Price v. Austin Independent School District Brief of Appellees
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September 14, 1990

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Brief Collection, LDF Court Filings. Price v. Austin Independent School District Brief of Appellees, 1990. 37174681-c19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/a6b64829-f035-41c5-9fd2-8ba589bc48a6/price-v-austin-independent-school-district-brief-of-appellees. Accessed July 30, 2025.
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MEMORANDUM TO: Julius Chambers /Charles S. Ralston Norman Chachkin Dennis Parker FROM: Napoleon B. Williams, Jr. RE: Price v. Austin Independent School District DATE: September 14, 1990 For your information. NBW:deh Attachment < IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 90-8154 SAMANTHA PRICE, et a].,Plaintiffs-Appellants, v . AUSTIN INDEPENDENT SCHOOL DISTRICT, et al.,Defendants-Appellees. Appeal from the United States District Court for the Western District of Texas Austin Division BRIEF OF APPELLEES AUSTIN INDEPENDENT SCHOOL DISTRICT, et al. William H. Bingham James R. Raup John H. Spurgin, IIMCGINNIS, LOCHRIDGE & KILGORE 1300 Capitol Center 919 Congress Austin, Texas 78701 (512) 476-6982 ATTORNEYS FOR APPELLEESAUSTIN INDEPENDENT SCHOOL DISTRICT, ET AL . 4 CERTIFICATE OF INTERESTED PERSONS The undersigned, counsel of record for Appellees Austin Independent School District, et al•, certifies that the following listed persons or entities have an interest in the outcome of this case. These representations are made in order that the Judges of this Court may evaluate possible disqualification or recusal. Appellants: Appellants: Appellees: Brandon and Ryan McMurtry by their parents as next of kin Reginald Robert Williams by next of kin Joane williams George Bertram Powell by next of kin Elaine Powell Elias Flores Harrington by next friends Rebecca Flores Harrington and James Harrington American Civil Liberties Union, Central Texas Chapter Austin Independent School District Dr. John Ellis Nan Clayton Ed Small Dr. Gary McKenzie Bernice Hart John Lay Abel Ruiz Lidia Perez - i- 4 Attorneys for Appellants: Attorneys for Appellees: Melissa Knippa Bob West Dr. Beatriz de la Garza NAACP Legal Defense Fund, Inc. Napoleon B. Williams, Jr. Julius L. Chambers Charles Stephen Ralston Van Os, Deats, Rubinet & Owen, P.C. David Van Os McGinnis, Lochridge & Kilgore William H. Bingham James R. Raup John H. Spurgin, II Austin independent School District, et -ii- 4 STATEMENT REGARDING ORAL ARGUMENT The issues presented by this appeal may be controlled by the United States Supreme Court's decision in Board of Education v. Dowell, No. 89-1080, which will be argued on October 2, 1990. Appellees believe that oral argument will be helpful to this Court if the Supreme Court's decision in Dowell is not dispositive of this appeal. The case is. of immense importance to school districts which have been, or are about tc be, declared unitary. - iii- 4 TABLE OF CONTENTS Page CERTIFICATE OF INTERESTED PERSONS.................. STATEMENT REGARDING ORAL ARGUMENT................. • TABLE OF CONTENTS.................................. INDEX OF AUTHORITIES............................... STATEMENT OF JURISDICTION......................... STATEMENT OF THE ISSUE............................ STATEMENT OF THE CASE............................. 1. Statement of the Course of Proceedings... 2. Statement of the Facts............. . SUMMARY OF ARGUMENT............................... ARGUMENT AND AUTHORITIES The District Court's Finding That the AISD Defendants Did Not Intentionally Discriminate Against Any Person on the Basis of Race or Ethnicity When AISD Adopted and Implemented the April 13, 1987 Student Assignment Plan is Not Clearly Erroneous and is Based on a Correct Application of the Law of This Case, the Law of tiie Fifth Circuit and the Law of the Supreme Court............................ CONCLUSION......................................... CERTIFICATE OF SERVICE............................ -iv- INDEX OF AUTHORITIES CASES Page Amadeo v. Zant, 486 U.S. 214 (1988)............... Anderson v. City of Bessemer City, 470 U.S. 564 (1985)............................................. Columbus Board of Education v. Penick, 443 U.S. 449 (1979 ............................................... Crawford v. Board of Education, 458 U.S. 527 (1982) Dowell v. Board of Education, 890 F . 2d 1483 ( 10th Cir. 1989), cert. granted, _____ U.S. _____, H O S.Ct. 1521 (1990).................................. Dowell v. Board of Education, 795 F. 2d 1516 (10th Cir.), cert. denied, 479 U.S. 938 (1986 ) . . . .......................................... Flax v. Potts, 864 F.2d 1157 (5th Cir. 1989)....... Glass v. Petro-Tex Chemical Corp., 757 F . 2d 1554 (5th Cir. 1985).................................... Georqia State Conference of Branches of NAACP v. State of Georgia, 775 F .2d 1403 (11th Cir. 1985)... Green v. County School Board, 391 U.S. 430 (1968).. Inwood Laboratories, Inc. v. Ives Laboratories, Inc. , 456 U.S. 844 (1982)......................... Keyes v. School District No. 1, 413 U.S. 189 (1973) Lee v. Lee County Board of Education, 639 F.2d 1243 (5th Cir. 1981).................................... Los Angeles Branch NAACP v. Los Angeles Unified School District, 750 F.2d 731 (9th Cir. 1984), cert, denied, 474 U.S. 919 (1985)................. 35 , 36 16 McDowell v. Safeway Stores, Inc., 753 F.2d 716 (8th Cir. 1985)......................................... Morales v. Shannon, 516 F .2d 411 (5th Cir.), cert L denied, 423 U.S. 10 34 (1975)...................... Morgan v. Nucci, 831 F.2d 313 (1st Cir. 1987)..... Pasadena City Board of Education v. Spangler, 427 U.S. 424 ( 1976 ..................................... Personnel Administrator v. Feeney, 442 U.S. 256 ( 1979 ............................................... Price v. Austin Independent School District, 729 F. Supp. 533 (W.D. Tex. 1990)........................ Martin v. Norman Industries, Inc., 725 F.2d 990 (5th Cir. 1984)....................................... Quarles v. Oxford Municipal Separate School District, 868 F.2d 750 (5th Cir. 1989)............ Riddick v. School Board, 784 F. 2d 521 (4th Cir.), cert, denied, 479 U.S. 938 (1986)................. Risher v. Aldridge, 889 F.2d 592 (5th Cir. 1989)... Ross v. Houston Independent School District, 699 F .2d 218 (5th Cir. 1983).......................... Sawyer v. Arum, 690 F.2d 590 (6th Cir. 1982)...... Spangler v. Pasadena Board of Education, 611 F.2d 1239 (9th Cir. 1979 ................................ Stell v. Savannah-Chatham County Board of Education, 888 F.2d 82 (11th Cir. 1989)........... Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 ..... .................................. United States v. Lawrence County School District, 799 F.2d 1031 (5th Cir. 1986)..................... -vi- 17 38 34 , 37 41 , 42 39, 45 6 , 17 , 18 , 23 27 42 37, 38, 42, 43, 45 15 34, 35, 42 17 , 33 37 23 35, 38, 42 35 United States v. 1987 )........... LULAC, 793 F.2d 636 (5th Cir. 39 United States 1987 )....... Uni ted States Estate Boards, United States 504 (5th Cir. v. Overton, 834 F.2d 1171 v. National Association 3 39 U.S. 485 (1990)...... v. Texas Education Agency, 1981 )..................... (5th Cir. 35, 36, 37, 38, 39, 43, 44 , 45 of Real .... 16 647 F. 2d . . . . 34 United States v. Texas Education Agency, 671 F.Supp. 484 (W.D. Tex.), aff'd, United States v. Overton, 834 F.2d 1171 (5th Cir. 1987)............ United States v. Texas Education Agency, A-70-CA- United States v. United States Gypsum Co., 333 U.S. 364 (1948 ........................................... Vaughner v. Pulito, 804 F.2d 873 (5th Cir. 1986)... Vaughns v. Board of Education, 758 F.2d 983 (4th Cir. 1985)......................................... Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252 ( 19 7 7)......................... ................... Walling v. General Industries Corp., 330 U.S. 545 (1947 ............................................... Washington v. Davis, 426 U.S. 229 (1976).......... Washington v. Seattle School District No. 1, 458 U.S. 457 (1982).................................... >„SM, Inc. v. Hilton, 724 F.2d 1320 (8th Cir. 1984). Youngblood v. Board of Public Instruction, 448 F .2d 770 (5th Cir. 1971 ................................. 15 15, 16, 17 37 38 , 44 33 38 39 17 , 21 2 , 34 -vii- STATUTES AND RULES 20 U. 20 U. FED R S.C. § 170 3 . . . . S.C. § 1705 --- . CIV. P. 52(a) 38 15 , 17 38 -viii- STATEMENT OF JURISDICTION Appellees Austin independent School District, et. al. , do not dispute the jurisdiction of this Court. STATEMENT OF THE ISSUE Whether the district court's finding that the Austin Independent School District Defendants did not intentionally discriminate against any person on the basis of race or ethnicity is clearly erroneous and based on a correct application of law. STATEMENT OF THE CASE 1. statement of the Course of Proceedings Appellees Austin Independent School District (AISD), et a l . , Defendants below, agree generally with the statement of the course of proceedings set out in the brief filed by Appellants Harrington and ACLU, Plaintiffs below. The version filed by Appellants McMurtry, Williams, and Powell, also Plaintiffs below, contains several errors. The original desegregation lawsuit in Austin, United— States v, Texas Education Agency, A-70-CA-80, was filed in 1970 against the Austin Independent School District by the United States Department of Justice. A class of Black and Hispanic students intervened, and that litigation subsequently was known by the name of the first listed Intervenor, Overton. After ten years of litigation, during which the district court held that AISD unconstitutionally segregated Black, Hispanic and Anglo students, all parties to the desegregation case, including the United States, entered into a Consent Decree in January of 1980 to effect a remedy which the parties agreed would