Bray v. Alexandria Women's Health Clinic National Organization for Women Brief for NAACP Legal Defense and Educational Fund, Inc. Amicus Curiae in Support of Respondents

    IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

N o .  7 1 - 2 3 9  7

JOSE CISNEROS, ET AL.,
Plaintiff s-Appellees,

versus

CORPUS CHRIST! INDEPENDENT 
SCHOOL DISTRICT, ET AL.,

Defendants-Appellants.

Appeal from the United States District Court for the 
Southern District of Texas

(August 2, 1972)

Before BROWN, Chief Judge, and WISDOM, GEWIN, 
BELL, THORNBERRY, COLEMAN, GOLDBERG, 

AINSWORTH, GODBOLD, DYER, SIMPSON, 
MORGAN, CLARK, INGRAHAM, and RONEY, 

Circuit Judges.

DYER, Circuit Judge: In this desegregation class
action brought against the Corpus Christi Independent



2 CISNEROS v. CORPUS CHRIST! IND. SCH. BIST.

School District and its Board of Trustees,' the district 
court held that the city’s mexican-american and black 
children were segregated from anglo children in the 
public school system as a result of official action of 
the Board in violation of the mandate of Brown 
v. Board of Education, 1954, 347 U.S. 483. Cisneros v. 
Corpus Christi Independent School District, S.D. Texas 
1970, 324 F.Supp. 599 (Cisneros I). The court ordered 
an immediate reassignment of the District’s teaching 
staff, consideration of the achievement or preserva­
tion of a “reasonable mixture” of mexican-american 
and black students with other students in construction 
of new schools, the filing of a revised student assign­
ment plan for the purpose of creating “a unitary school 
system”, and the creation of a Human Relations Ad­
visory committee. Subsequently, after extended hear­
ings, the court formulated and ordered into effect a 
student assignment plan to achieve integration of the 
school system in accordance with contemporary con­
stitutional guidelines. Cisneros v. Corpus Christi In­
dependent School District, S.D. Texas 1971, 330 F.Supp. 
1377 (Cisneros II). See Swann v. Charlotte-Mecklen- 
burg Board of. Education, 1971, 402 U.S. 1. This order 
was stayed by Mr. Justice Black, sitting as Circuit 
Justice, pending consideration of the merits of the 
Board’s appeal by this Court.2

'Defendants in the case are the School District, the Superintendent 
of the District, and the President and Members of the Board 
of Trustees of the District. In Texas, the Board of Trustees is 
charged with the operation of free public education systems 
and it is primarily the actions and policies of the Board to 
which we refer in this appeal.

21971, 404 U.S. 1211.



CISNEROS v. CORPUS CHRISTI IND. SCH. DIST. 3

This is a novel school desegregation case. A large 
number of mexican-american children attend the pub­
lic schools of Corpus Christi. Although they are1 now 
and have been historically separated in fact from, 
anglos in the schools of the city, this separation has 
never had a statutory origin. Therefore, unlike cases 
involving the traditional black-white dual systems, the 
question is whether the segregation of mexican-ameri­
can children who are not the victims of statutorily 
mandated segregation is constitutionally impermissi­
ble. We hold that it is, and affirm the district court’s 
finding that the mexican-american children of Corpus 
Christi are segregated in violation of the Constitution. 
For reasons hereinafter explicated, however, we disa­
gree with the remedy prescribed by the district court 
and require it to be modified.

Although we are faced with a tri-ethnic school popu­
lation, the determination below that the relatively few 
black students in the school system were segregated 
contrary to law is basically uncontested in this appeal. 
The district court must, however, also reconsider the 
remedy with regard to black students in accordance 
with this opinion.

The Corpus Christi Independent School District en­
compasses the metropolitan area of Corpus Christi, 
Texas. The district is crescent-shaped extending ap­
proximately 11 miles in length from its southeast to 
its northwest corner, and varies in width from three 
to four miles. Following the curvatures of Corpus 
Christi and Nueces Bays, it is bounded by water on 
its north, east, and south sides.



