in its November 5, 1979 Memorandum Opinion and Order, are 
binding upon defendants herein, and therefore did not need to be 
proved again by plaintiffs in the November 1989 trial.

The findings conclusively show that the AISD jointly conspired 
with the City of Austin to make East Austin the black section of 
town, that the conspiracy and joint agreement continued over 
several decades, that the AISD and the City of Austin were 
successful as of 1979 in making East Austin the black section of 
town, and that both parties engaged in numerous specific actions, 
including the location and construction of schools, to bring about 
this result. See. Record Excerpts, pp. RE-178-215.

In addition, the findings conclusively established that AISD 
had tried, as late as 1979 to maintain the dual school system and 
to perpetuate the effects of its early discriminatory actions.

The findings also conclusively establish the extent of black 
residential concentration in East Austin east of highway 1-35 which 
AISD fostered through prior discriminatory acts. Record Excerpts, 
pp. RE-174-175, 178-181, 185-192, 199-206, 207-211.

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The extensive findings of discrimination and continuing 
vestiges of discrimination made by the district court in 1979 are 
recited in the district court's memorandum opinion and order in the 
Record Excerpts, and therefore will not restated here.

The findings establish that, as of 1979, the vestiges of 
defendants' prior segregative and discriminatory acts had not been 
eliminated. Under the rule of collateral estoppel, these findings 
are binding on appellee-defendant AISD.

Plaintiffs were not parties in United States, and Overton v. 
Texas Education Agency (AISD). That case was not commenced as a 
class action nor ever certified as a class action. Consequently, 
the 1979 findings are not binding upon plaintiffs herein. See 
Martin v. Wilks. ___ U.S. ___, 57 U.S.L.W. 4616, June 12, 1989.

II.
APPELLEE AISD FAILED TO DISCHARGE ITS CONSTITUTIONAL 
OBLIGATION TO ERADICATE THE VESTIGES OF ITS PAST 

DISCRIMINATORY ACTIONS AND HAS ACTED IN VIOLATION OF 
ITS FURTHER CONSTITUTIONAL DUTY NOT TO PERPETUATE OR 
RE-ESTABLISH THE DUAL SCHOOL SYSTEM OR ITS EFFECTS.

The Supreme Court has continually warned each school district 
with a history of operating a formerly de jure school system, that 
it has an obligation to "eradicate the lingering consequences of 
the dual school system that it had been operating at the time Brown 
I was decided." Columbus Board of Education v. Penick. 443 U.S. 
449, 459 (1979).

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In addition to eliminating the vestiges of past discriminatory 
actions, the Supreme Court has also repeatedly urged school 
districts which once operated a dual school system not to 
subsequently take action, even so-called neutral actions, which 
"serve to perpetuate or re-establish the dual school system". 
Columbus. supra. 443 U.S. at 461. Where it is impossible to 
destroy overnight the vestiges of a school district's prior 
discriminatory actions, the school district can still achieve 
compliance with the Constitution by neutralizing such vestiges with 
busing or by not taking action which has the result of perpetuating 
effects of the district's past discriminatory actions.

Applying this constitutional rule of law to the facts of this 
case, it is clear that the AISD, in approving for implementation 
the 1987 neighborhood school plan, violated both of the above 
stated injunctions.

First, the AISD was aware that the black residential 
concentrations in East Austin and St. Johns had not dissipated to 
what they would have been in the absence of discrimination.

Second, the AISD did not offer proof of any actions it had 
taken since 1979 to reduce the concentrations of black residents 
east of highway 1-35. Court Exhibit 13, Small, p. 41.

Third, the uncontradicted testimony of professor Yale Rabin 
at trial conclusively showed that the racial concentrations in East 
Austin had not significantly changed in the ten years between the 
1970 and the 1980 census. Appellee AISD offered no evidence of any 
kind whatsoever to the contrary. Nor did it seek to prove that

22



the vestiges of its prior discriminatory actions had been 
eradicated.