desegregate AISD and which the parties agreed would create a unitary school district. (DX 154). The Consent Decree expressly stated that the class of Black and Hispanic students was properly certified. (ld_. ) . The district court did not enter any injunction against AISD to implement the desegregation remedy. (Id.). Under the terms of the 1980 Consent Decree, all parties agreed that implementation of the student assignment plan pursuant to the Consent Decree would "result in desegregation of AISD schools." (DX 154). The parties further agreed that after a three-year period of supervision by the Court, AISD would be declared unitary and the case would be dismissed unless a party objected. (Id.). As required by Youngblood v. Board of— Public instruction, 448 F.2d 770 (5th Cir. 1971), the district court retained jurisdiction of the case to monitor implementation of the Consent Decree and its student assignment plan and to ensure that AISD eliminated all vestiges of its dual school system prior to being declared unitary. In the spring of 1983, AISD filed a motion to be declared unitary and for dismissal of the case, but the Black and Hispanic Intervenors filed objections. Subsequently, however, the Intervenors withdrew their objections, and ultimately all parties, -2- including the United States, agreed to a declaration that AISD was unitary, and all parties agreed to dismissal of the case. (DX 155). On June 14, 1983, the district court declared AISD to be a unitary school district and dismissed the desegregation case (Id.), subject only to a stipulation between the parties which would expire by its terms on January 3, 1986, or upon completion of construction of Kealing Junior High School, whichever occurred later. (DX 156). It is undisputed that Kealing opened in September of 1986, and the stipulation expired by its own terms at that time. Faced with an increasing number of serious educational problems, AISD culminated several years of identification, study and public discussion of the problems' effects on student assignments by developing and adopting a revised student assignment plan on April 13, 1987. AISD planners drew school boundaries for this revised assignment plan using educationally- based criteria which had been adopted by AISD's Board of Trustees on June 23, 1986 in response to the problems. This plan provided for neighborhood elementary schools for most students in grades preK-5, moved grade 6 from elementary schools to a middle school configuration (grades 6-8), continued busing for integration purposes for students in grades 6-12, and implemented an educational enrichment plan for sixteen elementary schools that would have predominantly minority enrollments under the new plan. (DX 61 ) . -3- The Black and Hispanic Interveners in United States v. Texas education Agency filed a motion in July of 1967 for further relief in that case. This motion was an attempt to reopen united States ■ ■ m-,,. education Agency, and Interveners were represented by two of the counsel for Plaintiffs in this case. By their motion, the interveners sought to enforce the I960 Consent Decree, which they claimed was still in effect, and they contended that the April 13. 1987 plan violated the 1980 Consent Decree. On motion to dismiss by AISD, on July 24. 1987 the district court dismissed intervenors' claims, held that the court had no jurisdiction to grant further relief in united States v. Texas Education AgSSSE. and held that the 1980 Consent Decree had no force and effect in 1987. united States v. Texas Education Agency. 671 F.Supp. 464, 486-87 (W.D. Tex.), aff'd, united States v. Overton. 834 F.2d 1171 (5th Clr. 1987). The intervenors appealed. and unsuccessfully sought a preliminary injunction, a stay and an expedited appeal from this Court. unsuccessful in their attempt to reopen United States _v^ t.,.. Education Agency, on August 7, 1987, counsel for Plaintiffs filed the instant suit and sought to obtain preliminary injunctive relief to enjoin implementation of the April 13, 1987 stude assignment plan. After an evidentiary hearing, the district court denied Plaintiffs' motion for a preliminary injunction. Plaintiffs appealed. The Fifth Circuit Court of Appeals, in a consolidated appeal, affirmed the district court's dismissal of -4- the motion for further relief in United States v. Texas_Education Agency and affirmed the district court’s denial of the motion for preliminary injunction in Price. United States_v_.— Overton, 834 F.2d 1171 (5th Cir. 1987). The prior opinion of this Court in this case has procedural significance, as well as substantive. In the opinion in United States v. Overton, the Court of Appeals clarified the legal significance of unitary status for a formerly segregated school district and held that, at the trial of this case, Plaintiffs would have the burden of proof and that they must prove intentional discrimination in order to prevail. Id. at 1175-77. Equally important, this Court held that the district court's declaration that AISD is unitary released the school district from the legal consequences of its prior dual school system and recognized that AISD had eliminated all vestiges of its former unconstitutional school system. Id. at 1175-78. Thus, at trial Plaintiffs could not rely on any presumption of discrimination or shift the burden to AISD to prove non-discriminatory purpose. After a lengthy period of inactivity following the Court of Appeals' opinion, AISD filed a motion to dismiss for want of prosecution. The district court denied the motion, but discovery commenced after AISD's motion. During discovery, Plaintiffs Price, Stegall, Kindred, Herrera, and Amezquita failed to appear for their depositions and subsequently dismissed all claims against AISD and the individual Defendants. United South Austin -5- In addition, allhad dismissed all claims prior to discovery, remaining Plaintiffs dismissed their claims against Defendants in their individual capacities. Upon AISD's motion for a setting, the case was set for trial, and trial to the court was held on November 6-8, 1989. On January 12, 1990 the district court issued its opinion rendering judgment in favor of all Defendants. Price _v_.— Austin- Independent School District, 729 F.Supp. 533 (W.D. Tex. 1990). Plaintiffs McMurtry, williams, Powell, Harrington, and ACLU appealed, but Plaintiff Salinas did not. Movant Volma Overton, Jr., whose motion for intervention on the first day of trial was denied by the district court (1 2nd Supp. R. 4-6), filed a notice of appeal but did not brief any issue in this Court. 2. Statement of the Facts In August of 1987 a group of Black, Hispanic and Anglo students of AISD, along with the Central Texas Chapter of the ACLU and United South Austin (a neighborhood association), filed this litigation in an effort to enjoin implementation of -a student assignment plan which was to go into effect in AISD at the beginning of the 1987-88 school year. The plan, adopted by the AISD Board of Trustees on April 13, 1987, revised the student assignment plan implemented by the 1980 Consent Decree which concluded ten years of desegregation litigation involving AISD. The Consent Decree plan included paired elementary schools and east-west, crosstown busing of elementary school students. (2 2nd -6- Supp. R. 68-69, 113). The 1987 plan provided for neighborhood schools for most students in grades preK-5 but did continue busing of some students below grade 6. (2 2nd Supp. R. 96-99; DX 61, 68, 69, 73). AISD continued to use transportation to achieve target ethnic ratios in grades 6-12. (2 2nd Supp. R. 84-87, 95- 98; DX 50, 61, 68, 69, 73). Except for two junior high schools, the sixth grade was moved to middle schools, which would serve grades 6-8. (DX 50, 61, 73, 74). The April 13, 1987 student assignment plan was not limited to changes in student assignments. The Board of Trustees also adopted an Educational Excellence Plan, which targeted the sixteen elementary schools that would have predominantly minority student enrollments -under the revised plan, and the Board committed millions of additional dollars to this enrichment program and to those schools. (DX 58, 59, 61). Dr. John Ellis, AISD s Superintendent and a person with vast educational experience, testified that the enrichment plan provides the sixteen Priority Schools with' educational resources that few schools in the United States can match. (4 R. 88-90; 2 2nd Supp. R. 26-27). The enrichment plan has various components, including full day pre kindergarten, pupil-teacher ratios reduced below state-mandated minimums, additional teachers, counselors and support staff, multi-cultural education and activities, parent-community involvement programs, staff development programs, use of exemplary leadership and master teachers, and an innovative fund to be used -7- by the principals to enhance their programs. (4 R. 88 90, supp. R. 26-27; DX 56, 59, 61). It is significant to note that in the relief sought in this case. Plaintiffs sought to change elementary school boundaries but sought to retain the enrichment plan. AISD'S Board of Trustees provided other enhancements promote continued integration as part of the April 13, 1987 plan. Elementary school boundaries were drawn so as to integration using the neighborhood school as defined by the Board's criteria as the basic concept for preK-5 schools. ,4 B. , _ n An 81 84-87). The Board also continued to57-60; 2 2nd Supp. R. 80-81, B4 o j provide a »majority-to-minority" transfer, with free trans portation, by which any. student can transfer from which his or her race is the majority to a school in which his or her race is in the minority. (4 R. 58-59, 91-92; 2 2nd Supp. R- 05; Dx 59. 