Price v. Austin Independent School District Brief of Plaintiffs-Appellants

    NO. 90-8154
SAMANTHA PRICE, ET AL.
Plaintiffs - Appellants

vs.
AUSTIN INDEPENDENT SCHOOL DISTRICT, ET AL. 

Defendants - Appellees

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

Appeal From The United States District Court 
For The Western District Of Texas 

No. A-87-CA-483

BRIEF ON BEHALF OF PLAINTIFFS-APPELLANTS 
CENTRAL TEXAS CHAPTER OF THE AMERICAN CIVIL 

LIBERTIES UNION AND ELIAS FLORES HARRINGTON, THROUGH HIS PARENTS, JAMES AND REBECCA FLORES HARRINGTON

David Van Os VAN OS, DEATS, RUBINETT & OWEN, P.C.
900 Congress Ave., Suite 400 
Austin, Texas 78701 5 1 2-479-6 1 55
ATTORNEYS FOR PLAINTIFFS-

APPELLANTS



NO. 90-8154
SAMANTHA PRICE, ET AL.
Plaintiffs - Appellants

IN' THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

vs.

AUSTIN INDEPENDENT SCHOOL DISTRICT, ET AL. 
Defendants - Appellees

Appeal From The United States District Court 
For The Western District Of Texas 

No. A-87-CA-483

BRIEF ON BEHALF OF PLAINTIFFS-APPELLANTS 
CENTRAL TEXAS CHAPTER OF THE AMERICAN CIVIL 

LIBERTIES UNION AND ELIAS FLORES HARRINGTON, THROUGH HIS PARENTS, JAMES AND REBECCA FLORES HARRINGTON

David Van Os 
VAN OS, DEATS, RUBINETT & OWEN, P.C.
900 Congress Ave., Suite 400 
Austin, Texas 78701 5 1 2-479-6155
ATTORNEYS FOR PLAINTIFFS-

APPELLANTS



CERTIFICATE OF INTERESTED PERSONS
Tne undersigned counsel for the PI aint1 ffs-Appe11 ants

Central Texas Chapter ACLU ana Elias Flores Harrington hereby
certifies that the following persons and entities may have an
interest in the outcome of this case .

William H. Bingham, James R. Raup, John H. Spurgin, II, and 
the law firm of McGinnis, Lochridge & Kilgore, Attorneys for 
Defendants.
NAACP Legal Defense Fund, Inc.
NAACP
NAACP, Austin Branch
Julius L. Chambers, Napoleon B. Williams, Jr., and Lydia 
Gardner, Attorneys for Plaintiffs Price, et al.
Mexican American Legal Defense and Educational Fund, Inc.
Norma V. Cantu, Jose D. Garza, Albert H. Kauffman, Judith A. 
Sanders-Castro, and Guadalupe T. Luna, Attorneys for 
Plaintiffs Herrera, et al. in the court below.
Central Texas Chapter, American Civil Liberties Union.
David Van Os, and Van Os, Deats , Rubinett & Owen, P.C., Attorneys for Plaintiffs-Appe11 ants Harrington, et al.
Samantha Price
Ruth Price
Najda Stegall
Dorothy Stegall
Brandon McMurthy
Ryan McMurthy
Reginald Robert Williams, Jr.

l



Joanne Williams
George Bertram Powell
Elaine Powell
Minique Kindred
Avonne Kindred
Oscar Herrera
Lillian Herrera
Santos Salinas
Daniel Salinas
Jessica Amezquita
Sandra Amezquita
Elias Flores Harrington
Rebecca Flores Harrington
James Harrington
Austin Independent Scnool District
Dr. John Ellis
Nan Clayton
Ed Small
Gary McKenzie
Bernice Hart
John Lay
Beatriz de la Garza 
Bob West
Melissa Knippa

David Van Os
VAN OS, DEATS, RUBINETT a. OWEN, P.C. 
900 Congress Ave., Suite 400 
Austin, Texas 78701 
512-479-6155
ATTORNEY FOR PLAINT IFFS-APPELLANTS



STATEMENT AS TO ORAL ARGUMENT
We respectfully suomit that oral argument would oe useful to 

the Court and should oe heard in this case. This appeal involves 
serious and complex legal issues regarding the extent to which a 
public scnool district may, after a declaration of unitariness, 
restore its student assignment plan to patterns of racial 
segregation similar to those which existed prior to a previous 
judicial decree invalidating the student assignment system as 
unconstitutional racial segregation.

- i i i -



TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS............................ l-ii
STATEMENT AS TO ORAL ARGUMENT................................. ill
TABLE OF CONTENTS............................................ iv-v
INDEX OF AUTHORITIES....................................... vi-vii
STATEMENT OF JURISDICTION.................................... viii
STATEMENT OF ISSUES............................................ix
STATEMENT OF THE CASE......................................  1
1. Description of the course of Proceedings and

result below...........................................  1
2. Statement of Facts Relevant to the Issues

Presented............................................... 2
SUMMARY OF ARGUMENT........................................  15
ARGUMENT.................................................... 19
1. Discriminatory intent in a school desegregation

case is properly measured by institutional intent based upon circumstantial evidence, historical and 
otnerwise, rather than by the presence or absence of 
subjective bad faith..................................  19

2. The district court failed to give proper weight
to the similarities between tne new elementary student 
assignment plan and the one held unconstitutional in 1979, and to the uncontroverted evidence that the 
segregated results of the new plan result from the 
same history of discrimination found in 1979 .........  22

3. The district court failed to give proper weight to the
disparate physical facilities in minority scnool 
attendance zones in relation to the history of 
discrimination......................................... 27

4. The district court failed to give due weight to the
AISD's undisputed foreknowledge of the results of its 
action............................................... 29



5 . The district court failed to give proper weight 
to the sequence of events preceding the adoption of the new student assignment plan in relation to the 
historical background...............................

6. The district court failed to account for relevant
evidence of contemporaneous minutes and statements 
relating to tne decision to adopt the-new student 
assignment plan........................................ 33

7. The district court failed to take into account the
failure of the school board to seek less segregative 
alternatives to the new student assignment plan.......  36

8. The district court failed to give proper weight
to the pattern of imbalanced assignment of minority 
faculty to minority schools...........................  39

9. The district court gave undue weight to the 1983 
declaration of unitariness in the context of thiscase................................................... 39

10. The district court's finding of no discriminatory
intent is clearly erroneous...........................  43

CONCLUSION.................................................. 43
CERTIFICATE OF SERVICE.....................................  44

v



INDEX OF AUTHORITIES
CASES
Austin I

467 F. 2d 846 (5th Cir., 1972).........................  16
Austin II532 F. 2d 380 (5th Cir., 1 976)......................... 16,20
Columbus Board of Education v. Penick

443 U.S. 449 , 464-65 (1 979)...........................  30,37
Davis v. Board of School Commissioners

402 U.S. 33 (1 97 1)..................... ............... 42
Diaz v. San Jose Unified School District

73 3 F. 2d. 660 , 662 (9th Cir., 1 984)...................  20
Dowell v. Board of Education

890 F.2d. 1483, 1 503 (10th Cir., 1989) cert. granted
1 1 0 S . Ct. 1 52 1 (1 990 )..................... ............20,41

Green v. County School Board
391 U.S. 430, 435 (1 966)..............................  28

Keyes v. School Disc. No. 1, Denver, Colo.
670 F.Supp. 1513, 1516 (D. Colo., 1 987)...............  20

Morgan v. McDonougn
689 F. 2d. 265 (1st Cir., 1 982)........................  42

Personnel Administrator v. Feeney
442 U.S. 256 (1979)...................................  2 1,30

Riddick v. School Board of Norfolk
784 F.2d 521 (4th Cir., 1986).........................  12

Swann v. Charlotte-Mecklenburg
402 U.S. 1, 28 (1971)................................ passim

United States v. Texas Education Agency (Austin III)
564 F.2d. 1 62 , 174 (5th Cir, 19 77)................... passim

United States v. Texas Education Agency (Austin IV)
579 F.2d. 910, 915 (5th Cir., 1978, opinion on
rehearing), cert. denied, 443 U.S. 915............... passim

United States v. AISD
564 F. 2d 1 62, 170-71 (5th Cir., 1977).................  3

U.S. and Overton v. AISD
(W.D. Tex. , 1979)...................................... 31

v i



United States v. Texas Education Agency (Austin 
Independent School District)W.D. Tex., Nov. 1979 ..................................  16
U.S. v. Overton834 F.2d. 1171, 1173-74 (5th Cir., 1987)..............  1,2
Velasquez v. City of Abilene

725 F. 2d. 1014 (5th Cir., 1 984).......................  34
Village of Arlington Heights v. Metropolitan Housing 

Authority
429 U.S. 252 ( 1 977).................................. passim

Washington v. Davis
426 U.S . 229 (1 976)...................................  2 1 , 30

- vi i -



STATEMENT OF JURISDICTION
This Court has jurisdiction over this appeal under 28 U.S 

Section 1291 because this is an appeal free a final decision o 
the United States District Court for the Western District of 
Texa s.

