Corpus Christi Independent School District v. Ciseros Brief in Opposition to Petition for Writ of Certiorari

    I n  th e

Supreme (Emtrt ttf tl?? InttTii States
O ctober T erm  1972 

No. 72-649

C orpus C h risti I ndependent S chool D istrict , et al.,

Petitioners,
v .

J ose C isneros, et al.,
Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION TO 
PETITION FOR WRIT OF CERTIORARI

Chris D ixie

609 Fannin Street Building 
Suite 401
Houston, Texas 77002

J ack  Greenberg 
N orman C h a c h k in  
Charles S teph en  R alston 

10 Columbus Circle 
New York, N.Y. 10019

Attorneys for Respondents



I N D E X

PAGE

Opinions Below ..   1

Jurisdiction .....     1

Question Presented --- ----- -------------- ------------......... -.... - 2

Statement of the Case ........................... .... .......... ...... . 2

Statement of F acts..............................    3

Reasons Why the Writ Should Be Denied ................ -  6

I. The Factual Allegations Made by the Petitioners 
Were Resolved Against Them by the District 
Court, and There Is No Basis for the Review of 
These Findings Here ....................................-...... . 7

II. The Decision of the Court of Appeals Is Fully 
In Accord With Decisions of This Court and 
Those of Other Circuits ..............    9

Conclusion ...................................................   14

T able o r  C ases

Alexander v. Holmes County Board of Education,
396 U.S. 19 (1969) .................................. .......................  13n

Brewer v. School Bd. of Norfolk, 397 F.2d 37 (4th
Cir. 1968) .................................................      13

Brown v. Board of Education, 347 U.S. 483 (1954) .... 8

Clark v. Board of Educ. of Little Rock, 426 F.2d 1035 
(8th Cir. 1970), 449 F.2d 493 (8th Cir. 1971) 13



11

PAGE

Davis v. Board of School Commissioners of Mobile
County, 402 U.S. 33 (1971) ................................ .......  6

Davis v. School District of Pontiac, 309 F. Supp. 734 
(E.D. Mich. 1970), aff’d, 443 F.2d 573 (6th Cir. 1971),
cert, denied, 404 U.S. 913 (1971) .............. ........ ......  13

Griffin v. School Board of Prince Edward, 377 U.S.
218 (1964) .......................................... .... ...... .......... ......  13n

Hernandez v. Texas, 347 U.S. 475 (1954)  --------------- 12

Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972) ............... 13
Korematsu v. United States, 323 U.S. 214 (1944) ....... 12n

Palmer v. Thompson, 403 U.S. 217 (1971) ........... .......  11

Swann v. Charlotte-Mecklenberg Bd. of Ed., 402 U.S.
1 (1971) ......... .......... .......................................................6,10

United States v. Board of Educ., 429 F.2d 1253 (10th
Cir. 1970) ...... ....... .... .......................................................  13

United States v. School Dist. No. 151, 286 F. Supp.
786 (N.D. 111. 1966), aff’d, 404 F.2d 1125 (7th Cir.
1968), 301 F. Supp. 201 (N.D. 111. 1969), aff’d 432 
F.2d 1147 (7th Cir. 1970), cert, denied, 402 U.S. 943 
(1971) ........ ....................... ...............................................  13

Wright v. Council of the City of Emporia, 407 U.S.
451 (1972) ......................... .............................................  11

Yick Wo v. Hopkins, 118 U.S. 356 (1886) ................... 11,12n

S tatutes

Fed. Rule Civ. Proc., Rule 52(a) 

Title IV, Civil Rights Act of 1964
7

10



Ill

O th er  A uthorities

p a g e

Inter-Agency Committee on Mexican-American A f­
fairs, El Paso, Texas, Oct. 26-28, 1967 .... ................ . 4n

Mexican-Americans and the Desegregation of Schools 
in the Southwest, 8 Houston Law Review 929 ...........  4n

Texas State Advisory Committee to the United States 
Commission on Civil Rights, T he C ivil  R ights 
S tatus of S pan ish -S peaking  A mericans in  K leberg, 
N ueces, and S an P atricio C ounties, T exas (July, 
1967) ................................................................................ . 4n

