Ross v. Houston Independent School Brief for Appellants
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February 1, 1982

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Brief Collection, LDF Court Filings. Ross v. Houston Independent School Brief for Appellants, 1982. f07e494f-c39a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/49dcef95-c503-4ab5-b6f5-727b02087426/ross-v-houston-independent-school-brief-for-appellants. Accessed April 27, 2025.
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 81-2323 ■ DELORES ROSS, et al., * Appellants, HOUSTON INDEPENDENT SCHOOL DISTRICT, et al., Appellees. Appeal From The United States District Court For The Southern District of Texas, Houston Division BRIEF FOR APPELLANTS JACK GREENBERG JAMES M. NABRIT, III LOWELL JOHNSTON BILL LANN LEE 10 Columbus Circle Suite 2030 New York, N.Y. 10019 WELDON H. BERRY 711 Main Street Suite 620 Houston, Texas 77002 Attorneys for Appellants UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 81-2323 DELORES ROSS, et al., Appellants v HOUSTON INDEPENDENT SCHOOL DISTRICT, et al., Appellees Appeal From The United States District Court For The Southern District.of Texas, Houston Division Certifificate of Interested Persons The undersigned, counsel of record, certifies that the following listed persons have an interest in the out come of this case. These representations are made in order that the judges of this Court may evaluate possible disqual ification or recusal. They are Delores Ross, by her mother, Mrs. Mary Alice Benjamin, joined by her husband Bennie Benjamin and Benva Delois Williams, by her father and next friend, Marion Williams; the Houston Independent School District, and members of the school board of the Houston Independent School District. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 81-2323 DELORES ROSS, et al. , Appellants, v. HOUSTON INDEPENDENT SCHOOL DISTRICT, et al., Appellees. Appeal From The United States District Court For The Southern District"of Texas, Houston Division REQUEST FOR ORAL ARGUMENT Plaintiffs-appellants respectfully request that the Court hear oral argument. 1. This is a 26 year old school desegregation action involving the Houston Independent School District and the Houston metropolitan area. 2. The appeal raises important questions of law and public policy, viz., Whether the HISD has attained unitary status, although it has declined to utilize many of the de segregation tools set forth in Swann v. Charlotte-Mecklenburq Board of Education, 402 U.S. 1 (1971)? Whether plaintiffs may assert interdistrict violation and remedy issues involving HISD and other State, county and local school district entities in the instant pending case? Counsel, therefore, respectfully submit that oral argument may assist the Court in resolving the appeal. A. /*/ A A ] LlJ ( a . ' n "VLOWELL qOHNSTON ' ' TABLE OF CONTENTS Page STATEMENT OF JURISDICTION ...................... ± QUESTIONS PRESENTED ............................. 2 STATEMENT OF THE CASE .......................... 3 STATEMENT OF THE FACTS ......................... 15 SUMMARY OF ARGUMENT:............................ 21 I. The HISD Has The Duty to Eliminate All Vestiges of State Imposed Segregation ........................ 22 II. The HISD Has Not Shown That It Has Done All That Could Practically Be Done To Eliminate The Dual System ... 26 III. The District Court Plainly Abused its Discretion by Refusing to Consider the Merits of the Claim that Metropolitan Houston-wide Relief May be Appropriate to Cure a Constitutional Violation Participated in by HISD and Other Entities on an Interdistrict Basis ............................... 32 CONCLUSION ...................................... 4.6 ATTACHMENT A - .................................. 4 7 CERTIFICATE OF SERVICE 48 TABLE OF CASES Page Adams v. United States, 620 F.2d 1277 (8th Cir. 1980), cert, denied, 449 U.S. 826 (1980) .... 35 Anderson v. Dougherty County Board of Education, 609 F.2d 225 (5th Cir. 1980)........ 24,28 Bradley v. School Board of the City of Richmond, 51 F.R.D. 139 (E.D. Va. 1970); 462 F.2d 1048 (4th Cir. 1972)(en banc), aff'd by equally divided court 412 U.S. 92 (1973)..................................... 35,43 Brown v. Board of Education, 349 U.S. 294 (1955)........................................ 12 Calhoun v. Cook, 522 F.2d 717 (5th Cir. 1975).. 34 Columbus Board of Education v. Penick, 433 U.S. 449 (1979)' 22,33 Combee v. Shell Oil Co., 615 F.2d 698 (5th Cir. 1980)............................... 39 Cooper v. Aaron, 358 U.S. 1 (1958).............. 28 Davis v. East Baton Rouge Parish School Board, 498 F. Supp. 580 (M.D. Louisiana 1980)....... 24 Davis v. East Baton Rouge Parish School Board, 514 F. Supp. 869 (M.D. Louisiana 1981)....... 24 Davis v. School Comm's of Mobile County, 402 U.S. 33 (1971)................................ 33 Dayton Board of Education v. Brinkman, 443 U.S. 526 (1979)................................. 22,30,33 Doucet v. Wheless Drilling Co., 467 F.2d 336 (5th Cir. 1972)............................... 40 Dunn v. Koehring Co., 546 F.2d 1198 (5th Cir. 1977)............... ......................... 39 i Ellis v. Board of Public Instruction, 423 F. 2d 203 (5th Cir. 1970)............... 4 Evans v. Buchanan, 379 F. Supp. 1218 (D. Del. 1974); 393 F. Supp. 478 (D. Del. 1975), aff'd, 423 U.S. 963 (1975).................................. 35 Foman v. Davis, 371 U.S. 178 (1962)..... 3 4,36,38,39,40 Green v. County Board of Education, 391 U.S. 431 (1968) ....................... 33 Green v. New Kent County School Board, 391 U.S. 430 (1968).................... 4,22,28 Griggs v. Hinds Junior College, 563 F.2d 179 (5th Cir. 1977).................... 36,39 Hilgema v. National Ins. Co. of America 547 F . 2d 298 (5th Cir. 1977)........... 39 Jensen v. Olson, 353 F.2d 825 (8th Cir. 1965)................................... 11 Lee v. Autauga County Board of Education, 514 F. 2d 646 (5th Cir. 1975)........... 28 Lee v. Tuscaloosa City School System, 576 F. 2d 39 (5th Cir. 1978)............ 24 Lemon v. Bossier Parish School Board, 566 F. 2d 985 (5th Cir. 1978)........... 24 Lone Star Motor Import, Inc. v. Citroen Cars Corp., 288 F.2d 69 (5th Cir. 1961) 36,39 McLellan v. Mississippi Power & Light Co., 526 F.2d 870 (5th Cir. 1976), modified in other respects, 545 F.2d 919 (5th Cir. 1977) (en banc).................... 42 Miller v. City of Gadsden School System, 482 F. 2d 1234 (5th Cir. 1973).......... 24 Milliken v. Bradley, 418 U.S. 717 (1974) 35,37 Monroe v. Board of Education, 391 U.S. 450 (1968).............................. 28 Page - ii - Page Raney v. Board of Education, 391 U.S. 443 (1968).................................. 22,33 Ross v. Eckels, 317 F. Supp. 512 (S.D. Tex. 1970).............................. 4 Ross v. Eckels, 434 F.2d 1140 (5th Cir. 1970) cert, denied, 402 U.S. 953 (1971) 5,15 Ross v. Eckels, 11 Race Rel. L. Rep. 216 (S.D. Tex. 1965)................... 3 Ross v. Eckels, 12 Race Rel. L. Rep. 2005 (S.D. Tex. 1967).................. 4 Ross v. Peterson, 5 Race Rel. L. Rep. 703 (S.D. Tex.), aff'd sub nom. Houston Independent School District v. Ross, 282 F.2d 95 (5th Cir. ) stay and cert, denied, 364 U.S. 803 (1960).............................. 3 Ross v. Rogers, 2 Race Rel. L. Rep. 1114 (S.D. Tex. 1957)....................... 3 Shelley v. Kraemer, 334 U.S. 1 (1948) ... 14 Sherman v. Hallbauer, 455 F.2d 1236 (5th Cir. 1972)......................... 36,40 Singleton v. Jackson Municipal School District (Singleton III), 419 F.2d 1211 (5th Cir. 1969) (per curiam)............ 4 Spartan Grain & Mill Co., v. Ayers, 517 F.2d 214, 220 (5th Cir. 1975)...... 36,39,41 Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971)........... Passim Tasby v. Estes, 572 F.2d 1010 (5th Cir. 1978), aff'ing in part and rev'inq in part, 412 F. Supp. 1185 (N.D. Tex. 1975) 12,25,27,35,43,45 United Mine Workers v. Gibbs, 383 U.S. 715 (1966).............................. 44 iii United States v. Board of School Comr's of Indianapolis, 503 F.2d 68 (7th Cir. 1975), cert, denied, 421 U.S. 921 (1976) 35 U.S. v. Hinds County School Board, 560 F.2d 1188 (5th Cir. 1977) cert, denied, 435 U.S. 951 (1978)...... 7777. .777777.. 28 U.S. v. Jefferson County Board of Education, 380 F.2d 385 (5th Cir.) (en banc), cert, denied, 389 U.S. 840, rehearinq denied, 389 U.S. 965 (1967).... 777777................... 4 U.S. Scotland Neck Board of Education, 407 U.S. 484 (1972).................... 28 U.S. v. Seminole City School Board, 553 F. 2d 992 (5th Cir. 1977)............... 24,28 U.S. v. South Park School Board, 566 F.2d 1221 (5th Cir. 1978)................... 24 United States v. State of Texas, 330 F. Supp. 235 (E.D. Tex. 1971), modified and affirmed, 447 F.2d 341 (5th Cir. 1971), cert, denied sub nom. Edgar v. United States, 404 U.S. 1016 (1972) 13 U.S. v. Valdosta City School System, 576 F.2d 37 (5th Cir. 1978)............ 24 Valley v. Rapides Parish School Board, 646 F. 2d 926 (5th Cir. 1981)........... 24 Zenith Radio Corp. v. Hazelton Research, Inc. 401 U.S. 321 (1971) .............. 39 Page IV IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 81-2323 DELORES ROSS, et al. , Appellants, v. HOUSTON INDEPENDENT SCHOOL DISTRICT, et al., Appellees. Appeal From The United States District Court For The Southern District of Texas, Houston Division Statement of Jurisdiction This Court has jurisdiction of this case pursuant to 28 U.S.C. § 1291. 