- vii i -



STATEMENT OF ISSUES
1. Whether the district court failed to give proper weight to 

the similarities between the new elementary student assignment plan and the one held unconstitutional in 1979.
2. Whether the district court failed to give proper weight to 

the uncontroverted evidence that the segregated results of 
the new plan result from the same history of discrimination 
found in 1979.

3. Whether the district court failed to give proper weight to 
the disparate physical facilities in minority scnool 
attendance zones in relation to the history of discrimination.

4. Whether the district court failed to give due weight to the 
AISD's undisputed foreknowledge of the results of its 
action .

5. Whether the district court failed to give proper weight to 
the sequence of events preceding the adoption of the new 
student assignment plan in relation to the historical 
background.

6. Whether the district court failed to account for relevant 
evidence of contemporaneous minutes and statements relating 
to the decision to adopt the new student assignment plan.

7. Whether the district court failed to take into account the 
failure of the school board to seek less segregative alternatives to the new student assignment plan.

8. Whether the district court failed to give proper weight to 
tne pattern of imbalanced assignment of minority faculty to 
minority scnools.

9. Whether the district court gave undue weight to the 1983 
declaration of unitariness in the context of this case.

10. Whether the district court's finding of no discriminatory intent is clearly erroneous.

1 x



STATEMENT OF THE CASE
1. Description of the course of proceedings and result below.

This action was filed on August 7, 1y87, to challenge m e
new student assignment plan which had oeen enacted oy the Austin 
Independent School District, effective the 1987-88 school year. 
Plaintiffs filed this action because they believe the new student 
assignment plan for the elementary schools constitutes 
unconstitutional racial segregation. The Plaintiffs sought a 
preliminary injunction to halt the implementation of the new 
student assignment plan. A hearing was held on the Plaintiffs' 
motion for a preliminary injunction on August 13, 1987. The
district court issued a written order denying the motion for 
preliminary injunction on August 21, 1987. The Plaintiffs
appealed the denial of preliminary injunction to this Court.
This Court on December 15, 1987, affirmed the denial of
preliminary injunction, holding that the district court did not 
abuse its discretion. United States v. Overton, 834 F.2d 1171 
(5th Cir., 1987). In that decision the Fifth Circuit 
consolidated this action with an attempt by the plaintiffs in 
United States v. Texas Education Agency, A-70-CA-80, to re-open 
that litigation. United States v. Texas Education Agency was the 
desegregation litigation against the AISD which was originally 
filed in 1970 by the United States and which culminated in a 1980 
consent decree desegregating the Austin schools. That litigation

1



was oefore tnis Court four times, with this Court on each 
occasion holding the AISD to be operating an unconstitutionally 
segregated school system. See United States v. Texas Education 
Agencv (Austin Independent School District), 579 F.2d 910 (5th 
Cir., 1 978) (Austin IV) cert. denied 443 U.S. 915. In United 
States v. Overton, 834 F.2d 1171, this Court affirmed the 
district court's refusal to permit the plaintiffs in the older 
litigation to re-open that case.

After this Court's affirmance of the denial of preliminary 
injunction, this action returned to the district court for trial 
on the merits. After extensive discovery trial on the merits was 
held in November 1989. On January 12, 1990, the district court
issued a written Memorandum Opinion holding against the 
Plaintiffs-Appellants. The district court ruled that the 
Pla intiffs-Appel 1 ants had not proven that the AISD acted with 
discriminatory intent in establishing the new student assignment 
plan for the. elementary schools in 1 987.

2 . Statement of Facts Relevant to the Issues Presented.
Prior to 1980, the Austin Independent School District 

operated a "neighborhood school" system. The neighborhood school 
concept was used by the AISD, through its decisions on matters 
such as the construction and abandonment of schools, the 
selection of school sites, the assignment of faculty and staff,

2



and the drawing of student attendance zones, intentionally to
promote segregation. See United States v. AISD, 564 F.2a 162,
17 0-71 (5th Cir. , 1977) (Austin III ). In 1979 the uistric: Courc
for the Western District of Texas issued an extensive opinion
wnich details the history of official decisions involved in the
AISD's utilization of neighborhood schools as a device for

1
segregation. See Ex. P-1, pp. 17-46. In that opinion the
district court ordered the AISD to devise a desegregation plan 
which would suostantia11y eliminate one-race minority schools.
Ex. P-1 pp. 48-49.

The AISD and the Plaintiffs entered into a consent decree on 
January 2, 1980, which established a desegregation plan. Until
1983 the AISD remained under the jurisdiction of the court under 
the decree. In 1983 the AISD sought a declaration of unitariness 
to which the Plaintiffs objected. After negotiations the 
objections were withdrawn, the AISD was declared unitary, and the 
parties entered into a stipulation by which the AISD would be 
required to demonstrate why the case should not be reopened if 
the AISD substantially changed the student assignment plan and 
the Plaintiffs oojected. The stipulation was to last until 
January 3, 1986, or the completion of the construction of Healing

1
"Ex." will refer to exhibits admitted at trial in the court

below.

3



Junior High School, whichever was later. Kealing was completed 
in September 1986. In April 1987 the AISD board enacted the new 
student assignment plan wnich is tne suoject of this litigation. 
The plan re-estaolished a "neignoornood school" system for the 
AISD elementary schools.

Busing v. neighborhood schools was a major issue in every 
school board election during the life of the 1980-83 consent
decree and tne 1983-86 stipulation. (Board memoer Ed Small, Tr.

2
Vol. 1 pp. 252, 270-272, 277-279). In the April-May 1986 
elections two new members of tne board were elected, John Lay and 
Dr. Gary McKenzie. (Tr. Vol. 1, p. 289). Lay and McKenzie were 
"neighborhood school" advocates. (Tr. Vol. 1 p. 294). Witnesses 
described their 1986 election campaigns as single-issue campaigns 
in favor of neighborhood schools or against busing, or as some 
perceived it, blatantly segregationist. (Tr. Vol. 1 pp. 32-33,
1 41 -42 , 1 63-64 , 184-85).

By 1986 school board member Ed Small, who had been elected 
to the board in 1980 on a "let's make it work" (referring to the 
court ordered desegregation) platform, had taken a 
pro-neighborhood school position with regard to the elementary 
schools. (Tr. Vol. 1 pp. 252, 312).

2
"Tr." will refer to the court reporter's transcript of the 

trial in the court oelow.