United States Commission on Civil Rights, M exican 
A merican  E ducation S tudy , Report 1: Ethnic Isola­
tion of Mexican Americans in the Public Schools 
of the Southwest, April, 1971 ........................ .............  4n



I n  the

§>itpmit£ (Unurt of tbr Initpb BtnU&
O ctober T erm  1972 

No. 72-649

Corpus C h risti I ndependent S chool D istrict, et al.,

v.
Petitioners,

J ose Cisneros, et al.,
Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION TO 
PETITION FOR WRIT OF CERTIORARI

Opinions Below

The opinion of the United States Court of Appeals for 
the Fifth Circuit is unreported and is set out in the Ap­
pendix to the Petition for Writ of Certiorari at pp. 119-154. 
The opinions of the district court are reported at 324 
F. Supp. 599 and 330 F. Supp. 1377, and are set out in the 
Appendix at pp. 1-48 and 54-97, respectively.

Jurisdiction

The judgment of the Court of Appeals was entered on 
August 2, 1972 (A. 155). This Court’s jurisdiction is in­
voked under 28 U.S.C. § 1254(1).



2

Question Presented

The district court herein found as a matter of fact that 
Mexican-American and Negro children in the Corpus 
Christi Independent School District had been segregated 
into separate schools because of their race and national 
origin through the actions of the School District. It held 
as a matter of law that these actions violated the rights of 
those students to the equal protection of the laws. The 
Court of Appeals upheld the district court’s findings of 
fact and affirmed its holding in reliance on this Court’s 
school desegregation decisions. Under these circumstances, 
is there any basis for a review of the lower court’s holding 
by this Court?

Statement of the Case

This action was brought in 1968 in the United States Dis­
trict Court for the Southern District of Texas, pursuant 
to 42 U.S.C. § 1983, on behalf of Mexican-American and 
Negro parents and pupils on their own behalf and as repre­
sentatives of the classes of Mexican-American and Negro 
pupils attending schools in the District. The case was 
brought to end the unconstitutional segregation of students 
by race and national origin in the District schools. After 
a lengthy trial the district court issued extensive findings 
of fact and conclusions of law. The court found that be­
cause of the actions of the defendant school officials both 
Negro and Mexican-American students had been segre­
gated on the basis of their race and national origin from 
Anglo students.

On the basis of these findings, the district court required 
the immediate implementation of a comprehensive desegre­
gation plan. A notice of appeal was filed by the school of­



3

ficials and a stay of the implementation of the plan was 
obtained from another district judge because of the trial 
judge’s absence from the district. That stay was vacated by 
the Fifth Circuit, but was reinstated by Mr. Justice Black 
acting as Circuit Judge for the Fifth Circuit in an order 
reported at 404 U.S. 1211 (1971).

On the appeal, the Fifth Circuit, sitting en banc, affirmed 
the district court as to its findings of fact and conclusions of 
law, but vacated the order as it related to the desegregation 
plan itself and remanded for further proceedings. A cross 
petition seeking review by this Court of the Fifth Circuit’s 
order requiring a new plan is pending in this Court, sub 
nom., Cisneros v. Corpus Christi Independent School Dis­
trict, Oct. Term 1972, No. 72-668.

Statement of Facts

The district court made exhaustive findings of fact, which 
are summarized by the Fifth Circuit in its opinion. We 
respectfully refer this Court to all three opinions, set out 
in the appendix filed with the cert, petition, and here we will 
merely summarize the most significant facts as found by 
the district court.

In sum, this case involves a fact pattern similar to that 
developed in a number of other school desegregation cases. 
That is, the school district was found to have adopted and 
followed a consistent policy of structuring school atten­
dance zones, building and expanding schools, and institut­
ing transfer policies, so as to take advantage of existing 
residential segregation in the City of Corpus Christi, and 
hiring and assigning faculty, all resulting in Anglo students 
attending schools separate from those attended by Mexican- 
American and black students.



4

The following are the most important findings of fact 
of the district court:

1. “ Mexican-American students are an identifiable, 
ethnic-minority class” in the Southwest, Texas,1 and in 
Corpus Christi (A. 13-16).