1 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 81-2323 DELORES ROSS, et al.f • Appellants, : V. HOUSTON INDEPENDENT SCHOOL DISTRICT, et al., Appellees. Appeal From The United States District Court For The Southern District of Texas, Houston Division BRIEF FOR APPELLANTS Questions Presented 1. Whether the District Court's decision that the HISD has taken all practicable steps to eliminate the dual system can be sustained? 2. Whether it was an abuse of discretion for the District Court to fail to consider the merits of the claim for an inter-district remedy to cure the unconstitutional main tenance and operation of a dual system in the Houston Metropolitan Area by the HISD and various other parties sought to be joined? - 2 - STATEMENT OF THE CASE I. Course of Proceeding and Disposition in Court Below This school desegregation action was instituted in 1956 by parents of black children enrolled in the Houston Independent School District (hereinafter HISD). (R. 1) Plaintiffs complained that the HISD was operating a dual public school system in violation of the Fourteenth Amendment to the United States Constitution. The HISD had been operated traditionally as a dual system with student bodies, faculties, staff, trans portation, extra-curricular activities and facilities segregated into black and white schools. In 1957 Judge Connally entered an order in the case declaring the state-compelled dual system of public education unconstitutional. Ross v. Rogers, 2 Race Rel, L. Rep. 1114 (S. D. Tex. 1957). He ordered the implementation of a grade-per- year desegregation plan in the HISD in 1960 under which voluntary transfers were allowed to the schools serving the opposite race within the student's attendance zone. Ross v. Peterson, 5 Race Rel. L. Rep. 703, 709 (S.D. Tex.), aff'd sub nonu Houston Independent School District v. Ross, 282 F.2d 95 (5th Cir.), stay and cert, denied, 364 U.S. 803 (1960). In 1965 the district court accelerated the grade-per-year plan, Ross v. Eckels, 11 Race Rel. L. Rep. 216 (S.D. Tex. 1965), and the integration of transportation, physical facilities, athletics and other extra curricular activities was similarly ordered desegregated by the - 3 - court. Ross v. Eckels, 12 Race Rel. L. Rep. 2005 (S.D. Tex. 1967). However, no substantial actual desegregation was accomplished. The United States intervened as a plaintiff pursuant to § 902 of the Civil Rights Act of 1964, 42 U.S.C. § 2000-h, in July 1967. On September 5, 1967, the district court entered a freedom of choice decree pursuant to U.S. v. Jefferson County Board of Education, 380 F.2d 385 (5th Cir.) (en banc), cert. denied, 389 U.S. 840, rehearing denied, 389 U.S. 965 (1967) . Motions for supplemental relief were filed by the private plaintiffs in February 1968, and by the United States in February 1969, and an evidentiary hearing on these motions was held in July 1969. The district court orally held on July 23, 1969 that the freedom of choice plan 'did not meet the require ments of Green v. New Kent County Board of Education, 391 U.S. 430 (1968) and Singleton v. Jackson Municipal School District (Singleton III), 419 F.2d 1211 (5th Cir. 1969)(per curiam) and required the school district to devise a new desegregation plan. On May 30, 1970, the district court entered an order requir ing implementation of an equi-distant neighborhood zoning plan based on Ellis v. Board of Public Instruction, 423 F.2d 203 (5th Cir, 1970. Ross v. Eckels, 317 F. Supp. 512 (S.D. Tex. 1970). On appeal by the United States and private plaintiffs this Court affirmed in part and reversed in part the decision of the district court, and required implementation of a different neighborhood zoning plan at the junior and senior high school level which projected greater desegregation than the equi distant zoning plan. At the same elementary level, the Court - 4 - required pairing of 25 schools and the rezoning of 2 others to more fully desegregate the schools. Ross v. Eckels, 434 F.2d 1140 (5th Cir. 1970), cert, denied, 402 U.S. 953 (1971). The HISD petitioned the Supreme Court for a writ of certiorari in an effort to obtain reversal of the elementary school pairing modification. After this was denied the district court entered an order on September 18, 1970, requiring implemen tation of the Court of Appeals' plan. Because the pairing of schools required by the Court of Appeals resulted in pairing all black schools with majority Mexican-American schools, a group of Mexican-American parents sought to intervene in the action. (R. 281-2). The HISD sought modification of the pairing aspect of the order. On May 24, 1971, the district court denied both motions. (R. 295). The denial of intervention was appealed by the Mexican-American parents, and vacated by the Court of Appeals and remanded to the district court for reconsideration. 468 F.2d 649 (5th Cir. 1972). No action was taken on remand until May, 1975 when the Mexican-Americans renewed their motion to intervene. There was no opposition and the motion was granted in July, 1975. (R. 373). In May 1975 the HISD filed a motion to modify the 1970 court ordered plan by depairing the elementary schools paired pursuant to the Court of Appeals' decision, and implementing a magnet school program. (R. 359). This motion was not opposed by the parties, although the United States argued that HISD had - 5 - not achieved a unitary school system and that the magnet school proposal did not promise to achieve that goal. (R. 363). The U.S. did not oppose these modifications because the change did promise a somewhat greater level of desegregation than that accomplished under the 1970 plan. The HISD's motion was granted on July 11, 1975, the district court stating in pertinent part: . . .[Njothing herein should be interpreted as a finding that the Houston Independent School District has, or has not, achieved a unitary school system, nor that by implementation'of the magnet school plan consitutional requirements and standards established by the Supreme Court and United States Court of Appeals have been met, or have not been met. (R. 371). Twice, on April 4, 1973, and on December 8, 1977, the District Court enjoined the attempted split-off of the Westheimer Area of the HISD. (R. 336 & 662). During the hearings on the second motion to split-off, the Houston Teachers Association was granted leave to intervene as a plaintiff in this action. On June 9, 1978, the district court, Judge Finis E. Cowan, entered an order, sua sponte, reviewing the legal obligations of the HISD and requiring that certain actions be taken. (R. 709). The Court stated: Review of five recent cases by the Fifth Circuit Court of Appeals, decided in the last six and one half months emphasizes - 6 - again the extremely heavy burden the law places upon HISD. See U.S. v. Texas Education Agency (Austin III), 564 F.2d 162 (5th Cir. 1977; Lemon v. Bossier Parish School Board, 566 F.2d 985 (5t.h Cir. 1978); United States v. South Park Independent School District, 566 F.2d 1221 (5th Cir. 1978); Davis v. East Baton Rouge Parish School Board, (5 70] F.2d [1260] (5th Cir. 19 78); Tasby v. Estes, [585] F.2d [1010] (5th Cir. 1978). These cases emphasize again the basic teaching of the Supreme Court of the United States in 1968 and 1969 in which the clear, simple rule was enunciated that every school board which has previously operated a segregated system has the obligation of doing everything practicable to eliminate every vestige of the previously exist ing segregated system root and branch. Green v. County School Board, 391 U.S. 340 (1968) ; Raney v. Board of Education, 391 U.S. 443 (1968) Monroe v. Board of Commissioners, 391 U.S. 450 (1968). The obligation is one to do everything practic able now. Alexander v. Holmes County Board of Education, 396 U.S. 1969. Justice Burger's opinion in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971) describes in great detail all of the tools which a school district must employ or at least seriously consider in achiev ing the goal of accomplishing unitary status. Is HISD doing everything practicable to eliminate every vestige of the previously existing segregated system now? Based upon the information, evidence and activity described in the first paragraph of this order, this Court presently must answer the basic question: No. The principal deficiency of this: HISD has no definite, high priority, well conceived plan to chart this district to the accomplish ment of unitary status. The achievement of unitary status therefore does not appear to be a high priority goal for HISD. - 7 - HISD is full of identifiably black- American, Anglo-American and Mexican-American schools. Undoubtedly many of these identifi ably ethnic schools are the result of residential patterns over which this board has no control, and their existence thus does not violate the Constitution; however, this Court is not per suaded that a dedicated, determined, systematic, intelligent effort is being made to analyze each identifiably ethnic school and determine whether or not this identifiable ethnicity could be elimi nated by the use of all of the tools mandated by Swann. Such effort, gigantic as it may be, is constitutionally required. The effort, insofar as this Court can determine, is not being made. (p. 2-3, 4) . The