4 CISNEROS v. CORPUS CHRISTIIND. SCH. DIST.

In the school year 1969-70, upon which the statistics 
in this case are based,3 there were 46,023 scholastics 
in the public school system. In terms of total ethnic 
distribution, 47.4% of the school children were anglo, 
47.2% mexican-american, and 5.4% black. There are 
61 public schools in the school system, 45 elementary 
schools, 12 junior highs, and 5 senior highs. In terms 
of ethnic distribution by grade level, of the 24,389 ele­
mentary students, 43.4% were anglo, 50.8% mexican- 
american, and 5.7%. black. Of the 11,793 junior high 
students, 48% were anglo, 46.7% mexican-american, 
and 5.25% black. Of the 9841 senior high school stu­
dents, 56.4% were anglo, 38.9% were mexican-ameri­
can, and 4.6% black.

The ethnic distribution figures further show that in 
1969-70, one third of the district’s mexican-american 
high school students attended Moody High School, the 
enrollment of which was 97% mexican-american and 
black (11% black). Another one-third of the mexican- 
american high school students attend Miller High, 
which is 80% mexican-american and black (14% 
black). One-third of the district’s anglo high school 
students attend King High, the enrollment of which

^Plaintiff’s Exhibit 3-A and the defendant’s Exhibit 4 contain
descriptions of the ethnic distribution of students and teachers 
within the school system. The trial court found these exhibits 
to reflect substantially the same information. Our numerical 
and statistical evaluations are taken from defendant’s exhibit 4, 
reproduced in Cisneros I, 324 F.Supp. 599, 609. While we are 
aware that these enrollment figures were arrived at by a 
process using a school census of Spanish and anglo surnames, 
we are assured by the parties upon argument that these figures 

are substantially accurate and realistically reflect enrollment 
patterns in the system.



CISNEROS v. CORPUS CHRISTI IND. SCH. BIST. 5

is over 90% Anglo. Another 57% of the anglo high school 
students attend either Carroll or Ray high schools, 
each of which is over 75% anglo.

In the junior high schools, approximately 61% of the 
mexican-american students attend three junior highs 
which are over 90% mexican-american in enrollment. 
Over 50% of the anglo junior high students attend 
junior highs that are over 90% anglo in enrollment. 
Of the 24,389 elementary level students, approximately 
10,178 mexican-americans and blacks (1250 blacks) 
attend elementary schools in which over 90% of the 
enrollment is non-anglo-american. Approximately 6561 
anglo elementary students attend schools in which the 
non-anglo-american enrollment is less than 20%. The 
enrollment in eleven of the 45 elementary schools in 
the school system is over 90% mexican-american, over 
75% mexican-american in three others, over 90% mexi­
can-american and black in four other schools, over 
90% anglo in six schools, and over 80% anglo in nine 
other schools.4

At the elementary level alone, 29 of the 45 schools, 
or almost a full two-thirds, are clearly identifiable as 
consisting of one ethnic derivation. The same total fig­
ure comparisons can roughly be made with regard to 
the junior and senior high schools of the school system.

Highly relevant to these enrollment statistics are the 
historic and established residential patterns of the city. 
There is today and has traditionally been substantial 
residential concentration by ethnic groups in Corpus

4See Cisneros I, 324 F.Supp. at 608-612, n. 12.



6 CISNEROS v. CORPUS CHRISTI IND. SCH. BIST.

Christi. The mexican-american and black population 
of the district is concentrated in a narrow area that 
comprises the middle part of the district, running 
roughly southwest to northeast, bordered on the south 
side by a major city artery, Ayres Street. This residen­
tial concentration is referred to throughout the litiga­
tion as the mexican “corridor” . Tb the south of Ayres 
Street, as the corridor boundary, the relative number 
of mexican-americans and blacks, as opposed to 
anglos, drops sharply. The southern part of the dis­
trict exists almost exclusively as an anglo residential 
area.

Since before 1938, the district has assigned anglo chil­
dren to schools according to a neighborhood school 
plan composed of geographic attendance zones. Stu­
dents of mexican-american descent have always been 
classified as anglo by the school board. Generally, stu­
dents attend school at all levels at the school nearest 
their home. Thus, the imposition of neighborhood 
school zones over the pattern of marked residential 
segregation in Corpus Christi has, inevitably, resulted 
in mexican-american and anglo children being sub­
stantially separated in the public schools.