4



The school board adopted initial criteria for a new student 
assignment plan about two or three meetings after the Lay and 
McKenzie elections, on June 23, 1986. (Tr. Vol. 1 o. 295).
The initial criteria were proposed by board member Abel Ruiz.
The criteria are listed in the June 23, 1986 ooard minutes, Ex.
D-50. The first listed criterion was that, "The target etnnicity 
in each school will be a range within ten percentage points of 
the White population district-wide." According to Ruiz, he 
listed that as the first criterion because he considered it the 
most important. It was his intent that the ethnicity target be 
mandatory for all schools, including all elementary schools. He 
believed that attendance zone boundary lines would have to be 
drawn in an elongated east-west manner in order to reach that 
goal for all the schools. The minutes corroborate Mr. Ruiz's 
testimony as to his mandatory intent for the ethnicity criterion 
in the following statement in Ex. D-50, p.4: "Mr. Ruiz stated
that it was his intent first to shift boundaries contiguously to 
achieve the first criterion for each school to be within ten 
percentage points of the White population district-wide."
Although criterion number 6 stated, "If students must be oused in 
order to attain the target at each school, grades 6 thorough 12 
should be bused," Mr. Ruiz did not intend for number 6 to 
circumvent number 1. His inclusion of number 6 was a political 
maneuver to attain four votes to adopt the criteria. He felt

5



such a political maneuver to be necessary because the Anglo board 
members had an Anglo political constituency which wanted to end 
ousing for desegregation purposes. Under the elongated 
east-west-running attendance zones which he envisioned, students 
would be riding buses simply because of the requirement of state 
law that students living over 2 miles from their homes be 
provided transportation, and many students in the elongated zones 
would be over 2 miles from their schools. Thus the board would 
be able to say that students were being bused not because of 
desegregation, but because of the 2-inile requirement. It was 
clear to Ruiz that Small understood his intent, because during 
tne discussion Small acknowledged that Ruiz's motion would 
require gerrymandered attendance zones that would end up with 
Casis and Zavala schools being paired just as under the 
desegregation plan. Lay also indicated that he understood Ruiz's 
intent. See Tr. Vol. 2 pp. 232-37. Ruiz's motion passed with 
Small, McKenzie, and Lay voting against it. Ex. D-50, p.4.

Ruiz predicated his June 23, 1986 criteria upon the board
hiring an outside consultant to develop the student attendance 
plan in accordance with the criteria. He made his intent clear 
to the other board memoers that the hiring of an outside 
consultant was a precondition for him, since use of an outside 
consultant would avoid the potential of local political pressure 
affecting the product. (Tr. Vol. 2 pp. 232-33). Ruiz obtained

6



the support of board member Bernice Hart to second his June 23, 
1986 motion by explaining his full intent to her and obtaining 
her agreement thereto. (Tr. Vol. 2 p. 235). Hart acknowledged 
that she remembered Ruiz placing great importance on the use of 
an outside consultant. (Tr. Vol. 2 pp. 183-84)

On November 24, 1986, the school board revisited the subject
of criteria for a new student assignment plan. The minutes of 
the meeting show the Board considering "possible modification of 
criteria approved on June 23, 1986..." and "whether district
staff or an outside consultant should develop the plan." (Ex.
D-51 , p. 6). The minutes show that McKenzie moved that the board 
direct the staff to propose at least two plans that would achieve 
"as many of these criteria as possible." (ibid.) McKenzie's 
motion passed. Lay and Small supported the motion. Ruiz opposed 
the motion. (ibid. ) According to Ruiz, he opposed McKenzie's 
Novemoer 24 motion because it was different from his proposal in 
that his first criterion, the ethnic balance target, would no 
longer be mandatory. Also, he was unhappy that no outside 
consultant would be utilized. (Tr. Vol. 2 pp. 240-4 1). The 
student assignment plan that the district staff ultimately 
produced was the product of McKenzie's, not Ruiz's, proposal.
(Id. )

In March 1986 the school district staff had prepared a 
proposed set of "criteria for student assignments." (Ex. D — 49)



The criteria included the following: "At each grade span, the
ethnic percentages of students bused should approximate the 
ethnic percentages of students enrolled in AISD" (Section E.l); 
"An integrated experience is defined as attendance in a school 
where the White/Other enrollment is within 15 percentage points 
of the District percentage" (F.1); and "As many of the current 
assignments and boundaries as possible should be maintained."
(H.  1 )

The district staff, however, as required by the board 
decision, had to implement the criteria adopted in the November 
24, 1986 board meeting. On February 23, 1987 the staff presented
a "Summary of Proposed Boundary and Student Assignment Plan."
(Ex. D — 53) This exhibit contains enrollment figures showing 
racial and ethnic school compositions for three school years: 
1979-80, which was the last year before the court-ordered 
desegregation plan, 1986-87, which was the last year the district 
followed the desegregation plan, and proposed 1987-88 figures 
under the new board criteria.

The student assignment plan under challenge in this 
litigation was adopted by the AISD board on April 13, 1987. (Ex.
D — 61 ) The segregated housing patterns of Austin, with East 
Austin being racially identifiable as predominantly minority, are 
common knowledge to Austin residents. (Tr. Vol. 1 pp. 281-282).
It was obvious to board members that the elimination of busing

8



for desegregation purposes in the elementary schools would result 
in a number of racially identifiable elementary schools and that 
the schools in East Austin, for example, would oe overwhelmingly 
minority. Id. If this was not common knowledge for any ooard 
member, Ex. D-53 made the situation crystal clear.

The school board's April 13, 1987 action established a total
"neighborhood school" system for the elementary schools. In the 
1986-87 school year, which was the last school year under the 
desegregation plan, tnere were six elementary schools with over 
80% minority student population, and five elementary schools with 
over 8U% Anglo population. (Exs. D-53, D-67). In the 1 987-88 
school year, the first year of the new plan, these numbers 
increased to 17 schools with over 80% minority population and 11 
schools with over 80% Anglo population. A comparison with the 
racial composition figures for 1979-80, the last year of the 
unconstitutional neighborhood school plan prior to the decree, 
shows that the one-race minority schools of 1979 were restored to 
virtually the same conditions in 1987. The following table shows 
these equivalences, with 1986-87 figures under the desegregation 
plan also shown for comparison.

School 1979-80 1987-88 1986-87%Minority-%Anglo %Minority-%Anglo %Minority-%Anglo
A 1lison 96% 4% 96% 4% 9 6 % 4%
Blackshear 98% 2% 98% 2% 7 5 % 2 5%
Becker 82% 18% 88% 12% 87% 1 3%

9



B rooke 97% 3% 94% 6% 68% 32%
C ampbel1 99% 1 % 100% 0% 62% 3 8%
G ova1 le 96% 4% 9 5 « 5 % 7 1 % 2 9 %
Metz 99% 1 % 97% 3% 72% 28%
Norman 100% 0% 90% : 10% 73% 2 7 %
Oak Springs 99% 1 % 95% 5% 69% 31 %

0 rtega 99% 1% 97% 3% 62% 38%
Sanchez 97% 3% 95% 5% 71 % 29%
S ims 99% 1% 97% 3% 72% 28%
Z ava la 99% 1 % 97% 3% 63% 37%
Sources: Exs . D-53, D- 6 8•

In 1979 there were 13 80%+ minority schools. In 1987 there were
t hose 13 plus four more: Allan, which did not exist in 1979; Pecan
Springs, whicn was 75% minority in 1979, 93% in 1987; Winn, whichi was
70% minority in 1979 and 94% in 1987; and Andrews, which was 54%
minority in 1979 and 84% in 1987 . (Exs. D-53 , D-68). As the above
chart shows the population profiles of 1979's 13 were almost the same 
in 1987 as tney had oeen in 1979. The only demographic difference 
between 1979 and 1987 was that tne minority concentration area of East 
Austin had expanded. The elementary scnool site map for 1987, Ex.
D-73-A, confirms that the 80%+ minority schools' attendance zones 
together form a contiguous region. Plaintiffs' expert Dr. Yale Rabin, 
wno testified and was credited in the 1979 trial, testified in this 
action. Reviewing 1970 and 1980 census data and tne 1987 elementary



school location map with racial profiles, he confirmed that the East
Austin minority concentration nad expanded and intensified since 1979
He offered the opinion that the demographic patterns which caused the
neighborhood scnools of 1987 to be segregated were the result of the
same continuing legacy of discriminatory official actions which had
caused the pre-1980 segregated housing and school patterns. See
Tr. Vol. 1 pp. 75-84; Exs. P-8 and P-9.Dr. Rabin was not
controverted, and was credited by the court below. (Memorandum

3
Opinion pp. 15-16)

Examination of the statistics from 1979 to 1987 to 1989 
demonstrates that segregation has increased as a result of the 1987 
assignment plan. In 1979 there were 13 elementary schools with 80%+ 
minority population. Ex. D-53. In 1987 there were 17, the 13 from 
1979 plus four more. Ex. D-68. In 1989 there were 20, the 17 from 
1987 plus Blanton, 81%, Harris, 80%, and Ridgetop, 83%. See Ex. D-69 
The three additions are contiguous to the East Austin minority area. 
See Ex. D-73-A. In 1978-79, 46.9% of AISD’s Black elementary student 
and 38.4% of AISD's Hispanic elementary students attended 80%+ 
minority schools. (Calculating with the school by school enrollment 
numbers in Appendix A to the 1979 district court opinion, Ex. P-1).
In 1987, 3,039 or 47.1% of the 5,445 BlacK elementary students and

3
"Memorandum Opinion" will refer to the court below's 

written opinion of January 12, 1990.



