United States v. The Education Agency (Austin Independent School District) Brief in Opposition to Petition for Rehearing En Banc

    UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

NO. 73-3301

IN THE

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

and
DETRA ESTELL OVERTON, et al.,

Appellants-Intervenors, 
vs.

THE 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 IN OPPOSITION TO PETITION FOR REHEARING EN BANC

JACK GREENBERG 
JAMES M. NABRIT, III 
BILL LANN LEE

10 Columbus Circle 
Suite 2030
New York, New York 10019

SAMUEL T. BISCOE
Tower Building - 21st Floor 
1907 Elm Street 
Dallas, Texas 75201

Attorneys for Black 
Appellants-Intervenors



INDEX

Page

Statement Of The Case .........   2

ARGUMENT

I. Rehearing En Banc Would Be Inappro­
priate under The Standards of Rule 
35(a), Fed. R. App. Pro.................  7

II. The Grounds Relied On By The School
District Are Erroneous .........  9

A. Washington v. Davis ...............  9
B. Clearly Erroneous Standard ........ 10
C. Dayton Board of Education v.

Brinkman ...........................  10
CONCLUSION .........................................  11

l



TABLE OF AUTHORITIES

Page
CASES;

Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252 (1977) .....  5,8,9

Atkins v. Texas, 325 U.S. 398 (1945) ........... 9

Causey v. Ford Motor Co., 516 F.2d 416 (5th
Cir. 1975) .................................... 10

Dayton Board of Education v. Brinkman, ___U.S.
___, 53 L.Ed. 2d 851 (1977) .................  6,10

Harkless v. Sweeny Indep. Sch. District of 
Sweeny, Texas, 554 F.2d 1353 (5th Cir.) 
cert, denied. 46 U.S.L.W. 3357 (November 
18, 1977) .....................................  9,10

International Brotherhood of Teamsters v.
United States, ___U.S. ___ , 52 L.Ed. 2d
396 (1977) .................................... 11

Keyes v. School District No. 1, Denver, Colo.,
413 U.S. 189 (1973) .........................  9.10

Keyes v. School District No. 1, Denver, Colo.,
541 F.2d 465 (10th Cir. 1975), cert, denied,
423 U.S. 1066 (1976) ................ 777777.. 11

Kirksey v. Board of Supervisors of Hinds 
County, Miss., 554 F.2d 139 (5th cir.
1977), cert, denied. 46 U.S.L.W. 3357
(November 18, 1977) .......................... 9

Lee v. Demopolis city Sch. System, 557 F.2d 
1053 (5th Cir. 1977), cert, denied,
46 U.S.L.W. 3436 (January 8, 1978) .......... 8

Mt. Healthy City Sch. Dist. Board of Education
v. Doyle, 429 U.S. 274 (1977) ..............  10

ii



Page

NAACP v. Lansing Board of Education,
559 F.2d 1042 (6th Cir. 1977), 
cert, denied. 46 U.S.L.W. 3390
(December 8, 1977) ......................... 8

Newman v. Henderson, 539 F.2d 502 (5th Cir.
1976) ....................................... 8

United States v. School District of Omaha,
541 F.2d 708 (8th cir. 1976), vacated and
remanded. ___ U.S. ____, 53 L.Ed. 2d 1039
(1977). reconsidered. 565 F.2d 127 (8th 
Cir. 1977), cert, denied, 46 U.S.L.W. 3526 
(February 21, 1967) ............. ..........  8

United States v. Texas Education Agency,
467 F.2d 848 (5th Cir. 1972) (Austin I) ... 2,3,5,10

United States v. Texas Education Agency,
532 F .2d 380 (5th Cir. 1976) (Austin II)... 3,4,9,10

United States v. Texas Education Agency,
564 F.2d 162 (5th Cir. 1977) (Austin III) 1,2,5,6,7,

8,9,10,11
Washington v. Davis, 426 U.S. 229 (1976) ....  4,5,7,8,9
Wright v. Rockefeller, 376 U.S. 52 (1964) ___  9

RULES:

Rule 3 5(a), Fed. R. App. Pro..................  2,7

Rule 52, Fed. R. civ. Pro............. ........  7,10

iii



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

NO. 73-3301

UNITED STATES OF AMERICA,

Plaintiff-Appellant, 
and

DEDRA ESTELL OVERTON, et al.,

Appellants-Intervenors, 
vs.

THE 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 IN OPPOSITION TO PETITION FOR REHEARING EN BANC

Black appellants-intervenors Overton et al. oppose 
the petition for rehearing and suggestion for hearing en 

banc sought by defendants-appellees Austin Independent school 
District from the unanimous November 21, 1977 decision 
of a panel of Judges Wisdom, Coleman and Tjoflat, published 

in 564 F.2d 162. As we demonstrate, the petition fails to



meet the criteria of Rule 35(a), Fed. R. App. Pro., and 

the grounds that are asserted in behalf of rehearing and 
rehearing en banc are erroneous.