By failing to offer evidence to rebut professor Rabin's 
testimony and census evidence, the AISD failed to carry its burden 
of showing that it was not responsible for the segregation 
resulting from the black residential concentrations in East Austin.

In the light of plaintiffs' uncontradicted evidence proving 
the existence of vestiges of past discrimination caused by the AISD 
and AISD's failure to satisfy its burden of going forward, the 
district court was clearly erroneous in upholding the validity of 
AISD's neighborhood school plan. See. Court Exhibit 13, Small, at 
p. 41.

Professor Rabin's testimony and evidence completely
established that AISD had not eradicated the vestiges of its past 
wrong- doing, and that the segregated residential patterns in the 
area east of highway 1-35 are vestiges of defendants' past 
discriminatory acts. His testimony further established that the 
1987 neighborhood school plan segregates the school system.

The legal rules applicable to this situation are clear. 
School officials have a continuing duty to eliminate the effect of 
past racial discrimination and to create a unitary system untainted 
by the past. See, Swann v. Charlotte-Mecklenberq Bd. of Educ.. 402 
U.S. 1, 15 (1971); Columbus Bd. of Educ. v. Penick. 443 U.S. 449, 
459 (1979) .

The AISD has a constitutional obligation to the students of 
the school district to eliminate the vestiges of past segregation.

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See Austin I . 467 F.2d 848, 870 (5th Cir. 1972); Austin II. 532 
F .2d 380, 390 (5th Cir. 1971); Austin III. 564 F.2d 162, 163-64, 
170 (5th Cir. 1977).

A formerly de jure school district has no automatic right to 
institute a neighborhood school system once it has been declared 
unitary if the effect of the adoption of such a system is to 
perpetuate or restore vestiges of the district's past segregative 
acts by resegregating the schools. See, Dowell v. Bd. of Educ. of
the Okla. City Public Schools. ___ F.2d. ___ (10th Cir.), October
6, 1989, No. 88-1067, cert, granted. 58 U.S.L.W. 3614, March 16, 
1990.

The Court of Appeals for the Fourth Circuit in Riddick v.
School Board of Norfolk. 784 F.2d 521 (4th Cir.), cert, denied. ___
U.S. __, 107 S .Ct.420 (1986), allowed Norfolk to adopt a
neighborhood school system only after the court was satisfied that 
all vestiges of past discrimination had been eliminated and were 
not perpetuated by the new system. To protect against any 
misconstruction of its holding in Riddick, supra. the Fourth 
Circuit said that "Our holding is a limited one, applicable only 
to those school systems which have succeeded in eradicating all 
vestiges of de jure segregation." Id. 784 F.2d at 543.

Although this Court said in denying plaintiffs' motion for a 
preliminary injunction that all vestiges of the prior dual system 
in Austin had been eliminated, the statement was dictum since no 
trial on the issue had yet taken place. Moreover, the district 
court below, in its opinion following the trial, specifically made

24



a finding contradicting this Court's dictum that all vestiges of 
the dual system in Austin have been eradicated.

The relinquishment of jurisdiction by a federal court over a
school desegregation case does not authorize the school district
to perpetuate the vestiges of its past racially segregative acts
by instituting a student assignment plan which builds upon those
vestiges to create a racially segregated school system. As the
Court of Appeals for the Tenth Circuit said:

The parties cannot be thrust back to 
the proverbial first square just 
because the court previously ceased 
active supervision over the 
operation of the ... Plan.

Dowell v. Board of Education of the Oklahoma City Public Schools. 
795 F .2d at 1520.

The closing of a case, or the relinquishment of the court's 
jurisdiction over the case or dismissal of a case without 
prejudice, is not a mechanism for relieving school districts of 
their constitutional responsibilities to eliminate vestiges of past 
segregation and to refrain from taking actions which perpetuate the 
effects of past racial segregation.