Court went on to require the HISD to file with the court "a preliminary plan for performing the various tasks neces sary to achieve unitary status." More specifically, the court directed the HISD to address the following areas of concern to the court in their preliminary plan: (1) a review of the operation and effect of the Singleton faculty requirement; (2) efforts toward equality of physical facilities; (3) analysis of each identifi ably ethnic school for the purpose of determining whether or not its identifiability could be removed by use of all the desegre gation tools authorized in Swann v. Charlotte-Mecklenburg Board of Education, supra; (4) the possibilities with reference to inter district cooperation between the HISD and predominately white suburban districts; (5) efforts of the HISD to achieve complete desegregation of faculty, administrative personnel, and personnel engaged in support services; (6) whether or not there has been an over emphasis on the magnet school concept of the HISD; (7) the advisability of appointing a panel of experts to conduct a de tailed study of the HISD, for the purpose of determining whether all practicable steps are being taken to eliminate segregation . »- now. (p. 6-8). - 8 - Between June 4, 1979 and October 25, 1979 a new district judge assigned to the case, Honorable Robert O'Conner, Jr., heard seventeen days of testimony offered pursuant to Judge Cowan's June 9. 1978 order. Judge O'Conner's memorandum and order were issued on June 17, 1981, (R. 818). With respect to every issue raised by Judge Cowan, Judge O'Conner found that the HISD had done all that it possibly could to purge itself of all the ves tiges of the state imposed segregated school system. In making this finding the court further found that the schools with student bodies of all one race are not part of a state enforced system of segregation, and that the utilization of all of the desegregation toosl discussed in Swann was not practicable in the HISD. Prior to the court's decision on June 7, 1981, the United States filed a motion to add parties defendant and for leave to file an amended complaint in intervention, and an amended com plaint. (R. 784a), (motion), 784b (amended complaint) The motion sought, pursuant to Rules 15, 19(a) and 21, Fed. R. Civ. Pro., to add as defendants 22 independent school districts and their boards of trustees located in or contiguous to Harris County, Texas ̂ ^the Harris County Department of Education and its Board of Trustees; the Texas Education Agency and the State Commissioners of Education; the City of Houston, and the State of Texas. The amended complaint alleged that the "continuing racial segregation in the HISD system, and throughout the Houston metro politan areas, has been caused, in substantial part, by the 1 / The 22 independent school districts include Aldine, Alief, Channelview, Crosby, Cypress-Fairbanks, Deer Park, Galena Park, Goose Creek, Huffman, Humble, Katy, Klein, LaPorte, North Forest, Pasadena, Spring, Spring Branch, Sheldon, Tomball, Clear Creek, Fort Bend, and Pearland. - 9 - intentional, racially discriminatory acts and omissions of both the HISD and the [additional] defendants." (R. 784b, p. 6, 11 33) The relief prayed for was the development and implementa tion of "a plan commensurate with the scope of the constitutional violations which will eliminate, to the maximum extent practicable, the remaining vestiges of the dual school system remaining in HISD and the Houston metropolitan area encompassed by HISD and the other defendant local school districts, without regard to school district boundaries and within a constitutionally accep table period of time." (R. 784b, pp. 9-10) HISD, but no other party to the action, objected. The additional defendants sought to be added also objected. On June 9, 1980, plaintiff black students filed a separate motion to add parties defendant and for leave to file amended complaint, and an amended complaint, which incorporated by reference the pleadings filed by the United States. (R. 792) The district court denied the government's motion to add parties defendant on June 10, 1980 on procedural grounds, without reaching the mertis. (R. 804) The next day, the court denied plaintiff black school children's motion "for the same reasons" as set forth in its prior memorandum and order. (R. 807) Separate motions to alter or amend were filed by plaintiffs and the United States. (R. 808, 810) These motions were denied in the district court's memorandum and order of June 17, 1981. (R. 819, pp. 33) Plaintiffs filed their notice of appeal on October 13, 1981. - 10 - Alleged Metropolitan Houston Violations The facts alleged in the motions to add parties defendant, complaints and supporting memorandum filed by plaintiffs and the United States-' concerning the existence of interdistrict violations in the metropolitan Houston area are to be taken as true for the purpose of review of the denial to the motions to add parties defendant and for leave to file amended complaints. See e.g., Jensen v. Olson, 353 F.2d 825, 828 (8th Cir. 1965). HISD is one of nine local school districts located in the City of Houston and one of 20 districts located in Harris County (R. 784a, p. 9, 1[ 47, R. 785 , pp. 3-4). Three of the districts located in Harris County include territory in adjoin ing counties, and three other districts are in whole or in part outside Harris County, but adjacent to HISD directly south.. (Id.)• HISD's 178,000 school students are 36% of the total 488,000 pupil population served by HISD and the additional defendant school districts. (Id.). However, HISD enrolls 71% of the area's black and 60% of the area's Hispanic students. (Id.).-' That concentration of minority students in the area 2/ The United States' motion to add parties defendant incor porated by reference factual allegations set forth in the amended complaint (R. 784b) and memorandum in support (R. 785). The facts alleged were discovered by counsel for the United States during an extended investigation in 1980. (See, R. 810). 3/ The number of school districts in Harris County has been reduced to 20 from 44 during the 20th century as a result of repeated consolidations, annexations and dissolutions. HISD's boundaries were contiguous with those of the City of Houston until 1950, but have not been since. Id., see also id.at pp. 6-7. - 11 - is alleged to have been created for the purpose and effect of establishing and maintaining a mutually dependent and inter related set of racially segregated schools (R. 784b, p. 8, }\ 45). HISD and each of the additional defendant school districts formerly operated dual public school systems segregated on the basis of race pursuant to the Texas Constitution, Article VII 7, and numerous State statutes (R. 784b, p. 6, 1[ 31.). Significant vestiges of the former statutory-imposed dual system remain. (Id. at 32). Indeed, even after the Supreme Court's decision in Brown v. Board of Education, 349 U.S. 294 (1955) Texas statutes required and funded the operation of racially segregated public schools and thwarted desegregation of schools in the Houston metropolitan area (R. 784b, p. 7, 1[ 40)-. HISD was asserted to have participated in a system of interdistrict transfers involving transfer of students by race, usually black, from one district to high schools in another dis trict designated for students of that race (R. 784b, p. 6, 1| 34). Thus, 16 of the additional defendant districts provided less than the full 12 year education program for black students as part of the dual system, and required black students to transfer to other districts to complete their education. Id. That and other reasons led to numerous segregative student transfers among HISD and additional defendant local school districts. (Id. at II 35) . _4/ See, e.g., Tasby v. Estes, 5 72 F.2d 1010, 1015, n. 18 (5th (!ir. 1978) . - 12 - During the period from 1954 through 1979, students transferred into HISD from 10-15 other districts, and transferred from HISD to 8-18 other districts in and outside of Harris County (R. 785, p. 6). Until at least 1964, HISD was formally designated every year by the Harris County Department of Education as the re ceiving school for "colored" high school students from as many as six suburban school districts (R. 784b, p. 7, 1[ 38, R. 785, p. 5) . Until 1969, segregative student transfers were approved by ^oth the Harris County Department of Education and the Texas Education Agency (R. 784b, p. 6, 1[ 35). Transportation provided for segregative transfers was approved by the County Department of Education, and approved and funded by the Texas Education Agency (Id. at 1[ 36) . ^ Since 1971, the Texas Education Agency has been required to review all transfers in order to determine if the transfers impede desegregation in either district (Id.). It is alleged that, for deliberate, racially discriminatory reasons, the City of Houston refused to approve the construction of low income public or subsidized housing outside of minority neighborhoods, and the construction of such developments only in minority neighborhoods contributed to the operation and main- of unlawful dual school system in HISD and the additional 5/ See United States v. State of Texas, 330 F. Supp. 235 (E.D. Tex. 1971), modified and affirmed, 447 F.2d 341 (5th Cir. 1971), cert, denied