4,480 or 39.9% of the 11,243 Hispanic students attended 80%+ minority 
schools. See Ex. D-68. In 1989, 3,370 or 50.1% of the 6,724 Blacx 
students ana 5,218 or 40.2% of the Hispanic students attended 80%- 
minority schools. See Ex. D-69.

:Plaintiffs' expert Dr. Michael Stolee conducted a hands-on 
driving distance study which showed that several schools which are 
racially segregated opposites are nonetheless geograpnica11y and 
transportationally in close proximity. For example, Lee, which is 
over 80% Anglo, and Campbell, which is 100% minority, are only 1.2 
driving miles apart. Several similar examples were cited. (Tr. Vol.
1 pp. 109-114). While the court below rejected certain of Dr.
Stolee's conclusions, the Defendants did not controvert and the court 
did not reject his findings regarding these distances. In contrast 
with the situation in Riddicx v. School Board of Norfolk, 784 F.2d 521 
(4th Cir., 1986), where the school board gerrymandered boundary lines 
to achieve the maximum integration possible, the AISD offers no 
explanation for having such segregative results as between schools so 
close to each other in distance. The school board even modified the 
staff's plan to make these results more starx before adopting a final 
plan. At the April 13, 1987 meeting wherein the new plan was adopted, 
board member Small moved to modify the proposed plan by switching an 
area to the east of Interstate 35 from the proposed Lee attendance 
zone to the Campbell attendance zone. Ex. D-54-A shows tne Lee and 
Campbell zones as proposed by the staff; Ex. D-55-A shows an area "G"



which Small proposed at the April 13, 1987 meeting (see Ex. D-61, p.4)
to be changed from the Lee zone to the Campbell zone; and the minutes 
snow Mr. Small's motion passing. (Ex. D-61). At trial Small was not 
able to offer any educational reason for this change even though he 
authored the motion. (Tr. Vol. 1 pp. 302-305) This modification made
Interstate 35, which has historically been the boundary line for the 
minority population of East Austin (See Findings of Judge Roberts, Ex. 
P-1), the boundary between the two schools' zones. Small knew that 
Area G was probably predominantly minority due to being east of 1-35. 
Campbell would have had two percent Anglo population under the staff 
proposal. (Def. Ex. 53). After Small's April 13 modification, 
Campbell ended up with 0% Anglo population (Def. Ex. 68), and a 
boundary contiguous with the historical vision of an insular East 
Austin minority area. Campbell and Lee have adjoining attendance 
zones but polar opposite racial profiles.

According to board member Small, the board did not seek any 
alternative plans that might reduce the racial imbalance. (Tr. Vol. 1 
p . 3 18).

The nine elementary schools that currently have the nighest Black 
enrollment also have the highest percentage of Black teachers. Eight 
of those nine schools have Black principals. (Tr. Vol. pp. 104, 106).
There is a total of 15 BlacK principals district-wide. (Id.) Of the 
15 schools that have 50%+ Hispanic population, 11 have Hispanic 
principals. There are 25 Hispanic principals system-wide. The seven



highest-proportion Hispanic schools all have Hispanic principals.
( Tr. Vol. 1 p. 104). The nine schools with over 50% BlacK enrollment
also have the highest percentage of Black teachers. (Tr. Vol. 1 p. 
106). The 12 schools with over 60% Hispanic enrollment all nave above 
average proportions of Hispanic teachers. (Id.)

The above testimony regarding faculty assignment was based upon 
Exhibits P-66 through P-74. The district court credited this 
evidence. (Memorandum Opinion p.47). The AISD advanced no reason why 
these racial imbalances were necessary.

Of the eleven elementary schools that were indicated by the AISD 
staff to a task force to need substantial repair or replacement, eight 
were minority schools. Since that time two of the eleven schools have 
been replaced, but those two were majority Anglo schools, leaving 
minority schools as eight of the nine that need replacement. (Tr.
Vol. 1, p. 146). Of the 12 schools still in use that were built 
before 1940, nine are predominantly minority. (Id.). The AISD did 
not reDUt this and other overwhelming evidence of the minority schools 
suffering badly disparate physical condition, and the court below 
credited such evidence. (Memorandum Opinion p. 36).

Tne AISD accompanied the 1987 neighborhood school plan with a 
program entitled "Plan for Educational Excellence." This plan 
identifies 16 predominantly minority schools (the 80%+ minority 
schools which resulted in 1987, with the exception of Andrews) as 
"priority schools" for certain alleged enrichment programs. The



lowering of tne pupi1 - teacher ratio was the single largest expense of 
the Plan for Educational Excellence. (Def. Ex. 65, p. 21). The staff 
report "Priority Schools: The Second Year", found that "reducing PTR
(pupi1-teacher ratio) does not produce a consistent, positive impact 
on learning. In fact, larger AISD classes outperformed smaller ones 
in reading achievement at all five grade levels studied, and in 
mathematics achievement in two of five grade levels." (Def. Ex. 65, 
p. 23). Regarding achievement test scores, the report concluded that 
the "priority schools" did not meet the standard of 85% mastery on the 
TEAMS test, while the other elementary schools did (Def. Ex. 65, p. 
15); that the "priority schools" did not meet the goal of median 
composite percentile of 50 or more on the ITBS test, while the other 
schools did (ibid); and that the ITBS composite median scores were 
consideraoly higher in the rest of the district than in the "priority 
schools" across all grade levels and both years under the new plan 
(Def. Ex. 65, p. 17).

A study of student achievement for the 10-year period 1975-1985 
by the AISD staff shows that minority student achievement during 
1980-1985, i.e. under the desegregation plan, exceeded achievement 
during 1975-1980, i.e. under the pre-decree neighborhood school plan. 
Exs. D-36-A, 36-B, 36-C.

SUMMARY OF ARGUMENT
In 1970 the United States filed suit against the'Austin 

Independent School District seeking relief for the AISD's racially



segregated school system. That litigation lasted in active status for 
ten years. Four times this Court held the AISD to be operating an 
unconstitutionally segregated school system. Austin I, 467 F.2d 848 
(5th Cir. , 1972), Austin II, 532 F.2d 380 (5th Cir., 197 6), Aus1 1 n 
III, 564 F.2d 162 (5th Cir., 1977), Austin IV, 579 F.2d 910 (5th Cir. 
1978), cert. denied 443 U.S. 915. After Austin IV the District Court 
for the Western District of Texas held further extensive hearings.
The district court thereupon in a written Memorandum Opinion and Order 
held the AISD's system still to be an unconstitutionally segregated 
system and ordered the AISD to suomit a desegregation plan. United 
States v. Texas Education Agency (Austin, Independent School District), 
W.D. Tex., Nov. 5, 1979 (Ex. P-1 in the record before this Court.) In
that opinion the district court specifically held the "neighborhood 
schools" system used by the AISD to be unconstitutional, because 
wel1-documented historical patterns of school site location and 
attendance zone line drawing had promoted segregated housing patterns 
and segregated school zones through official action.

