Ross v. Houston Independent School Opinion

    IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 81-2323

DELORES ROSS, ET AL.,

Plaintiffs-Appellants,

versus

HOUSTON INDEPENDENT SCHOOL 
DISTRICT, ET AL.,

Defendants-Appellees.

Appeal from the United States District Court 
for the Southern District of Texas

( FEBRUARY 16, 1983 )

Before RUBIN and JOHNSON, Circuit Judges, and DUPLANTIER*, District Judge. 

RUBIN, Circuit Judge:

♦District Judge of the Eastern District of Louisiana, sitting 
by designation.



In 1956, two years after the Supreme Court decided Brown v. Topeka Board of 

Education, 347 U.S. 483, 74 S.Ct. 686, 98 L„Ed.2d 873 (1954) (Brown I), a group of parents 

of black children enrolled in the Houston Independent School District (HISD) filed this 

suit to desegregate its schools. A fter twenty-five years of court proceedings and twelve 

years of operation under a court-ordered desegregation plan, the district court has now 

decided that the school district has eliminated all vestiges of de jure segregation and has 

become unitary. The vestiges of all discriminatory practices have been eliminated in 

every aspect of school operations, but efforts at integration have failed in one aspect 

alone: the district has not achieved integrated student attendance. The district court 

found, however, that the homogeneous student composition of the schools does not stem 

from the unconstitutional segregation practiced in the past but from population changes 

that have occurred since this litigation commenced, and that the geography of the school 

district, traffic conditions, and population patterns make further efforts to eliminate all 

one-race schools impractical.

The district court found that HISD has eliminated the vestiges of state-imposed 

segregation within the boundaries of this large and sprawling school district, whose black 

and Hispanic population increases annually while its white population dwindles, although 

desegregation has provided an integrated learning environment for few of the successors 

of the black children who originally brought this action. We conclude that the district 

judge did not err in deciding that lack of effort does not account for the student 

attendance patterns in HISD. Because that court's findings of fact are not clearly 

erroneous and its decision is supported by the record, we affirm.

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The district court also denied the plaintiffs-appellants leave to amend the com­

plaint so as to add twenty-six additional parties and seek interdistrict relief from both 

the HISD and adjacent school districts, not previously parties to the suit, on the ground 

that the new claim came too late to be considered in this proceeding. We affirm that 

action without prejudice to the assertion of such a claim in an appropriate suit.

I.

HISD is now the fifth largest school district in the nation. During the 1978-79 

school year, 201,960 students enrolled in its 226 schools — 170 elementary, 34 junior 

high, and 22 senior high schools. It is one of nine school districts located in the city of 

Houston and one of twenty districts in Harris County. Defined by statute long before 

Brown I, its boundaries meander in and out of Houston's city limits. Three of the school 

districts serving Harris County also include territory in adjoining counties and three more 

districts serving students in the metropolitan area are wholly or in large part outside 

Harris County, but directly south of and adjacent to HISD. In 1978-79, HISD's students 

were 36% of the total student population served by HISD and the eleven surrounding 

school districts; however, 71% of the area's black and 60% of the area's Hispanic students 

were enrolled in HISD schools.

During the twelve years since 1970 when the first desegregation plan took effect, 

residential segregation within the district—̂  has increased dramatically. In addition,

1/ See Ross v. Eckels, 434 F.2d 1140, 1141 (5th Cir. 1970) (per curiam), cert. 
denied, 402 U.S. 953, 91 S.Ct. 1614, 29 L.Ed.2d 123 (1971).

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there have been, major changes in the population of the district. While the number of 

black families has increased only moderately, white families have moved from the dis­

tr ic t!/  and Hispanic families have moved into it. In most instances, black neighborhoods 

remain adjacent to Hispanic neighborhoods.

2/ See Ross v. Houston Indep. School Dist., 583 F.2d 712, 715 (5th Cir. 1978).

Concomitant with these demographic changes, the ethnic composition of the 

student population has changed. Sixteen schools that in 1970 were at least 90% white, 

for example, have now become at least 90% black. During the 1969-70 school year, the 

student population was 53.1% white, 33.5% black, and 13.4% Hispanic. By 1978-79, the 

percentages had changed to 30.8% white, 45% black, and 24.2% Hispanic. In the 1981-82 

school year, 26% of the HISD student population was white; 74% was black and His­

panic. By 1985-86, according to 1979 projections, enrollment will be 20% white, 38% 

black, and 42% Hispanic.

Desegregation of HISD began in February 1956 when a group of black parents and 

students filed a complaint charging that the district and its officers were operating a 

dual public school system by means of overlapping racially segregated attendance 

zones. In November 1957, the district court entered an order declaring void certain 

Texas civil statutes that had fostered the dual system!/ and restraining and enjoining

V  Public schools in Texas were racially segregated pursuant to the Texas 
Constitution and certain Texas civil statutes. Article 7, section 7 of the 
Texas Constitution provided "[sleparate schools shall be provided for the 
white and colored children, and impartial provision shall be made for both."

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The statutes prescribed the manner of allotment of public school funds for 
the education of "white and colored children." Tex. Rev. Civ. Stat. Ann. 
arts. 2900, 2922-13, 2922-15 (Vernon 19 ).

defendants from requiring segregation. Ross v. Rogers, 2 Race Rel. L. Rep. 1114 (S.D. 