sub nom. Edgar v. United States, 404 U.S. 1016 (19 72). ------------------- - 13 - defendant local school districts (R. 784b, p. 7, 11 39) . Private racial discrimination in the metropolitan Housing housing market was condoned and encouraged in part through the recording of an availability of judicial enforcement of racially restrictive covenants, which continued well after the decision in Shelley v. Kraemer, 334 U.S. 1 (1948) (R. 784b, p. 7, 42, R. 785, p. 8). The State of Texas is alleged to have hindered desegrega tion and maintained the dual system by enacting legislation in the early 1950's which prevented the expansion of the HISD as the City of Houston expanded through annexation (R. 784b, p. 7, 11 42, R. 785 , pp. 6-7). As a result of these and other policies and practices, the great majority of minority students were allegedly concentrated in segregated schools in the HISD and virtually excluded from most districts outside HISD (R. 784b, p. 8, 44). Also the per ception was created throughout the Houston metropolitan area by these policies and practices of HISD as a predominantly minority and qualitatively inferior school district. (Id.). - 14 - II. Statement of Facts Prior to 1970 Much of the factual background of this case has been reviewed by this Court and is not in dispute. See, e.g., Ross v. Eckels, supra, 434 F.2d 1140. The HISD has been a typical dual system, with both student bodies and faculties segregated by race. Until 1960 the segregation was maintained through district-wide use of racially determined, overlapping attendance zones. In that year the district court ordered implementation of a grade-per-year transfer plan allowing voluntary transfers to the school maintained for the opposite race within the student's attendance zone. 5 Race Rel. Rep. 703, 709 (S.D. Tex. 1960). Although the timetable of grade coverage of the voluntary transfer plan was later accelerated, dual geographic attendance zones remained in effect under court orders through the end of the 1966/67 school year. In the 1967-68 school year a freedom of choice plan was ordered implemented and was operated through the 1969-70 school year. Only minimal desegregation was accomplished under that plan after three years. In December 1969, 77% of the black students in the entire system attended schools in which blacks were 90% or more of the student bodies. Of 170 elementary schools in the system, 44 were 90% or more black, and 95 were 90% or more white. At the junior high school level, 11 of the 36 schools were 90% or more black and 19 were 90% or more white. Of the 29 high schools, 7 were 90% or more black, and - 15 - 12 were 90% or more white. 434 F.2d at 1142-3. Prior to 1970 HISD teacher assignment practices conformed to the pattern of segregation with only white teachers being assigned to the white schools and blacks to the all black schools. (Stipulation, June 4, 1969). In 1967 the district court first ordered teacher assignments to effect teacher desegregation. Even so, through the 1969-70 school year teacher assignments across racial lines were made on a voluntary basis. All black schools had predominantly black faculties and all white or predominantly white schools had heavily white faculties. (Tr. 7/69 Hearings, pp. 214-75, 320). School construction in general has been undertaken pursuant to the district's policy requiring that new schools relieve or replace existing schools. Thus new black schools have been built to replace or relieve existing black schools and new white schools were built to replace or relieve existing white schools. (7/69 Hearing Ex_l&20; 1979 Hearing, Tr. 867- 71) . The 1970 Court Order During the 1970-71 school year the HISD implemented all portions of the 1970 court order except that part modified by the Court of Appeals which required pairing of elementary schools. This was implemented in 1971-72. The implementation of the plan in 1970 and 1971 resulted in far less desegregation than that projected under the court ordered plan. Nineteen schools at the secondary level which were all-black in 1969-70 - 16 - were projected to be less than 90% black in 1970-71. (R. 257, p. 29). However, in that school year 12 of these schools remained over 90% black and have never been below 90% black. (HISD Ex. 57). At the elementary level implementation of the plan similarly resulted in little desegregation of the black schools operating in 1969-70. The projections under the equi distant zoning plan indicated that 25 of the 53 elementary schools which remained segregated black or minority schools in 1969-70 would continue over 90% black in 1970-71. The Court of Appeals pairing modification was projected to reduce the number of 90% black schools to 15. 434 F.2d at 1148. In 1970—71, 34 of the elementary schools remained over 90% black, (HISD Ex. 57, 65). When the Court of Appeals pairing order was implemented 2 of the schools paired (Chatham and Sunderson) were traditionally black and resulted in schools over 90% black. Another pair which had become 78% black separately in 1970 (Rhoads and Frost) resulted in two 90% black schools. The other 10 traditionally black schools were paired with predominantly Mexican-American schools and in each case the school remained over 90% minority. Moreover, most of the predominantly Mexican-American schools involved in the pairs became 90% minority as well. After implementation of all aspects of the elementary school plan in 1971-72, 29 of the black elementary schools remained over 90% black and 14 others (10 of which were paired) remained over 90% minority. In sum, the 1970 court ordered desegregation plan resulted in very little additional desegregation. - 17 - Implementation of the Magnet School Proposal The 1975 magnet school proposal was designed to replace the 1971 elementary school pairings and to increase the level of desegregation both by increasing the number and percentage of students attending integrated programs and by decreasing the number of one race schools. (Tr. 1012-14). The program was scheduled to be implemented over a 2 year period. The plan was scheduled to include 42 schools (27 elementary and 15 secondary) with 45 magnet programs. At the time of the 1979 hearing there were 53 magnet programs. (Tr. 945). Eighteen of the programs were located in schools which had been in the past 90% black or 90% minority. (HISD Ex. 54-57; 68). Transfers under the magnet program appeared to minimally desegregate 4 of these schools (HISD Ex. 54). Similarly at the time of the 1979 hearing 7557 pupils were enrolled in magnet school programs (3411 blacks; 1544 Hispanics and 2602 whites). However, this figure overstates the desegregative impact of the magnet school programs since less than half, 3292, of these transfers were majority to minority transfers which enhanced desegregation. The remain ing 4265 were special transfers which in general had little or no desegregative impact. (HISD Ex. 68, p. 6). The magnet school program may be best described as an adjunct to the majority to minority provision of the 1970 court order. With respect to the majority to minority transfer provision in the 1970 order, there has been a steady increase in the - 18 - numbers of students utilizing this provision. In 1970, 2388 (all but 140 of whom were black) were granted these transfers; by 1974-75 this number had grown to 5225 (only 153 whites). (Govt. Ex. 1). After implementation of the magnet school proposal, the number grew to over 10,000 in 1977 (Govt. Ex. 1). But only 560 of these were white students. These statistics indicate that very few transfers are made by white students. Thus the effect of the provision has been to aid in the desegregation of formerly white schools, but it has virtually no desegregative impact on black or minority schools. After 10 years of operation under the court ordered desegregation plan, as amended by the magnet school proposal, the level of segregation in the HISD has decreased only minimally as the following chart demonstrates: # 90% Black and # 90% M/A # 90% Black Schools M/A Schools____ Schools 1969-70 : 66 12 6 1970-71 : 49 19 5 1971-72 : 49 27 4 1975-76 : 61 25 7 1978-79 : 55 28 12 (HISD Ex. 54) In the same way, the percentage of blacks in racially identifiable schools has decreased only minimally. - 19 - 1969-70 % Bl. in 90% Bl. Schools % Bl. in 90% M/A Schools % M/A in 90% Min. Schools 1971-72 1978-79 70% 87% 30.6% 58.9% 75.2% 34.1% 56% 72.0% 39.6% The HISD has undergone change in racial composition as reflected in the following chart: Total Enrollment %A %B %M/A 1969-70 237,931 53.1 33.4 13.4 1970-71 241,138 49.9 35.6 14.4 1971-72 231,922 46.9 37.6 15.5 1972-73 224,157 44.1 39.4 16.5 1973-74 - 40.9 41.2 17.9 1974-75 210,787 39.0 42.0 19.0 1975-76 210,397 37.1 42.6 20.3 1976-77 209,697 35.1 43.1 21.8 1977-78 206,998 33.2 44.0 22.8 1978-79 201,000 30.8 45.0 24.2 (approx.) (HISD Ex. 54) - 20 - SUMMARY OF ARGUMENT The lower court wholly evaded its duty to provide a complete remedy to the unconstitutional segregation of black school children by failing to make every effort to achieve the greatest possible degree of actual desegregation by use of the tools suggested in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), such as gerrymandering of school districts and attendance zones; pairing, clustering or group ing of schools and the use of busing. The