Pursuant to the district court's admonition, the parties 
negotiated a consent decree which established a desegregation plan. 
After three years under tne consent degree plan, the AISD was declared 
unitary by the district court in 1983. Pursuant to a stipulation



oetween the parties, the plaintiffs retained the option to seek 
reopening of tne case until September 1986. Tne AISD adhered to the 
student assignment plan wmcn had Qeen established by tne consent 
decree through tne 1986 scnool year. In April 1987 the scnool board 
adopted the elementary scnool student assignment plan wnicn is at 
issue in this litigation, effective the beginning of the 1987 scnool 
y ear.

Under tnat student assignment plan, the AISD returned to the 
"neighborhood school" system for the elementary schools. Evidence 
which is ooth uncontrovertea and uncontrovertible shows that the 
"neighborhood schools" under the 1987 plan created virtually the 
identical results of racial segregation as had existed under the plan 
declared unconstitutional in 1979. Tne same schools which were 
racially identifiaole minority schools in 1979 oecame again racially 
identifiable minority schools in 1987. The only difference between 
1979 and 1987 was tnat the insular minority residential region in 
which the minority schools are located had expanded. Therefore, 
whereas in 1979 there were 13 one-race minority schools, in 1987 there 
became 17 one-race'minority schools. Those 17 included the same 13 
from 1 979. PI aintiffs-Appel 1 ants presented an expert in the impact of 
land use planning on minority populations who had also testified 
credibly in the 1979 trial. This witness's review of 1987 
demographics and scnool location in comparison with analogous 1979 
data led to the conclusion that the segregation resulting in 1987 was



still caused oy the same legacy of official discriminatory action 
which had caused the segregation of 1979. This evidence was 
uncontroverted oy tne AISD and was credited by the district court.
Tnis witness concluded furthermore that the level of segregation 
through concentration of minorities in a compact area within tne 
school district nao intensified oetween 1979 and 1937.

Thus, the "neighborhood schools" under the 1987 student 
assignment plan are physically, geographically, demographically, and 
racially the same "neighoorhood schools" which had been declared 
unconstitutional in 1979. Yet, the district court gave no weight to 
the historical connection between the two plans. Instead, the 
district court considered the issue of discriminatory intent in 
isolation from that historical connection. The district court used 
the 1983 declaration of unitariness as its justification for reviewing 
the 1987 school board action in isolation from the previous history.
It was error for the district court to ignore the reality that the 
segregative results of the new student assignment plan were caused oy 
the same nistorical discriminatory actions whicn had led the 
"neighbornood schools" system to be declared unconstitutional 
previously and thus that the "neighborhood schools" system of 1937 was 
identical to the "neignborhood scnools" system of 1979 and still a 
segregated system for the same reasons. Undisputable evidence snowed 
that tne school board members nad clear foreknowledge of the 
segregative results whicn were going to occur at the time they adopted 
tne new plan. Yet tne district court gave no weight to this element



of foreseeability wnich was critically relevant evidence of 
discriminatory institutional intent in the context of this case. The 
district court's failure to account for the historical connection 
between the two idenrical and identically segregated student 
assignment plans or for the foreseeability of the 1987 results, as 
well as the court's overlooxing of other factors, constituted a 
failure to apply proper legal standards and led to a clearly erroneous 
finding of no discriminatory intent.

ARGUMENT
1. Discriminatory intent in a scnool desegregation case is properly 

measured oy institutional intent based upon circumstantial 
evidence, historical and otherwise, rather than by the presence 
or absence of suojective oad faith.

Through the course of this litigation, just as it did 
throughout tne previous litigation in United States v. Texas 
Education Agency (Austin ISP), the AISD has attempted to focus 
the court's attention upon the subjective motivations of its 
board members. However, as this Court held twice in the previous 
litigation, discriminatory school segregation is not excusable on 
the ground of benevolent motives. Austin III, 564 F.2d 162, 174
(5th Cir., 1977), Austin IV, 579 F.2d 910, 915 (5th Cir., 1978, 
opinion on rehearing), cert. denied, 443 U.S. 915. In school
desegregation cases discriminatory intent is notWmeasured by the 
good faith and well meaning of individual Board members or of the 
persons who carry out the policies and programs of the Board.



The intent is an institutional intent which can be proved only by
circumstantial evidence." Keyes v. School Dist. No. 1, Denver, 
Colo., 670 F.Supp. 1513, 1516, (D. Colo., 1987); Dowell v, 3oard
of Education, 890 F.2d 1483, 1503 (1Otn Cir., 1989) cert, granted
110 S.Ct. 1521 (1990). "Ordinarily, only circumstantial evidence
is available to establish segregative intent." Diaz v. San Jose 
Unified School District, 733 F.2d 660, 662 (9th Cir., 1984).
Such evidence necessarily includes the historical background and 
sequence of events leading up to the school ooard's actions.
Diaz v. San Jose, supra, at 663. This is in accord with the 
Supreme Court's admonition in Village of Arlington Heights v. 
Metropolitan Housing Autnority, 429 U.S. 252 (1977), that the 
historical bacKground and sequence of events leading to a 
decision are important evidentiary points. As this Court stated 
in Austin III, "The most effective way to determine whetner a 
body intended to discriminate is to look at what it has done."
579 F.2d at 914. In the same vein the Court voted that, 
"Frequently the most probative evidence of intent will be 
objective evidence of what actually happened rather than evidence 
descriomg the subjective state of mind of the actor." 579 F. 2d 
at 913 fn. 6.

The AISD argued vigorously in Austin IV that the 
foreseeability of the impact of a decision could not oe used as 
evidence of intent due to the Supreme Court's remand of Austin II

20



under Washington v. Davis, 426 U.S. 229 (1976). This Court 
rejected that argument, and held that.neither Washington v. Davis 
nor Arlington Heignts "arrogated tne principle that an actor is 
held to intend the reasonably foreseeable results of his 
actions." Austin IV, 579 F.2d at 913. While this Court agreed 
that foreseeable impact alone could not prove intent, it 
nevertheless held that the inference of intent from 
foreseeaoi1ity should be utilized as an important evidentiary 
point in the context of other historical evidence. Id,
Washington v. Davis itself holds that disproportionate impact 
constitutes relevant evidence of intent, 426 U.S. at 242, and 
Arlington Heights nolds that the impact of tne challenged 
decision is clearly relevant and may provide the very starting 
point for the analysis, 429 U.S. at 266. This Court in Austin IV 
correctly explained the latter holding from Arlington Heights as 
meaning that tne foreseeability of segregated schools resulting 
from the AISD's neighborhood assignment policy was properly used 
as an item of evidence suggesting segregative intent. 579 F.2d 
at 914. The AISD's petition for certiorari was denied. 443 U.S. 
915.

In Personnel Administrator v. Feeney, 442 U.S. 256 (1979), a 
case cited by the court oelow, the Supreme Court affirmed the 
strong relevance of the foreseeability principle by noting that, 
although awareness of consequences will not a lone prove intent,

21



"this is not to say that the inevitability or foreseeability of 
consequences of a neutral rule has no tearing upon the existence 
of discriminatory intent. Certainly, when the adverse 
consequences of a law upon an identifiable group are as 
inevitable as the gender-based consequences of [the law in 
issue], a strong inference that the adverse effects were desired 
can reasonaoly oe drawn." 442 U.S. at 279 fn. 25 (emphasis 
added). In this appeal, the objective evidence of what the AISD 
has done, in conjunction with the historical background and tne 
sequence of events leading up to the adoption of the 1987 student 
assignment plan, will demonstrate to the Court that the Court 
below erred in the manner in which it analyzed the question of 
intent.

2. The district court failed to give proper weight to the
similarities oetween the new elementary student assignment 
plan and the one held unconstitutional in 1979, and to the uncontroverted evidence that the segregated results of the new plan result from the same history of discrimination 
found in 1979.
The court oelow in its conclusions of law descrioed tne 

results of the new student assignment plan as no more than 
"adverse effect on racial or ethnic statistical Balances in a few 
elementary schools (Memorandum Opinion p. 41); ...increase in 
minority concentrations in a few schools (Id.); ...some racially 
identifiable schools (Id. p. 42)." The court's minimization of 
the impact of the new plan is misleading if not disingenuous, for

22



the court failed to give account to the historical and 
demographic connections oetween the new plan and the one held 
unconstitutional in 1979.