Tex. 1957). Three years later the district court ordered implementation of a grade-per- 

year voluntary transfer plan by which black or white students could elect to enter the 

school within their attendance zone which served the other race. No separate provision 

was made for Hispanics. Ross v. Peterson, 5 Race Rel. L. Rep. 703, 709 (S.D. Tex.), a ffd  

sub nom. Houston Indep. School Dist. v. Ross, 282 F.2d 95 (5th Cir.), cert, denied, 364

U.S. 803, 81 S.Ct. 27,___ L.Ed.2d____ (1960). The Board of Education accelerated this

voluntary transfer plan in 1965 so that it became effective with respect to two grades, 

rather than only one, each year, but dual schools continued under court order through the 

end of the 1966-67 school year. Ross v. Eckels, 11 Race Rel. L. Rep. 216 (S.D. Tex. 

1965).

In July 1967, the district court granted the United States Government's motion to 

intervene as a plaintiff pursuant to Section 902 of the 1964 Civil Rights Act, 42 U.S.C. 

§ 2000h-2. Two months later, in September 1967, the district court instituted a freedom 

of choice plan for school attendance pursuant to United States v. Jefferson County Bd. of

Educ., 380 F.2d 385 (5th Cir.) (en banc), cert, denied, 389 U.S. 840,___ S. C t .___ , ___

L.Ed.2d___ (1967). At the same time, the court ordered integration of transportation,

physical facilities, athletics, and other extracurricular activities. Ross v. Eckels, 12 

Race Rel. L. Rep. 2005 (S.D. Tex. 1967). HISD operated under this freedom of choice 

plan through the 1969-70 school year. Dissatisfied with the plan, the plaintiffs-

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appellants moved for supplemental relief in February 1968; the Government made a 

similar motion in February 1969. The district court held hearings on these motions in 

June 1969. On July 23, 1969, the court made an oral finding that the freedom of choice 

plan did not meet the requirements of Green v. New Kent County Bd. of Eauc., 391 U.S.

430, ____U.S.____ , ___ L.Ed.2d____ (1968) and Singleton v. Jackson Mun. School Dist., 419

F.2d 1211 (5th Cir. 1968) (per curiam), rev'd in part sub nom. Carter v. West Feliciana

Parish School Bd., 396 U.S. 290, 90 S.Ct. 608,___ L.Ed.2d____ (1970), and directed HISD

to devise a new desegregation plan.

In May 1970, after considering seven plans offered by the parties, the district 

court adopted an equidistant zoning plan for assignment of students that was scheduled 

to begin in September 1970. Zone lines were to be drawn equidistant between adjacent 

schools, with adjustments made to accommodate school capacities, city street patterns, 

and natural boundaries. Students were to attend schools in the zones where they resided 

at the time of enrollment regardless of change of residence during the year, unless they 

elected majority-to-minority transfers. On appeal, we prescribed several modifications 

in the plan. We ordered the district court to adopt a geographic capacity plan for the 

junior and senior high school levels, to pair twenty-four contiguous elementary schools 

and rezone another, and to assure transportation and priority for students electing major- 

ity-to-minority transfers. Ross v. Eckels, 317 F. Supp. 512 (S.D. Tex.), modified, 434

F.2d 1140 (5th Cir. 1970) (per curiam), cert, denied, 402 U.S. 953, 91 S.Ct. 1614,___

L.Ed.2d___ (1971). In September 1970, the district court amended its decree to imple­

ment the changes ordered by this court. —̂

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_4/ Pairing of elementary schools, however, was accomplished only in the 
1971-72 school year, after HISD's petition to the Supreme Court for a writ of 
certiorari, and a subsequent motion to the district court to amend its decree, 
were denied.

The elementary school pairing ordered in 1970 resulted largely in pairing and 

busing black and Hispanic students and in pairing schools attended by such students. This 

occurred for two reasons. While Hispanic students were classified as white for purposes 

of pairing schools, many non-Hispanic white families moved from the paired atten-

_5/ HISD recognized Hispanics as a separate ethnic group following the Supreme 
Court decision in Keyes v. School Dist. No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 
L.Ed.2d 548 (1973).

dance areas or enrolled their children in private schools. White, black, and Hispanic 

parents all opposed transportation of their children from neighborhood to paired 

schools. The failure of pairing to achieve integration over a five-year period prompted 

HISD's General Superintendent, Billy Reagan, to recommend to the Board of Education 

(the Board) that a tri-ethnic community task force be appointed to consider an alterna­

tive to pairing. In November 1974, the Board authorized a Task Force for Quality Inte­

grated Education. The task force was asked to develop an alternative to pairing that 

would promote integration, offer more educational opportunities, and stall or stop stu­

dent flight by offering quality education. Through subcommittees, the task force con­

ducted community hearings, reviewed the district's operations, visited other school 

districts, and consulted with, among others, representatives of the Justice Department.

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In its report to the Board of Education, the task force recommended a magnet school 

program.

Pursuant to this report, the Board appointed a tri-ethnic Administrative Task 

Team to develop a magnet school plan that would provide quality education, increase the 

percentage of students attending integrated schools, and decrease the number of one- 

race schools. In May 1975, HISD filed a motion to modify the desegregation plan by 

eliminating elementary school pairing and implementing this magnet school program. 

