Brinegar v. Metropolitan Branches of the Dallas NAACP, et al. Petition for Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

    I n  T he

8>uprrmr Court 
of thr luttrfi i>tatrs

October Term, 1978

No.

R alph F. B einegab, Et Al,
Petitioners,

versus

Metropolitan B ranches op the Dallas N.A.A.C.P., Et Al,
Respondents.

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

J ames A. D onohoe 
1700 Republic National Bank 

Bldg.
Dallas, Texas 75201
Counsel for P etitioners



INDEX

Opinion B elow ....................      2
Jurisdiction ......................    2
Questions Presented..........................................................  2
Constitutional and Statutory Provisions Involved........ 4
Statement of the C ase..................    4

1. Findings regarding vestiges of a dual system . . . . .  4
2. Findings of no vestiges of a dual system...............  5
3. Effect of Desegregation Plan on urban renewal 

and rehabilitation of inner-city neighborhoods
in Dallas...................................................................... 6

4. Trend toward either naturally integrated or
predominantly minority schools..............................  7

5. The District Court recognized the DISD’s
efforts to improve educational opportunities 
for all students and in particular to meet the 
special needs of minority students..........................  8

6. District Court sought and obtained community
help in formulating and implementing a deseg­
regation plan, and in doing so accomplished 
a highly sophisticated balancing of the many 
tools available and competing ideas and inter­
ests of various groups ...........................................  10

7. Implementation of the Plan was nonviolent and
did not polarize the community................................  11

Reasons for Granting Writ of Certiorari....................... 12
Conclusion .........................................................................  14
Proof of Service............................   15
Appendix A — Memorandum Opinion, July 16, 1971

i



CITATIONS

Cases:

Austin Independent School District v. United States,
429 U.S. 990 (Austin II) ................................3, 8, 12, 13

Dayton Board of Education v. Brinkman, U.S.
, (97 S.Ct. 2766) (Brinkman) ................................3, 13

Swann v. Charlotte-Mecklenburg Board of Educa­
tion, 402 U.S. 1 (Swann) ....................................3, 12, 14

Washington v. Davis, 426 U.S. 229 ............................  3, 13

11



Iir T he

g>ujtrme ©nurt
of tty? Iltttfrh States

October Term, 1978

No.

R alph F. Brinegar, Et Al, 

versus
Petitioners,

Metropolitan Branches of the Dallas N.A.A.C.P., Et Al,
Respondents.

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

These Petitioners, Ralph P. Brinegar, et al, are mem­
bers of a group of persons* allowed to intervene by the 
District Court on behalf of themselves and others similarly 
situated and reside in and represent persons residing in 
an area of the City of Dallas found by the District Court 
to be naturally integrated. These Petitioners have been

“Three Blacks, four Mexican Americans, ten Anglos



2

referred to in the proceedings below as the Brinegar 
Intervenors. These Petitioners pray that writ of certiorari 
issue to review the judgment and opinion of the United 
States Court of Appeals for the Fifth Circuit entered in 
this proceeding on April 21, 1978. The names and iden­
tities of the Respondents Nolan Estes, et al (which include 
the Superintendent and Board of Education of the Dallas 
Independent School System (“DISD” )), who have pre­
viously filed a similar petition for writ of certiorari with 
this Court (Docket No. 78-253, August 14, 1978) and the 
many other parties Respondent as well as Amicus Curiae, 
are set forth in Appendix A to Respondents Nolan Estes, 
et al’s petition for writ of certiorari (the DISD Petition).

OPINION BELOW
The opinions, orders and judgment of the District Court 

are set forth in Appendix B (pages 4a-129a) to the DISD 
Petition which includes styles and docket numbers, and 
are reported in part at 412 F. Supp. 1192. The opinion 
of the Court of Appeals is set forth in Appendix C 
(pages 130a-146a) to the DISD Petition which includes 
styles and docket numbers, and is reported at 572 F. 2d 
1010. Additional references to petitions for rehearing and 
motion for stay at mandate are as set forth in the DISD 
Petition, p. 2.