The new assignment plan did not merely result in a few 
racially identifiable schools. What it did was to restore intact 
virtually the same pattern of segregation as existed at the time 
of the 1 979 decree. See Statement of Facts, supra pp. 9 — 13L 

Incredibly, this fact was not mentioned in the district court's 
analysis. (Memorandum Opinion pp. 40-49). An uninformed reader 
of the district court's opinion would not oe aware from that 
opinion that the very East Austin elementary schools which were 
racially identifianle minority schools under the unconstitutional 
1979 neighborhood school plan became the same thing again under 
the 1987 neighborhood school plan, with the only difference being 
that the system became even more segregated under the 1987 plan. 
See Statement of Facts, supra at 9 - 1X.

The testimony of Dr. Rabin, one of the experts upon whom the 
1979 findings of historical discrimination was based, see history 
of discriminatory housing and school location decisions in Ex.
P-1 pp. 39-46, demonstrates that the discriminatory actions which 
made the neighbornood school plan of 1979 a racially segregated 
plan still persist today to make the neighborhood plan of 1987 a 
segregated plan. (Tr. Vol. 1 pp. 75-87). Dr. Rabin's testimony
is nignly credible, since the history of residential segregation

23



to wnich ne testified in 1979 formed part of the basis for the 
court's findings at that time regarding Austin, and the AISD did 
not controvert his testimony herein. Indeed the court oelow 
credited his testimony. (Memorandum Opinion pp. 15-17). Yet the 
court found that the historical and demographic facts pointed out 
by Dr. Rabin were irrelevant to the question of intent (Id. p. 
17), and did not mention nis testimony in its discussin of its 
conclusions of law.

It was plain error for the Court to ignore tne stark 
nistorical connection oetween the segregation of 1979 and the 
segregation of 1987. The 1987 school board established 
"neighbornood schools." By definition the student population of 
such schools reflects the surrounding residential demographics. 
This Court held in 1977 and 1978, Austin III, 564 F.2d 162;
Austin IV, 579 F.2d 910, cert. denied 443 U.S. 915, and the 
district court held again in 1979 with extensive fact findings, 
Ex. P-1, that the residential patterns which made neighborhood 
scnools result in a segregated system .in the 1 970s were the 
result of official city and school board actions. Dr. Rabin 
studied the 1987 new student assignment map and the ethnic 
profiles of tne schools and found it to be very clear that tne 
reason for the continued concentration of Blacx persons in East 
Austin, which caused the East Austin neighborhood schools to be 
so racially identifiaole, is the continued "persistence of the

24



legacy of city and school segregative actions." (Tr. Vol. 1. p.
79, quoted oy the court at Memorandum Opinion p. 16). For the 
court oelow, in its analysis of intent, to disregard tne fact of 
the continuing existence of official discriminatory action as the 
cause of school segregation, especially given the previous 
judicial establisnment of those same conditions as the root of 
the system's unconstitutionality only eight years oefore the 1987 
school board decision, was to ignore the importance of history 
and sequences of events set forth in Arlington Heights and by 
this Court in the Austin opinions. This defect of analysis is 
particularly troublesome in a school segregation case given the 
Supreme Court's admonition to "counteract the continuing effects 
of past school segregation resulting from discriminatory location 
of school sites or distortion- of school size in order to achieve 
or maintain an artificial racial separation." Swann v .
Chariotte-Mecklenburg, 402 U.3. 1, 28 (1971). To overlook tnis
factor is most acutely erroneous in the case of the Austin school 
district given the judicial energy which has gone into 
comprenending tne way the Austin system spent decades using the 
site location of "neighoorhood schools" as a vehicle to promote 
segregation, see fix. P-1 at pp. 39-46; Austin III, supra; and 
Austin IV, supra, precisely the strategy cautioned against in 
Swann.

25



Given the judicially established history of the use of 
neighborhood schools in Austin as a means of continuing official 
segregation, the fact that the new plan restored virtually the 
same neighborhood zones as oefore undermines the court below's 
apparent characterization of tne resulting restoration of the 
same patterns of racial imbalance as a coincidental side effect.

The court below suggests that the patterns of segregation 
resulting from, the new plan are the result of changing 
demographics unconnected with discrimination, i.e., "changes and 
shifts in these population concentrations... [resulting] from 
economic conditions and cultural interests outside the control of 
AISD." (Memorandum Opinion, p. 42). It was inappropriate for 
the court to make such an assumption without accounting for Dr. 
Racin's unrefuted testimony that, quite to the contrary, the 
Blacrc population concentrations do still result directly from the 
same official school location and attendance zone decisions which 
were identified in the 1979 district court opinion.

It was also inappropriate for the court below to fail to 
take into account the fact that the level of segregation 
resulting from the new plan nas accelerated since the adoption of 
the plan. As discussed above, see Statement of Facts, supra at 
11 | 2. t the percentage of Black AISD students who attend 80% +
minority elementary schools has increased from 47.1% in the 1987 
(first year under the new plan) school year to 50.1% in the 1989

26



school year. The 1987 figure was itself an increase over the 
46.9% of Black students who attended such schools under the 
unconstitutional 1979 plan. These figures corroborate Dr.
Rabin's unrefuted conclusion that two formerly separate Blacx 
population concentrations have expanded toward eacn other so as 
to substantially intensify the concentration of Black population 
in East Austin. (Tr. Vol. 1 pp. 77-78). Thus the segregated
housing patterns resulting from decades of official 
discrimination nave simply been intensified and reinforced. This 
is not "changes and shifts"; this is continuation and 
persistence.

The district court was plainly erroneous in characterizing 
this action as a case of "increase in number of racially 
identifiaole schools under the 1987 plan without more ..." 
(Memorandum Opinion p. 43, emphasis added). Proof that the 
AISD's past nas been brought back to life intact under the same 
neignbornood plan previously condemned oy this Court four times 
is proof of far more than impact alone. The court below clearly 
failed to follow appropriate legal principles by its failure to 
give this factor any weight.

3. The district court failed to give proper weight to the
disparate physical facilities in minority school attendance zones in relation to the History of discrimination.

27



The court below credited our proof of the AISD's continued 
lack of attention to tne physical state of elementary school 
facilities in the minority areas. (Memorandum Opinion, p. 36). 
Yet the court inexplicably failed to relate this condition to the 
judicially estaolished history of discrimination or to otherwise 
give this factor its proper weight in determining institutional 
discriminatory intent.

According to tne unrefuted testimony of witness Gary 
Bledsoe, a lawyer and Texas assistant attorney general, eight of 
the nine elementary schools that the AISD staff has identified as 
needing replacement are predominantly minority schools under the 
current attendance plan, as are nine of the twelve schools wnose 
construction pre-dates 1940. (Tr. Vol. 1 p. 146). Given the 
close similarity between the school-by-school ethnic profiles of 
the minority schools under the 1979 and 1987 plans, it is clear 
that today's intersection between dilapidation and geography is 
the same intersection that existed in 1979. By returning 
minority students in high concentrations to those schools, the 
AISD restored them to a condition of unequal facilities which was 
the known, proven creature of a long history of discrimination. 
Unequal facilities are clear indicia of an unconstitutionally- 
segregated system. Swann v. Char1ott-Mecklenburg, supra , 402 
U.S. at 18-21; Green v. Countv School Board, 391 U.S. 430, 435 
(1968). The AISD's action of creating an attendance plan which,

28



due to known demographics, was ooviously going to return nigh 
concentrations of minority pupils to historically ignored 
physical facilities is plainly relevant to the question of 
discriminatory intent under Arlington Heignts and Austin IV. The 
conjunction of dilapidated facilities with racially identifiable 
minority schools was not just an accidental coincidence but was a 
restoration of well-known, discriminatory history. For the court 
below to consider the physical facilities without regard for the 
historical oackground, as if in a vacuum, was to fail to accord 
this important factor its proper weight.