Neither the plaintiffs-appellants nor the Government opposed the plan, and it was 

approved by the district court on July 11, 1975. HISD implemented the plan in three 

phases over the 1975-76, 1976-77, and 1977-78 school years. Since its adoption, the 

number of magnet schools has increased from 41 to 62. In the 1978-79 school year, 7500 

students attended magnet schools — 2600 whites, 3400 blacks, and 1500 Hispanics. Of 

that number, 3000 students were majority-to-minority transfers.

At the same time the district court approved the magnet school program, it also 

granted a motion by Hispanic plaintiffs to intervene in this action and, in 1977, it granted 

the Houston Teachers Association (HTA) leave to appear as amicus curiae.

As a further demonstration of its commitment to desegregation, HISD opposed an 

effort to disrupt its integration plans during the 1970's when private citizens attempted 

to form an independent school district that would be 89% white, 6% black, and 5% His­

panic. Operation of this proposed district, the Westheimer Independent School District 

(WISD), was aborted by our decision in Ross v. Houston Indep. School Dist., 559 F.2d 937, 

939 (5th Cir. 1977) (per curiam) and subsequent district court action. See Ross v. 

Houston Indep. School Dist., 457 F. Supp. 18 (S.D. Tex. 1977), modified, 583 F.2d 712 (5th 

Cir. 1978).

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In June 1978, the district court reviewed the history of desegregation in HISD and 

concluded that HISD "ha[c3 no definite, high priority, well conceived plan to chart this 

district to the accomplishment of unitary status." The court ordered HISD to file a 

preliminary plan for reaching unitary status and directed it to address seven areas of 

concern to the court. In particular, HISD was asked to analyze the identifiably ethnic 

schools in the district to determine whether use of the tools described in Swann v. 

Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) 

could remove that identifiability; to consider possible interdistrict cooperation between 

HISD and predominantly white suburban school districts; and to address whether the 

magnet school program had been overemphasized. HISD filed its preliminary plan in 

August 1978. Ten months later, in June 1979, HISD, having concluded that its actions 

had achieved unitary status and that no further court-supervised action to that end was 

warranted, sought a declaration of unitary status and presented evidence in support of 

this contention. The Government requested a recess to prepare a full response, and in 

/^October responded to HISD’s case. Significantly, the plaintiffs-appellants presented no 

W  evidence and no proposed findings.

In the interim, in September 1979, the court ordered the Texas Education Agency 

(TEA) to develop a plan based on voluntary cooperation and sharing of education oppor­

tunity to meet the challenges faced by HISD and other urban school districts. TEA filed 

a Voluntary Interdistrict Education Plan (VIEP) in March 1980 and HISD implemented it 

the following September. The plan is currently in operation in Houston and Harris 

County. HISD authorized tuition waivers and free transportation for VIEP participants, 

and has promoted VIEP in the surrounding school districts through the schools and the

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local media. HISD also created a Magnet School Task Force composed of community and 

educational leaders. The task force was instructed to oversee accommodation between 

VIEP and the magnet and vocational programs in the district.

In May 1980, the Government moved to amend its complaint and to add as defen­

dants twenty-two surrounding school districts; the Harris County Department of

6/ The districts are Aldine, Alief, Channelview, Crosby, Cypress-Fair banks, 
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.

Education and its Board of Trustees; the Texas Education Agency and the State Commis­

sioners of Education; the City o f Houston; and the State of Texas. The proposed 

amended complaint alleged that the "continuing racial segregation in the HISD system, 

and throughout the Houston metropolitan area, has been caused, in substantial part, by 

the intentional, racially discriminatory acts and omissions of both the HISD and the 

[added] defendants." The Government sought as relief the development o f "a plan com­

mensurate 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 defen­

dant local school districts, without regard to school district boundaries and within a 

constitutionally acceptable period of time." In June 1980, the appellants filed similar 

motions which incorporated by reference the Government pleadings. The district court 

denied the Government's motion in a written memorandum and order on June 10, 1980. 

The next day the plaintiffs-appellants' motions were denied "for the same reasons."

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Both the Government and the plaintiffs-appellants filed motions to alter or amend 

the district court's orders of June 10 and 11, 1980. These motions were denied in the 

court's memorandum and order of June 17, 1981. In that opinion, the district court also 

declared HISD to be a unitary school district.

The memorandum opinion of the district court offers five major reasons for refus­

ing to broaden this litigation. First, the court noted that joinder of additional parties 

was not necessary for adjudication of the issue whether HISD had done everything practi­

cable to remove vestiges of state-imposed segregation within its boundaries. Second, 

addition of twenty-six defendants "would inject as many more issues into an already 

complex case [and] similarly increase the discovery burdens upon all the litigants — both 

new and old. The ultimate resolution of HISD's unitary status would be postponed indefi­

nitely, thus further extending what has already been an over-extended case." Third, the 

court noted that the question of an interdistrict solution had been brought to the atten­

tion of all parties in 1978 when the judge then presiding over this litigation ordered the 

Government to file a brief "collecting all recent authorities relating to inter-district 

relief." The Government brief was filed on August 9, 1978, in ample time to allow pre­

sentation of arguments and evidence on interdistrict relief at the 1979 hearings on HISD's 

attainment of unitary status. Denial of leave to amend was appropriate, because the 

Government and the appellants had known earlier the facts on which their proposed 

amendments were based, but had nonetheless omitted those facts from their earlier 

pleadings. Fourth, the defendants and all other interested parties would be prejudiced by 

further delay in reaching a decision on HISD's attainment of unitary status, as well as by 

the additional investigative and discovery expense occasioned by broadening the litiga­

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tion. Finally, additional litigation would not guarantee any improvement in the court’s 

ability to solve the problem of removing the vestiges of state-imposed segregation from 

HISD. The voluntary interdistrict plan already submitted by TEA, on the other hand, 

promised progress of the sort seemingly contemplated by the Government and the 

plaintiffs-appellants.