JURISDICTION
As stated in the DISD Petition, the judgment of the 

Court of Appeals was entered on April 21, 1978, with a 
timely Petition for Rehearing being denied on May 22, 
1978, therefore this petition for writ of certiorari has been 
filed within ninety days from that date. This Court’s juris­
diction is invoked under the provisions of 28 U.S.C. 
§1254(1).



3
QUESTIONS PRESENTED

Respondents Nolan Estes, et al correctly state in the 
DISD Petition that among the issues before the Courts 
below was the constitutionality of the remedy formulated 
by the District Court for the elimination of vestiges of 
the state-imposed dual school system in the large urban 
school system which is the DISD. However, these Peti­
tioners present the following additional questions with 
respect to the constitutionality of the remedies formulated 
below by the District Court:

Whether the formulation of a desegregation plan to 
eliminate unconstitutional vestiges of a dual school system 
is required under the equal protection clause where the 
only fact finding supporting the existence of unconstitu­
tional vestiges of a dual system was the fact of the existence 
of “many one race schools” ? Swann v. Charlotte-M ecklen- 
burg Board of Education, 402 U.S. 1 (Swann); Washington 
v. Davis, 426 U.S. 229; Austin Independent School District 
v. United States, 429 U.S. 990 (Austin I I ) ; Dayton Board 
of Education v. Brinkman, U.S. (97 S.Ct. 2766) 
(Brinkman).

Whether the continuation, encouragement and preser­
vation of the naturally integrated schools should be a 
guiding principle in the formulation of a desegregation 
plan as compared with the controlling principle suggested 
by the Court of Appeals of eliminating all one race schools, 
where the District Court has made findings that large areas 
of an urban school district are naturally integrated, that 
is integrated because of changes in housing patterns, 
thereby making it difficult to fashion a desegregation plan 
through the use of noncontiguous assignment and trans­
portation of students?

Whether a desegregation plan’s effects upon efforts of 
urban renewal and rehabilitation of the inner-city neigh­



4
borhoods particularly those which are naturally integrated 
or trending towards predominantly minority population, 
should be a factor in the fashioning of a constitutional 
remedy for removal of vestiges of a dual school system?

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

The Equal Protection Clause of the Fourteenth Amend­
ment to the Constitution of the United States provides in 
pertinent part as follows:

. . nor shall any State . . . deny to any person within 
its jurisdiction equal protection of the laws.”

STATEMENT OF THE CASE
These Petitioners agree that the Statement of the Case 

in the DISD Petition, particularly the discussion of the 
recognition of the careful study and consideration given 
by the District Court to this case and the fashioning of 
the desegregation plan remedy, is correct as far as it goes. 
However, further discussion of the District Court’s find­
ings, formulation and implementation of the plan is neces­
sary to understand the questions presented.

1. Findings regarding vestiges of a dual system.
The only finding by the District Court of vestiges of a 

dual system in this proceeding is that set out in his 
Memorandum Opinion filed July 16, 1971. The Memoran­
dum Opinion is reproduced as Appendix A. In summary, 
one paragaph of that opinion holds that because of the 
statistics showing a preponderance of Anglo or Black 
students in various schools of the DISD as presented in 
the summer, 1971 hearings, all vestiges of the dual system 
had not been eliminated from the DISD at that time. From 
that time on no other findings have been made by the 
District Court identifying any vestiges of a dual system 
remaining in the DISD, nor has there been any finding



5
at any time that the reason for any all-Black schools was 
unconstitutional state action.*

2. Findings of no vestiges of a dnal system.

In the Court’s Memorandum Opinion of March 10, 1976, 
at the conclusion of the remedy phase of the hearings at 
that time, the Court refers to vestiges and the removal of 
vestiges but never states what they were. However, in 
his Opinion and Order of March 10,1976, the District Court 
made findings with respect to the nonexistence of vestiges 
of a dual system in naturally desegregated areas of the 
DISD. Specifically the Court said:

“As mentioned above, there is a substantial number 
of schools in the DISD in which the racial makeup of 
the student population reflects naturally integrated 
housing patterns. Two groups of intervenors represent 
parents and students living in several of these resi- 
dentially integrated areas — namely the Strom Inter­
venors, representing Western Oak Cliff and Pleasant 
Grove, and the Brinegar Intervenors, representing 
East Dallas. These intervenors maintain that where 
integration in schools has been achieved through natu­
ral housing patterns, the present student assignments 
should be retained since no vestiges of a dual system 
remain in those areas. The court is in agreement with 
this concept. There is no denial of the right of educa­
tional opportunity in these areas, and, as all parties 
recognize, there would be no benefit, educational or 
otherwise, in disturbing this trend towards residential 
integration.” (emphasis added)

*In the July 16,1971 Memorandum Opinion the Court specifically 
finds that the Plaintiffs did not sustain the burden showing that 
there was some form of de jure segregation against Mexican Ameri­
cans as an ethnic minority, though the Court did say that Mexican 
Americans would be taken into consideration in any plan or 
remedy.



6

DISD Petition, Appendix B, p. 36a.
In an earlier portion of the same Opinion and Order 

the District Court stated:
“ Although the DISD in 1975-76 cannot be considered 
to be wholly free of the vestiges of a dual system, 
significant strides in desegregation have been made 
since the court’s 1971 order as a result of natural 
changes in residential patterns in the past three years. 
In the 1970-71 school year, 91.7% of all Black students 
in the DISD attended predominantly minority schools, 
whereas in the 1975-76 school year, the percentage 
had dropped to 67.6%. Testimony dui'ing the hearing 
showed that large areas of Dallas which formerly re­
flected segregated housing patterns are now integrated, 
namely Western Oak Cliff, Pleasant Grove, East 
Dallas, the area of North Dallas included in the atten­
dance zone for Thomas Jefferson High School.”

DISD Petition, Appendix B, pp. 14a-15a.

The District Court in its plan concluded that those areas 
of the DISD which were naturally integrated should not be 
interfered with or changed as part of the desegregation 
plan and in fact those areas were not interfered with. Some 
minimal transportation of Anglos and minority students 
into naturally integrated areas was accomplished at grade 
4-6 centers, which was not deemed to be interference. The 
District Court rejected the contentions under plans pre­
sented by the Plaintiffs and others which, while giving lip 
service to the concept that naturally integrated areas 
should be preserved, in actual effect would have resulted 
in transportation of many students, Anglo and minority, 
out of naturally integrated areas to other parts of the 
DISD.

3. Effect of Desegregation Plan on urban renewal and re­
habilitation of inner-city neighborhoods in Dallas.



7

In making his decision not to interfere with the naturally 
integrated areas the District Court had the benefit of sub­
stantial evidence of the potential disruptive effect a plan 
providing for transportation of students out of naturally 
integrated areas would have, particularly in inner-city 
areas. The evidence showed that the City of Dallas in com­
bination with private groups and institutions is conducting 
large scale efforts at urban renewal and rehabilitation. 
Attracting and retaining middle income families of all 
races who have the skills and resources to upgrade and 
maintain homes and businesses and secure the necessary 
and political and community support for rehabilitation 
projects is considered by the urban planning experts to be 
an essential part of these efforts. In Dallas, this of necessity 
means attracting Anglos to these neighborhoods and en­
couraging natural integration. Perception of the quality of 
the schools is an important factor in retaining and attract­
ing into these neighborhoods middle income individuals and 
families, Anglo or minority. Fear of violence, disruption, 
inferior resources in the schools, play a part in this whether 
or not the fears are justified. The urban experts testified 
that the school desegregation plan could have a positive 
impact on attracting and retaining middle income families, 
Anglo and minority, provided the Plan was perceived as 
improving the quality of educational opportunities in these 
inner-city areas. But, they also testified that such a plan, if 
it included transportation of students out of these areas 
would have a negative effect on the desired in-migration 
and retaining of these middle income families.
4, Trend toward either naturally integrated or predom­
inantly minority schools.