61). m addition, the Board allowed options to the revised student assignments; through use of these options, any student who previously had been bused for integration purposes under the 1980 Consent Decree could remain in assignment if he or she chose. (Id.,. As a part of the plan AISD continued its magnet school programs at the elementary junior high levels and added a senior high liberal arts magnet at Johnston High School. (4 R. 56-59, 91; DX 59, 61). The April 13, 1987 plan was based on formal criteria adopte by the Board after extensive public discussion (DX 43), upon a -8- motion by Trustee Abel Ruiz. Trustees Ruiz, Hart and Perez, who were all of the minority members of the Board, voted in favor of the criteria. (DX 50). The formal criteria, among other things, established a target ethnic ratio for each school at +10% of the AISD Anglo population, limited use of transportation to achieve target ethnic ratios to grades 6-12, and, to the extent possible, limited the time and distance of one-way bus rides to 45 minutes and 10 road miles. (Id.). The criteria also required extra educational resources to provide enrichment to schools at which the target ratio could not be met and in which there were high concentrations of low achieving, low income students. (I_d. ) The criteria were adopted in part in response to,complaints from all sections of the community concerning the time and distance of bus rides in AISD, concerning traffic and roadway problems impacting both time and safety, and asking that elementary school children be assigned to schools closer to home. (4 R. 53-54, 84; 2 2nd Supp. R. 20-21 , 74 , 113-14, 169-71). In addition, in 1985 AISD Hispanic educators had presented the Board of Trustees a neighborhood school plan entitled "Going Back Home. (2 2nd Supp. R. 191-92). By June of 1986, virtually all AISD Trustees, including the minority members, had formulated a neighborhood elementary school concept. (1 2nd Supp. R. 307-11). AISD had experienced serious educational problems as the City of Austin and state law changed dramatically during the period between 1980-87. Among the problems addressed by the 1987 student -9- assignment plan were existing inadequacies of the 1980 plan, which had become outmoded through population growth of AISD, opening twelve new schools in a three-year period, severe space shortage in elementary schools caused by population growth and by the state-mandated 22:1 pupil-teacher ratio and pre-kindergarten programs, overcrowding and population shifts in certain areas of AISD, need to reconfigure junior high schools to middle schools (grades 6-8), need for more efficient utilization of buildings, reduction of the loss of families and -tudents to outlying school districts and private schools, desire for increased parental involvement and student participation in school programs, growing concern about traffic congestion and student safety, and concern in all sections of the community over the length and duration of bus rides, especially for younger children. (4 R. 52-55, 83-84; 1 2nd Supp. R. 253-55; 2 2nd Supp. R. 17-21, 70-76, 94, 112-13, 169-71, 173, 193-94)- Under the new plan, sixteen of a total of eighty-eight AISD schools had a combined minority enrollment of 80% or more; under the 1980 Consent Decree plan, to which Plaintiffs sought by this litigation to return, there were six such schools. (2 2nd Supp. R. 108; DX 53). It is these sixteen elementary schools which have received, and as "Priority Schools" will continue to receive, the benefits of the Educational Excellence Plan. (DX 61). The 1987 student assignment plan, with its Educational Excellence Plan, had tri-ethnic support and was the ultimate -10- result of a study of possible boundary changes which was undertaken by AISD staff at the direction of several Boards of Trustees. Discussion of the possible need for boundary changes began in 1982 and continued into the mid-1980s. (4 R. 52-56; 2 2nd Supp. R. 70-76). In January of 1986, the Board of Trustees voted unanimously to direct the staff to study the need for boundary changes, and this vote followed public discussion in the fall of 1985 of the need for changes in student assignments. (2 2nd Supp. R. 75-76; DX 46, 48). All of the minority members of the Board of Trustees voted in favor of this directive to study the need for changes to the Consent Decree student assignment plan. (DX 46). The June 1986 formal criteria for boundary changes followed and resulted from staff study and public discussion. (2 2nd Supp. R. 21-22, 76-77; DX 48, 49). After passage of the formal criteria on June 23, 1986, Dan Robertson, a skilled and experienced educational planner, assisted by Dan Roberts, AISD's Director of Transportation, designed the boundary plan and numerous alternative plans in a racially neutral manner using the most advanced computer technology available and using the Board's criteria as their guidelines. (4 R. 56-59; 2 2nd Supp. R. 77-87). In designing the plan, they maximized integration wherever possible within the criteria established by the Board. (4 R. 58-60; 2 2nd Supp. R. 79-81, 84-87). AISD staff discussed the various draft plans with AISD Trustees and with all segments of the community through the -11- media, at public hearings, and in conferences with individuals. (4 R. 60-61; 1 2nd Supp. R. 258-59 ; 2 2nd Supp. R. 81-84). On ^3, 1987, by a vote of 5-2 the Board adopted the revised student assignment plan; Ms. Bernice Hart, the Black Trustee, voted in favor of the revised plan, but Mr. Ruiz and Mrs. Perez, the Hispanic Trustees, did not. (DX 61). Beginning with the 1987-88 school year, AISD has operated its schools pursuant to the April 13, 1987 student assignment plan and the Educational Excellence Plan. AISD has begun its fourth year under the 1987 student assignment plan and the Educational Excellence Plan. The 1987 plan succeeded in substantially reducing lengthy bus rides (2 2d Supp. R. 85-86, 116-18), and the plan greatly alleviated AISD's overcrowding and underutilization problems. (2 2nd Supp. R. 33, 86-87). Educational results under the plan demonstrate steady improvement by minority students and are impressive. (2 2nd Supp. R. 30-33; 143-45, 164-65, 212, 214-15; DX 64, 65, 70). Student and teacher attendance in the Priority Schools is above the AISD average. (2 2nd Supp. R. 29- 30 , 144; DX 65, 70). Moreover, parental involvement and community support of the Priority Schools are high. (2 2nd Supp. R. 143-45, 180-81, 209-12; DX 65, 70). The AISD Board of Trustees has kept its financial commitment pursuant to the 1987 student assignment plan and has fully funded the Educational Excellence Plan each year of its existence. 2nd Supp. R. 142-43; DX 65). The Board also continued funding -12- for the principals' innovative fund beyond its original commitment. (2 2nd Supp. R. 51-52, 208-09, 214). In addition, AISD has spent more on improving the physical facilities of the Priority Schools than it has for the other schools. (2 2nd Supp. R. 52, 163-64; DX 65). Finally, AISD ensured quality education under the revised plan by placing competent principals at the Priority Schools, by allowing those principals unfettered discretion and first choice in staffing their schools, and by affording these schools additional resources and professionals and other support personnel. (4 R. 88-90; 2 2nd Supp. R. 28-33, 143, 206-09, 212-14; DX 62, 63, 64, 65, 70). There is widespread support in AISD, especially among parents . of students in the Priority Schools, for the 1987 student assignment plan and its Educational Enrichment Plan. (DX 65). SUMMARY OF ARGUMENT The district court did not err in rendering judgment in favor of AISD and the individual school district Defendants. The district court's finding that AISD and its personnel did not intentionally discriminate against Plaintiffs is not clearly erroneous and is based on a correct application of the law. The Plaintiffs did not carry their burden of proof to show that AISD s Board of Trustees adopted the April 13, 1987 student assignment plan with the intent to discriminate on the basis of race or ethnicity. AISD's witnesses testified at length concerning the -13- many complex educational problems which arose to confront AISD during the period between 1980-87, and the district court correctly found that these problems, and not intentional racial discrimination, were the reasons upon which the Board based its revisions to the student assignment plan. In 1983 the district court, with the agreement of a class of Black and Hispanic students and with the agreement of the United States of America, declared AISD to be a unitary school district and dismissed the ten year old desegregation litigation. By virtue of the settled law of this Court, the Supreme Court and the law of this case, the district court’s declaration of unitariness and dismissal of the case necessarily included a finding that AISD had removed all vestiges of its prior dual school system. Plaintiffs herein are bound by that declaration and finding, which were made with the agreement of parties who virtually represented them, and they cannot now argue that vestiges of the prior dual system remain. The judgment of the district court should be affirmed. ARGUMENT AND AUTHORITIES THE DISTRICT COURT'S FINDING THAT THE AISD DEFENDANTS DID NOT INTENTIONALLY DISCRIMINATE AGAINST ANY PERSON ON THE BASIS OF RACE OR ETHNICITY WHEN AISD ADOPTED AND IMPLEMENTED THE APRIL 13, 1987 STUDENT ASSIGNMENT PLAN IS NOT CLEARLY ERRONEOUS AND IS BASED ON A CORRECT APPLICATION OF THE LAW OF THIS CASE, THE LAW OF THE FIFTH CIRCUIT, AND THE LAW OF THE SUPREME COURT. -14- Standard of Review Rule 52(a) of the Federal Rules of Civil Procedure controls this case. Rather than make a frivolous argument that it does not, Plaintiffs' briefs virtually ignore Rule 52(a). Under Rule 52(a), the district court's findings of fact shall not be set aside unless clearly erroneous. A finding of intent or the lack thereof in a civil rights case alleging racial discrimination is a question of fact, and the district court's finding in this case that AISD’s actions did not constitute intentional discrimination can be reversed by