2. Those students “are now separated and segregated 
. . . in all three levels of the school system” (A. 17, 18-21, 
n. 36-37), even to a greater degree than they are segregated 
residentially (A. 37-38).

3. There has been an historic pattern of discrimination 
against Mexican-Americans in the Corpus Christi school 
district which contributed to their segregation in the 
schools (A. 21-27, n. 38-40).

4. Negro students are also segregated in the system, as 
are both Mexican-American and Negro faculty members 
(A. 27-29; 35, n. 56; 41).

5. Expert testimony established that the segregation of 
Mexican-American and Negro students causes them to suf­
fer “harmful effects,” including “psychological and emo­
tional trauma, and scarring and crippling.” (A. 42; 7. n. 26.)

6. The segregation in the schools was not simply the 
result of residential segregation. Rather:

1 See, United States Commission on Civil Rights, Mexican 
A merican Education Study, Report 1: Ethnic Isolation of Mex­
ican Americans in the Public Schools of the Southwest, April, 1971, 
pp. 21-38; Inter-Agency Committee on Mexican-American Affairs, 
El Paso, Tex., October 26-28, 1967, p. 98; Texas State Advisory 
Committee to the United States Commission on Civil Rights, The 
Civil R ights Status of Spanish-Speaking A mericans in K leberg, 
Nueces, and San Patricio Counties, Texas (July, 1967); and the 
studies cited in Mexican-Americans and the Desegregation of 
Schools in the Southwest, 8 Houston Law Review, 929, 939, n. 75.



5

The court is of the firm opinion that administrative 
decisions by the school board in drawing boundaries, 
locating new schools, building new schools and renovat­
ing old schools in the predominantly Negro and Mexi­
can parts of town, in providing an elastic and flexible 
subjective transfer system that resulted in some Anglo 
children being allowed to avoid the ghetto, or “cor­
ridor” schools, by bussing some students, by providing 
one or more optional transfer zones which resulted in 
Anglos being able to avoid Negro and Mexican-Amer­
ican schools, not allowing Mexican-Americans or Ne­
groes the option of going to Anglo schools, by spending 
extraordinarily large sums of money which resulted 
in intensifying and perpetuating a segregated, dual 
school system, by assigning Negro and Mexiean- 
American teachers in disparate ratios to these segre­
gated schools, and further failing to employ a sufficient 
number of Negro and Mexican-American school teach­
ers, and failing to provide a majority-to-minority 
transfer rule, were, regardless of all explanations and 
regardless of all expressions of good intentions, cal­
culated to, and did, maintain and promote a dual school 
system.

(A. 31-36, n. 50-57.)

7. The explanations of the defendant school officials for 
their adopting and following the above policies were not 
adequate to establish their independent validity (A. 41).

From these findings of fact, which are fully supported 
by the record,2 the district court drew the following con-

2 Throughout its opinion, the court makes reference to the ex­
hibits and testimony introduced at trial. See, e.g., A. 3-7; 7, n. 26 ; 
17-21, n. 37; 22-26, n. 38-40; 31-36, n. 50-57. The decision describes 
the trial judge’s exhaustive study and analysis of the evidence 
(A. 2), and points out the extent to which it was necessary to 
resolve factual disputes (A. 6-8, n. 26).



6

elusions of law. First, the school district was segregated in 
violation of the Fourteenth Amendment as to both Negro 
and Mexican-American students. The former had formerly 
been segregated pursuant to statute and that dual system 
was never disestablished. The latter were segregated as a 
result of the above described policies of the school district. 
Second, this segregation could not be remedied “by placing 
Negroes and Mexican-Americans in the same school” 
(A. 29). Rather, the duty was on the school district to adopt 
a plan that would result in a unitary system within the 
meaning of decisions of this Court and the Fifth Circuit.

To this end, further proceedings were held, resulting in 
the decision of July 2, 1971 (A. 54-97). The court required 
a comprehensive plan to be adopted in compliance with the 
standards established by this Court in Swann v. Charlotte- 
Mechlenberg Board of Education, 402 IT.S. 1 (1971) and 
Davis v. Board of School Commissioners of Mobile County, 
402 U.S. 33 (1971) (A. 76-77, 82).