After considering all aspects of school district operations, the district judge also 

made the determination that HISD had achieved unitary status. The plaintiffs-appellants 

challenge only his finding that the district has eliminated the vestiges of de jure segrega­

tion in the composition of the student body of individual schools even though many 

schools are identifiably one-race. In determining whether the identifiable ethnicity of 

the district schools could be removed by further use of the tools discussed in Swann (e.g., 

ethnic balancing, altering of attendance zones, elimination of one-race schools, pairing, 

and busing), the trial judge referred to the past experience and the current ethnic compo­

sition of the district. He concluded that "implementation of these techniques . . .  would 

not be an effective and feasible remedy for this District; rather, it would be counterpro­

ductive to the HISD's desegregation efforts." Contrasting HISD with the Charlotte- 

Mecklenburg school district, the trial court asserted, "[tlhe problems encountered in a 

rural, sparsely settled school district with only two schools and no concentrated residen­

tial segregation are quite different . . . ."

The court pointed out as reasons why further remedial efforts would be impracti­

cable that HISD is the fifth largest school district in the nation and its student population 

and ethnic composition have both changed significantly after desegregation efforts 

began. The court accepted HISD's evidence that, to achieve greater integration without

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disrupting naturally integrated schools, it would be necessary to bus students to non­

contiguous school zones. Based in part on housing-pattern maps filed in evidence, the 

district court found that, to accomplish racial integration by pairing schools, it would be 

necessary to pair schools on the extreme western and eastern ends of HISD. Otherwise, 

naturally integrated schools would be disturbed. The court considered several specific 

examples of the time and distance of representative runs throughout HISD. These repre­

sentative studies show that the travel time between the west end of HISD and areas in 

the center and east end is considerable. There was also evidence that traffic in Houston 

is congested, requiring additional time for the completion of each existing bus route. 

The court "[did] not find it reasonable to subject children to compulsory cross-town bus 

rides of up to two hours one-way."

In addition, the court referred to the past inadequacies of busing as a desegrega­

tion tool in HISD. The court determined "HISD's remaining one-race schools are the 

product of its majority of black and Hispanic pupils rather than a vestige of past discrim­

ination." There are not enough white students le ft in the district to effect greater 

integration of student bodies without untoward costs on the students themselves. The 

court retained jurisdiction over the case for three more years to insure that HISD main­

tained unitary status. HISD was ordered to file semi-annual reports on its opera­

tions.—̂  At the end of the three years, the court will conduct a hearing to determine 

whether this case should be dismissed.

7/ Parts I, HI, and IV of the order require HISD to furnish information pertinent 
to the issues now before this court. Part I requires statistics on the number 
of students by race enroHed in HISD and in every school and classroom of the 
district. Part IH requires descriptions of requests for majority-to-minority

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transfers and the action taken on such requests. Part III also requires 
changes in attendance zones to be noted. Part IV requires statistics on the 
number of inter-district transfers granted, the race of the transferring 
students, and the districts to which the transfers were allowed.

During this litigation, every one of the original members of the HISD Board of 

Trustees and every member of several successive Boards has been replaced. Of the nine 

present members, five are white, three are black, and one is Hispanic. After the school 

district sought an end to court supervision, the plaintiffs-appellants followed the 

Government's lead by seeking leave to amend their complaint to add twenty-six defen­

dants and to add a request for an inter-district remedy embracing schools in adjacent 

areas under the jurisdiction of other school boards. They appeal the district court's 

denial o f this motion. They also contest the district court's determination that HISD has 

taken all practicable steps to eliminate the vestiges of state-imposed segregation and has 

achieved unitary status. They agree that all other indicia of segregation have been 

erased, but they assert that the unbalanced ethnic composition of the student populations 

in the schools is a residue not yet eliminated.

II.

A school system is not, o f course, automatically desegregated when a constitu­

tionally acceptable plan is adopted and implemented, for the remnants of discrimination 

are not readily eradicated. United States v. Texas Educ. Agency, 647 F.2d 504, 508 (5th 

Cir. 1981); Henry v. Clarksdale Mun. Separate School Dist., 579 F.2d 916, 921 (5th Cir. 