Statement Of The Case

This school desegregation action was originally filed 
August 7, 1970 to dismantle the dual school system in the 
public schools in Austin, Texas, charging that black and 
Chicano students are segregated from white students. The 
latest decision (hereinafter "Austin III11) is the third time 
the case has been before the court.

The first time was in 1972, when the case was heard 
en banc, United States v. Texas Education Agency. 467 F.2d 

848 (5th Cir. 1972) (hereinafter "Austin I "). In Austin I, 
the entire court, see 467 F.2d at 883, agreed with Judge 
Wisdom’s lead opinion that there was a constitutional 

violation and reversing and remanding the case to the lower 
court, that, with respect to black students who had been 

segregated by statute, "the AISD has not dismantled the 
State-imposed system based on race," 467 F.2d at 870, and 

w ith respect to Chicano students, through various specific 

enumerated actions AISD had "caused and perpetuated the 

segregation of Mexican—American students within the school 
system," 467 F.2d at 865-866. The Court, however, fragmented

- 2 -



on the appropriate remedy required to eliminate desegre­

gation and establish a unitary system, see 467 F.2d at 
848 et_ sea.

On remand, the district court held that "the AISD 

. . . has engaged in discriminatory assignment of black 

students to promote segregation," but that Chicano students 
had not been subject to de_ jure segregation. The lower 

court then ordered AISD's desegregation plan implemented.
The United States, and black and Chicano plaintiffs- 

intervenors appealed, and the Court issued its Austin II 
decision May 13, 1976, 532 F.2d 380. As to black students, 
Austin II noted that the school district had not disputed 
the finding of de jure segregation and affirmed, 532 F.2d 

at 392. As to Chicano students, Austin II reversed the lower 
court decision on liability, concluding that, " [a]s 

articulated in Austin I. the case before us presents not 
only the use of a neighborhood assignment policy in a 
residentially segregated school district, but also the taking 

of an extensive series of actions dating back to the early 
twentiety century that had the natural, foreseeable, and 

avoidable result of creating and maintaining an ethnically 

segregated school system," 532 F.2d at 392. Austin II 

also held that the desegregation plan submitted by AISD 
and accepted by the district court was constitutionally 

insufficient. The school district's petition for rehearing 

and rehearing en banc were denied June 9, 1976, 532 F.2d at 380.

3



Thereafter, the school board filed a petition for a 
writ of certiorari in the Supreme Court, raising as questions 
presented that the finding of de jure segregation of Chicano 

students was erroneously based only on racial imbalance caused 
by the use of a neighborhood school assignment policy and 
that, as to remedy, younger children should not be bused, 
Petition For Writ of Certiorari, No. 76-200. The United 

States stated that it did not oppose granting of the writ 
because of doubts as to the meaning of some language in 
Austin II on neighborhood school policy, but that the judgment 
was correct "that the AISD engaged in pervasive acts of 

discrimination against Mexican-Americans," Brief For The 
United States, No. 76-200. On December 6, 1976, the Supreme 
Court granted the petition, vacated the judgment and remanded 

the case to this Court for "reconsideration in light of 
Washington v. Davis. 426 U.S. 229 . . . (1976)," 429 U.S.

990 (1976). Mr. Justice Powell, joined by the chief Justice 
and Mr. Justice Rehnquist, filed a concurring opinion that 
explained his view of the remand.

"As suggested by this Court’s remand premised 
upon Washington v. Davis, supra, the Court of 
Appeals may have erred by a readiness to impute 
to school officials a segregative intent far

- 4



more pervasive than the evidence justified. 1/ 
That court also seems to have erred in ordering 
in scope a desegregation plan far exceeding 
in scope any identifiable violation of consti­
tutional rights.

1/ "Although in an earlier stage in this case 
other findings were made which evidenced segre­
gative intent, see, e.g.. United States v. Texas 
Education Agency, 467 F.2d 848, 864-869 (CA 5 
1972) (actions by school authorities contributing 
to segregation of Mexican—American students), 
the opinion below apparently gave controling 
effect to the case of neighborhood schools . . . "

After denial of the school district's motion for en banc
consideration on June 8, 1977, and the filing of

supplemental briefs, the court issued Austin III. The opinion
discusses extensively the application of Washington v. Davis

and Village of Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252 (1977) in part II, 564 F.2d
at 165-170, and concluded:

"Our finding of discriminatory intent in 
Austin II was not predicated solely on the 
AISD's use of a neighborhood student assign­
ment policy. We thought that we had made this 
clear in concluding:

As articulated in Austin I. the case 
before us presents not only the use 
of a neighborhood assignment policy 
in a residentially segregated school 
district, but also the taking of an 
extensive series of actions dating 
back to the early twentieth century 
that had the natural, foreseeable, and 
avoidable result of creating and main­
taining an ethnically segregated school 
system.