Reasons Why the Writ Should Be Denied

Despite the arguments made by the petitioner school dis­
trict, it is clear that the Court of Appeals and the district 
court both followed long-standing decisions of this Court 
and adhered to its most recent decisions regarding school 
desegregation. Thus, this case does not present any new 
issues of law, nor do the decisions below conflict with deci­
sions of this Court or with those of other circuits. In es­
sence, the quarrel of petitioners is with the findings of fact 
made by the district court and affirmed by the Court of 
Appeals. However, petitioners present no basis for this 
Court’s holding that those fundings are clearly erroneous. 
Therefore, this case does not warrant review by this Court 
on certiorari.



7

I.

The Factual Allegations Made by the Petitioners 
Were Resolved Against Them by the District Court, 
and There Is No Basis for the Review of These Find­
ings Here.

Since a number of the legal arguments made by the 
school district are based on its characterization of the 
facts, some preliminary discussion of what was actually 
found by the trial court is necessary. Basically, petitioners 
present their version of the facts as though it was un­
disputed, and generally disregard or misstate the trial 
court’s findings. In essence, the petition seeks to retry the 
facts here after having had adverse findings below. Of 
course, this Court does not sit as a trial court, and peti­
tioners have simply failed to sustain their burden of demon­
strating that the Court should grant review on the ground 
that the findings are clearly erroneous under Buie 52(a), 
Fed. R. Civ. Proc.

Some examples of disparities between factual assertions 
in the petition and the findings of the trial judge are il­
lustrative :

1. The petition asserts that, “ the record is . . . devoid 
of evidence of discrimination against Mexican-Amerieans 
in the community” (Petition for Writ of Certiorari, p. 8). 
To the contrary, the district court found that there was 
such discrimination, based that finding on extensive testi­
mony (A. 22-26, n. 38-40), and further found that this dis­
crimination contributed to school segregation (A. 27).

2. The petition asserts that there was “no evidence” that 
school boundaries were established or changed for the



8

purpose of segregation (Pet. 11). The district court found 
that decisions “ in drawing boundaries” and locating and 
expanding schools “were . . . calculated to, and did, main­
tain and promote a dual system” (A. 31, 36), and gave ex­
amples (A. 31, n. 50).

3. The petition states that the record did not show 
“ ethnic imbalance as a result of discrimination” and that 
the trial court did not so find (Pet. 12). The district court 
found that the historical pattern of discrimination con­
tributed to segregation (A. 27), and that segregation re­
sulted from the actions of the school board (A. 31-36).

4. The petition states that in 1969 “no school in the 
District had a teaching staff of more than 50% Mexican- 
Ameriean and only two . . . had a combined Negro-Mexican- 
American staff exceeding 50%” (Pet. 11). While this state­
ment is literally true, it is misleading in light of the small 
percentage of Mexican-Ameriean (17.3%) and Negro 
(3.1%) teachers employed in the system (A. 35, n. 57). 
The point is, as the trial court found, that those teachers 
were concentrated in schools with predominantly Mexican- 
American and/or Negro student bodies (A. 34-35, n. 56; 41; 
17-20, n. 37).3

5. Finally, in arguing that certiorari should be granted, 
it is stated that there was no evidence that isolation on the 
basis of national origin caused damage to Mexican-Amer- 
ican students of the sort contemplated by Brown v. Board 
of Education (Pet. 20-21). To the contrary, the district

3 For example, in Barnes Junior High, 94.03% of the pupils 
and 38.46% of the teachers were Mexican-American, so that the 
percentage of Mexican-Ameriean teachers was more than twice 
the percentage in the system as a whole. In Sundeen Junior High, 
on the other hand, 21.60% of the pupils and 3.03% o f the teachers 
were Mexican-American (A. 18).



9

court made precisely that finding, and based it on extensive 
testimony of an expert witness (A. 42; 7, n. 26).

In noting these disparities between the assertions of the 
petitioners and the findings of the district court, our intent 
is not to engage in this Court in a dispute over what were 
the facts. Our point is that the trial court found the facts 
in our favor (A. 49), that its findings are clearly supported 
by the record, and petitioners have provided no reason for 
this Court reviewing this case for the purpose of over­
turning them.