1978) (per curiam) (Tjoflat, J., dissenting). Public school officials have a continuing duty 

to eliminate the system-wide effects of earlier discrimination and to create a unitary

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school system untainted by the past. Swann, 402 U.S. at 15, 91 S.Ct. at 1275, 28 L.Ed.2d

at _____; see also Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 459, 99 S.Ct. 2941,

2947,____ _ L.Ed.2d______, _____ (1979); Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526,

538, 99 S.Ct. 2971, 2979-80, 61 L.Ed.2d 720,_______ (1979). They must demonstrate to

the district court overseeing their desegregation efforts that "current segregation is in 

no way the result of [their] past segregative actions." Keyes v. School Dist. No. 1, 413

U.S. 189, 211 n.17, 93 S.Ct. 2686, 2699 n.17,______L.Ed.2d______ , ______n.17 (1973). The

district court "should retain jurisdiction until it is clear that state-imposed segregation 

has been completely removed." Green v. New Kent County School Bd., 391 U.S. 430, 439,

88 S.Ct. 1689, 1695,_____ L.Ed.2d______ , _____ (1968); Raney v. Bd. of Educ., 391 U.S.

443, 449, 88 S.Ct. 1697, 1700, ______ L.Ed.2d______, ______ (1968). State officials are

responsible for state action, past as well as present. We have several times refused to 

find unitary a school system whose operation continues to reflect official failure to 

eradicate, root and branch, the weeds of discrimination. See United States v. Texas 

Educ. Agency, 647 F.2d 504 (5th Cir. 1981); Valley v. Rapides Parish School Bd., 646 F.2d 

926 (5th Cir. 1981); United States v. Bd. of Educ., 576 F.2d 37 (5th Cir.) (per curiam), 

cert, denied, 439 U.S. 1007, 99 S.Ct. 622, 58 L.Ed.2d 684 (1978); United States v. DeSoto 

Parish School Bd., 574 F.2d 804 (5th Cir. 1978); Mannings v. Board of Pub. Instruction, 

427 F.2d 874 (5th Cir. 1970).

Communities in our mobile society do not, however, remain demographically

stable. Swann, 402 U.S. at 31, 91 S.Ct. at 1283, 28 L.Ed.2d at _____ . Therefore,

"[nl either school authorities nor district courts are constitutionally required to make 

year-by-year adjustments of the racial composition of student bodies once the affirma-

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tive duty to desegregate has been accomplished and racial discrimination through official 

action is eliminated from the system." Id. at 32, 91 S,Ct. at 1284, _ _ _  L.Ed.2d at

_____ . While those charged with desegregation must not shrink from the threat of white

flight, school officials who have taken effective action have no affirmative fourteenth- 

amendment duty to respond to the private actions of those who vote with their feet. 

Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 434-36, 96 S.Ct. 2697, 2704, 49 

L.Ed.2d 599,_____ (1976).

When state officials have not only made good-faith efforts to eliminate the ves­

tiges of segregation, but have actually achieved a school system clean of every residue of 

past official discrimination, immutable geographic factors and post-desegregation demo­

graphic changes that prevent the homogenation of all student bodies do not bar judicial 

recognition that the school system is unitary. Calhoun v. Cook, 525 F.2d 717 (5th Cir.), 

reh'g denied, 525 F.2d 1203 (1975) (per curiam); Stout v. Jefferson County Bd. of Educ., 

537 F.2d 800 (5th Cir. 1976).

in.

While we are free to re-assess the district court's conclusions of law, its findings 

of fact must be accepted unless they are clearly erroneous. Pullman-Standard v. Swint,

_____ U.S._______, 102 S.Ct. 1781,______L.Ed.2d______ (1982). The plaintiffs-appellants

question none of the court's findings concerning faculty assignment, transportation, 

extracurricular activities, or facilities. They attack only the conclusion that HISD has 

done all that it practically can to eradicate the remnants of state-imposed segregation 

with regard to student assignment. First, they contend that inadequate desegregation 

efforts have been made because the district court has not required cross-district busing.

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Second, they decry the results achieved, since 70% of the black students in HISD still 

attend schools that are 90% or more minority, including as minorities black and Hispanic 

students.

The student population in twenty-two of the 226 schools in the system has been 

90% or more black continuously since 1960. And there are now thirty-three more schools 

whose student population is 90% or more black. There are, however, only two all-white 

schools, both elementary. Fourteen of the twenty-two predominantly black schools were 

rezoned or paired in 1970 and were projected to be desegregated on a bi-racial basis. 

That goal failed when white students did not enroll in these public schools. Many of the 

remaining one-race black schools were at one time integrated or projected to be inte­

grated, but all are now one-race because of housing patterns.

"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 

[using the] techniques [outlined in Swann]." Tasby v. Estes, 572 F.2d 1010, 1014 (5th Cir. 

197b,. See also Davis v. East Baton Rouge Parish School Bd., 570 F.2d 1260 (5th Cir. 

1978). In making this determination adequate time-and-distance studies are desirable, if 

not indispensable. Tasby v. Estes, 572 F.2d at 1014. While the district court did not have 

time-and-distance studies for pairing all schools in the system, it did consider evidence 

of transportation problems that would be presented by pairing the only schools whose 

joinder could achieve significant reduction in predominantly one-race schools. As the 

district judge recognized, fear of white flight "cannot . . .  be accepted as a reason for 

achieving anything less than complete uprooting of the dual public school system." 

United States v. Scotland Neck City Bd. of Educ., 407 U.S. 484, 491, 92 S.Ct. 2214, 2218,

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33 L.Ed.2d 75,_____ (1972) (citation omitted). See also Monroe v. Bd. of Comm'rs, 391

U.S. 450, 459, 88 S.Ct. 1700, 1705, 20 L.Ed.2d 733,_____ (1968); Brown v. Bd. of Educ.,

349 U.S. 294, 300, 75 S.Ct. 753, 756, 99 L.Ed. 1083,______(1955) (Brown II). However, in

seeking reduction in the number of one-race schools, the district court could not ignore 

diminished white enrollment in HISD and substantial immigration of Hispanic students. 