lower court wholly evaded its duty to provide a complete remedy to the unconstitutionl segregation of black school children in exclusively black HISD schools by failing to consider the merits of the claim for inter-district relief. It was an abuse of discretion to decline to decide on the merits the question of whether HISD and additional defendants operated and maintained a dual school system in the Houston Metropolitan Area in violation of the Constitution, and that an inter-district remedy is required. The motions for leave to amend the complaint and to join additional defendants were timely made in light of recently discovered evidence. The motions result in no prejudice or burden to HISD's ability to defend the merits since the alternative to resolving the claim in the instant action would be the litigation of the same claim in a separate action. - 21 - ARGUMENT I. The HISD Has The Duty to Eliminate All Vestiges Of State Imposed Segregation. Chief Justice Burger's opinion in Swann v. Charlotte- Mecklenburg Board of Education, 4 2 U.S. 1 (1971), is no less valid today than it was at the time it was decided. As he said then: The objective today remains to eliminate from the public schools all vestiges of state-imposed segregation. Segregation was the evil struck down by Brown I as contrary to the equal protection guarantees of the Constitution. That was the violation sought to be corrected by the remedial measures of Brown II. That was the basis for the holding in Green that school authorities are "clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." 391 U.S. at 437-38. 402 U.S. 15. See, Columbus Board of Education v. Penick, 443 U.S. 449, 459 (1979); Dayton Board of Education v. Brinkman, 443 U.S. 526, 538 (1979). Moreover a district court "should retain jurisdiction until it is clear that state-imposed segregation has been completely removed." Green v. New Kent County School Board, 391 U.S. 430, 439 (1968); Raney v. Board of Education 391 U.S. 443, 449 (1968). In making the determination that the dual system has been "completely removed," what Chief Justice Burger said in Swann with reference to the continued existence of one race schools applies to this case: - 22 - . . . [I]t should be clear that the existence of some small number of one-race, or virtually one- race schools within a district is not in and of itself the mark of a system that still practices segregation by law. The district judge or school authority should make every effort to achieve the greatest possible degree of actual desegregation and will thus necessarily be concerned with the elimination of one race schools. No per se rule can adequately embrace all the difficulties of reconciling the competing interests involved; but in a system with a history of segregation the need for remedial criteria of sufficient specificity to assure a school authority's compliance with its Constitutional duty warrants a presumption against schools that are substantially disproportionate in their racial composition. Where the school authorities proposed plan for conversion from a dual to a unitary 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 assignments are generally non-discriminatory. 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. Thereafter in Swann Chief Justice Burger describes the array of remedies within the scope of a district court's equitable powers to eliminate the effects of past discrimination, such as majority to minority transfer provisions; gerry mandering of school districts and attendance zones; and pairing, clustering and grouping of non-contiguous school zones. This Court has held that consideration of the techniques suggested by Chief Justice Burger in Swann is a prerequisite to the entry of a unitary finding where one race schools will continue to exist. In another Texas case closely analogous to the instant case on the facts, this Court stated: - 23 - The district court was instructed in the opinion of the prior panel to consider the techniques for desegregation approved by the Supreme Court in Swann v. Charlotte Meckenburg Board of Education 402 U.S. 1 (1971) We cannot properly review any student assignment plan that leaves many schools in a system one race without specific findings by the district court as to the feasibility of these techniques. Davis v. East Baton Rouge Parish School Board, 570 F.2d 1260 (5th Cir. 1978). Tasby v. Estes, 572 F.2d 1010, 1014 (5th Cir. 1978). This Court in Tasby went on to disapprove the unitary finding in Tasby because: There are no adequate time-and-distance studies in the record in this case. Consequently, we have no means of determining whether the natural boundaries and traffic considerations preclude either the pairing and clustering of schools still existing. See, Mims v. Duval County School Board, 329 F. Supp. 123, 133-34 (M.D. Fla.) affrm'd, 447 F.2d 1330 (5th Cir. 1971). 572 F.2d at 1014. See also Valley v. Rapides Parish School Board, 646 F.2d 926 (5th Cir. 1981); Anderson v. Dougherty County Board of Education, 609 F.2d 225 (5th Cir. 1980); Lee v. Tuscaloosa City School System, 576 F.2d 39 (5th Cir. 1978); U.S, v. Valdosta City School System, 576 F.2d 37 (5th Cir. 1978); Lemon v. Bossier Parish School Board, 566 F.2d 985 (5th Cir. 1978); U.S. v. South Park School Board, 566 F.2d 1221 (5th Cir. 1978); U.S. v. Seminole City School Board, 553 F.2d 992 (5th Cir. 1977); Miller v. City of Gadsden School System, 482 F.2d 1234 (5th Cir. 1973); Davis v. East Baton Rouge Parish School Board, 514 F. Supp. 869 (M.D. Louisiana 1981); Davis v. East Baton Rouge Parish School Board, 498 F. Supp. 580 (M.D. Louisiana 1980). - 24 - As appears more fully hereinafter, in this case, as in Tasby, the district court's unitary findings cannot be sustained because of the failure of the HISD to attempt to utilize any of the desegregation techniques suggested in Swann. - 25 - The HISD Has Not Shown That It Has Done All That Could Practically Be Done To Eliminate The Dual System. The distict court's findings that the HISD has done all that could be done practically to eliminate the continuing effects of the dual system, and that a unitary system has been established, cannot be sustained. As the exhibits and testimony at the 1979 hearing make clear, roughly 70% of the black students in the HISD attend schools which are 90% or more minority. (Tr. 2835; HISD Ex. 54) There are 22 schools which have been 90% or more black continuously since 1960. (Attachment A) All together there were 55 90% or more black schools. (HISD Ex. 54; 57) The HISD has blamed the continuing existence of previous patterns of racial segregation in the Houston School system on white flight. Indeed, the district court adopted this view and stated that the diminishing white population makes it impossible to desegregate the one-race schools in the inner city of Houston, (p. 26) The court further found that none of the alternative remedies suggested in Swann would work in the circumstances of this case. Neither of the justifications for the court's unitary finding may be sustained. With reference to the suggested remedies in Swann, the district court failed to make the "specific findings . as to the feasibility of these techniques." Tasby v. Estes, II. - 26 - supra, 572 at 1014. There are not time and distance studies in the record in the case and thus no means of determining, as is required by Tasby, "whether the natural boundaries and traffic considerations preclude either the pairing and clustering of schools or the use of transportation to elimi nate the large number of one-race schools still existing." Id. The district court merely found that: The maps indicate that the pairing and grouping of non-contiguous school zones would have to be employed to achieve greater desegregation without disrupting the schools which are integrated due to natural neighborhood changes or as a result of the tri- -ethnic transfers and the magnet schools. The time and distance of travel between non-conti guous zones in Houston would be substantial. (R. 818, p. 24) After noting that Houston "experiences weekly population increases" and that travel times are "compounded relentlessly by increased traffic congestion", the court stated that, as a general matter, "Court imposed busing is extremely disruptive to public education" and that both black and hispanic parents had opposed busing to the paired black and hispanic schools in 1971-75. It concluded that the Swann alternatives did not apply in Houston. (R. 818, pp. 25-26) It is impossible to determine what specific factors about the locations of the schools and time and distance of travel influenced the district court in making its findings, or to evaluate any of the alternatives considered by the court, or to review its judgement of them. Moreover, the district court did not have before it any proposed desegregation plan that might have tested realistically the approaches suggested in Swann, which were rejected by the district - 27 - court. Thus neither the HISD nor the district court even tried to take "whatever steps might be necessary to covert to a unitary system in which racial discrimination would be eliminated root and branch." Green v. New Kent County Board of Education Supra, 391 U.S. at 437-38, quoted in Swann at 402 U.S. at 15. This Court has held that school officials are responsible for remedying unlawful segregation whether or not they are responsible for a particular desgregation plan's failure. Lee v. Autauga County Board of Education, 514 F.2d 646, 648 (5th Cir. 1975); U.S. v. Seminole County School District, supra, 553 F.2d at 995. Where a school district's desegrega tion plans do not work, and leave unaltered the racial composition of schools which were designated for blacks under the dual system, a unitary system has not been established. U.S. v. Hinds County School Board, 560 F.2d 1188, 1199 (5th Cir. 1977) cert, denied, 435 U.S. 951 (1978). In addition HISD's argument that further desegregation efforts should not be considered because of white flight cannot be accepted by the court. The Supreme Court has consistently held that concern over possible white flight cannot be acccepted as a reason for achieving anything less than the complete disestablishment of the dual public school system. Cooper v. Aaron, 358, U.S. 1 (1958); Monroe v. Board of Education, 391 U.S. 450, 459 (1968); U.S. Scotland Neck Board of Education, 407 U.S. 484 (1972); Anderson v. Dougherty County School District Board, supra, 609 F.2d 225 Moreover, there was ample credible evidence of the possibility that other of the tools suggested by Chief Justice - 28 - Burger in Swann could achieve greater desegregation in Houston. 