United States v. Scotland Neck City Board of Education Appendix Vol. 1

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 73-3301

UNITED STATES OF AMERICA,
Plaintiff-Appellant, 

and
DEDRA ESTELL OVERTON, et al.,

Appellant-Intervenors, 
vs.

THE TEXAS EDUCATION AGENCY, et al., 
(AUSTIN INDEPENDENT SCHOOL DISTRICT)

Defendants-Appellees.

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

Austin Division

SUPPLEMENTAL BRIEF FOR BLACK APPELLANT-INTERVENORS

JACK GREENBERG 
JAMES M. NABRIT, III 
MELVYN R. LEVENTHAL 
KELLIS E. PARKER 
BILL LANN LEE

10 Columbus circle 
Suite 2030
New York, New York 10019

SAMUEL T. BISCOE
1704 Manor Road, Suite A 
Austin, Texas 78722

Attorneys for Black 
Appellant-Intervenors



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 73-3301

UNITED STATES OF AMERICA,
Plaintiff-Appellant, 

and
DEDRA ESTELL OVERTON, et al.,

Appellant-Intervenors, 
vs.

THE TEXAS EDUCATION AGENCY, et al., 
(AUSTIN INDEPENDENT SCHOOL DISTRICT)

Defendants-Appellees.

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

Austin Division

SUPPLEMENTAL BRIEF FOR BLACK APPELLANT-INTERVENORS

This brief is filed pursuant to the Court's request 
that counsel in the case file supplemental briefs in light 
of the Supreme court's decision of December 7, 1976 which 
granted certiorari, vacated the judgment entered on May 13, 
1976, and remanded the case to the Court "for reconsideration 
in light of Washington v. Davis, 426 U. S. 229 (1975)."



k k
45 U.S.L.W. 3413. Because black intervenors endorse and 
herein incorporate the supplemental brief of Mexican-American 
intervenors, we highlight only matters of particular concern 
to black school children.

We submit that Washington v. Davis has no bearing on 
the finding that the Austin Independent School District 
(hereinafter "AISD") "'has engaged in discriminatory 
assignment of black students to promote segregation,1" 
and that the decision requires the same conclusion of de_ jure 
segregation of Mexican American students upon record evidence 
already before the Court. We urge the Court to clarify that 
the finding of system-wide constitutional violation has a 
sound basis in principles recognized in Washington v. Davis.
The remedy portion of this Court's opinion was therefore 
wholly appropriate. The Court can and should move expeditiously 
to clarify its decision on the liability of AISD and to readopt 
the elements of its remand to the district court for preparation 
of a comprehensive desegregation plan; the voluminous under­
lying factual record developed after seven years of litigation 
requires no supplementation.

I.
WASHINGTON V. DAVIS HAS NO RELEVANCE TO 
THE FINDING OF UNLAWFUL SEGREGATION OF BLACK 
SCHOOL CHILDREN.______________________________

The AISD "'maintained a dual school system with educational
Jopportunities separate and inherently unequal for Blacks.'"

Austin ii, 532 F.2d at 392. 
Austin I, 467 F.2d at 870.

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In Austin I, the court held that "the AISD has not dismantled
the state-imposed system based on race."

"Although we agree with the district court that 
the AISD has not fully dismantled its dual system 
based on race and, therefore, agree that the 
plaintiffs are entitled to relief, we disagree with 
the court's conclusions as to the absence of post- 
Brown discrimination. We hold that the AISD has, 
in its choice of school site locations, construction 
and renovation of schools, drawing of attendance 
zones, student assignment and transfer policies, and 
facility and staff assignments, caused and perpetuated 
the segregation of black students within the school 
system."

467 F.2d at 870 n. 36. On remand, the district court held 
that "'the AISD . . . has engaged in discriminatory assignment 
of black students to promote segregation and ordered the AISD 
to dismantle its dual school system and convert to an integra-

Jted unitary school system.1" AISD did not appeal and the
_/Court affirmed.

Clearly, Washington v. Davis has no application to the case
of black school children who continue to be subject to the

_/"vestiges of state-imposed segregation." The evidentiary 
question whether segregative acts constitute de_ jure discrimi­
nation simply does not arise "where a statutory dual system 
has ever existed," Keyes v.School District No. 1, 413 U.S. 189,

_/ Austin II, 532 F.2d at 392.
_/ ld-

/ Swann v. Charlotte-Mecklenburg Bd of Education, 402 U.S. 1, 
15 (1971).

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201 (1973). Instead, this part of the case is controlled
as to per se unconstitutionality by Brown v. Board of Education.
347 U. S. 483 (1954), and as to the affirmative duty to convert 
to a unitary system by Brown v. Board of Education, 349 U. S.
294 (1955); Green v. County School Bd., 391 U. S. 430 
(1968); Alexander v. Holmes County Bd. of Education, 396 U. S.
19 (1969); and Swann v. Charlotte-Mecklenburg Bd. of Education,
402 U. S. 1 (1971) .