532 F.2d 392. Austin is not just a case of a 
school board's inaction or failure to reduce

5



segregation because of the force of residen­
tial patterns unrelated to official board 
action. Here the school authorities produced 
more racial and ethnic separation in the schools 
than in the residential patterns of the district 
as a whole. Nevertheless, to dispel any doubt 
that may remain, we again set forth the findings 
that compel our conclusion that the AISD inten­
tionally discriminated against Mexican-American 
students, adding to racial and ethnic separation."

564 F.2d at 170. Lest there be any doubt, in part III,

564 F.2d at 170-176, the Court comprehensively reviewed
prior findings (supplemented with current statistics) on

" [t]he segregation of Mexican-Americans in the AISD schools,"
"[t]he historical background of official actions taken for
segregative purposes," and " [t]he post-Brown sequence of
events indicating intentional racial discrimination." The
Court then concluded:

"We have concluded for the third time, 
that the AISD intentionally discriminated 
against Mexican-Americans; that the district 
court applied an erroneous legal standard in 
assuming that there could not be discriminatory 
intent when the actions were prompted by what 
was thought at the time to have been a benign 
motive; that the district court's finding as to 
intent was erroneous. Our reconsideration of 
the case in light of Washington v. Davis com­
plies with the mandate of the Supreme court."

564 F.2d at 174. With respect to remedy, the Court decided

that the Supreme court's recent decision in Dayton Board of

Education v. Brinkman. ___  U.S. ___  , 53 L.Ed. 2d 851 (1977)

required a remand to the lower court for a hearing, 564
F.2d at 174-176.

6



ARGUMENT

I.
REHEARING EN BANC WOULD BE INAPPRO­
PRIATE UNDER THE STANDARDS OF RULE 
35(a), FED. R. APP. PRO.

At the onset, we note that the school district simply 
does not assert either that consideration by the full court 

is necessary to secure or maintain uniformity of its decisions 
or that the proceeding, at this juncture, involves a question 
of exceptional importance, see Rule 35(a), Fed. R. App. Pro. 
Instead, the school district urges in behalf of rehearing 

that (1) although Austin III stated that the court considered 
the impact of Washington v. Davis and discusses at length its 

requirements, "there has been no actual reconsideration in 
compliance with the mandate of the Supreme court or with 
Washington v. Davis and the related cases concerning the 
standard required for a determination of the intent at a 

school district," p. 3; (2) that the Court "ignored" the 

"clearly erroneous" standard of Rule 52, Fed. R. civ. Pro., in 
setting aside the lower court decision on the existence of 

intentional discrimination, pp. 11-12; and (3) that the terms 

of the remand of the relief question are improper, pp. 13-15. 
In short, the school district seeks only to reargue its 

contentions as to the merits of this individual case that the 

Court rejected after full consideration of the factual record:

7



merely because the court properly ruled against defendants 
and found facts that have traditionally supported a finding 

of de_ jure public school segregation, it did not thereby evade 
the mandate.

Whatever claim to exception importance of Austin III 
beyond the confines of the specific case are undercut by the 

consistency of the opinion with other recent circuit opinions 
applying Washington v. Davis to the facts in school desegre­
gation actions, NAACP v. Lansing Board of Education. 559 F.2d 

1042, 1045-1049 (6th Cir. 1977), cert, denied, 46 U.S.L.W.
3390 (December 8, 1977); United States v. School District of 
Omaha, 541 F.2d 708 (8th Cir. 1976), vacated and remanded.

___ U.S. ___ , 53 L.Ed. 2d 1039 (1977), reconsidered, 565

F.2d 127 (8th Cir. 1977), cert, denied, 46 U.S.L.W. 3526 

(February 21, 1967) ;  see also Lee v. Demopolis City Sch. System. 
557 F.2d 1053 (5th cir. 1977) (rehearing and rehearing en banc 

denied), cert, denied. 46 U.S.L.W. 3436 (January 8, 1978), as 
well as the earlier opinions of four circuits specifically cited 

by Austin III, see cases at 564 F.2d at 168. Austin III is 

the latest of several recent cases in which defendants in civil 

rights actions have attempted to attack findings of liability 
merely by raising the spectre of Washington v. Davis and 
Arlington Heights, see, Newman v. Henderson, 539 F.2d 502, 504- 

505 (5th Cir. 1976) (jury discrimination); Kirksey v. Board of

8



Supervisors of Hinds County, Miss., 554 F.2d 139, 147-148 

(5th Cir. 1977), cert, denied. 46 U.S.L.W. 3357 (November 
18, 1977) (voting rights); Harkless v. Sweeny Indep. Sch. 