C f. Stout v. Jefferson County Bd. of Educ., 537 F.2d 800 (5th Cir. 1976). Even if some 

method were devised to spread white students equally among all schools in the system, 

74% of the students in each school would be black and Hispanic.

The plaintiffs-appellants argue that the district court's order should be reversed 

because the court failed to require HISD to show that the large number of one-race 

schools remaining was not due to housing patterns that were the result of HISD's past 

segregative actions. The evidence showed that current housing patterns in Houston have 

evolved principally during the time that HISD has been under a desegregation order. 

They are, therefore, not the result of school board efforts to encourage or entrench 

segregation, but, insofar as they result from school attendance programs and not from 

other social and economic factors, a reaction to court-ordained policies.^ The school 

attendance impact, then, is the result of good-faith efforts to dismantle the dual school 

system, and not "the result of past segregative actions." Keyes v. School Dist. No. 1, 413

U.S. at 211 n.17,_______S.Ct. a t ________n.17,________ L.Ed.2d a t________n.17. Current

housing patterns may still show the lingering effects of school board actions that pre­

ceded the 1970 desegregation order, but we are not persuaded that the district judge was 

in error when he rejected the possible probative value of further proceedings to demon­

strate that earlier housing patterns resulted from official school segregation policy apart

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from other community economic and social influence. We do not reject the district 

court's finding that HISD has done everything practicable at an intradistrict level to 

eradicate the effects of past segregative practices. After twelve years of court- 

supervised desegregation efforts, this case has reached the stage where no benefit can be 

derived from further probing for the perhaps unmeasurable sins of the past because no 

additional remedies are available from the efforts of HISD alone. (We consider below the 

effort to join other parties.)

The district judge did not turn his back on this case. He followed the procedure 

we have required to assure that a determination of unitary status is not prematurely 

reached. United States v. State of Texas, 509 F.2d 192 (5th Cir. 1975); Youngblood v. Bd. 

of Pub. School Instruction, 448 F.2d 770 (5th Cir. 1971) (per curiam). He has retained 

jurisdiction over the action for three more years. During that time, the school district 

must file semi-annual operational reports. A t the end of three years, he will hold a 

hearing at which the plaintiffs may show why dismissal of the action should be delayed. 

Following the hearing, he will finally determine whether the school district has indeed 

achieved unitary status. Only then, if appropriate, may he dismiss the action.

The plaintiffs-appellants have not come forward with an alternative desegregation 

plan. In the twelve years that HISD has operated under a court-ordered desegregation 

plan, they have made no request for additional relief, yet today they are the sole appel­

lants from the district court's order. Neither the Government, the Hispanic plaintiff
■ii . . I . . . —    ______  —

group, nor the HTA, as amicus curiae, joins in this appeal. For over a decade the plain­

tiffs-appellants have followed the lead of other parties who are apparently now satisfied 

with the result. In the adversary system mandated by the Constitution, Art. HI, § 1, it is

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the duty of the parties to assert their position, to adduce evidence, and, in institutional 

litigation, to suggest remedial measures. It does not suffice under the circumstances for 

the lone dissenter from the court's order simply to assert that more evidence must be 

studied and more plans must be considered. That evidence must be brought before the 

court; those plans must be presented to the court.

In testing whether the past has been eradicated so far as it remains in the power 

of school officials and courts to do so, we must keep in mind that each school district is 

unique. The constitutional mandate against racial discrimination is categoric, but the 

determination of remedies for its past violation turns on the conditions in a particular 

district. Ross v. Eckels, 434 F.2d 1140, 1147 (5th Cir. 1970) (per curiam), cert, denied, 

402 U.S. 953, 91 S.Ct. 1614, 29 L.Ed.2d 123 (1971). In like fashion, the decision that 

public officials have satisfied their responsibility to eradicate segregation and its ves­

tiges must be based on conditions in the district, the accomplishments to date, and the 

feasibility of further measures. HISD has not adopted, and the district court has not 

required it to utilize, all of the remedial measures mentioned in Swann. Those tech­

niques are not mandatory; they are merely permissible. HISD has used many of them — 

for example, rezoning, pairing and clustering. Other techniques, such as non-contiguous 

pairing and further mandatory transfers, have been considered by HISD and the district 

court on several occasions, but have been rejected as unsuitable. Constructing a unitary 

school system does not require a racial balance in all of the schools. Swann, 402 U.S. at

24, 91 S.Ct. at 1280, 28 L.Ed.2d a t_____ ; Horton v. Lawrence County Bd. of Educ., 578

F.2d 147, 151 (5th Cir. 1978) (per curiam); United States v. Bd. of Educ., 576 F.2d at 39. 

What is required is that every reasonable effort be made to eradicate segregation and its 

insidious residue.

