Ross v. Houston Independent School Brief for Appellants

    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