'Dr. Gary Orfield, the government's expert witness, testified at some length that historically use of magnet schools and majority-to-minority transfer provisions in a voluntary plan have been unsuccessful in accomplishing desegregation in large urban school systems with large minority populations. The evidence supports use of magnet schools as part of comprehensive mandatory plans. He suggested that they could be used better in conjunction with clustering, non-contiguous pairing, or educational parks, and with exemptions for integrated areas in Houston. He acknowledged that it was probably impossible to desegregate stably all of the HISD schools within its current boundaries, but that much more could be accomplished in Houston. The desegregation effort in Houston has been one of the least successful in the country, and he sees the situation becoming worse without drastic change in the approach of the school district. He knows of no comparably sized school district maximizing desegregation through use only magnet schools. (TR.2222-2310) br. Orfield's testimony concerning the limitations of the voluntary approach to desegregation is supported by a recently published study. Mark A. Smylie, "Reducing Racial Isolation In Large School Districts: The Comparative Effectiveness Of Mandatory And Voluntary Desegregation Strategies," Center For Educational Policy, Institute For Policy Studies, Vanderbilt University, February 1982. In - 29 - that study Smylie focused on the limitations in the effectiveness of magnet schools in voluntary desegregation plans and showed that historically mandatory student assignment plans have achieved more than three times the racial balance obtained under voluntary plans. Mandatory plans were also substantially more effective in reducing numbers of racially identifiable minority schools and the proportion of minorities attending those schools. Districts under mandatory plans have tended to maintain higher levels of desegregation over time. Smylie's study also shows that even among those cities of comparable size with similar ethnic make up, Houston ranks among the least successful in achieving de segregation of its dual system. The HISD, in short, has manifestly failed to fulfill its continuing affirmative duty to disestablish its dual school system in violation of the Fourteenth Amendment. Where a racially discriminatory school system has been found to exist, Brown II imposes the duty on local school boards to "effectuate a transi tion to a racially nondiscriminatory school system." 349 US [294] 301. "Brown II was a call for the dis mantling of well-entrenched dual systems," and school boards operating such systems were "clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." Green v. County School Board, 391 US 430, 437-38. Each instance of a failure or refusal to fulfill this affirmative duty continues the violation of the Fourteenth Amendment. Dayton I, 433 US, at 413- 414; Wright v. Council of City of Emporia, 407 US 451, 460 (1972); United States v. Scotland Neck Board of Education, 407 US 484 (1972); Columbus Board of Education v. Penick, supra, 443 U.S. at 458. As the Supreme Court put it in Dayton Board of Education v. Brinkman, supra, 433 U.S. at 538, "the measure of the post- Brown I conduct of a school board under an unsatisfied duty to - 30 - liquidate a dual system is the effectiveness, not the purpose, of the actions in decreasing or increasing the segregation caused by the dual system." Where, as here, a school district has simply refused to utilize meaningful desegregation measures in any sub stantial fashion, it cannot be excused from a constitutional obligation so many other school districts have dutifully dis charged. That would only reward recalcitrance and invite re sistance to law. - 31 - III. The District Court Plainly Abused its Discretion by Refusing to Consider the Merits of the Claim that Metropolitan Houston-wide Relief May be Appropriate to Cure a Constitutional Violation Participated in by HISD and Other Entities on an Interdistrict Basis. Plaintiffs and the United States attempted to put in issue that interdistrict relief is an appropriate remedy. The claim was made in light of recently discovered evidence that the concentration of black school children in exclu sively minority schools in the HISD results, not only from HISD's intradistrict acts, but also interdistrict acts and omissions of HISD, other local school districts and other state entities which have resulted in a metropolitan-wide dual school system. The district court, however, declined to consider the merits of that claim. Instead, the court decided that the amendment of the complaint to add inter district allegations and prayer for relief and joinder of additional defendants was inappropriate on various procedural grounds, which we discuss below. Initially, however, we note that if the claim of plaintiff black students and the United States is correct, black school children necessarily cannot obtain complete relief in this 26 year old school desgregation case. Plaintiffs are entitled to relief in which "all vestiges of state-imposed segregation" are eliminated, Swann v. Charlotte Mecklenburg Board of Education, 402 U.S. 1, 15 (1971), "the greatest degree of actual desegregation, taking into account the - 32 - practicalities of the situation" is achieved, Davis v. School Com'rs of Mobile County, 402 U.S. 33, 37 (1971), and in which "state-imposed segregation has been completely removed," Green v. County Board of Education, 391 U.S. 431, 439 (1968). Compare Columbus Board of Education v. Penick, 433 U.S. 449, 458-459 (1979); Dayton Board of Education v. Br inkman, 443 U.S. 526 , 538 (1979). Plainly, racial discrimination is not "eliminated root and branch", Green, supra, 391 U.S. at 438, when a court simply declines to decide if black students were subject to interdistrict vio lations which compounded the level of unconstitutional segre gation in their schools. Such a court violates its own duty "'to come forward with a plan that promises realisti cally to work ... now ... until it is clear that state- imposed segregation has been completely removed'" Swann, supra, 402 U.S. at 13, quoting Green, suppa, 391 U.S. at 439 (original emphasis); see Raney v. Board of Education, 391 U.S. 443, 449 (1968) . Second, the decision contributes to the needless delay and expense of further litigation. The simple fact of the matter is that — if the court's reasoning stands — the claim for interdistrict relief, although clearly related to _$/the instant case, would have to be litigated in a completely separate litigation. If that litigation is successful, the relief granted would in all likelihood entail modifications 6/ In the very same memorandum in which the court denied the interdistrict motions, it declared that interdistrict plan would begin in September 1980. p. 12). - 33 - below a voluntary (R. 804, of the remedy granted in the instant case. Nothing would be served except needless delay and expense, and the celebration of form over substance. Indeed, the lower court's fundamental error is to ignore that the basic thrust of the modern Rules of Civil Proce dure is to promote, where possible, speedy decisions on the merits in a single judicial proceeding. It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of ... mere technicalities. 'The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.' Conley v. Gibson, 355 U.S. 41, 48. The Rules themselves provide that they are to be construed to secure the just, speedy and inexpensive determination of every action.' Rule 1. Foman v. Davis, 371 U.S. 178, 181-182 (1962). Thus, the lower court's ruling simply cannot be squared with express language of applicable Rules that leave to amend "shall be freely given," Rule 15, and that "[pjarties may be ... added by order of the court on motion of any party ... at any stage of the action." Rule 21. Indeed, the ruling is unprecedented. No other court in 2/ If a separate action seeking only interdistrict relief had been filed by plaintiffs and the United States, is there any question that that action would have been consolidated or treated as a related case with the pending litigation, or that HISD itself would have moved to have the case so treated in order to avoid the delay and expense of defending its policies and practices concerning black school children in two separate cases. See Calhoun v. Cook, 522 F.2d 717, 720 (5th Cir. 1975). Indeed, Calhoun advises that it would be error to declare HISD unitary as to its intradistrict acts, while a separate interdistrict case was pending. 