The city’s high schools provide a striking example. 
The first public high school built in the district still 
in existence is Miller High, built in 1928, and rebuilt 
in 1966. It is located at the north end of the mexican 
“corridor”, although not in the area of highest mex­
ican-american concentration. Its attendance zone until 
1968 comprised all the northern part of the school dis­
trict. In 1949, its enrollment was 78% anglo, 22% mexi­
can-american. In 1950, Ray High School was built ap­



CISNEROS v. CORPUS CHRISTI IND. SCH. DIST. 7

proximately in the center of the school district, to the 
southeast of the Ayres Street artery which has served 
as the “corridor” boundary. It opened with an enroll­
ment that was 87% anglo. A significant number of an- 
glo students was then withdrawn from Miller into Ray 
High School. In 1958, Carrol was opened in the south 
central part of the district, again south of Ayres street, 
and served an attendance zone that extended beyond 
Ayres north into the heart of the mexican-american 
corridor. It opened, however, as a 78% anglo school. 
While Ray remained fairly constant at its 87% anglo 
enrollment figure, Miller now had a majority of mex­
ican-american students. In 1965, King High School was 
opened in the southernmost corner of the district, with 
an enrollment that was 95% anglo (90% in 1969-70). 
By this time Miller High had become 71% mexican- 
american, and 8% black.

In 1968, Moody High School was opened in the heart 
of the mexican-american corridor as a 96% mexican- 
american-black school (11% black). Its southernmost 
boundary was Ayres street. Its attendance zone encom­
passed the great majority of the mexican-american 
concentration of the corridor, sequestering all of that 
area north of Ayres that once was included in the Car- 
roll attendance zone. Whereas the students that lived 
in the corridor had formerly been divided in the Car- 
roll, Miller and Ray schools, their inclusion in the 
Moody zone now locked over two-thirds of the city’s 
mexican-american high school students into two high 
schools located in the non-anglo residential area of the 
city each of which was clearly identifiable as a minori­
ty group high school. Importantly, the drawing of the 
new boundary lines after the building of Moody, in



8 CISNEROS v. CORPUS CHRISTI IND. SCH. DIST.

furtherance of the neighborhood school concept, with 
its withdrawal of significant numbers of mexican-a- 
merican and black students from Carroll, Ray, and 
Miller into Moody, decreased the degree of integra­
tion in those schools, increased their reflected ethnic 
identity, and further locked the residents of the cor­
ridor into their racially and ethnically homogeneous 
high schools.

With this background we briefly trace the protracted 
litigation in this case. The suit was filed on July 22, 
1968, by the parents of black and mexican-american 
children alleging that the local school authorities had 
operated the schools of the district in a discriminatory 
manner which resulted in the unlawful segregation of 
black and mexican-american students from whites. In 
Cisneros 1, supra, June 4, 1970, the court found that 
de jure segregation existed in Corpus Christi. The court 
held that mexican-americans constituted an identifia­
ble, ethnic-minority group entitled to the Fourteenth 
Amendment guarantee of equality in public education, 
and that both mexican-americans and blacks were un­
constitutionally segregated in the public schools of Cor­
pus Christi, as a result of official action by the defend­
ant Board.

In Cisneros II, July 2, 1971, a court-designed student 
assignment plan was promulgated, based upon various 
parts of plans submitted by the District and the De­
partment of Health, Education and Welfare. The court 
directed that the plan be implemented by the com­
mencement of the fall, 1972 school term. The plan, in 
essence, required the pairing of elementary schools 
in two levels, a complete revision of high school at­



CISNEROS v. CORPUS CHRISTI IND. SCH. DIST. 9

tendance zones, and further reassignment of specific 
groups of school children throughout the system to aid 
in the dismantling of identifiable ethnic group schools. 
The district court found that extensive busing would 
be required to implement the new plan, as it contem­
plated the transportation of approximately 15,000 
school children at an initial estimated cost ranging 
from $1,400,000 to $1,700,000. The school District then 
had a total of only nine buses transporting 400 students. 
On July 13, 1971, the Board moved for a stay of the 
July 2 order insofar as it concerned mexican-american 
desegregation. On July 16, 1971, a different district 
judge granted the partial stay. That stay was vacated 
by an order of this Court on August 5, 1971, but was 
reinstated by Mr. Justice Black on August 19, 1971.® 
This appeal followed.

The district court’s finding that the black students 
were segregated as a result of constitutionally imper­
missible state action was not contested at argument. 
It is clearly supported by the record. The stay order 
of the district court, entered August 23, 1971 against 
that portion of the district court plan requiring the 
immediate integration of the black plaintiffs in this 
case must be vacated. See Cisneros I, 324 F.Supp. at 
615, and n. 46.