this Court only if the finding is clearly erroneous. E.g., Anderson v. City of Bessemer City, 470 U.S. 564 (1985); Risher v. Aldridge, 889 F .2d 592 (5th Cir. 1989), Vauqhner v. Pulito, 804 F.2d 873 (5th Cir. 1986). A fact finding is clearly erroneous only when: although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. E.g., Anderson v. City of Bessemer City, 470 U.S. at 573, quoting United States v. United States Gypsum Co., 333 U.S. 364 (1948). A finding of non-discriminatory intent should be reversed only if the Court of Appeals believes the finding to be "so illogical or implausible that a clear mistake has resulted." Vaughner— Vj_ Pulito, 804 F .2d at 879. The Supreme Court has made clear that in reviewing a district court's findings of fact, an appellate court must not decide the factual issues de novo on appeal: -15- If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Anderson v. City of Bessemer City, 470 U.S. at 573-74. where there are two permissible views of the evidence, the district court's choice between them cannot be clearly erroneous. Amadeo v. zant, 486 U.S. 214 (1988); Anderson v. City of Bessemer City, 470 U.S. at 573-74. An appellate court cannot, and must not, reweigh the evidence and substitute its interpretation of the evidence for that of the reviewing court simply because the reviewing court 'might give the facts another construction, resolve the ambiguities differently, and find a more sinister cast to actions which the District Court apparently deemed innocent.' Inwood Laboratories, Inc, v. Ives Laboratories, Lnc^, 456 U.S. 844, 857-58 (1982), quoting United States v . Real Estate— Boards, 339 U.S. 485, 495 (1950); Glass v. Petro-Tex Chemical Corp., 757 F. 2d 1554, 1559 (5th Cir. 1985). Moreover, where, as in the instant case, the district court bases specific findings on credibility choices, the appellate court must give special deference to those findings. E •9•' Vauqhner v. Pulito, 804 F.2d at 879; Martin v. Norman Industries^ Inc., 725 F.2d 990 (5th Cir. 1984). An appellant cannot show that a finding of fact is clearly erroneous merely by demonstrating a conflict in testimony or by seeking, as do Plaintiffs in the instant case, to have the Court of Appeals redetermine credibility -16- of witnesses. Vaughner v. Pulito, 804 F . 2d at 879; Glass— L l Petro-Tex Chemical Corp., 757 F.2d at 1559; Sawyer v. Arum. 690 F . 2d 590, 592 (6th Cir. 1982). An appellate court should not redetermine credibility of witnesses whose demeanor the district court has had the opportunity to observe and about whom an opportunity to form a conclusion. WSM, Inc. v. Hilton, 724 F.2d 1320, 1328 (8th Cir. 1984). The district court's credibility choices are, of course, subject to Rule 52 and the "clearly erroneous" standard of review. McDowell v. Safeway Stores^— Inc., 753 F.2d 716 (8th Cir. 1985). The Evidence Supports the Court's Findings The findings of the district court in this case are not clearly erroneous. After an extensive and thorough review of the evidence presented by all parties, the district court found that AISD adopted and implemented the April 13, 1987 student assignment plan to address the serious educational problems which had developed since 1980 and which were confronting the school district. Price v. Austin Independent School District, 729 F.Supp. at 536-50. The district court further found that the AISD Defendants did not take any action with the intent to discriminate against any person on the basis of race or ethnicity. I_d. at 549-53. That ultimate finding and the subsidary findings of no discrimination related to individual decisions made by AISD are supported by overwhelming evidence. in this caseAISD personnel testified in great detail concerning the problems which confronted AISD during the period between 1980-87. Dr. John Ellis, AISD Superintendent from 1980- 19901 and, as Plaintiffs' expert admitted, one of this nation's premier educators, described to the district court the major problems with which the 1980 student assignment plan was inadequate to deal, and he related the educational objectives which the 1987 plan was intended to achieve. (4 R. 83-96 ; 2 2nd Supp. R. 17-35). The district court credited Dr. Ellis' testimony and acknowledged the educational problems that were the reasons for the Board of Trustees' actions. Price v. Austin Independent School District, 729 F.Supp. at 544-45. Dr. Ellis further testified concerning the complete absence of segregative intent with which he and his educational planners developed the various student assignment plans that were presented to the Board of Trustees for its consideration. Superintendent Ellis placed two experienced and very competent planners, Dan Robertson and Dan Roberts, in charge of the project of design and development of the plan, provided them the most advanced computer technology available for the project, and afforded them the same degree of independence and isolation that an outside consultant would have had. (2 2nd Supp. R. 21-25, 77-80, 115). Dr. Ellis stated emphatically that no member of AISD's Board of Trustees had iDr. Ellis left AISD in July of 1990 to become Commissioner of Education for the State of New Jersey. Dr. Gonzalo Garza is now serving as Interim Superintendent. ever within his presence referred negatively to any racial group or had ever expressed a discriminatory intent within his hearing. (2 2nd Supp. R. 35). He also denied that any of his acts were motivated by discriminatory intent or purpose. (4 R. 96; 2 2nd Supp. R. 34-35 ) . Messrs. Robertson and Roberts corroborated Dr. Ellis testimony concerning evolution of the various problems facing AISD at the time the revised student assignment plan was being considered and adopted. (4 R. 52-55; 2 2nd Supp. R. 70-76, 112- 14). Dan Robertson's testimony underscores the correctness of the district court's finding that there was no intentional discrimination. A veteran of over seventeen years' experience with design, development and implementation of desegregation plans in AISD, Mr. Robertson testified that major educational problems impacted the 1980 Consent Decree assignment plan and were the reasons for revision of the plan on April 13, 1987. (4 R. 52-55; 2 2nd Supp. R. 70-76). Among the problems identified by AISD witnesses were population growth and demographic shifts, overcrowded schools in some areas and low enrollment and underutilized schools in o.thers, shortage of classrooms in elementary schools caused by state law mandated pupil-teacher ratio of no more than 22:1 and state law mandated pre-kindergarten classes, traffic congestion and roadway problems, increased time and distance required for bus rides, construction and opening of twelve new schools, and complaints -19- from AISD parents concerning the time children were spending on buses. (4 R. 52-55, 83-84; 1 2nd Supp. R. 253-55 ; 2 2nd Supp. R. 17-21, 70-76, 94, 112-14; 169-71, 173, 193-94). Dan Roberts, AISD's Director of Transportation, described the problems faced by his department. (2 2nd R. 112-14). He noted that major problems affecting transportation included growth of the City, the impact of growth on roadways, and an increasing inability to efficiently and quickly transport students along the primarily east-west routes required by the Consent Decree in a city in which the major traffic arterials run north-south. These problems combined to result in increasingly longer rides. (Id.). Mr. Roberts added that complaints concerning lengthy bus rides for elementary school children came from all sections of the community and not merely from Anglo parents. (2 2nd Supp. R. 114). AISD witnesses testified that they used the Board's formal criteria, adopted in June of 1986, as their guide in developing the plan (4 R. 56-57, 85-86; 2 2nd Supp. R. 21-26, 77-80, 84, 115), that they performed their tasks in an effort to address the serious educational problems facing AISD without any discriminatory purpose or intent, and that in drawing the school boundary lines they maximized integration wherever possible within the Board of Trustees' criteria for the new plan. (4 R. 58-60, 86-87, 91-92; 2 2nd Supp. R. 24-26, 79-81). Plaintiffs offered no evidence whatever to suggest that the criteria were adopted with discriminatory intent. Finally, Board of Trustees members -20- c3 1$ Small (Anglo) and Hart (Black) testified on direct and cross- examination concerning the Board's total lack of discriminatory intent.2 (1 2nd Supp. R. 261-62, 269-70, 278; 2 2nd Supp. R. 180-82). The consistent testimony of AISD’s witnesses, which was not refuted or contradicted by any credible testimony, overwhelmingly supports the Court's findings of fact and requires affirmance of the judgment below. Plaintiffs Did Not Carry Their Burden of Proof Plaintiffs could not, and did not, refute the testimony of AISD's witnesses at trial, and they simply did not carry their burden of proof on the issue of discriminatory intent. Rather they are attempting in this appeal to argue that the district court should have drawn different, more sinister, inferences from the evidence which was presented, and they also ask this Court to reweigh the evidence and to redetermine credibility choices made by the district court. This argument cannot succeed. Anderson v. City of Bessemer City, 470 U.S. 564 (1985); Inwood Laboratories^ Inc, v. Ives Laboratories, Inc. , 456 U.S. 844 (1982); Glass— Vj_ Petro-Tex Chemical Corp. , 757 F.2d 1554 (5th Cir. 1985); WSM^ Inc, v. Hilton, 724 F.2d 1320 (8th Cir. 1984). One of Plaintiffs' primary efforts on appeal is to have this Court redetermine the credibility of Dr. Michael Stolee and Abel Ruiz, who testified on their behalf, and they made much in their gtsiis 2Mr. Small retired January of 1990. Ms Trustees. from service on the Board of Trustees in Hart now serves as President of the Board of -21- -1 ft$ briefs of the near-unfathomable testimony of Professor Yale Rabin. The district court