The Supreme Court's decisions in Green v. County School 
Board. 391 U.S. 430 (1968)? Swann v. Charlotte-Mecklenburg Bd. of 
Educ.. 402 U.S. 1 (1971) ; Davis v. Board of School Commissioners 
of Mobile County. 402 U.S. 33 (1971) ; Columbus v. Board of 
Education. 443 U.S. 449 (1979), hold that there is a presumption
against one-race schools, and that racially neutral assignment 
plans such as neighborhood attendance zones are inadequate if they

25



fail to counteract the continuing effects of past school 
segregation or perpetuate vestiges of past school segregation.

The AISD has failed to show that the newly created one-race
schools under its plan did not result from past discrimination as
required by the Supreme Court in Swann;

Where the school authority's proposed plan 
for conversion from a dual to a unitary 
school system contemplates the continued 
existence of some schools that are all or 
predominantly of one race, they have the 
burden of showing that such school 
a s s i g n m e n t s  a r e  g e n u i n e l y  
nondiscriminatory. The court should
scrutinize such schools, and the burden 
upon the school authorities will be to 
satisfy the court that their racial 
composition is not the result of present or 
past discriminatory action on their part.
402 U.S. at 26.

The constitutional validity of AISD's abandonment of its 1980 
desegregation plan and the adoption of its segregative 1980 plan 
can be determined on the basis of the Supreme Court's admonition 
in Swann that;

"Racially neutral" assignment plans 
proposed by school authorities to a 
district court may be inadequate; 
such plans may fail to counteract 
the continuing effects of past 
school segregation resulting from 
discriminatory location of school 
sites or distortion of school size 
in order to achieve or maintain an 
artificial racial separation. 402 
U.S. at 28.

The size, location, and construction of the public schools in 
Austin have been mostly determined by the dual school system. See 
Austin II. 467 F.2d at 865-67; Austin III. 564 F.2d at 170. The

26



AISD historically built its minority schools to serve minority 
children who lived nearby. Austin II. id; Austin III, id. It 
followed the "classic pattern of building schools specifically 
intended for Negro or white students," Swann, supra. 402 U.S. at 
21, or for Mexican-American students. Austin II. id.

The schools are still located in the same minority 
neighborhoods that existed under the dual system. The racial 
composition of the minority schools under the AISD's plan is the 
obvious result of past discriminatory action on the part of the 
school authorities because the AISD's plan simply reconstitutes 
the segregated neighborhood school plan of before in those school 
areas. See. Brief, supra. pp. 14-15, 20.

The current student assignment plan reestablishes the pattern 
of de jure segregation in the schools that existed previously. The 
AISD school board cannot show "that its past segregative acts did 
not create or contribute to the current segregated condition." 
Keves v. School District No. 1 . 413 U.S. 189, 211 (1973). That is 
its burden of proof.

In light of the above and AISD's failure to examine suitable 
alternative assignment plans, the Court of Appeals should 
invalidate the 1987 plan.

27



CONCLUSION
For the reasons stated above, the judgment below should be 

reversed and the Court should issue an order declaring that the 
AISD student assignment plan is unconstitutional and is enjoined
from further operation.

Date: July 16, 1990.
Respectfully submitted

/ u z  ban Antonio street 
Austin, Texas 78701 

(512) 478-1600
JULIUS L.CHAMBERS 
CHARLES STEPHEN RALSTON 
NAPOLEON B. WILLIAMS, JR.
99 Hudson Street, 16th Floor 
New York, New York 10019 

(212) 219-1900
Attorneys for Appellants 
McMurthy, Williams and Powell

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CERTIFICATE OF SERVICE

I hereby certify that I have this 9th day of August, 1990,
served a corrected copy of the Brief for Appellants McMurthy,
Williams and Powell upon the following attorneys, by United States
mail, first class, return postage guaranteed, addressed as follows:

William H. Bingham, Esq.
James R. Raup, Esq.
McGinnis, Lochridge & Kilgore 
Texas Bank Building 
900 Congress Avenue 
Austin, Texas 78701
David Van Os, Esq.
Van Os, Rubinett & Owen, P.C.
900 Congress Avenue, Suite 400 
Austin, Texas 78701

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