It should be emphasized that the plan was fashioned by 
the District Court in the factual context of a school district 
which had not assigned any students throughout the dis­



8

trict after 1965 without the federal court’s approval. In 
that same period a large number of schools became one 
race or predominantly minority schools. An example was 
Carter High School in Oak Cliff, which in 1970 had an 
Anglo population of 96.6%, no Blacks, and a Mexican 
American population of 3.1%. As part of the desegregation 
remedy ordered in 1971, Black students were transported 
into Carter High School. By 1975 Carter High School had 
become 30.5% Anglo, 65.2% Black, and 3.8% Mexican 
American, with most of the Black students residing in the 
school zone. Similar situations occurred with respect to 
Kimball High School. Indeed, by the end of that same 
period no school in the DISD remained all White or Anglo 
(though several still did not meet the Court’s statistical 
definition of becoming naturally integrated). DISD Peti­
tion, Appendix B, pp. 43a and 44a, shows the trend in popu­
lation for junior and senior high schools 1970-1975. As is 
made clear in reports being filed by the DISD with the Dis­
trict Court, this trend toward natural integration in the 
various schools of the DISD is still continuing and is pro­
jected to continue.

5. The District Court recognized the DISD’s efforts to 
improve educational opportunities for all students and in 
particular to meet the special needs of minority students.

Further, the District Court recognized that the practi­
calities of an equitable plan required community support 
if the plan was not to result in an actual deterioration of 
educational opportunities for all students. The District 
Court recognized the concern of parents for the welfare 
and education of their children exists wholly without re­
gard to race, ethnic origin or economic status and that 
concern must be dealt with for a plan to work (Austin II).

Indeed, the District Court had the benefit of testimony, 
much of it by the Plaintiffs’ own witnesses, that the DISD



9

had progressed farther than most school districts in the 
United States in special education programs for minority 
students. For example, on cross-examination, Dr. Jose 
Cardenas, a decidedly hostile witness, admitted that the 
DISD programs of bilingual education were better than 
any other programs he knew about. Assistant School Su­
perintendent Evonne Ewell, herself a Black educator, in 
response to questions about the quality of educational 
materials used in the DISD, and the need to eliminate 
racially prejudicial materials and to improve the materials 
for use with minority students, stated that the DISD had 
had to fashion its own written materials because of the 
unavailability of those materials from other sources and 
that they were in her judgment the best available, though 
admittedly not what she wanted them to be.

Dr. Francis Chase, a consultant to the DISD and a 
former chairman of the department of education at the 
University of Chicago, helped prepare a comprehensive 
report about the DISD, some 200 pages in length (the 
“ Chase Report” ), about which he testified extensively. 
The Chase Report suggests that in many areas of educa­
tion and administration the DISD, while not perfect, was 
“ either preeminent or close to the top among public school 
systems.” For example, Dr. Chase testified that the re­
search and evaluation techniques and programs in the 
DISD were the best available in a school district to his 
knowledge anywhere in the world. He indicated that there 
was a gap between interest and achievement but the DISD 
was making a good faith effort to close the gap. The Chase 
Report recites as other examples of excellence the com­
mitment to and heavy investment in curriculum design, 
development and implementation, the number and variety 
of innovations initiated and the frank acknowledgment 
of barriers to equal educational opportunities followed by



10

constructive measures to correct the situation, such as sup­
port for inner-city renewal projects. Based upon this and 
much other testimony and evidence, the District Court 
found:

“ The DISD has acted in good faith since this Court’s 
order in 1971 and has made reasonable efforts to ful­
fill the obligations imposed by that order. The DISD 
has further taken good faith steps to eradicate i n ­
equality in educational opportunity which has pre­
viously existed in the DISD. Had the DISD not shown 
a willingness to improve the quality of education for 
all its students, and especially those in the minority 
areas which previously had been neglected, this court 
might feel impelled to adopt a different remedy.”

DISD Petition, Appendix B, p. 40a.

6. District Court sought and obtained community help in 
formulating and implementing a desegregation plan, and 
in doing so accomplished a highly sophisticated balancing 
of the many tools available and competing ideas and in­
terests of various groups.

In this context the District Court, recognizing the need 
for community involvement and support of any desegre­
gation plan, set out to cause such a plan to come into 
existence which represented a careful balancing of all com­
munity interests. The result was the Dallas Alliance Plan 
which was eventually adopted by the Court as is described 
in the DISD Petition.