did not credit the testimony of Stolee or Ruiz, expressly found that Ruiz was not a credible witness, and found little relevance to Rabin's testimony. A second major theme of Plaintiffs' arguments on appeal is that the district court failed to give "proper weight" to individual bits of evidence that they deem to be more sinister than did the district court. Simply put, Plaintiffs seek to retry this case in this Court. It would unduly lengthen this brief for AISD to reargue each of the evidentiary points asserted by Plaintiffs, but AISD will respond to certain of Plaintiffs' most obvious mischaracterizations of the evidence. Dr. Michael Stolee, a University of Michigan professor of educational administration, testified for Plaintiffs as an "expert," but the relevance of his expertise to this case is unclear. (1 2nd Supp. R. 89). Professor Stolee's "investigation" to prepare for his testimony consisted of touring Austin by car for fewer than 3 days aided only by a street map obtained from a hotel newsstand. (1 2nd Supp. R. 109-13, 122-23). He made a quantum leap from raw statistics compiled from AISD transportation documents to conclude that AISD intentionally discriminated on the basis of race and ethnicity by adopting and implementing the 1987 student assignment plan. Dr. Stolee's intuitive conclusion was not supported by any empirical written study conducted prior to trial. By his own admission, Professor Stolee did not talk to a single individual or group in AISD — not a student, a teacher, an -22- a bOc- administrator, the Superintendent, a Board of Trustees member, or a PTA group. Nor did he enter a single AISD facility. (1 2nd Supp. R • 123-25). Moreover, several of Dr. Stolee's conclusions were based on incorrect assumptions based on his erroneous interpretation of the raw data he obtained from AISD's Transportation Department. Dan Roberts, AISD's Director of Transportation, pointed out the errors during his testimony (2 2nd Supp. R. 116-23), and the district court credited Mr. Roberts' testimony. Price--v.-- Austin independent School District, 729 F.Supp. at 545. Professor Stolee's credentials for testimony of the nature he gave in this • case are suspect (1 2nd Supp. R. 89, 92-93), his preparation was wholly inadequate, and the district court correctly gave little weight to his testimony, Price v. Austin Independent Scho_ol District, 729 F.Supp. at 541, as did the Eleventh Circuit Court of Appeals in a similar case. Stell v. Savannah-Chatham County Board of Education, 888 F.2d 82 (11th Cir. 1989). Abel Ruiz’ testimony throughout the course of this litigation had more twists and turns than a mountain road, and the district court found his testimony to be self-serving and neither reliable nor credible. Price v. Austin Independent School District, 729 F.Supp. at 533. Ruiz first testified during the preliminary injunction hearing that the discrimination he perceived was based on economic power and not on race or ethnicity. (4 R. 39 40). Later on direct examination at trial Ruiz testified concerning r~- -23- four Board decisions which he believed were voted along racial lines (1 2nd Supp. R. 178-83), even though the programs he believed to have been affected by these votes served students of all racial groups, not just minority students. (1 2nd Supp. R. 192-93, 266-67). Mr. Small disputed Ruiz' testimony. (1 2nd Supp. R . 263-68). To the ultimate question on direct examination whether there was "anything at all that conveyed to you racial intent from your fellow board members" on the evening AISD adopted the revised student assignment plan, Ruiz replied "No." (1 2nd Supp. R. 189). Ruiz later said in conclusory fashion that the April 13, 1987 vote was racially motivated, but he explained that he believes that being in favor of neighborhood schools and being against busing of elementary school children are the equivalent of racial discrimination. (1 2nd Supp. R. 190-91). He conceded that a neighborhood school plan for elementary school children has tri ethnic support in AISD. (1 2nd Supp. R. 191-92). On rebuttal at trial after Defendants had rested their case, Ruiz came up with surprise testimony. Made up out of whole cloth, his "new" testimony attempted to explain away the formal criteria AISD adopted on his motion in June of 1986. Those criteria, which were to be the basis for any revision of the 1980 assignment plan, among other things, limited transportation for the purpose of attaining ethnic ratios at individual schools to grades 6-12, limited one-way bus rides to 45 minutes and 10 road miles wherever -24- possible, and required creation of the Educational Excellence Plan. (DX 50). Ruiz' criteria clearly contemplated neighborhood schools for grades preK-5 and clearly acknowledged that the target ethnic ratios would not be met at all schools. (1 2nd Supp. R. 256; DX 50 ) . Ruiz' rebuttal testimony, obviously contrived for the occasion, was delivered from prepared notes and claimed for the first time that Mr. Ruiz intended the revised student assignment plan to have mandatory racial balances at each school in AISD and that he would have achieved the mandatory ratios through elongated, east-west attendance zones and transportation. (2 2nd Supp. R. 230-35). Incredible on its face, Ruiz' eleventh-hour testimony lamely, but unsuccessfully, attempted to downplay criterion 6, which stated that any transportation necessary to achieve a particular target ethnic ratio would occur in grades 6- 12 only. (2 2nd Supp. R. 233-35). Mr. Ruiz did not even attempt to reconcile with his new version of history the time and distance limits on transportation set out by his criteria or the criterion which required educational enrichment for those schools which became Priority Schools. The time and distance limits obviously would restrict any contiguous gerrymandering of attendance zones across the same obstacles and natural barriers of AISD which had become problems for the 1980 east-west assignment plan. To reject Ruiz' testimony one only has to read the criteria. -25- Mr. Ruiz also testified on rebuttal that his motion to adopt formal criteria was conditioned on AISD's hiring an outside consultant to design the revised boundary plan. (2 2nd Supp. R. 231-32). At the preliminary injunction hearing, Ruiz had testified that Dan Robertson was "one of the best in the nation" at developing student assignment plans (4 R. 31), but on rebuttal at trial he testified that he didn't know that Robertson would be assigned to develop the plan. (2 2nd R. 252-53). He concluded his rebuttal testimony by asserting that Dr. McKenzie's motion in November of 1986 to direct the staff to develop proposed plans implemented an entire new set of criteria rather than the criteria Ruiz proposed in June of 1986. (2 2nd Supp. R. 239-41). AISD's exhibit 50 plainly shows that hiring a consultant was yet to be decided, and might not occur. At the meeting during which the criteria were adopted, immediately prior to Ruiz motion, the Board tabled consideration of a consultant. (DX 50). Ruiz' motion began "If a consultant is hired" (2 2nd Supp. R. 249-52), and Dr. McKenzie's motion just as plainly referred to the criteria already adopted by the Board. (DX 51). Moreover, in March of 1987 after a motion by Ruiz, the Board instructed Dr. Ellis to develop the enrichment plan for the Priority Schools using the effective schools research model. (DX 57). He did not mention any mandatory ethnic balance or object to any alleged "McKenzie criteria" at that meeting. (Id.). Most important, Dr. Ellis and the two administrators who developed the plan testified -26- repeatedly that the basis for their efforts in revising the student assignment plan was the list of criteria adopted by the Board after Ruiz' motion in June of 1986. (4 R. 56-57, 84-85; 2 2nd Supp. R. 21-24, 77-80, 115). Although Ruiz had given testimony three previous times in this litigation -- at the preliminary injunction hearing, at his deposition, and during Plaintiffs' case-in-chief -- his rebuttal testimony was Ruiz' first mention of "his" east-west plan. (2 2nd Supp. R. 242-43). Whatever Abel Ruiz' private agenda was at trial, it obviously had changed since June 23, 1986 and changed again since the preliminary injunction hearing. The trial court correctly assessed Ruiz' testimony as inconsistent, self-serving and unworthy of credibility. Price v. Austin Independent School District, 729 F.Supp. at 543. The point of Professor Yale Rabin's testimony is not readily apparent. He testified from two maps -- a 1970 census map and a 1980 census map -- and admitted that between 1970 and 1980 Black persons have dispersed from East Austin and now live in all sections of Austin. (1 2nd Supp. R. 76-78). He also noted that by 1980 Blacks had migrated north from East Austin into a formerly white, moderate-income residential area in Northeast Austin. (1 2nd Supp. R. 78). His maps indicated distribution of Blacks in each block by proportion and not by numbers. (1 2nd Supp. R. 75- 76). He attempted to show by using ten year old census data that East Austin have not changedracial concentrations in h' Sr? rJ'-} M 531I significantly between 1970 and the present, despite his admissions that significant migrations occurred between 1970 and 1980. From those two facts drawn from comparing the 1970 and 1980 maps, Professor Rabin boldly concluded that the migration which occurred between 1970-80 "reflects the segregative actions which were taken by both the City and the school board earlier." (1 2nd Supp. R. 79). His latest census data was ten years old, and Professor Rabin did not testify to any matter occurring after 1980, which was the first year of the Consent Decree. Professor Rabin did not attempt to explain or to connect his testimony from the maps to his conclusion about AISD culpability. The district court and the Fifth Circuit defined the area known as East Austin for the purposes of the original desegregation