Price v. Austin Independent School District Brief of Appellees

    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

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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

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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.

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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

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STATUTES AND RULES

20 U. 
20 U. 
FED R

S.C. § 170 3 . . . .
S.C. § 1705 ---
. CIV. P. 52(a)

38
15 , 17

38

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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,

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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 ) .

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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“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

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