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Considering the undisputed fact that HISD is unitary in every aspect but the 

existence of a homogeneous student population; the intensive efforts that have been 

made to eliminate one-race schools; and the district court's conclusion that further 

measures would be both impractical and detrimental to education, we conclude that the 

district court made no error in declaring the system unitary while retaining supervision 

of it for three more years. We resolutely affirm the commitment of this circuit to 

requiring school officials faithfully to execute the commandment of the fourteenth 

amendment in concluding that HISD is a singular district, with unusual, perhaps unique, 

problems and that, therefore, the district court did not err.

IV.

The district court refused to permit an amendment to the pleadings to assert a 

claim that interdistrict relief embracing student transfers throughout the Houston 

metropolitan area may be appropriate. Although the plaintiffs-appellants appealed this 

ruling, at oral argument they conceded that it would not prejudice them as long as they 

were permitted to file a separate suit for an interdistrict remedy. They characterized 

the denial of leave to amend as a secondary matter. Their only concern was that the new 

suit be heard by the judge presiding over this litigation, because of his familiarity with 

the facts and issues.

Once a responsive pleading has been filed, a pleading may be amended only by 

leave of court or by consent of the adverse party. Fed. R. Civ. P. 15(a). While "leave 

shall be freely given when justice so requires," the decision rests in the sound discretion 

of the trial court. Zenith Radio Corp. v. Hazel tine Research, Inc., 401 U.S. 321, 330, 91 

S.Ct. 795, 802,______L.Ed.2d______ (1971); Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct.

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227, 230, 9 L.Ed.2d 222,_____ (1962). When the motion is presented after undue delay or

when it would occasion undue prejudice to the opposing party, the denial of leave is a 

proper exercise of the district court's discretion. Foman v. Davis, 371 U.S. at 182, 83

S.Ct. at 230, 9 L.Ed.2d a t_____ ; 3 J. Moore, Federal Practice § 15.08(41 (2d ed. 1982); 6

C. Wright <Jc A. Miller, Federal Practice and Procedure: Civil §§ 1487, 1488 (1971). Our 

review extends only to whether the trial court abused that discretion. Carson v. Polley,

______ F.2d_______ , slip op. 260, 285 (5th Cir. Oct. 18, 1982); Harkless v. Sweeny Indep.

School Dist., 554 F.2d 1353, 1359 (5th Cir. 1977).

The district court here denied relief because the proposal to amend came so late 

in the proceeding that its allowance would prejudice HISD. As we have noted, the motion 

to amend was first presented in 1980 after the hearing on unitary status had been held 

and twenty-four years after the complaint was filed. While the proposed amended com­

plaint asserts that the putative defendants "have been engaged" in unconstitutional 

actions "for a substantial period o f time" "during the time of statutory dual school 

systems and thereafter," the complaint does not particularize when the actions 

occurred. The briefs refer to actions taken both before and after Brown I, with emphasis 

on events in the 1950's and 1960's. There is no suggestion that any such efforts have 

occurred recently.

The plaintiffs-appellants justify their failure to raise the claim for interdistrict 

relief earlier on the ground that the possibility of interdistrict relief first came to their 

attention when the district court issued its 1978 order to HISD. But the question of 

HISD's relationship to surrounding school districts surfaced implicitly as early as 1970 in 

our discussion of HISD's location with respect to adjacent school districts and govern-

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mental subdivisions. Ross v. Eckels, 434 F.2d at 1141-42 6c n.2. We disclaimed any 

intention of raising questions at that time about the "constitutional dimensions of prob­

lems presented by racial distinctions resulting from the shape and relationship of artifi­

cial geographic boundaries of counties, municipalities and school districts." Id. at n.2 

(citation omitted). See also id. at 1150 (Clark, J., dissenting); Ross v. Houston Indep. 

School Dist., 457 F. Supp. 18, 25 (S.D. Tex. 1977). This certainly directed attention to 

the issue, and left the way clear for the plaintiffs-appellants to assert their claim.

In June 1977, counsel for the plaintiffs-appellants was informed of transfers of 

black students from Spring Branch Independent School District to other school districts. 

In 1978, the district court ordered a submission by the Department of Justice concerning 

the court's legal authority to order interdistrict relief. In April 1978, an attorney for the 

HTA argued to the district court that there was a need for a metropolitan desegregation 

plan. Because they had all of this information, the plaintiffs-appellants cannot reason­

ably claim that they did not know any of the facts that formed the basis for their 

motion. While the Government also sought to inject this issue into the proceedings in 

1980, it does not appeal the district court's denial o f its motion.

We find no abuse of discretion in the district court's denial. The motion was not 

only belated. Amendment of the pleadings would add new and complex issues to a case 

already protracted and complicated. It would require new discovery, additional hearings, 

and, likely, more appeals. It would add twenty-six new parties, including a number of 

separate school districts. The preparation and trial of the case, by the plaintiffs-