The plan while it does involve interference with various 
prerogatives of the school board, such as in the areas of 
personnel and accountability, nevertheless represented a 
careful balancing of many varied desegregation remedies 
and a sophisticated interplay and working out of the



11

problems and desires of Anglos, Mexican Americans and 
Blacks. The Dallas Alliance Task Force was made up of 
seven Anglos, seven Mexican Americans, six Blacks, and 
one American Indian, and represented a mix of lawyers, 
blue collar workers, civic leaders, clergymen, housewives, 
governmental professionals and educators. It had a paid 
staff and an executive director who is a well regarded edu­
cator, Dr. Paul Geisel. It had the support of and was an 
arm of the Dallas Alliance itself, which is an organization 
of most of the community and service organizations in 
Dallas, and is designed to serve as a catalyst to stimulate 
and encourage combined efforts of community groups in 
seeking resolution of urban problems affecting Dallas. The 
racial composition of the Dallas Alliance’s board reflects 
the ratio of the city’s population.

As a result of this balancing of interests and work with 
community groups, all major Black, Anglo and Mexican 
American organizations in Dallas endorsed the District 
Court’s plan, with the exception of the N.A.A.C.P. branches 
which were the Appellants in the Court of Appeals (these 
do not include all N.A.A.C.P. branches in Dallas). Indeed, 
the DISD itself accepted it gracefully and without pro­
test, though it felt that some of its non-student assign­
ment prerogatives were interfered with. Indeed, the people 
of Dallas accepted the plan and in appropriate elections au­
thorized substantial bond financing for construction under 
the plan in spite of the declining Anglo enrollment in the 
schools. (DISD Petition, p. 5)
7. Implementation of the plan was nonviolent and did not 
polarize the community.

The plan’s implementation was characterized by non­
violence. While it is reasonable to suppose that the imple­
mentation of the plan further aggravated the decrease of



12

Anglo students in the DISC,* as a result of the politi­
cal and social atmosphere surrounding the plan, which 
was and is essentially one of nonviolence and nonpolar­
ization, the DISD has felt encouraged enough to adopt 
publicly policies designed to promote the return of middle 
income people, again in Dallas primarily Anglos, to the 
DISD. While such programs have not shown clear results, 
they have greater promise than would have otherwise been 
the case had the Court not been so judicious in fashioning 
the desegregation plan.

In the face of this background which was explored and 
generally favorably discussed by the Court of Appeals, the 
Court of Appeals has returned this case to the District 
Court for findings on the mechanical questions of time and 
distance of transportation of students, and with respect to 
the nonassignment of students among the high schools.

Indeed, the District Court did consider time and distance 
and did consider the assignment of students generally, in­
cluding in the high schools.

REASONS FOR GRANTING WRIT OF CERTIORARI
The Court of Appeals erred in disregarding the complex 

and sophisticated balancing of interests by the District 
Court by ordering a mechanistic survey of time and 
distance studies.

Furthermore, the Court of Appeals order in the context 
of this case cannot help but put pressure on the District 
Court to and possibly implies a need to mechanically assign

* DISD Petition, p. 7 — By March 11, 1978, the Anglo student popu­
lation had dropped from the 1971 percentage of 69% to 35.38% 
of the total student population (which itself is declining) and to 
even a lower percentage in lower grades. While exact statistics 
are difficult to come by, it would be conceded the actual popula­
tion of the DISD is predominantly Anglo.



13

and transport students out of naturally integrated areas 
to cause a statistical balancing of minority groups in 
various Dallas schools. Such actions would not do anything 
but exacerbate and continue the trend of all schools in 
the DISD, including those in now existing naturally inte­
grated areas, toward becoming predominantly minority 
student schools. Such a remedy would not right any uncon­
stitutional wrongdoing and thus should be condemned. 
(Swann, Austin II)

Further, the continuation of court hearings increases 
the uncertainty surrounding desegregation in the DISD 
and thus damages the existing healthy trend towards racial 
peace and equal opportunity in Dallas and the DISD. Once 
this trend is reversed or interfered with, the damage may 
for all intents and purposes be irreversible, as has been 
the case in other cities in this country. The testimony in 
the District Court of the former head of the Atlanta school 
system and a former official of the Memphis school system 
dramatically emphasized the possibility of simply resegre­
gating a school system to a predominantly minority popu­
lation, which hardly seems a meaningful remedy.