4. The district court failed to give due weight to the AISD's
undisputed foreknowledge of the results of its action.
The new student assignment plan was adopted in an atmosphere 

of much public discussion. See, e.g . Ex. D-48. The school board 
staff published advance projections of the schoo1-by-schoo1 
ethnic profiles that would result from the proposed plan. Ex. 
D-53. Board president Ed Small conceded that the minority 
concentration in East Austin is familiar to him as an Austin 
resident and that ne thus knew that passage of the new plan would 
result in more racially identifiable schools. (Tr. Vol. 1 pp.
281-282). It cannot possioly be argued that the segregative 
result of the new assignment plan was not foreseeable by the 
board members when they adopted the plan.

29



As this Court explained in Austin IV, the holdings in
Washington v. Davis and Village of Arlington Heights did not
abrogate the principle that an actor is held to intend tne
reasonably foreseeaole results of his actions. 579 F.2d at 913.
Not only did the Supreme Court deny certiorari in Austin IV, but
this Court's explanation of Washington v. Davis and Ar1ington
Heights was repeated by the Supreme Court itself in Columbus
Board of Education v. Penick, 443 U.S. 449, 464-65 (1979):

Those cases do not forbid the foreseeable effects standard 
from being utilized as one of tne several kinds of proofs 
from which an inference of segregative intent may be 
properly drawn. Adherence to a particular policy or 
practice with full knowledge of the predictable effects of 
such adherence upon racial imbalance in a school system is 
one factor among many otners which may be considered by a 
court in determining whether an inference of segregative 
intent should be drawn. The District Court thus stayed well 
within the requirements of Washington v. Davis and Ar1ington 
Heights. See Personnel Administrator of Massachusetts v. 
Feeney, 442, U.S. 256, 279 fn. 25 (1979).

Footnote 25 of Personnel Administrator v. Feeney, cited
approvingly in Penick, states that when disparate impact is
clearly predictaole a strong inference can be drawn that such
effect was intended. Tne court below cited Feeney but apparently
overlooked fn. 25 and the citation to it in Penick. The AISD
board was on clear notice, Doth through familiar demographics and
through its staff's projections, of the inevitable segregative
consequences of its action. The court below did not mention this
factor at all, but instead wrote its opinion as if "the possible
increase in minority concentration in a few schools" (Memorandum

30



Opinion p. 41) was a merely potential but uncertain result. This
case is not one of impact "without more" (Id. p. 43), out rather 
one of plainly foreseeaole, inevitable impact. Even without m e  
prior litigation it would have been improper for the court below 
to disregard the element of foreseeability, but the error is 
especially acute in view of the importance of foreseeability in 
the body of law generated by both this Court and the district 
court itself in relation to the Austin Independent School 
District. See Austin IV, supra at 9 13'; U.S. and Overton v. AISD 
(W.D. Tex., 1979) (Ex. P-1, p. 26).

5. The district court failed to give proper weight to thesequence of events preceding the adoption of the new student 
assignment plan in relation to the historical oackground.
The district court's opinion makes it appear that the 1987

student assignment plan was enacted in isolation from the
historical bacKground around which the previous litigation
revolved. This is clearly not so. The record clearly shows,
with the corroboration of the AISD's own board president wno had
served on the board continuously from 1980 to the time of trial,
that the effects of the consent decree vs. neighborhood sc.nools
was a continuing political issue from the adoption of the consent
decree through 1986, and that in 1986 the pro-neighborhood
schools faction won. Statement of Facts, supra, pp. ____.
The successful candidacies of 1986 closely coincided with



both tne expiration of the post-decree Stipulation and the 
dismantling of tne desegregation plan. The close conjunction of 
these events should make it extremely difficult to discredit: the 
witnesses wno testified that the ultimate result was the stated 
object of the 1986 election campaigns.

Without explanation, the court below did not account for 
this sequence of events in light of the historical background.
Yet it is a fact that tne AISD resisted judicial remedies for 
segregation for nine years prior to the adoption of the consent 
decree. It is unreviewable judicially established fact that tne 
AISD historically used, and in 1979 was using, neighborhood 
schools as a vehicle to further segregation. See Ex. P-1 at pp. 
26-27. It is inexplicable for the court below to imprint a 
completely benign, neutral face onto the AISD neighoorhood school 
concept in the face of the latter historical fact, the arousal of 
neighborhood schools as a political issue immediately after the 
imposition of the judicial decree, tne persistence of that issue 
thereafter for the next three elections, the fact that the decree 
plan was abolished beginning the very next school year after the 
expiration of the Stipulation, and, as discussed above, the fact 
that the new plan of 1987 restored virtually the same 
"neighborhood schools" as existed before the decree.

By not giving the aoove sequence and background any weight, 
tne district court analyzed the new student assignment plan in a

32



historical vacuum. Under Arlington Heights, Austin IV, and other 
cases cited above, the court thereby ignored highly relevant 
evidence on the issue of discriminatory intent and thus did not 
apply proper legal standards in reaching its decision.

6. The district court failed to account for relevant evidence of contemporaneous minutes and statements relating to the 
decision to adopt the new student assignment plan.
The court below stated that it found no documentary evidence

to support Abel Ruiz's testimony that his proposed June 23, 1986,
criteria intended the ethnicity balance for each school to be
mandatory. (Memorandum Opinion, p. 23) The court thus believed

\that Ruiz's statement that the ethnic balance, criteria'#1, was
intended by nim to be mandatory for all schools was a merely
subjective belief that was never vocalized. ( Id. ) The court,
however, overlooked the following statement in the official
minutes of the June 23 board meeting:

Mr. Ruiz stated that it was his intent first to shift 
boundaries contiguously to achieve the first criterion for 
each school to be within ten percentage points of the White population district-wide.

(Ex. D-50, p.4). Furthermore, the court made no mention of 
Ruiz's testimony that he clearly explained the intent of his 
proposal to make the ethnic balance mandatory for all schools in 
response to a question from ooard member Small, that Small's 
response demonstrated that Small understood the proposal by 
acknowledging that Ruiz wanted to gerrymander the neighborhood

33



zones to maintain the desegregation plan, and that board member 
Lay also indicated oefore the vote that ne understood Ruiz's 
intent. (Tr. Vol. 2, pp. 237-238).

Tne court oelow also stated that there was no evidence to 
corroborate Ruiz's assertion that his June 23 proposal was 
dependent on the new plan being drawn by an outside consultant. 
(Memorandum Opinion, supra . ) The court, however, overlooked the 
testimony of board member Bernice Hart that Ruiz made it clear to 
the rest of the board that he wanted an outside consultant. (Tr. 
Vol. 2, pp. 183-184).

In cases which require analysis of complex fact patterns, 
FRCP 52 requires the district court to discuss all the 
substantial evidence contrary to its opinion. Velasquez v. City 
of Abilene, 725 F.2d 1014 (5th Cir., 1984). The Velasquez 
requirement applies to this case because the issue of 
discriminatory intent which was before the district court 
involves analysis of complex historical and contemporary fact 
patterns similar to the analysis required in voting rignts cases 
such as Velasquez. The evidence referred to above which was not 
discussed by the court, when added to the sequence of events 
pertaining to the 1986-1987 school board meetings, leads to a 
much sharper understanding of the intent issue.

To recap, Ruiz testified that his June 23 intent was to 
maintain racial oalance in the elementary schools by maxing

34



criterion #1 mandatory and to achieve that goal through drawing 
elongated east-west attendance zones; as a result criterion #6 
would still be met because the busing would technically not oe 
for integration purposes but rather Decause of the State 
requirement that students living over two miles away be provided 
transportation. Ruiz claimed he wanted an outside consultant to 
make sure the plan would be produced in insulation from local 
politics. The district court rejected Ruiz's testimony as 
subjective assertions with no corroboration on either point. If, 
as the overlooKed eviaence suggests, Ruiz did indeed make these 
points of intent clear to the rest of the board, that would 
explain why Lay and McKenzie, who had just been elected on 
anti-busing platforms, and Small, who nad joined them as 
pro-neighborhood school advocates, voted against Ruiz's June 23 
motion. The events of the November 24, 1986, meeting then become
clear. If Ruiz had intended criterion #1 to be mandatory and his 
intent were known by McKenzie who opposed that intent, that would 
explain why McKenzie saw fit to move on November 24 for a 
revision of the criteria which required only that "as many of 
these criteria as possible" oe met, thus withdrawing mandatory 
status from #1. (Ex. D-51, p. 6). This would then explain why 
Ruiz voted against the November 24 proposal. That McKenzie's 
November 24 proposal changed the substantive meaning of Ruiz's 
June 23 proposal is the only reasonable hypothesis which explains

35



Ruiz and McKenzie as the authors of the two proposals voting 
opposite of each other both times. This hypothesis also fits the 
fact that anti-busing advocates Lay and Small both voted with 
McKenzie against Ruiz on both occasions.