34 a pending intradistrict case, no matter what its ultimate disposition, has declined at the threshold to consider the merits of a request for interdistrict relief. E.g., Milliken v. Bradley, 418 U.S. 717 (1974); Adams v. United States, 620 F.2d 1277, 1294 and n. 27, 1296 (8th Cir. 1980) , cert, denied, 449 U.S. 826 (1980); Tasby v. Estes, 572 F.2d 1010, 1015 (5th Cir. 1978), aff'ing in part and rev'ing in part, 412 F. Supp. 1185 (N.D. Tex. 1975); United States v. Board of School Com1rs of Indianapolis, 503 F.2d 68 (7th Cir. 1975), cert. denied, 421 U.S. 921 (1976); Bradley v. School Board of the City of Richmond, 51 F.R.D. 139 (E.D. Va. 1970); 462 F.2d 1058 (4th Cir. 1972) (en banc), aff'd by equally divided count 412 U.S. 92 (1973); Evans v. Buchanan, 379 F. Supp. 1218 (D. Del. 1974); 393 F. Supp. 478 (D.Del. 1975), aff_M, 423 U.S. 963 (1975). A. Amendment of the Complaint Pursuant to Rule 15 Plaintiffs and the United States sought to amend their complaints in order to add an interdistrict violation claim and prayer for relief and the corresponding additional defendants pursuant to Rule 15 in order to litigate the merits of interdistrict relief. The motions were denied for procedural grounds without a hearing or even time for movants to respond to procedural objections. Affidavit evidence submitted in support of motions to alter or amend was simply ignored. The applicable rule, however, is that a plaintiff ordinarily "ought to be afforded an opportunity to test his claim on the merits." 35 6 Wright 3 Moore' v. Hinds Spartan Rule 15(a) declares that leave to amend 'shall be freely given when justice so requires;' this mandate is to be heeded. If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be "freely given." Of course, the grant or denial of any opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules. Foman v. Davis, supra, 371 U.S. at 182 and Miller, Fed. Pract. and Proc. §1471 (1971 ed. ) ; s Fed. Pract. §15.08[2] (1980 ed.). See, ê _cf. , Gr iggs Junior College, 563 F.2d 179, 180 (5th Cir. 1977); Grain & Mill Co. v. Ayers, 517 F.2d 214, 220 (5th Cir. 1975); Sherman v. Hallbauer, 455 F.2d 1236, 1242 (5th Cir. 1972); Lone Star Motor Import, Inc, v. Citroen Cars Corp., 288 F.2d 69, 74-77 (5th Cir. 1961). The lower court, erroneously, declined to follow the usual rule for two reasons: purported undue delay, and undue prejudice to HISD as a result of adding a new theory of recovery. (R. 804, pp 6-12). Neither ground has any basis in the record or law: the denial is essentially an "outright refusal to grant the leave without any justifying reason" and, therefore, an abuse of discretion. Foman, supra, 371 U.S. at 182; Lone Star Motor Import, Inc._v. Citroen Cars Corp., supra, 288 F.2d 74-77. 36 With respect to undue delay by movants, the court specu lated that "the moving party knew about the facts on which the proposed amendment is based but omitted such facts from its earlier pleading" (R. 804, p. 9). However, it failed to permit plaintiffs or the United States to either respond to the objection or present proof in hearing with respect to the accuracy of the court's speculation. Indeed, uncontradicted affidavits of counsel for the plaintiffs and the United States, submitted in support of the motions to alter or amend, establish that the court was clearly wrong in its 8/speculation as to the underlying facts. ~ Thus, the affidavit of plaintiffs' counsel Weldon H. Berry establishes that it was not until May 13, 1980, when counsel for the United States informed plaintiffs of their intention to file a motion for leave did plaintiffs and their counsel first learn of the existence, pattern, and extent of the interdistrict constitutional violations committed by HISD and the parties sought to be joined (R. 811, see R. 808). Because interdistrict relief cannot be imposed absent proof of a widespread pattern of interdistrict violations, see Milliken v._Bradley, supra, it was not until May 13, 1980 that plaintiffs were in a position to seek court-ordered interdistrict relief. Plain tiffs then filed their motion within three weeks. Affidavits of counsel for the United States established that its amended complaint and motion also were filed without 8/ The court denied the motions to alter or amend without any discussion of this uncontradicted proof. 37 undue delay: (1) the interdistrict issue was first raised by the court itself in a limited way in its order of June 9, 1978, see supra at p. 8, when HISD was required to inves tigate voluntary interdistrict steps that might be possible; (2) the same order required the United States only to brief existing law governing interdistrict relief, which was timely done; (3) in May 1979, the United States requested HISD to provide information concerning possible interdistrict violations which it had investigated but the HISD declined to; (4) at the end of the October 1979 hearing, the Department of Justice prepared for and conducted an extensive on-site investigation of interdistrict violations in January - March, 1980; (5) the Department did not act immediately on its investigation because of the need to assess the adequacy of a plan for voluntary interdistrict relief proposed by the Texas Education agency which the district court had ordered filed by April 1, 1980; (6) the United States' motion was filed on May 15, 1980, about three weeks after the filing of a negative assessment of the Texas Education Agency's voluntary interdistrict plan. Thus, the only articulated factual premise underlying the court's denial of the motion for undue delay has absolutely no support in the record. The record establishes precisely the opposite. The lack of record support, and indeed the court's deliberate failure to consider the actual facts, was an abuse of discretion. Foman, supra; Lone Star Motor Import, 38 Inc., supra. Moreover, the court gave no reason for denying plaintiffs' motion other than the statement that it was denied for the "same reasons" as the government's motion, although the court's rationale for denying the government's motion, plainly does not apply to plaintiffs who did not learn of the interdistrict violations until May 13, 1980. The denial of plaintiffs' motion without justifying cause is reversible as an abuse of discretion on that ground alone. E.g., Foman v. Davis, supra, Griggs v. Hinds Junior College, supra, 563 F.2d at 180; Hilgema v. National Ins. Co. of America, 547 F.2d 298, 303 (5th Cir. 1977); Spartan Grain & Mill Co. v. Ayers, supra, 517 F.2d at 221; Lone Star Motor Impor t, Inc., supra, 288 F.2d at 75. As to the denial of leave to amend because a new theory of recovery was prejudicial to HISD, we are at a loss to understand any prejudice to HISD: The court below certainly found no actual prejudice to HISD's ability to defend the merits. All it did was to infer that prejudice would flow from the addition of a new theory. However, the court ignored that the alternative to having HISD and other 2. / 9/ Zenith Radio Corp. v. Hazelton Research, Inc., 401 U.S. 321, 330 (1971) does not establish that the discretion of the trial court is somehow unreviewable. Zenith, in any event, involved a defendant's deliberate waiver of a defense which was required to be affirmatively raised, and the absence of any record indicating otherwise. Dunn v. Koehring Co., 546 F.2d 1198 (5th Cir. 1977) and Combee v. Shell Oil Co., 615 F.2d 698 (5th Cir. 1980) are to the same effect. All three cases are thus distinguishable on the facts, which the district court in the instant case simply chose to ignore. 39 defendants defend the interdistrict claim on the merits in the instant action is to have HISD and the other defendants defend the merits of the same interdistrict claim in an independent action. Indeed, the former course, which the court rejected, is likely to be more efficient and expeditious for HISD. The notion that the addition of a new theory of recovery is prejudicial to HISD, in any event, is legally unsupported. Foman v. Davis, supra, 371 U.S. at 182, itself was precisely a case in which the denial of leave to amend to add a new theory of recovery was declared an abuse of discretion under Rule 15. That is the law. 6 Wright & Miller, Fed. Pract. & Proz. §1474 (1971 ed.); 3 Moore's Fed. Pract. 1(15.08 [3] (1981 ed.). See, e. g. , Sherman v. Hallbauer, supj:a, 455 F.2d at 1242; Doucet v. Wheless Drilling Co. , 4 6 7 F.2d 336 (5th Cir. 1972). There was, as discussed above, no , , . , 10 / undue delay in presenting any new theory. — Moreover, the court ignored that the only party preju diced by the denial of leave was the plaintiff class of black school children. The action was filed 26 years ago; this court recently permitted the addition of the child of one of the original class representatives to be added as an additional named plaintiff. It is black school children who 10/ The court suggested that the new theory was dilatorily advanced. The affidavits of counsel, discussed above, are a sufficient response. Of course, HISD's refusal to turn over to the United States the results of its own interdistrict investigation was in part responsible for any purported delay. 