If this case must be sent back to the District Court it 
should be done so with a clear statement of what the 
District Court must consider in fashioning a desegregation 
remedy.

Specifically the District Court should be ordered to make 
the findings required by Washington v. Davis, Austin II, 
and Brinkman, First, does a constitutional violation exist 
and, if so, specifically what is it, that is, what are the 
vestiges of the state-imposed dual system which are to be 
eliminated. Second, how does any remedy which is ordered 
by the District Court fit the specific constitutional wrongs 
which need righting.



14

It is reasonable to expect, in view of the statistics of 
student enrollment in the DISD which show there are few, 
if any, remaining all-Anglo schools, and which show that 
many predominantly minority schools became such because 
of changing housing patterns within the period after this 
proceeding began or prior thereto when student assignment 
was controlled by the federal courts, that the District Court 
will find few, if any, remaining vestiges of an unconstitu­
tional dual system. In fact, time plus the existing court 
orders and the DISD’s good faith efforts may have healed 
any unconstitutional injuries which have existed in the 
past.

Further the District Court should be instructed that the 
remedies sanctioned by Swann and subsequent cases do not 
prohibit and in fact require the Court to consider the 
impact the desegregation plan ordered by the court may 
have on other community activities, such as urban rehabili­
tation, which influence natural integration through changes 
in housing patterns as such actions in and of themselves 
must have a positive effect upon the removal of any 
existing vestiges of the unconstitutional dual system. In 
this regard, this Court should instruct the lower courts 
that the remedies discussed in Swann for removing 
vestiges of an unconstitutional dual school system do not 
include assignment and transportation of students out 
of naturally integrated areas of the affected school district.



15

CONCLUSION

For the foregoing reasons this Petition for a Writ of 
Certiorari should be granted.

Respectfully submitted,

James A. D oxohoe 
1700 Republic National 
Bank Building 
Dallas, Texas 75201

Dated: August 18, 1978

PROOF OF SERVICE

I, James A. Donohoe, attorney for Petitioners herein, a 
member of the Bar of the State of Texas, and an applicant 
for membership of the Bar of the Supreme Court of the 
United States, hereby certifies that on the 18th day of 
August, 1978, I served three copies of the foregoing Peti­
tion for Writ of Certiorari to the United States Court of 
Appeals for the Fifth Circuit upon the following Counsel 
for Respondents:

Warren Whitham 
210 Adolphus Tower 
Dallas, Texas 75202
Mark Martin 
1200 One Main Place 
Dallas, Texas 75250



16

Mr. Edward B. Cloutman, III 
8204 Elmbrook Drive, Suite 200 
P. 0. Box 47972 
Dallas, Texas 75247

Ms. Vilma S. Martinez 
Mexican-American Legal Defense 

and Educational Fund 
28 Geary Street 
San Francisco, Calif. 94108

Mr. Nathaniel R. Jones 
1790 Broadway, 10th Floor 
New York, N. Y. 10019

Mr. Lee Holt, City Attorney 
New City Hall 
Dallas, Texas 75201

Mr. James G. Vetter, Jr.
555 Griffin Square Building 
Suite 920
Dallas, Texas 75202

Mr. Thomas E. Ashton, III 
Dallas Legal Services Foundation, Inc. 
912 Commerce Street, Room 202 
Dallas, Texas 75202

Mr. E. Brice Cunningham 
2606 Forest Avenue, Suite 202 
Dallas, Texas 75215
Mr. Robert H. Mow, Jr.
Mr. Robert L. Blumenthal 
3000 One Main Place 
Dallas, Texas 75250



17

Mr. John Bryant 
8035 East R. L. Thornton 
Dallas, Texas 75228
Mr. Martin Frost
777 South R. L. Thornton, Suite 120 
Dallas, Texas 75203

and to the following Respondent pro se:
Mr. James T. Maxwell 
4440 Sigma Road, Suite 112 
Dallas, Texas 75240

and to the following Counsel for Amicus Curiae:
Mr. H. Ron White
1907 Elm Street, Suite 2100
Dallas, Texas 75201

by mailing same to such Counsel and Respondent pro se at 
their respective addresses and depositing the same in a 
United States mail box in an envelope properly addressed 
to such addresses with first class postage prepaid.