We now turn to the main thrust of this appeal. Al­
though Brown arose in the context of segregation by 
state law, often termed “classical or historical de jure

sSee note 2 supra. On August 23, 1971, the district judge who had 
granted the partial stay, granted a stay of the July 2 order of 
Cisneros II in regard to black students coextensive with his 
previously entered stay for mexican-american students.



10 CISNEROS V. CORPUS CHRISTI IND. SCH. BIST.

segregation,” see Gomperts v. Chase, 1971, 404 U.S. 
1237, 1238 (Douglas, Circuit Justice), we think it clear 
today beyond peradventure that the contour of unlaw­
ful segregation extends beyond statutorily mandated 
segregation to include the actions and policies of school 
authorities which deny to students equal protection of 
the laws by separating them ethnically and racially 
in public schools. See Cooper v. Aaron, 1958, 358 U.S. 
1, 17 and cited cases: Keyes v. School District No. 1, 
Denver, Colo., 10 Cir. 1971, 445 F.2d 990, 999, cert, grant­
ed, 1972, No. 71-507, 404 U.S. 1036; Davis v. School Dis­
trict of Pontiac, 6 Cir. 1971, 443 F.2d 573, cert, denied, 
1972, 404 U.S. 913; Bradley v. Milliken, E.D. Mich. 1971, 
338 F.Supp. 582; Johnson v. San Francisco, N.D. Cal.
1971,------. F.Supp.------ Such actions are “state action”
for the purposes of the Fourteenth Amendment, and 
result in dual school systems that cannot be somehow 
less odious because they do not flow from a statutory 
source. The imprimatur of the state is no less visible. 
The continuing attempt to cast segregation that results 
from such action as de facto and beyond the power 
of the court to rectify is no longer entitled to serious 
consideration.

Thus, we discard the anodyne dichotomy of classical 
de facto and de jure segregation. We can find no sup­
port for the view that the Constitution should be ap­
plied antithetically to children in the north and south, 
or to mexican-americans vis-a-vis anglos simply be­
cause of the adventitious circumstance of their origin 
or the happenstance of locality. Time has proven the 
soundness of the view expressed in dissent in Jefferson



CISNEROS v. CORPUS CHRISTI IND. SCH. BIST. 11

II, which, in focusing upon de facto dicta in Jefferson 
I,6 said:

The Negro children in Cleveland, Chicago,
Los Angeles, Boston, New York, or any other 
area of the nation which the opinion classifies 
under de facto segregation, would receive lit­
tle comfort from the assertion that the racial 
make-up of their school system does not vio­
late their constitutional rights because they 
were born into a de facto society, while the 
exact same racial make-up of the school sys­
tem in the 17 Southern and border states vio­
lates the constitutional rights of their counter­
parts, or even their blood brothers, because 
they were born into a de jure society. All chil­
dren everywhere in the nation are protected 
by the Constitution, and treatment which vio­
lates their constitutional rights in one area, 
also violates such constitutional rights in an­
other area.

Jefferson II at 397.

The Board, however, conceding the existence of 
severe racial and ethnic separation in the Corpus 
Christi public schools, nevertheless maintains that an­
other type of de facto segregation exists here, arguing 
that this separation is not a result of school board ac­
tions and policies but rather of housing patterns, geo­
graphic fluctuations, and other social and economic

eUnited States v. Jefferson County Board of Education, 5 Cir. 1966, 
372 F.2d 836, (Jefferson I). affd en banc 1967, 380 F.2d 385 
(Jefferson II).



12 CISNEROS v. CORPUS CHRIST! IND. SCH. DIST.

factors prevalent in the city. Moreover, it urges, even 
if the imbalance could be traced to Board action, it 
does not fall within constitutional proscription because 
it has not acted with a discriminatory motive or pur­
pose.

We must also reject this type of continued meaning­
less use of de facto and de jure nomenclature to at­
tempt to establish a kind of ethnic and racial separa­
tion of students in public schools that federal courts 
are powerless to remedy. Such attempts are confusing 
and unnecessary. The decision in Brown is the clear 
embodiment of the legal framework for the resolution 
of these important issues.