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8/ The district court did not decline at the threshold of the case to consider the 
merits of a request for interdistrict relief. Compare Milliken v. Bradley, 418 
U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974); Adams v. United States, 620 
F.2d 1277, 1294 n.27, 1296 (8th Cir.), cert, denied, 449 U.S. 826, 101 S.Ct.
88, _____L.Ed.2d______ (1980); Tasby v. Estes, 572 F.2d 1010, 1015 (5th Cir.
1978), a ffg  in part and rev’g in part, 412 F. Supp. 1185 (N.D. Tex. 1975); 
United States v. Board of School Com'rs of Indianapolis, 503 F.2d 68 (7th Cir. 
1975), cert, denied sub nom. Bowen v. United States, 439 U.S. 824, 99 S.Ct. 
193, 58 L.Ed.2d 116 (1978); Bradley v. School Bd., 51 F.R.D. 139 (E.D. Va. 
1970), rev'd, 462 F.2d 1058 (4th Cir. 1972) (en banc), a ffd  by equally divided 
court, 412 U.S. 92, 93 S.Ct. 1952, 36 L.Ed.2d 771 (1973) (per curiam); Evans 
v. Buchanan, 393 F. Supp. 428 (D. Del.), a ffd , 423 U.S. 963, 96 S.Ct. 381, 46 
L.Ed.2d 293 (1975). In none of these cases, moreover, has the claim been so 
belatedly presented.

appellants' own estimate, would require several years. The allowance of the amendment 

would undoubtedly prejudice HISD. See Troxel Mfg. Co. v. Schwinn Bicycle Co., 489 F.2d 

968, 971 (6th Cir. 1973), cert, denied, 416 U.S. 939, 94 S.Ct. 1942, 40 L.Ed.2d 290 

(1974).

The plaintiffs-appellants protest that the motion was denied without a hearing. 

The Local Rules of the Southern District of Texas provide that a hearing will be held on 

such a motion only if one is requested by other parties or ordered by the court. The 

plaintiffs-appellants made no such request, nor did any other party. Indeed, the only 

factual evidence suggested to the district court or to us on appeal that might have 

affected the decision is the affidavit of plaintiffs' counsel, Weldon H. Berry, that he 

personally did not learn earlier of the existence, pattern, and extent of the interdistrict 

constitutional violations committed by HISD and the parties sought to be joined. As our 

review of the record shows, there was, long before, ample reason for the plaintiffs- 

appellants and their then counsel to be aware of facts that suggested the issue now 

sought to be raised.

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Moreover, the district court's denial of leave to amend because of the plaintiffs- 

appellants' undue delay is not the equivalent of a judgment on the merits. The basis for 

relief presented in the proposed amendment differs from the basis set forth in the 

original complaint filed twenty-four years earlier. Some of the acts complained of 

apparently occurred after this suit was filed and could not, therefore, have been asserted 

when the complaint was drafted.

While we have noted events between 1970 and 1978 that should have alerted the 

plaintiffs-appellants to the possible claim for interdistrict relief, the delay that bars 

assertion of the claim in this action is not the same as laches or abandonment that would 

cause the claim to be irretrievably lost. While the district court's order denying leave to 

amend does not expressly preserve the plaintiffs-appellants' right to file a new suit 

raising the issues asserted in the proposed amendment, such a reservation is implicit in 

its decision, and we now make it explicit, for, were the denial of leave equivalent to a 

determination on the merits, we would consider it an abuse of discretion. The door is 

thus left open to new litigation, and we do not foreclose either its institution or the 

presentation of any defenses that might be asserted, such as laches. Neither do we 

foreclose, indeed we commend, the assignment of any new litigation to the judge who is 

familiar with the HISD litigation.

Because we agree that the motion to amend the complaint was properly denied, 

we need not discuss the permissibility of joinder of new parties. We note, however, that 

the plaintiffs-appellants urge that joinder of the additional parties is necessary because 

in their absence complete relief cannot be accorded among those already parties. Fed. 

R. Civ. P. 19(a). If the issue of interdistrict collaboration in unconstitutional actions

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were before the court, this contention would have merit. But, in the absence of that 

issue, those parties are not necessary to, or affected by, the order appealed from. That 

order determines only that HISD has done all it can within its borders to purge itself of 

the vestiges of intradistrict segregation. Rule 19 can be utilized only to bring in parties 

necessary to a complete and just adjudication of the issues presently before the court. 

La Chemise La Coste v. General Mills, Inc., 53 F.R.D. 596, 601 (D. Del. 1971), a ffd , 487 

F.2d 312 (3d Cir. 1973).

V.

During the past twelve years of court-supervised desegregation, HISD and the 

successive trial judges who have presided over this litigation have made sustained good- 

faith efforts to create a unitary school system. The unique difficulties of a large urban 

school district with a rapidly expanding minority population, surrounded by a constella­

tion of racially stratified suburban school districts, have forestalled student integration 

within HISD's boundaries although all other aspects of school operation are free o f past 

racist taint. The district court did not err in the factual findings on which it based its 

decision that HISD has successfully erased the internal vestiges of state-imposed educa­

tional segregation. The district court continues to monitor HISD to insure that its find­

ing of unitary status continues to be warranted. In the future, it will conduct a hearing 

on the question whether it should relinquish jurisdiction over this case. If there are then 

reasons for it to continue to exercise jurisdiction, that evidence should be presented to 

it. In the meantime, the plaintiffs-appellants are free to seek interdistrict relief through 

a new suit addressing the alleged discriminatory actions HISD undertook in conjunction 

with officials of the state of Texas, the city of Houston, Harris County, and neighboring 

school districts. Compare Stevenson v. International Paper Co., 516 F.2d 103, 110-11

- 26 -



(5th Cir. 1975) (suit challenging joint union-company policies not precluded by suit 

challenging union action).

For these reasons, the judgment is AFFIRMED, and the case is REMANDED to the 

district court for further proceedings in accordance with this opinion.

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