I further certify that all parties required to be served 
have been served.

James A. Donohoe 
Attorney for Petitioners



A -l

APPENDIX A

1st T he United States District Court 
F or T he Northern D istrict oe Texas 

Dallas D ivision

E ddie Mitchell Tasby, et al

vs.

Dr. Nolan E stes, et al

CA 3-4211-C 

Filed July 16,1971

MEMORANDUM OPINION

It is difficult to believe in this day and time that anyone 
anywhere would be surprised, shocked or amazed at this 
case or at the pendency of this law suit. It would be difficult 
for me to believe that anyone anywhere would be surprised, 
shocked or amazed by what I am about to rule in this 
case at this time.

On May 17, 1954, the Supreme Court of the United 
States, in Brown vs. Board of Education, said, “ In the 
field of public education the doctrine of ‘separate but equal’ 
has no place. Separate educational facilities are inherently 
unequal. Therefore we hold that the plaintiffs and others 
similarly situated . .. are, by reason of the segregation com­
plained of, deprived of the equal protection of the laws 
guaranteed by the 14th Amendment.” In 1955 the Supreme 
Court handed down its opinion in Brown #2 ordering 
desegregation of schools with “deliberate speed” .

In the 16 years since Brown #2 little progress had been 
made and the Courts were confronted with actions by 
School Boards that used every device imaginable to evade 
and avoid their responsibilities in this regard.



A-2

In 1968 the Supreme Court in Green vs. County School 
Board, pointed out this lack of progress and required that 
“ The burden on a school board today is to come forward 
with a plan that promises realistically to work . . .  now . . .  
until it is clear that state imposed segregation has been 
completely removed. Green vs. County School Board, 391 
U.S. 430.

Despite this plain language in 1969 there was before the 
Court fresh evidence of the dilatory tactics of many school 
authorities and the Court, in Alexander vs. Holmes County 
Board of Education, 396 U.S. 19, held that the remedy must 
be implemented forthwith.

On April 20, 1971, Chief Justice Berger of the Supreme 
Court delivered for a unanimous court his landmark opinion 
in Swan vs. Charlotte-MecTdenberg Board of Education 
which said, among other things, the objective today remains 
to eliminate from the public schools all vestiges of state 
imposed segregation.

When it appears as it clearly does from the evidence in 
this case that in the Dallas Independent School District 70 
schools are 90% or more white (Anglo), 40 schools are 
90% or more black, and 49 schools with 90% or more 
minority, 91% of black students in 90% or more of the 
minority schools, 3% of the black students attend schools 
in which the majority is white or Anglo, it would be less 
than honest for me to say or to hold that all vestiges of a 
dual system have been eliminated in the Dallas Independent 
School District, and I find and hold that elements of a dual 
system still remain.

The School Board has asserted that some of the all 
black school have come about as a result of changes in the 
neighborhood patterns but this fails to account for many



A-3

others that remain as segregated schools. The defendant 
School Board has also defended on the ground that it is 
following a 1965 Court order. This position is untenable.

The Green and Alexander cases have been handed down 
by the Supreme Court since the 1965 order of the Court 
of Appeals for the Fifth Circuit to the Dallas Independent 
School District. There have been too many changes in the 
law even in the Fifth Circuit and it is fairly obvious to 
me that the defendant School Board and its administration 
have been as aware of them as I. For example, the case of 
Singleton vs. .Jackson Municipal Separate School District 
was handed down in December of 1969. This was the case 
in which the Court ordered, among other things, desegrega­
tion of faculty and other staff, majority to minority trans­
fer policy, transportation, an order with reference to school 
construction and site selection, the appointment of bi-racial 
committees. The Dallas School Board has failed to imple­
ment any of these tools or to even suggest that it would 
consider such plans until long after the filing of this suit 
and in part after the commencement of this trial.

There is another question which this Court must decide 
and that has to do with the complaint of those plaintiffs 
who brought this suit as Mexican-Americans in behalf of 
themselves and all others similarly situated.