Brown prohibits segregation in public schools that 
is a result of state action. It requires simply the mak­
ing of two distinct factual determinations to support 
a finding of unlawful segregation. First, a denial of 
equal educational opportunity must be found to exist, 
defined as racial or ethnic segregation. Secondly, this 
segregation must be the result of state action.

We need not define the quantity of state action or 
the severity of the segregation necessary to sustain 
a constitutional violation. These factual determina­
tions are better dealt with on a case by case basis. 
We need only find a real and significant relationship, 
in terms of cause and effect, between state action and 
the denial of educational opportunity occasioned by 
the racial and ethnic separation of public school stu­
dents.



CISNEROS v. CORPUS CHRISTI IND. SCH. DIST. 13

We affirm the finding of the district court that action 
by the school district here has, in terms of cause and 
effect, resulted in a severely segregated school system 
in Corpus Christi. We need find nothing more. Discrim­
inatory motive and purpose, while they may reinforce 
a finding of effective segregation, are not necessary 
ingredients of constitutional violations in the field of 
public education. We therefore hold that the racial and 
ethnic segregation that exists in the Corpus Christi 
school system is unconstitutional — not de facto, not 
de jure, but unconstitutional.

In limine, we note that there is no serious challenge 
to the district court’s finding that the mexican-ameri- 
cans in the Corpus Christi school system are an iden­
tifiable, ethnic-minority class entitled to the equal pro­
tection guarantee of the Fourteenth Amendment. Her­
nandez v. Texas, 1954, 347 U.S. 475, 477-78. See ITira- 
bayashi v. United States, 1943, 320 U.S. 81, 100; Yick 
Wo v. Hopkins, 1885, 118 U.S. 356, 369. The Board does 
contend, however, that segregation of mexican-ameri-. 
can children in Corpus Christi is not a result of Board 
action.

The explicit holding of Cisneros I, which we now af­
firm, was that actions and policies of the Board, had, 
in terms of their actual effect, either created or main­
tained racial and ethnic segregation in the public 
schools of Corpus Christi. The district court found that

. . . [Administrative decision by the school 
board in drawing boundaries, locating new 
schools, building new schools and renovating 
old schools in the predominantly Negro and



14 CISNEROS v. CORPUS CHRISTI IND. SCH. DIST.

Mexican parts of town, in providing an elastic 
and flexible subjective, transfer system that 
resulted in some Anglo children being allowed 
to avoid the ghetto, or “corridor” schools, by 
bussing some students, by providing one or 
more optional transfer zones which resulted 
in Anglos being able to avoid Negro and Mexi- 
can-American schools, not allowing Mexican- 
Americans or Negroes the option of going to 
Anglo schools, by spending extraordinarily 
large sums of money which resulted in inten­
sifying and perpetuating a segregated, dual 
school system, by assigning Negro and Mexi- 
can-American teachers in disparate ratios to 
these segregated schools, and further failing 
to employ a sufficient number of Negro and 
Mexican-American school teachers, and fail­
ing to provide a majority-to-minority transfer 
rule, were, regardless of all explanations and 
regardless of all expressions of good inten­
tions, calculated to, and did, maintain and pro­
mote a dual school system.

Id. at 617-620. Each of these findings is clearly sup­
ported by the record. But in our view the use of the 
neighborhood school plan is the direct and effective 
cause of segregation in the schools of the city.

Here, the Board, by a rigid superimposition of 
a neighborhood school plan upon the historic pattern 
of marked residential segregation that existed in Cor­
pus Christi equated the residential homogeny to ethnic 
and racial homogeny in the public school system, pro­
ducing inevitable segregation. That there was an ab­



CISNEROS v. CORPUS CHRIST! IND. SCH. DIST. 15

sence of state action involved in creating the city’s 
residential patterns is of no significance. The Board 
imposed a neighborhood school plan, ab initio, upon 
a clear and established pattern of residential segrega­
tion in the face of an obvious and inevitable result.