II.
WASHINGTON V. DAVIS REQUIRES AFFIRMANCE 
OF THE FINDING OF UNLAWFUL SEGREGATION 
OF MEXICAN-AMERICANS ON THE BASIS OF THE 
PRESENT RECORD.___________________________

The Court has held '"that the AISD has, in its choice of 
school site locations, construction and renovation of schools, 
drawing of attendance zones, student assignment and transfer 
policies, and faculty and staff assignments, caused and perpet­
uated the segregation of Mexican-American students within the 
school system1 467 F.2d at 865-66. We also found that
'[t]he natural and foreseable consequence of these actions

_/was segregation of Mexican-Americans. 1 467 F.2d at 863."
As the Court observed, a finding of segregative intent is 
compelled from these facts, without more, on the basis of Keyes v . 
School District No. 1, supra, 413 U.S. at 192. Washington v .

_/ Austin II, 522 F.2d at 390 n. 13.

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Davis. supra, 426 U.S. at 240-244, and the later decision
in Arlington Heights v. Metropolitan Housing Corp., ___  U. S.
___ 40 L.Ed. 2d 450, 464-466 (1976) expressly incorporate
the Keyes test for determining segregative intent in school
desegregation cases. The Court should therefore reiterate and
clarify that its finding of unlawful segregation of Mexican-
American school children is sufficiently based on findings of
"'a current condition of segregation resulting from intentional

_/state action'" in virtually every aspect of school hoard
policy and practice, and that the constitutional violation
is system-wide and continuing. In short, the Court's finding
of unlawful segregation is adequately premised on classic indicia of
unconstitutionalitv, which the courts have developed and

_/applied in countless school desegregation cases.
The need for expeditious preparation of an effective 

desegregation plan for the upcoming school year and for purposes of 
judicial economy generally, counsel that the finding of

__/ Washington v. Davis, supra, 426 U.S. at 240, quoting Keyes 
v. School District No. 1, 413 U. S. at 205.
_/ At least some Justices were under the impression that 
" [a]lthough in an earlier stage in this case other findings were 
made which evidenced segregative intent . . . , the opinion 
below apparently gave controlling effect to the use of neigh­
borhood schools," 45 U.S.L.W. at 3413 (Mr. Justice Powell, con­
curring) .

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unlawful segregation of Mexican-Americans be summarily
affirmed on the ground suggested. "Blacks and Mexican-
Americans in Austin have waited a long time for the unitary

_/school system that the Constitution requires." At this
point, the Court has no need "to consider in this case whether 
a 'neighborhood school policy' of itself will justify racial 
or ethnic concentrations in the absence of a finding that 
school authorities have committed acts constituting de_ jure 
segregation," Keyes v. School District No. 1, supra, 413 
U. S. at 212. As in Keyes, the record is replete with evidence 
of "techniques that indicate that the 'neighborhood school' 
concept has not been maintained free of manipulation," id.

Moreover, we respectfully suggest that the finding also is 
required by the record on another ground. In Keyes, 
the Supreme Court concluded that unlawful segregation of blacks 
(in one part of the Denver school system) created a prima facie 
case of unlawful system-wide segregation of both black and 
Mexican-American children, 413 U. S. 205-213~ requiring a 
desegregated tri-ethnic school system, see Keyes v. School

_/ Austin II, 532 F.2d at 399.
_/ In Austin II, the Court declined to rule on the Keyes 
presumption because "even without this presumption, we con­
clude that the AISD has taken actions intentionally calculated 
to segregate the Mexican-American students throughout the 
district," 532 F.2d at 391.n. 14.

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District No. 1, 521 F.2d 465 (10th cir. 1975) (on remand),

findings, supra, as to the consistent and system-wide character 
of intentional segregation of black and Mexican-American students 
certainly overcome any rebuttal to the presumption by AISD.

The Court's suggestion that the district court consider 
appointing a master to draft a comprehensive tri-ethnic desegre­
gation plan, and that the plan should conform to one of the 
approaches outlined by Dr. Finger, follows from the finding of 
systemic and continuing school segregation, and the record 
developed by the parties. It is wholly within precedents of 
the Supreme court and this Court requiring conversion to a 
unitary system,and should be reinstated as is.

For the above stated reasons, the court should summarily 
decide that Washington v. Davis, 426 U. S. 229 (1975) requires 
affirmance of the Court's finding of unlawful system-wide 
segregation of black and Mexican-American school children on

__/ As in Keyes, "Negroes and Hispanos . . . suffer identical
discrimination in treatment when compared with the treatment 
afforded Anglo students," 413 U. S. at 198, see generally 197- 
198.

cert denied, 4 2 3 U. S. 1066 (1976) The Court's prior

III
THE COURT SHOULD READOPT ITS JUDGMENT ON 
RELIEF.

CONCLUSION

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t

the record before the Court and the remedy set forth in the 
Court’s opinion of May 13, 1976. The mandate of the Court 
should issue forthwith.

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT , 1 III 
MELVYN R. LEVENTHAL 
KELLIS E. PARKER 
BILL LANN LEE

10 Columbus Circle 
Suite 2 03 0
New York, New York 10019

SAMUEL T. BISCOE
1704 Manor Road, Suite A 
Austin, Texas 78722

Attorneys for Black 
Appellant-Intervenors

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