II.
The Decision of the Court of Appeals Is Fully In 

Accord With Decisions of This Court and Those of 
Other Circuits.

Essentially, the petition seeks to create a case that is 
appropriate for certiorari by characterizing the Fifth Cir­
cuit’s opinion as being a radical departure from prevailing- 
law. An examination of what the Court of Appeals in 
fact held, however, demonstrates that the court adhered 
in all respects to established precedent.

First, petitioners urge that the court’s abandoning of 
the distinction between “ de. jure”  and so-called “ de facto”  
segregation requires review by this Court. However, it 
is clear that the Fifth Circuit was simply addressing itself 
to the contention that segregation is unconstitutional, or 
“ de ju re”  only if it had been mandated by statute; other­
wise it is “ de facto” and unassailable. The court was ob­
viously correct in rejecting that position, for whatever 
may be thought to be the meaning of the de-jure—de-facto 
distinction, it does not rest on the presence or absence 
of statutorily mandated segregation.



10

Of course, the existence of such a statute makes the 
proof of state-created segregation relatively simple. But 
it still can be proved, as in this case, by showing that the 
segregation or discrimination resulted from actions of state 
officials acting without explicit statutory authority, just as, 
for example, such unconstitutional discrimination can be 
shown in jury discrimination cases.

Indeed, Swann v. Charlotte-Mecklenberg Board of Edu­
cation, 402 U.S. 1 (1971), supports this conclusion in two 
respects. There, this Court was, of course, dealing with 
segregation originally imposed pursuant to statute. But 
the lengthy discussion of issues such as school placement, 
attendance zones and faculty ratios makes it clear that 
constitutional violations arise by school board actions that 
create or perpetuate segregation even in the absence of a 
statute. In addition, this Court addressed itself briefly to 
the de facto—de jure distinction in discussing the meaning 
of Title IV of the Civil Bights Act of 1964 in relation to 
school desegregation litigation. By describing “ so-called 
£de facto segregation’ ” as segregation “where racial im­
balance exists in the schools but with no showing that this 
was brought about by discriminatory action of state author­
ities” (402 IT.8. at 17-18), it was made clear that segrega­
tion that was so caused violated the Fourteenth Amend­
ment whether or not a statute mandated the action.

Thus, it is clear that all the Fifth Circuit did in its 
discussion of de facto—de jure segregation was to abandon 
what it believed, and rightly in our opinion, to be confusing 
terminology. Thus, its holding was simply that the ques­
tion in a school desegregation case was whether the segre­
gation was “unconstitutional” in the sense that it was 
caused by and was the result of state action, whether or 
not such action was under the specific command of a statute 
(A. 127-130). In so defining the issue, of course, the court



11

below followed decisions of this Court going as far back 
as Yick Wo v. Hopkins, 118 U.S. 356 (1886).

Second, petitioners argue that the holding of the court 
below that there is no necessity for showing that the policies 
of the school board were adopted with the specific intent 
of discriminating against Mexican-American students con­
flict with decisions of this Court. The holding of the Fifth 
Circuit, however, is wholly in accord with decisions which 
explicitly hold that it is unnecessary to attempt to uncover 
the underlying motivations of state officials in racial dis­
crimination cases. Rather, the proper focus is on the effect 
of their actions. See, Palmer v. Thompson, 403 U.S. 217, 
224-226 (1971).

Indeed, the Fifth Circuit relied upon and followed this 
Court’s most recent pronouncement on school segregation, 
Wright v. Council of the City of Emporia, 407 U.S. 451 
(1972). In Wright, this Court rejected the Fourth Circuit’s 
holding that the purpose or motivation of a school board’s 
action must be looked to to determine whether it violated 
the Constitution. The Court held:

It is true that where an action by school authorities 
is motivated by a demonstrated discriminatory pur­
pose, the existence of that purpose may add to the 
discriminatory effect of the action by intensifying the 
stigma of implied racial inferiority. . . . But as we 
said in Palmer v. Thompson, . . .  it “is difficult or im­
possible for any court to determine the ‘sole’ or ‘dom­
inant’ motivation behind the choices of a group of 
legislators,” and the same may be said of the choices 
of a school board. 407 U.S. at 461-62.