We have considered the Board’s claim that its neigh­
borhood school plan was established on racially 
or ethnically neutral criteria and impartially adminis­
tered, and is therefore not beyond the pale. This con­
tention, that treatment of mexican-americans the 
same as anglos lends a patina of non-segregated re­
spectability to the system is, when analyzed, not as 
pristine as it appears. The Supreme Court made 
it plain in Swann that

An assignment plan is not acceptable simply 
because it appears to be neutral; such a plan 
may fail to counteract the continuing effects 
of past school segregation resulting from dis­
criminatory location of school sites or distor­
tion of school size in order to achieve or main­
tain an artificial racial separation. When 
school authorities present a district court with 
a “loaded game board,” affirmative action in 
the form of remedial altering of attendance 
zones is proper to achieve truly nondiscrimina- 
tory assignments. 402 U.S. at 28.

The Board nevertheless argues that unlawful segre­
gation in the constitutional sense cannot exist in the 
absence of actions by the Board, that are intentionally 
designed to achieve segregation, and that such a dis­
criminatory purpose is absent here. It iterates that



16 CISNEROS v. CORPUS CHRIST! IND. SCH, DIST.

in the absence of a malevolent motive, de facto and 
not de jure segregation exists.

While there is admittedly no catholicity of viewpoint 
in the Circuits on the question of intentional state ac­
tion, this Court has never tempered its prohibition of 
school board actions that create, maintain, or foster 
segregation by the requirement that a discriminatory 
intent be shown. The underpinning of our decisions is 
a determination of the unlawful effect of state action 
upon the existence of unitary school systems. Lee v. 
Macon County Board of Educ., 5 Cir. 1971, 448 F.2d 
746, 752; Stout v. Jefferson County Board of Educ., 
5 Cir. 1971, 448 F.2d 403, 404, citing Cooper v. Aaron, 
supra; Bush v. Orleans Parish School Board, E.D.La. 
1960, 190 F.Supp. 861, affd sub nom. City of New Or­
leans v. Bush, 1961, 333 U.S. 212; United States v. Tex­
as, E.D. Texas 1971, 330 F.Supp. 235, Part II, affd 
as modified, United States v. Texas, 5 Cir. 1971, 447 
F.2d 441. See Wright v. City of Brighton, Ala., 5 Cir. 
1969, 441 F.2d 447, cert, denied 404 U.S 915; Hall v. 
St. Helena Parish School Board, 5 Cir. 1969, 417 F.2d 
801, 807, cert, denied 396 U.S. 904; Henry v. Clarksdale 
Municipal School District, 5 Cir. 1969, 409 F.2d 682, 
687, cert, denied 396 U.S. 940.

This principle has now become the law of the land.
In Wright v. Council of the City of Emporia, 1972,____
U.S. ------ [40 U.S.L.W. 4806, June 20, 1972], the Su­
preme Court held that the city could not create a new 
school district separate from that of the surrounding 
county where “its effect would be to impede the pro­
cess” of the court-ordered dismantling of a dual school



CISNEROS v. CORPUS CHRISTI IND. SCH. DIST. 17

system, id. at 4812, finding that under its previous deci­
sions in Green v. County School Board, 1968, 391 U.S. 
430, and Monroe v. Board of Commissioners, 1968, 391 
U.S. 450, school board action must be judged “accord­
ing to whether it hinders or furthers the process of 
school desegregation.” Id. at 4809. Citing with approval 
our decisions in Lee and Stout, supra, the Court re­
jected the “dominant purpose” test adopted by the 
Fourth Circuit decision in the case, focusing rather 
“upon the effect — not the purpose or motivation — 
of a school board’s action in determining whether it 
is a permissible method of dismantling a dual system. 
. . . [Tjhis ‘dominant purpose’ test,” said the Court, 
“finds no precedent in our decisions.” Id. at 4810.

Importantly, the dissent voiced no opposition to the 
discarding of purpose and motivation, but objected 
only to the majority’s factual determination that the 
action of the city in creating its own school district 
would impede the progress of desegregation.

School cases serve to emphasize the correctness of 
this principle, for regardless of motive, the children 
that suffer from segregation suffer the same depriva­
tion of educational opportunity that Brown condemns. 
No one would suggest that the validity of a segrega­
tion law depends upon the legislators’ motives in enact­
ing it, or that such a law is unconstitutional only when 
it can be ascribed to racial animus. Why then the dis­
tinction between types of school board action that pro­
duce segregation? “ [T]he factor of malevolent mo­
tivation is farther from the core of invidiousness that 
condemns explicit racial discrimination than are the 
odious effects produced.” Goodman, De Facto School