lawsuit against AISD, and the area is much more compact than the area called East Austin by Rabin for the purposes of his testimony in this case. (Compare PX 1 at 5 with 1 2nd Supp. R. 77-78). By vastly expanding the Court's accepted definition of East Austin to all areas east of Interstate Highway 35, Professor Rabin was able to convert the movement of black families out of East Austin from a positive to a negative trend to support his theory of racial isolation. His distorted and unsupported analysis failed to credit AISD with two-way busing of students into and out of the northeast secondary schools, Pearce and LBJ, and the significant integrative contribution of the Science Academy, a highly successful magnet program located at LBJ -28- High School. None of these integration measures were contemplated by the 1980 Consent Decree plan but are part of the 1987 plan. By using his own expanded definition of East Austin and by assuming a novel theory of two Black population centers moving toward each other, Professor Rabin created for trial a hypothetical theory of increasing and inevitable racial isolation based on increasingly remote segregative actions by AISD and other governmental entities. How Professor Rabin's conclusion follows from his analysis of the 1970 and 1980 census maps is not clear, nor is it clear why the phenomenon of upwardly mobile Blacks moving from a low-income area into a formerly all-white middle-income area should be evidence of discrimination by AISD. Unfortunately, the Professor ignored all student data. Had he analyzed available student data, Professor Rabin would have learned that between 1979 and 1989, the number of Black students in East Austin elementary schools dropped by one-third, and the percentage of Black AISD students in East Austin schools declined from 43.9% to 23.8%. (PX 1 at appendix A; DX 69). These facts refute Professor Rabin's theory of racial isolation in East Austin schools. The district court correctly pointed out that the Professor's testimony did not refer at all to AISD student population data and had little, if any, relevance to MPD's intent in adopting a student assignment plan in 1987. Professor Rabin’s testimony should not detain this Court long. -29- :-£ Xt I> Plaintiffs Did Not Prove Intentional Discrimination Plaintiffs seek to characterize the April 13, 1987 student assignment plan as nothing more than reinstitution of the dual school system condemned by the courts in the prior desegregation litigation, but they admitted at trial that they do not challenge the plan as it pertains to middle schools, junior high schools or high schools. (1 2nd Supp. R. 13, 15). In effect, they contend that cross-town busing of elementary school students to maintain 1980 ethnic ratios is constitutionally required whether or not AISD is unitary, whether or not ethnic ratios in grades 6-12 and in the majority of preK-5 schools are satisfactory to them, and whether or not AISD revised its student assignments to address specific educational problems. Plaintiffs also assert that the Priority Schools are racially identifiable from the principals and faculty assigned to each school and that AISD failed to attempt to develop a "less segregative" alternative to the April 13, 1987 plan. These contentions will not withstand even a cursory review of the evidence, and they necessarily require the Court of Appeals to ignore AISD's unitary status, as Plaintiffs have done throughout this litigation, and to forever hold AISD legally responsible for housing patterns in Austin. No witness who testified in opposition to the April 13, 1987 student assignment plan adduced any evidence to support an assertion that AISD merely returned to the pre-1980 elementary -30- school boundaries. In fact, the uncontradicted testimony of Dan Robertson belies Plaintiffs’ contention that AISD intentionally discriminated on the basis of race in drawing attendance boundaries for the elementary schools or simply reverted to pre- 1980 boundaries. In addition, the sole complaint of the individual parent witnesses appears to be that the ethnic ratios at the Priority Schools were unsatisfactory to them; they appeared to be generally satisfied with all other aspects of AISD's educational programs, they conceded on cross-examination that the stated bases for AISD's action were valid concerns, and they did not accuse AISD of discriminatory intent. Mr. Robertson testified repeatedly that he changed boundaries and redrew attendance zones to maximize integration within the formal criteria established by the Board of Trustees, that he attempted to enhance integration within each elementary boundary and that he did not take any action with the intent to discriminate against or to segregate any identifiable group of students. (4 R. 57-60; 2 2nd Supp. R. 79-81, 84-87, 95-99). Because of AISD's majority-to-minority transfer policy and options to the student assignments, no student is forced to remain in a school in which the ethnic ratio is unsatisfactory to the student's parents. (4 R. 59-60; 2 2nd Supp. R. 85; DX 61). Moreover, as AISD's witnesses testified consistently, AISD revised its student assignment plan to address specific educational problems and not because of its effect, if any, on minority students or on any identifiable group of students. Finally, Mr. Robertson testified that he and Mr. Roberts prepared, and the Board considered, numerous alternative plans. (2 2nd Supp. R. 81; DX 71). Many of the alternative plans were present in the courtroom at trial, yet counsel for Plaintiffs did not ask a single question concerning the alternative plans or examine them at all. It is disingenuous for Plaintiffs to contend now that the plan which was adopted was not as "integrative" as it could have been. This is particularly vexing in light of the specific instances in which the AISD planners and the Board of Trustees chose to transport students below grade 6 to enhance integration. (2 2nd Supp. R. 95-99). Dr. Ellis and Ms. Elida Vazquez-Bera, Hispanic principal at Govalle Elementary School, answered Plaintiffs' contention that AISD discriminated on the basis of race in its assignment of principals and faculty to the Priority Schools. Dr. Ellis and Mr. Small testified that the principals were selected on the basis of ability, not race or ethnicity, and that most were principals who had been assigned to those same schools during the 1980 Consent Decree assignment plan and who had been successful in those assignments. (4 R. 89; 2 2nd Supp. R. 10-12 , 28-29) . In addition, unlike at other schools, the Priority Schools' principals were given complete discretion in staffing their schools and were given first choice in hiring teachers. (2 2nd Supp. R. 31; DX 62, 63). Ms. Vazquez-Bera confirmed these facts -32- and spoke with pride about the faculty she employed for Govalle. (2 2nd Supp. R. 206-07, 213-14). Dr. Ellis praised the Priority Schools' teachers as well. (2 2nd. Supp. R. 29-30, 32-33, 54-58). The academic credentials of the professional staffs at the Priority Schools are strong, and the ethnicity of the staffs in those schools reflects approximately the ethnic percentages of AISD's student body. (DX 64, 65, 68, 69, 75). In an effort to improve the physical facilities at many of those schools, AISD has spent more on maintenance and repair at the Priority Schools than at other schools (2 2nd Supp. R. 163-64 ; DX 65) and has twice proposed to the voters a bond issue which would replace two of those schools and would repair numerous others. (2 2nd Supp. R. 44). Unfortunately, the NAACP worked to defeat the first bond issue but now seeks to hold AISD responsible for its failure. (1 2nd Supp. R. 138, 150-51, 155). The most Plaintiffs can do with any of the evidentiary issues they raise is to attempt to show conflicting testimony and to ask this Court to draw different inferences than did the district court, but that is insufficient to require reversal of the judgment below. E. g . , Walling_ General Industries Corp., 330 U.S. 545 (1947); Glass v._Petro-Tex Chemical Corp., 757 F.2d at 1559 ; Sawyer v. Arum, 690 F . 2d at 591-92. The Legal Effect of Unitary Status Plaintiffs, throughout the course of this litigation, have ignored the district court's 1983 declaration that AISD is a -33- unitary school district, have ignored this Court's interpretation of that status, and they steadfastly have refused to acknowledge the legal significance of unitary status. Indeed, Appellants Harrington and ACLU complain in their brief that the district court's opinion is "infected" with overemphasis on the effect of unitary status. A school district's attainment of unitariness is the ultimate accomplishment of desegregation and is the ultimate goal of court supervision and a court-ordered remedy. United States v. Overton, 834 F.2d at 1177, quoting Morgan v. Nucci, 831 F.2d 313, 318 (1st Cir. 1987). The significance of unitariness cannot be overemphasized, and the district court correctly applied the law of this case, the law of the Fifth Circuit, and the law of the Supreme Court. Because unitariness is not achieved merely by implementation of a satisfactory desegregation plan, the Fifth Circuit has developed a procedure by which after implementation of a desegregation plan, a district court retains jurisdiction for the sole purpose to ensure that all remnants of the dual school system have been removed and that full unitariness actually has been achieved. E.g., United States v. Texas Education Agency, 647 F.2d 504, 508-9 (5th Cir. 1981); Youngblood v. Board of Public Instruction, 448 F.2d at 771. Thus, a district court is required bv the law of this Circuit to withhold a declaration of unitariness and to retain jurisdiction until the court is satisfied that complete eradication of the vestiges of -34- Ross v. Houstondiscrimination in fact has occurred. E.g. , Independent School District, 699 F.2d 218, 225 (5th Cir. 1983) and cases