Thus, the question in any case arising under the Four­
teenth Amendment is whether there has been a violation



12

of its mandate. Rather than trying to search the minds 
of state officials as to the underlying purpose or motiva­
tion of their actions, it is appropriate for a federal court 
to limit its inquiry to whether those actions have had the 
effect of denying equal protection. The district court here 
made precisely that inquiry and found that the policies 
adopted by the school board had the proscribed effect. The 
standard laid down by the Fifth Circuit—that the school 
board would be held responsible for the natural and 
probable results of administrative decisions made with 
awareness of their effect—is clearly correct.

Thus, contrary to the assertions of the petitioners, the 
lower court did not hold that the mere existence of racial 
or ethnic imbalance with nothing more constitutes a viola­
tion of the Fourteenth Amendment. Rather, it stated a 
two-pronged test; there must be found a denial of equal 
educational opportunity because of racial and ethnic isola­
tion,4 and “ this segregation must be the result of state 
action” (A. 129).

In sum, the Fifth Circuit adhered to long-standing 
precedent established by this Court; in particular, it re­
ferred to this Court’s decision in Hernandez v. Texas, 347 
U.S. 475 (1954), which held that Mexican-Americans are 
fully protected by the equal protection clause of the Four­
teenth Amendment if they are subjected to discrimination 
as an identifiable ethnic group.5 6 Although Hernandez in­
volved jury discrimination, its rationale is applicable to 
this case. There, as here, there was no history of exclusion 
of Mexican-Americans from jury duty imposed by statute,

4 Of course, reliance on statistical evidence to establish this first
element was proper.

6 As are other ethnic groups. See, Yick Wo v. Hopkins, 118 U.S. 
356 (1886); Korematsu v. United States, 323 U.S. 214 (1944).



13

as was the ease in many southern states with regard to the 
exclusion of blacks. There, as here, the Court looked to 
the objective indicia of actions of state officials to deter­
mine whether there had been a constitutional violation, 
and avoided the impossible task of probing their innermost 
motivations.

Finally, the decision below does not conflict with that 
of other circuits. Bather, the Courts of Appeals are in 
agreement that actions such as those of the Corpus Christi 
School District which perpetuate or result in school segre­
gation violate the Fourteenth Amendment to the Consti­
tution. Davis v. School List, of Pontiac, 309 F. Supp. 734 
(E.D. Mich. 1970), aff’d 443 F.2d 573 (6th Cir. 1971), 
cert, denied, 404 U.S. 913 (1971); United States v. School 
Dist. No. 151, 286 F. Supp. 786 (N.D. 111. 1966), aff’d 404 
F.2d 1125 (7th Cir. 1968), 301 F. Supp. 201 (N.D. 111.
1969) , aff’d 432 F.2d 1147 (7th Cir. 1970), cert, denied, 
402 U.S. 943 (1971); Kelly v. Guinn, 456 F.2d 100 (9th Cir. 
1972); cf. Brewer v. School Bd. of Norfolk, 397 F.2d 37 
(4th Cir. 1968); Clark v. Board of Educ. of Little Rock, 
426 F.2d 1035 (8th Cir. 1970), 449 F.2d 493 (8th Cir. 1971); 
United States v. Board of Educ., 429 F.2d 1253 (10th Cir.
1970) .6 6

6 Petitioners make a final argument— that if they are required 
to desegregate they must be given a “reasonable” time to do so. 
This seems to be little more than an attempt to resurrect “all 
deliberate speed,” a standard abandoned by this Court in 1964. 
Griffin v. School Board of Prince Edward, 377 U.S. 218, 234 
(1964). Of course, once a constitutional violation has been estab­
lished it must be remedied immediately. Alexander v. Holmes 
County Board of Ed., 396 U.S. 19 (1969). There has already been 
a delay of one and one-half years in the implementation of any 
plan for the district.



14

CONCLUSION

For the foregoing reasons, the petition for writ of cer­
tiorari should be denied.

Respectfully submitted,

Chris D ixie

609 Fannin Street Building 
Suite 401
Houston, Texas 77002

J ack  Greenberg 
N orman  C h a c h k in  
Charles S teph en  R alston 

10 Columbus Circle 
New York, N.Y. 10019

Attorneys for Respondents



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