40 are subject to further delay of the vindication of their right to a full and complete disestablishment of a dual school system. Denial of leave remands them to possibly incomplete relief in the instant case, while additional relief is adjudicated in a separate proceeding with all the hazards of attendant delay. That is the very inefficiency and delay the Federal Rules were designed to avoid "in line with the Federal Rules' overall goal of resolving disputes insofar as possible, on the merits and in a single judicial proceeding. Spartan Grain & Mill Co. v. Ayers, supra, 517 F.2d at 220. B. Joinder of Parties Pursuant to Rules 19 and 21 Rule 21 provides, in pertinent part, that: "Parties may be ... added by order of the court on motion of any party or of its own initiative at any stage of the action." Rule 19(a) describes persons to be joined if feasible. ll/ Rule 19(a) provides that: Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff... 41 There is no real dispute that the additional parties defen dant, i.e., the additional local school districts, Harris County, Texas Education Agency and the Education Commissioner and the State of Texas, are proper Rule 19 parties because they and HISD are asserted to be involved in or affected by constitutional violations whose segregative consequence affected public schools throughout the Houston metropolitan area, and the involvement of all these parties in this litigation is necessary if appropriate relief for those violations is to be developed and implemented. The district court simply did not gainsay those assertions. Rule 21 "provides the courts with a valuable procedural device that can be used to avoid multiple litigation and to promote liberal joinder of parties." 7 Wright & Miller, Fed. Pract. & Proc. §1681 (1972 ed.); 3A Moore's Fed. Pract. 1(21.0 [1] (1979 ed.). Joinder under Rule 21 is governed by the Rule 15 standard that "leave shall be freely given when justice so requires." MeLeilan v. Mississippi Power & Light Co., 526 F.2d 870, 873 (5th Cir. 1976), modified in other respects, 545 F.2d 919 (5th Cir. 1977) (en banc); (and authorities cited). Where as here proper Rule 19(a) criteria 12 /are met, joinder should have been granted. As noted 12J As the Advisory Committee noted with respect to Rule 19(a): If a person as described in subdivision (a)(1)- (2) is amenable to service of process and his joinder wouid not deprive the court of jurisdiction in the sense of competence over the action, he should be joined as a party; and if he has not been joined, the court should order him to be brought into the action. 42 above, every court in an intradistrict school desegregation case, which has addressed the question of joinder of addi tional defendants, for the, purpose of hearing the merits of interdistrict relief, has done so. E.g., Tasby v. Estes, supra, 572 F.2d at 1015; 412 F. Supp. at 1186-1187. The lower court, however, wholly ignored that the joinder rules are to be liberally applied. Instead, the district court ruled that joinder of additional defendants was not necessary on the pending issue of whether unitary status has been achieved by HISD intra district, and that it would be burdensome to broaden the scope of the litigation. R.804, pp 2-6. Neither of these grounds, however, has any support. While it is true that joinder of additional parties i's not necessary for purposes of resolving the issue of HISD's intradistrict unitary status, that is not a reason for nonjoinder. First, this is a school desegregation case in which the court's duty is to eliminate all vestiges of a dual school system, supra, at pp. 32-33. The issue was squarely addressed in Bradley v._School Board of City of Richmond, supra, 51 F.R.D. at 141, where the court had already found that it was possible to create a unitary intradistrict school system. 12/ continued Amendments to Rules of Civil Procedures, 39 F.R.D. 69, 91-92 (1966) . 43 It is by no means inconsistent with the existence of a duty on the part of officials with powers to exercise such powers to afford different or additional relief for what the court has found to be state imposed segregation. The addition of further parties, moreover, alters the range of alternatives, some of which may be shown as feasible and more promising in their effectiveness. Green v. County School Board of New Kent County, 391 U.S. 430, 439, 88 S. Ct. 1689, 20 L Ed 2d 716 (1968). It is with an eye to this range of choices between means to provide desegregated schools that the legal sufficiency of a proposed unitary plan is to be tested. Second, the district court's limited and technical notion of necessity is precisely what Rule 19(a) was intended to avoid. Present Rule 19(a) was drafted in 1966 "'to eliminate formalistic labels that restricted many courts from an examination of practical factors of individual cases'" 7 Wright & Miller §1601 (1972 ed). Thus, the Advisory Committee notes specifically state that: Clause (1) stresses the desirability of joining those persons in whose absence the court would be obliged to grant partial or 'hollow' rather than complete relief to the parties before the court. The interests that are furthered here are not only those of the parties, but also that of the public in avoiding repeated lawsuits on the same essen tial subject matter. Amendments to Rules of Civil Procedure 39 F.R.D. 69, 91 (1966). "[T]he impulse is towards entertaining the broadest scope of action, consistent with fairness to parties; joinder of claims, parties and remedies is strongly encouraged." United Mine Workers v. Gibbs, 383 U.S. 715 724 (1966). As the Bradley court put it: The court must also consider that the joinder of [additional defendants] may well serve the interest of judicial efficiency in preventing 44 duplicative litigation, will afford the original defendants, one hopes in the interests of a minimum of litigation, a more durable adjudication of the extent of their legal duty, and will create a greater opportunity to afford the plaintiffs the relief they ask and contend they are entitled to. 51 F.R.D. at 143. The additional defendants sought to be added, in short, '-' - are necessary to give black school children a full and complete desegregation plan, which may include a metropolitan Houston desegregation plan. Third, cases in which the court permitted joinder and decided against interdistrict relief on the merits provide no support for the denial of joinder at the outset. 3A Moore's Fed. Pract. 1[ 21.05 [1]. Such authorities as Tasby v. Estes, supra, support liberal joinder in order to facilitate a decision on the merits in a single action. With respect to delay and burdensomeness, as to Rule 21 joinder, we rely on our discussion of Rule 15 criteria, see supra, Argument III, A., which applies to Rule 21 joinder, we note only that on its face Rule 21 states that joinder is permissible "at any stage of the action," and that HISD suffers no proper prejudice where denial of joinder merely means that HISD and additional defendants would be put to defend the same allegations in a separate action. 45 CONCLUSION For all the reasons stated, the decision of the district court should be reversed Respectfully submitted, JAMES M. NABRIT, III LOWELL JOHNSTON BILL LANN LEE 10 Columbus Circle Suite 2030 New York, New York 10019 WELDON H. BERRY 711 Main Street Suite 620 Houston, Texas 77002 Attorneys for Appellants 4-6 One-Race Black Schools (90% or more) in 1978-79 Elementary Schools Alcott Allen Atherton Bastian Blackshear Bowie Carnegie Chatham Clinton Park Codwell Concord Douglass Dunbar Easter Fairchild Foster Frost Grimes Hartsfield Henderson, N.Q. Highland Heights Houston Gardens Kashmere Gardens Kelso Kennedy Langston Law Lockhart Mading McDade Osborne Pleasants Reynolds * Rhodes * Sanderson Southland * Sunny Side Turner * Wesley * Whidby Junior High Schools Attucks Cullen * Key * Ryan * Smith, E.O Terrell Thomas Williams Woodson High Schools Jones, J. * Kashmere Sterling Washington, T. * Worthing * Yates Black continuously since 1960. Attachment A CERTIFICATE OF SERVICE # * ft This is to certify that on this the 2nd day of March, 1982, two copies of the foregoing Appellants' Brief were served on counsel to the parties by United States mail, postage pre paid, addressed as follows: William Key Wilde Kelly Frels 2900 South Tower Pennzoil Place Houston, Texas 77002 Burt Dougherty U.S. Justice Department Civil Rights Division 550 11th Street, N.W. Washington, D.C. 20001 Peter D. Roos Mexican-American Legal Defense & Educational Fund 28 Geary Street San Francisco, California 94108 Robert E. Hall Bob Hall & Associates 5850 San Felipe Houston, Texas 77057 Joseph D. Jamail 3300 One Allen Center Houston, Texas 77002 Edward Mallett Pape & Mallett Suite 600 1929 Allen Parkway Houston, Texas 77019 Sydney L. Ravkind Mandell & Wright 21st Floor 806 Main Street Houston, Texas 77002 ^ jA a t Ia a l (/\ J 1 a / A "'•Attorney for Plaintiffs ■48