cited therein. When a district court in the Fifth Circuit declares a school district to be unitary and dismisses the case, by that declaration and dismissal the court necessarily finds that the school district has eliminated "root and branch" all vestiges of prior racial discrimination. Swann v. charlotte-Mecklenburg---Board-- of Education, 402 U.S. 1, 15 (1971); Green v. County School Board, 391 U.S. 430, 435-38 (1968); United States v. Lawrence County School District, 799 F.2d 1031, 1037 (5th Cir. 1986); Georgia State Conference of Branches of NAACP v. State of Georgia, 775 F.2d 1403, 1413-14 (11th Cir. 1985); Ross v. Houston Independent school District, 699 F.2d at 225. Despite this well-settled law, Plaintiffs once again contend in their briefs that AISD did not eradicate all vestiges of discrimination in its public schools, but this contention is disingenuous at best. A class of Black and Hispanic students, whose interests were identical to Plaintiffs, agreed in 1983 that AISD had achieved unitariness. The Fifth Circuit Court of Appeals has held, as the law of this case, that a declaration and finding of unitariness means that "a school district has removed the taint of prior discrimination ... ." United States v. Overton, 834 F.2d at 1178. Under the well-developed desegregation jurisprudence of this Circuit, AISD would not have been released from judicial -35- supervision and the case would not have been dismissed if AISD had not eliminated all vestiges of a segregated system prior to that declaration by the district court. Id. at 1175-78. Accord, United States v. Lawrence County School District, 799 F.2d at 1037-38. Plaintiffs are bound by the 1983 declaration of unitariness and by its legal consequences. Los Angeles Branch NAACP v. Los Angeles Unified School District, 750 F . 2d 731 (9th Cir. 1984), cert, denied, 474 U.S. 919 (1985). Plaintiffs and their representatives agreed in 1983 that AISD had achieved unitary status, and they cannot now complain that AISD failed to eliminate all vestiges of its former dual, segregated system prior to the district court's declaration of unitariness and dismissal of the desegregation litigation. Plaintiffs' continued reliance on Dowell v. Board of Education, 890 F.2d 1483 (10th Cir. 1989), cert, granted, __ U.S. (1990) is misplaced but understandable. Dowell stands alone among the Circuit Courts of Appeals which have considered the legal significance of unitary status, and this Court expressly has rejected Dowell's analysis. United States v. Overton, 834 F.2d at 1175-77. The Tenth Circuit in Dowell disregarded a declaration of unitariness by the district court and held that the mandatory injunction which implemented the desegregation remedy survived the declaration of unitariness and dismissal, that the district court retained jurisdiction to reopen the dismissed litigation and to -36- $ $ M K* - '&■' f*;~l;V- enforce the desegregation remedy, and that the school district had the burden of proof to demonstrate "changed circumstances" in order to justify any modifications to the desegregation remedy after being declared unitary. Dowell v. Board of Education, 795 F . 2d 1516 (10th Cir.), cert. denied, ___ U.S. ---, 107 S.Ct. 420 (1986). The Dowell court analyzed the case as an injunction case and applied the legal principles applicable to an attempt to modify a permanent injunction. (Id.). Recently the Tenth Circuit once again reversed the district court and rejected the school district’s proffered changed circumstances justifying a neighborhood school plan for grades 1-4, holding, inter alia, that the school board's intent "may be one circumstance in evaluating the effect of the Plan" but not the ultimate issue. Dowell v Board of Education, 890 F.2d at 1499. Dowell is against the overwhelming weight of authority in desegregation jurisprudence. Morgan v. Nucci, 831 F.2d 313 (1st Cir. 1987); Riddick v. School Board, 784 F.2d 521 (4th Cir. 1986), cert, denied, 479 U.S. 938 (1986); Vaughns v. Board .of Education, 758 F .2d 983 (4th Cir. 1985); Spangler v. Pasadena Board of Education, 611 F.2d 1239 (9th Cir. 1979). . This Court has rejected Dowell's approach completely. United States v.— Overton, 834 F. 2d at 1175-77. Plaintiffs rely on Dowell so that they may shift the burden of proof to AISD, disregard AISD's non- discriminatory intent, and rely on presumptions of discrimination applicable to dual school systems which have not yet attained -37- unitary status. Dowell was incorrectly decided, does not express the law of this Circuit, is distinguishable from this case, denies meaning to unitariness and should be rejected again by this Court. Once a de jure segregated school system has been found to have achieved unitary status, as has AISD, the burden of proving discriminatory intent reattaches to a plaintiff. United States v_L Overton, 834 F.2d at 1175-78; Riddick v. School Board, 784 F.2d at 534-39. Discriminatory impact or effect alone is not sufficient to make out a claim under the fourteenth amendment to the United States Constitution. village of Arlington Heights— v_̂ Metropolitan Housing Development Corporation, 429 U.S. 252, 264-66 (1977); Washington' v. Davis, 426 U.S. 229, 239-40 (1976); United States v. Overton, 834 F.2d at 1175-78; Riddick v. School Board, 784 f . 2d at 534-39. Plaintiffs were required to prove discriminatory purpose to make out a constitutional violation by AISD. Id. Plaintiffs also had to prove discriminatory purpose to establish a violation of 20 U.S.C. § 1703. Morales_v_.— Shannon, 516 F . 2d 411, 412-413 (5th Cir.), cert, denied, 423 U.S. 1034 (1975). This proof of purpose, or intent to discriminate, marks the difference between de facto and de jure segregation. ̂• 9 • ' Keyes v. School District No. 1, 413 U.S. 189, 208 (1973). The presence of a few one-race schools within a community, standing alone, is not a violation of the Constitution. See Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. at 25-26; Riddick v. School Board, 784 F.2d at 535. Further, a neighborhood school policy in and of itself does not offend the fourteenth amendment. Crawford v. Board of Education, 458 U.S. 527, 536-38 & n. 15 (1982); 20 U.S.C. § 1705. Finally, time and distance required for student transportation can be a valid objection even for a pre-unitary school district. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. at 30-31. Most important, discriminatory purpose implies more than intent as volition or intent as awareness of consequences. Personnel Administrator v. Feeney, 442 U.S. 256, 278-79 (1979). Discriminatory purpose in the constitutional sense means that the decisionmakers selected or reaffirmed a particular course of action, at least in part, "because of," not merely "in spite of", its adverse effects upon an identifiable group. Id. (emphasis added). The United States Supreme Court has held that the Feeney analysis of the intent requirement is applicable to a school desegregation case. See Washington v. Seattle School District No. 1, 458 U.S. 457 , 484 (1982); Columbus Board of Education v. Penick, 443 U.S. 449, 465 (1979). Subsequently, the Fifth Circuit has applied the Feeney intent analysis in equal protection cases, including desegregation cases. United States v. LULAC, 793 F.2d 636, 646-47 (5th Cir. 1986); Lee v. Lee County Board of Education, 639 F . 2d 1243, 1267-68 (5th Cir. 1981). The Fifth Circuit also has made clear that the Feeney analysis was to be used at the trial of this case. United States v. Overton, 834 F.2d at 1175 & n.15. Thus, Plaintiffs were required to prove, and did not, that -39- AISD adopted its boundary plan because of an adverse impact on a racially identifiable group of persons. In light of the well- developed law of this Circuit and the evidence adduced in this litigation, Plaintiffs cannot prevail on this appeal. AISD Did Not Abandon An Integrated School System As the testimony of AISD witnesses conclusively established, AISD adopted the new student assignment plan for valid educational reasons. Moreover, Plaintiffs are wrong on the law and wrong on the facts when they claim that AISD abandoned busing for integration purposes, that AISD required minority children to attend "resegregated" schools or that AISD denied integration to Anglo children. AISD reduced the level of mandatory transportation for integration purposes, but AISD did not abandon it. AISD evidence established that the April 13, 1987 student assignment plan continued busing to affect ethnic ratios for some students at the elementary grades, continued mandatory transportation for integration purposes in grades 6-12, and provided well-balanced tri-ethnic student populations for most schools in grades preK-12. (DX 61, 68, 69). in addition, no student in AISD is forced to attend any particular school. AISD continued its policy to allow any_ student of any race or ethnicity in any grade level to transfer from a school in which his or her race is in the majority to a school in which his or her race is in the minority, and AISD has continued to provide free transportation to the new school for those who -40- exercise this "majority-to-minority" transfer. (4 R. 58-60; 2 2nd Supp. R. 85; DX 61). Those Plaintiffs, therefore, who attend a school in which their race is in the majority may attend a school in which their race is in the minority simply by applying for the majority-to-minority transfer. Further, students who previously had been assigned outside of their neighborhoods under the 1980 Consent Decree plan and who had been bused for two or more years had the option of staying at their previously assigned schools. (Id.). Finally, all students who were assigned for integration purposes by the Consent Decree had the option of remaining in their assigned schools. (Id.). Apparently Plaintiffs did not exercise any of these voluntary options. Plaintiffs' overemphasis on ratios and their search for acceptable ethnic balances overlook the