It is my opinion and I so hold that Mexiean-Amerieans 
constitute a clearly separate and clearly identifiable ethnic 
group. No one ever had any doubt about Lee Trevino’s 
ethnic origin and this is true of many many others. But 
as was said by Judge Jack Roberts of the Federal Court 
in Austin, “But the mere existence of an ethnic group, 
regardless of its racial origin, and standing alone, does not 
establish a case integrating it with the remainder of the 
school population. Rather, the plaintiff must show that



A-4

there has been some form of de jure segregation against 
the ethnic minority.”  And I find that the plaintiff Mexican- 
Americans have failed in maintaining the burden of proof. 
I would point out, however, that this particular ruling 
may not be too significant in the light of what I propose 
to do in this regard and that is that any plan or remedy 
must take the Mexican-American into consideration and 
there will be the appointment of a tri-ethnic committee as 
distinguished from a bi-racial advisory committee. In this 
connection, I would advise that I will appoint Rev. Zan 
Holmes, Rene Martinez, and Attorney David Kendall on 
this committee, if they are willing to serve.

I have heretofore indicated during this trial that I would 
call upon the Board of the Dallas Independent School Dis­
trict for its plan to eliminate segregation in its school dis­
trict and that I would expect that done now. Judge 
Woodrow Seals in Corpus Christi was confronted by a 
board that stood like a balky steer in the road and refused 
to do anything and he pointed out that he was deprived of 
the expertise of the Board of Education and its administra­
tive personnel in the fashioning of a plan and order of the 
Court that would eliminate the dual system. Judge Jack 
Roberts in Austin has called upon the parties, both plain­
tiffs and defendants, to file with the Court an adequate and 
sufficient plan. Judge Leo Brewster in. Fort Worth has done 
the same thing. Defendant Dallas Independent School 
District has throughout this trial asserted its good faith 
and its willingness to cooperate with the Court and has 
also stated that it is opposed to segregation. Therefore, I 
direct that the Dallas Independent School District Board 
file with this Court its plan for the establishment of a 
unitary school system by 10 :Q0 A.M. next Friday, July 23, 
1971. It is obvious to me that the Board has been consider­



A-5

ing these matters for some time and that it has done some 
soul searching in this regard, as it should do.

Now all of this is not as grim as it sounds. I am opposed 
to and do not believe in massive cross-town bussing of 
students for the sole purpose of mixing bodies. I doubt that 
there is a Federal Judge anywhere that would advocate that 
type of integration as distinguished from desegregation. 
There are many many other tools at the command of the 
School Board and I would direct its attention to part of one 
of the plans suggested by TEDTAC which proposed the 
use of television in the elementary grades and the transfer 
of classes on occasion by bus during school hours in order 
to enable the different ethnic groups to communicate. How 
better could lines of communication be established than by 
saying, “ I saw you on TV yesterday,” and, besides that, 
television is much cheaper than bussing and a lot faster 
and safer. This is in no sense a Court order but is merely 
something that the Board might consider.

At this point I want to make a few remarks about 
TEDTAC. That agency has been harassed, intimidated, 
pressured and abused in many other ways, and it did not 
deserve this type of treatment. The politicians have made 
their speeches, have called their office demanding names, 
suggesting loss of employment sometimes subtly and some­
times not so subtly. Some of the staff of TEDTAC have 
been obliged to unlist their phone numbers in order to 
escape harassing telephone calls. I have considered the 
entry of an order in this case that such harassment, intim­
idation and threats will be considered an obstruction of 
justice and therefore in contempt of this Court. It was 
TEDTAC which first suggested the “confluence of cul­
tures” concept as was testified to by Dr. Estes. TEDTAC 
has worked in many of these matters and sincerely desires



A-6

to be of assistance to the School Boards that are confronted 
with these problems. I would also suggest that the School 
Board could well hear from the plaintiffs’ representatives 
as well as the ones who heretofore have been named as 
members of the tri-ethnic committee of this Court if they 
are willing to serve.

I would suggest that the Dallas Board of Education could 
make the “ confluence of cultures” an actuality rather than 
a catch-phrase or a dream and that it could be of vast help 
to the City of Dallas in deserving its Chamber of Com­
merce appellation of “ City of Excellence.”

W. M. TAYLOR, JR.
United States D istrict J udge