District of Sweeny, Texas. 554 F.2d 1353 (5th Cir.) cert, denied. 

46 U.S.L.W. 3357 (November 18, 1977)(teacher discrimination).
The school district similarly overlooks the plain
fact "the holding in [Washington v.] Davis reaffirmed a

principle well established in a variety of contexts. E.g.,

Keyes v. School District No. 1, Denver, Colo., 413 U.S. 189,
208 (1973) (schools); Wrights v. Rockefeller, 376 U.S. 52, 56-57 

(1964) (election districting); Atkins v. Texas, 325 U.S. 398, 
403-404 (1945) (jury selection)," Arlington Heights v. Metro­
politan Housing Corp., supra, 429 U.S. at 265.

II.
THE GROUNDS RELIED ON BY THE SCHOOL DISTRICT 
ARE ERRONEOUS.

A. Washington v. Davis

We believe it clear that the court did follow the mandate 

of the Supreme court and did reconsider earlier findings in 
light of Washington v. Davis, supra, and Arlington Heights, 

supra. Mr. Justice Powell, while unsure of the basis of 

Austin II. pointed out these earlier findings "evidenced 
segregative intent," 429 U.S. at 991. It was therefore 

entirely proper for Austin III to review and clarify the basis

9



for the finding of de_ jure discrimination. Moreover, the 
school district simply misstates the appropriate legal standard, 

see cases cited, supra, at p. 8, and belatedly disputes 
findings of facts first made against defendant in Austin I 
and Austin II.
B. Clearly Erroneous Standard

Rehearing is not appropriate or called for on the court's 
rejection of the lower court factual findings, 564 F.2d at 

1 T L -1 1 2 , n. 17 on the alternative grounds (a) that the district
court’s misapplication of law to facts is not subject to the

_ . 1/deference required by Rule 52, Fed. R. civ. Pro., and (b)
that the district court's findings of fact were in any event

2/
clearly erroneous.

C. Dayton Board of Education v. Brinkman

With respect to remedy, Austin III remands the case to 
the lower court consistent with Dayton Board of Education v . 

Brinkman, 53 L .Ed. 2d 851 (1977) . Reconciling Brinkman with 
Keyes v. School District No. 1. supra. Austin III states that 
"ftjhe burden of demonstrating that the residential concentration

1/  Compare causey v. Ford Motor Co.. 516 F.2d 416, 420-421 
(5th Cir. 197571

2/  Compare Harkless v. Sweeny Indep. Sch. District of Sweeny.
Texas, supra. Mt. Healthy city Sch, Dist. Board of Education^
31; Doyle, 42 9 U.S. 2 74 (1977), not a school desegregation or race
discrimination action, is inapposite.

10



of minorities in East Austin is unrelated to the AISD’s
segregative school policies is to be shouldered by the school

1/board," 564 F.2d at 175, cf_. international Brotherhood
of Teamsters v. United States, ___  U.S. ___ , 52 L.Ed. 2d

396, 428—432 (1977) (part III A). These remand instructions 
were entirely proper.

CONCLUSION
For the above reasons, the petition for rehearing en 

banc should be denied.

JACK GREENBERG 
JAMES M. NABRIT, III 
BILL LANN LEE

10 Columbus Circle 
Suite 2030
New York, New York 10019

SAMUEL T. BISCOE
Tower Building - 21st Floor 
1907 Elm Street 
Dallas, Texas 75201

Attorneys for Black 
Appellants-Intervenors

3/ The 10th Circuit applied the principle, 
Keyes v. School District No. 1. Denver. Colo 
(1976)Cir* 19?5^ ( ° n remand), cert, denied.

on remand, in 
., 521 F.2d 465 
423 U.S. 1066

11



CERTIFICATE OF SERVICE

Undersigned counsel certifies that copies of the 

foregoing brief in opposition to petition for rehearing 
en banc -were served on counsel for the parties by prepaid 
first class U. S. mail, this 28th day of February, 1978, 
addressed to:

Peter D. Roos, Esq.
145 Ninth Street
San Francisco, California 94103
Brian K. Landsberg, Esq.
Vincent F. O'Rourke, Esq.
Appellate Section, Civil Rights Division 
U. S. Department of Justice 
Washington, D. C. 20530
wiiiidn n. Bingnam, &sq. 
McGinnis, Lochridge & Kilgore 
Texas State Bank Building 
900 Congress Avenue 
Austin, Texas

s'

Attorney for Black Appellants 
Intervenors



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