obvious shifts in student population in AISD between 1979-1989. The minority student population has increased by over 10,000 students, and the Anglo student population has decreased by over 4,000 students during that period. (PX 1 at appendix A; DX 69). AISD, like many other urban school districts, through demographic shifts and changes has become a district in which Black and Hispanic studetns make up more than 50% of the student population of virtually every grade level. (DX 69). The law does not require a unitary school district to adhere forever to any "acceptable" ethnic ratio in spite of demographic changes and educational problems merely because the school district was once segregated. Integration is -41- An educationalof abstract percentages at individual schools, system is integrated when it provides equal educational opportunity for all students, ensures that each student has access to and is allowed to receive benefits from the resources, programs and services offered by the educational system, and within which no student is excluded from any school or from any educational experience on the basis of race or ethnicity. Plaintiffs' complaint of ethnic balances and percentages in a few schools does not state a constitutional violation by a school district after unitariness has been declared. EJ_ĝ , Pasadena City Board of Education v. Spangler, 427 U.S. 424, 433-36 (1976): Swann v. Charlotte-Mecklenburq Board of Education, 402 U.S. at 32 (1971); Riddick v. School Board, 784 F. 2d at 543 ; Ross— v^ Houston independent School District, 699 F.2 at 225-227. There is no constitutional right to attend a school with a teaching staff of any particular racial composition. Quarles v. Oxford MuniHEgl Separate School District, 868 F.2d 750, 756 (5th Cir. 1989) and cases cited. Nor is there a constitutional requirement that each school must reflect the ethnic ratios of the school district as a whole. Flax v. Potts, 864 F.2d 1157, 1160 (5th Cir. 1989). Plaintiffs manipulate numbers but cannot legitimately dispute the quality of the educational programs that are provided to the sixteen priority elementary schools in AISD and cannot dispute the significant educational gains realized by students in the Priority Schools or the very real educational benefits derived by AISD from -42- the plan. Most important, Plaintiffs did not prove that AISD's actions were motivated by discriminatory purpose and not by legitimate educational objectives. Valid educational reasons formed the bases for the Board's adoption of the new student assignment plan. The 1987 plan may have resulted statistically in a few additional predominantly minority schools at the elementary level, and it is clear that Plaintiffs' claims are based solely on percentages and ethnic ratios which they deem to be unacceptable. Raw numbers must be balanced, however, against the undeniable reality that the students at those schools have benefitted from educational enrichment programs, that each student who was previously assigned for integration purposes could remain in the previous assignment if he or she chose, or, if not previously assigned, a student whose race is the majority in the assigned school can transfer with free transportation to a setting in which his or her race is the minority, that each student in AISD will have an ethnically balanced educational experience for at least grades 7-12, the overwhelming majority of whom will have that experience for at least grades 6-12 and many of whom will have that experience for grades preK-12, and that the Board's purpose was to address specific educational problems in AISD. Finally, Plaintiffs do not complain about the majority of AISD’s elementary schools or about any of its secondary schools, and they want to retain the Educational Excellence Plan. Conclusion a ■-HVs •V '7$ § rj- £5̂ •-v It is beyond argument that AISD is a unitary school district and that in this case Plaintiffs had to prove intentional discrimination. The Court of Appeals unequivocally held in this case: Attaining unitary status, however, means that a school board is free to act without federal supervision so long as the board does not purposefully discriminate; only intentional discrimination violates the Constitution. United States v. Overton, 834 F. 2d at 1175. Accord, Riddick— Vj_ School Board, 784 F.2d at 534-39. Plaintiffs did not carry their burden of proof, did not prove intentional discrimination, and cannot prevail on appeal. 'Whether they like it or not, Plaintiffs must accept that AISD is a unitary school district and that it is no longer tainted by its prior history of discrimination. United States v. Overton, 834 F .2d at 1178. Under desegregation jurisprudence, the law of the Supreme Court and this Circuit, and the law of this case, AISD removed all vestiges of discrimination and of the dual system prior to the declaration of unitariness and dismissal of the desegregation litigation, and Plaintiffs could not rely on any presumption of discrimination or on any form of shifting the burden of proof to AISD. Id. AISD accepts, acknowledges and welcomes its obligation to all persons under the United States Constitution. fI -44- This case and AISD's conduct is governed by the fourteenth i . ' i amendment’s prohibition against intentional discrimination. history is relevant to the instant case, as are the other factors set out in Village of Arlington Heights v. Metropolitan Housing Development Co., 429 U.S. 252 (1977), only insofar as the history is some evidence of present intent to discriminate. Arlington Heights, however, did not require the district court to relitigate United States v. Texas Education Agency. What Arlington Heights recognizes to be relevant is the history of the decision at issue, and for AISD that history includes not only that AISD was a formerly de -jure segregated school system but also that AISD made the decision to adopt the April 13 , 1987 student assignment plan at a time when it was a unitary school district that was both free of judicial supervision and beset by serious educational problems caused by factors beyond its control. Plaintiffs seek to damn AISD forever because of its past sins. The law, however, is not so harsh, when the district court declared AISD to be unitary and dismissed the desegregation litigation, those sins were forgiven in the context of desegregation law, and AISD regained local control of its school system, governed only by the United States Constitution. The Constitution prohibits only those decisions made with the intent to discriminate against persons on the basis of their race or ethnic origin, and it simply does Plaintiffs no good to contend that the AISD Defendants knew or should have known that its R5 BE 1 -45- 1 -i ivT: Jr. & Wir.>‘ 15; current student assignment plan would result in a few additional elementary schools which were predominantly minority in student population. E.g., Personnel Administrator v. Feeney, 442 U.S. at 278-296; United States v. Overton, 834 F . 2d at 1178; Riddick v ■_ School Board, 784 F.2d at 534-39. Foreseeability, without more, is not the test under the Constitution. Id. The rule for which Plaintiffs contend would make it impossible for any formerly de jure segregated school district to take any action which arguably had a disproportionate impact or adverse effect on any ethnic or racial group without violating the Constitution and without resulting in judicial supervision. The rule for which Plaintiffs contend would require a school district to revise its student assignment plan each time the ethnic ratio at a school deviated from the ratio deemed to be "satisfactory" by potential plaintiffs. The rule for which Plaintiffs contend would allow any person who disagreed with the acts of a formerly de ^ure segregated school system to reimpose judicial supervision and a court-ordered remedy without accepting the burden of proof and without proof of intentional discrimination. The rule for which Plaintiffs contend would require judicial supervision in perpetuity of a former de jure segregated school system. The rule for which Plaintiffs contend would make meaningless a declaration of unitariness and would erase forever the bright line between federal control and local control of public education. The rule -46- for which Plaintiffs contend is not the law and should not be the law under the United States Constitution. Desegregation law is not original sin. Once AISD became unitary, the law absolved AISD of its past wrongs. AISD does not ask this Court or any person to forget its past, but it should not be eternally damned because it once sinned. AISD will not forget its past and, indeed, must remember its past mistakes so that it does not repeat those mistakes in the future. The standard by which AISD actions must be judged, however, and which governs this appeal, is a constitutional one and requires proof of intentional discrimination on the basis of race or ethnicity. Plaintiffs failed in their proof, and the district court's finding that AISD did not intentionally discriminate against any person is not clearly erroneous and is based on a correct application of the law. The judgment of the district court should be affirmed. Respectfully submitted, MCGINNIS, LOCHRIDGE & KILGORE william H. Bingham James R. RaupJohn H. Spurgin, II 1300 Capitol Center 919 Congress Avenue Austin, Texas 78701 (512) 476-6982 ATTORNEYS FOR APPELLEESAUSTIN INDEPENDENT SCHOOL DISTRICT, ET AL. -47- “3 CERTIFICATE OF SERVICE I hereby certify that a true and complete copy of the above and foregoing Brief of Appellees has been mailed, certified mail, return receipt requested, to the following attorneys of record on this the 3/ ■ day of , 1990: Napoleon B. williams, Jr.NAACP Legal Defense and Education Fund 99 Hudson Street, 16th Floor New York, NY 10013 David Van OsVan Os, Deats, Rubinett & Owen 900 Congress Avenue, Suite 400 Austin, Texas 78701 53?r*.5 I & *p SB -48-