The court below should have accounted for this evidence but 
did not do so anywhere in its opinion. The overlooked evidence 
corroDorates Ruiz's assertion that the November 24 enactment was 
a reversal of his June 23 proposal and was motivated oy the goal 
of drawing neighborhood school zones in such a way as to 
eliminate transportation. This sequence of events would be 
relevant to the issue of intent even in the absence of the other 
evidence in tnis case, but becomes especially relevant in light 
of the segregative purposes for which the "neighborhood schools" 
were historically sited in the AISD and in light of the clear 
foreseeability of the segregation that would - and did - result 
from restoring those "neighborhood schools."

7. The district ’court failed to taxe into account the failureof tne school board to seek less segregative alternatives to 
the new student assignment plan.
As discussed above, see Statement of Facts supra pp. i g-ii, 

the AISD coard did not seek less segregative alternatives which 
would have met its alleged educational goals and yet retained a 
more integrated student mix than did the plan which it enacted. 
Nowhere in the district court's opinion is this fact mentioned.

36



The failure to seek less segregative alternatives is clearly
relevant to the issue of institutional intent in this case.
Since "adherence to a particular policy or practice witn full 
Knowledge of the predictable effects of such adherence upon 
racial imbalance in a school system" is relevant to segregative 
intent, Columbus Board of Education v. Penick, 443 U.5. 449, 
464-65, and the AISD claims that the racial imbalances achieved 
in 19b7, thougn foreseeable, were the unintended consequences of 
action motivated by other goals which had nothing to do with 
racial balance or imbalance, the AISD's failure to consider other 
plans which might have also achieved the alleged neutral goals 
but with less racial imoalance seriously undermines its 
contention. For example, if its goal was to shorten 
transportation time for educational reasons, why did it not 
consider eliminating all pairing which required bus rides over 45 
minutes - or any other specified length of time - and still 
retain or seek pairings which aid not exceed that mark? Perhaps 
the result would nave oeen more segregative tnan one 1930-bb plan 
(though perhaps not) , but at any rate would not have oeen as 
segregative as the plan wnicn was adopted. Sucn alternative was 
not even considered, much less attempted as a planning exercise. 
Of even greater significance, why did the AISD draw 
"neighborhood" attendance zones resulting in schools 1iKe Lee and 
Campoell, and otners, being virtually neighbors yet being at

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polar opposites of racial imoalance, without considering 
different attendance lines which could have created more racial 
balance without exacerbating transportation needs? See Statement 
of Facts, supra pp. \̂ » ** \ . Not only did the AISD admittedly
not consider these or other potential alternatives (Tr.Vol. 1, p. 
318), it did not offer any reason at trial for not having done 
so. Illustrative of the general attitude was board member 
Small's inability at trial to explain why he authored the 
modification which changed the boundary line between the Lee and 
Campbell zones so as to maxe those two schools even more racially 
segregated than under the staff's proposed plan. See Tr. Vol. 1,
pp. 302-305, and Exs. D-54-A, D-55-A, D-53, D-68, and D-61. If 
the "Plan for Educational Excellence" is so important and 
productive as the AISD claims, why was it not considered before 
or otherwise apart from the 1987 plan's segregative results, and 
why is it used only at the racially identifiable minority 
schools, since clearly nothing inherently makes the 1987 
assignment scneme a precondition to that "plan."

Given tne judicially established fact of the AISD's past 
history of segregation and tne well-settled principle that an 
assignment plan which appears to be neutral will not pass 
constitutional muster if it fails to counteract the continuing 
effects of past segregation, Swann v. Charlotte-Mecklenburg, 
supra, 402 U.S. at 28, it was utterly inappropriate for the court

38



below to fail to give weight to the failure of the AISD to 
consider less segregative alternatives to the 1987 assignment 
plan wnen its resulting racial imbalance was so plainly 
foreseeable.

8. The district court failed to give proper weight to the pattern of imbalanced assignment of minority faculty to 
minority schools.
The court below credited the evidence which showed the 

disproportionate levels of minority administrators and staff 
assigned to minority schools. See Exs. P-66 through P-74 and 
Memorandum Opinion p. 47. Yet the court accorded no relevance to 
that evidence in its analysis of the case. This omission is 
directly contrary to the Supreme Court's teaching that where it 
is possible to identify schools on a racial basis by reference to 
the composition of teachers and staff a prima facie 
constitutional violation is shown. Swann v.
Charlotte-Mechlenburg, supra, 402 U.S. at 18; Green v. County 
School Board, 391 U.S. 430, 435 (1968).

9. The district court gave undue weight to the 1983 declaration 
of unitariness in the context of this case.
The entire analysis conducted by the court below was

infected with an over-emphasis upon the 1983 unitariness
declaration which led the court to analyze the 1987 action in
total isolation from the historical background of the AISD.

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Although unitariness removed the AISD from judicial supervision, 
it did not remove it from the duty to observe the Constitution.

Under the district court's apparent construction of the 
unitariness declaration, the fact that the AISD's 1987 plan was a 
foreseeable and knowing restoration of the very conditions which 
led to judicial intervention in 1979 was apparently irrelevant. 
This taxes the meaning of the unitariness declaration much too 
far. The law cannot intend that a school system can use such 
declaration to restore its discriminatory conditions and to 
insulate the restoration from challenge by making invisible the 
historical actions which caused the discriminatory conditions.

In this case, the school board restored as "neighborhood 
schools" a set of schools which are located where they are, and 
which are surrounded by minority populations to the extent they 
are, because of past official discrimination. See Austin III,
564 F.2d at 166-170; Ex. P-1, pp. 39-46. The locations of those 
schools had not changed between 1979 and 1987; the demographic 
patterns had not changed between 1979 and 1987 and in fact had 
intensified; and the result was that virtually the same 
"neighborhood" minority schools of 1979 became again 
"neighborhood" minority schools of 1987. We have already 
discussed these factors at length but summarize them again to 
emphasize that the district court improperly used the unitariness 
declaration as a dodge to avoid the glaring fact that the 1987

40



plan was not an isolated new plan but rather a complete-
restoration of the old. Unitariness may give a school district a
clean slate, but if the district draws the same old picture it
should not be allowed to ignore the defects in the old paint.

The district court should have been troubled as the Tenth
Circuit was in reviewing a nearly identical fact pattern:

Thus, we are troubled because the evidence indicates the 
Board's implementation of a "racially neutral" neighborhood 
student assignment plan has the effect of reviving those 
conditions that necessitated a remedy in the first instance. 
Under these circumstances the expedient of finding 
unitariness does not erase the record...

Dowell v. Board of Education, 890 F.2d 1483 (10th Cir., 1989)
cert. granted 110 S.Ct. 1521 (1990). In that case the Court
found that the creation of 32 of the 64 elementary schools in
Oklahoma City as essentially one-race schools satisfactorily
challenged the presumption of unitariness. 890 F.2d at 1493.
The AISD's 1987 plan created 28 out of 64 elementary schools with
over 80% minority or over 80% Anglo population. (17 minority, 11
Anglo) (Ex. D-68). Over 47% of the Black Elementary'students in
the district attended the 80%+ minority schools. See Statement
of Facts supra pp. / / - j ^  . By the 1989 school year the latter
figure nad become 50%. Id. This is not just a few schools; this
is significant segregation within the system.

A school district, once declared unitary, is still under a
continuing affirmative duty to maintain its unitary, status.
DoweI 1, 890 F.2d at 1493. This was not a new legal construction