18 CISNEROS v. CORPUS CHRISTI IND. SCH. DIST.

Segregation: A Constitutional and Empirical Analysis? 
60 Calif. L. Rev. 275, 291 (1972)7

Next we direct our attention to the hiring and reas­
signment of mexican-american teachers. The district 
court held that the faculty and administrative staff 
of the system were more segregated than the schools,, 
and used this finding as further evidence of an unlaw­
fully segregated school system. The Board was di- 7

7Prior to the decision in Wright v. City of Emporia, supra, the 
Tenth Circuit, in Keyes v. School District No. 1, Denver, 
Colo., 10 Cir. 1971, 445 F.2d 990, 1004-1005, cert, 
granted 1972, No. 71-507, 404 U.S. 1036, rejected our
position in Lee and Stout with regard to purpose and motiva­
tion in school cases. The district court in Keyes ordered the 
desegregation of several schools in the core area of Denver, 
the population of which was historically predominantly black, 
and hispano, on the ground that these schools were segregated 
in fact, producing an inferior educational opportunity con­
trary to the mandate of Brown. The lower court determined, 
however, that this segregation, unlike that in the schools o f 
the Park Hill area of Denver which it ordered desegregated, 
resulted primarily from causes other than school board action, 
although some Board policies had unintentionally operated to 
exacerbate the degree of imbalance. Keyes v. School District 
No. 1, Denver, Colo., D. Colo. 1970, 313 F. Supp. 61.

The Tenth Circuit refused to enforce the order to desegre­
gate these core area schools, finding that a constitutional 
deprivation did not exist in the absence of proof that they 
were segregated as a result of intentional state action. We 
have no doubt that the view that racially or ethnically moti­
vated state action is a necessary prerequisite to the establish­
ment of a constitutional violation in the field of public- 
education is overruled by the decision in Wright. The remain­
ing issue in Keyes is simply a factual one relating to causation 
which is inapposite to the case sub judice. See Petitioner’s 
Brief for Certiorari, Keyes v. School District No. 1, supra,, 
appeal docketed, No. 71-507, October 8, 1971.

The determination that no discriminatory purpose be shown 
makes it unnecessary for us to consider whether the record 
reveals intentionally discriminatory Board action.



CISNEROS v. CORPUS CHRIST! IND. SCH. DIST. 19

reeled to assign black and mexican-american teachers 
throughout the system on the same ratio of per­
centages they comprise of the total teacher and staff 
population.8 This finding is clearly supported by the 
record and the court’s order is necessary to bring the 
Board into compliance with Singleton v. Jackson Muni­
cipal Separate School District, 5 Cir. 1970, 419 F.2d 
12,11, 1218 fen banc), Ellis v. Bd. of Public Instruction 
of Orange County, 5 Cir. 1970, 423 F.2d 203. The re­
quirement of percentage assignments of faculty was 
presaged by the decision of the Supreme Court in 17- 
nited States v. Montgomery County Board of Educa­
tion, 1969, 395 U.S. 225, in which the Court held that 
as a goal, the ratio of white to black teachers be sub­
stantially the same in each school as the ratio of white 
to black teachers throughout the system. This method 
of faculty desegregation has been endorsed by the 
Court in Swann, supra at 19-20.

The trial judge further found, and we agree, that 
the Board had discriminated against mexican-ameri- 
cans by failing to employ mexican-american teachers 
in the system, and ordered that it move immediately 
to employ more.9 In order for the dual nature of the 
system to be realistically dismantled, faculty composi­
tion must more truly reflect the ratio of mexican- 
american students to the total scholastic population of

BCisneros I, 324 F. Supp. at 623, and n. 56 at 619-620.
^Cisneros I, 324 F.Supp. at 623, and n. 57 at 620. In 1969-70, out of 

1909 teachers in the system, 80% were anglo, 17% mexican- 
american, and 3% black. During that year, the student enroll­
ment in the system was 47.4% anglo, 47.2% mexican-american, 
and 5.4% black.



20 CISNEROS v. CORPUS CHRIST! IND. SCH. DIST.

the school district. The Board therefore must continue 
its efforts, which we acknowledge as substantial, to­
ward the achievement, as a goal, of a ratio of mexi- 
can-american teachers to total faculty that approaches 
the ratio of mexican-american students to the total 
student population. In United States v. Texas Educa­
tion Agency, 5 Cir. 1972,____F.2d_____. (en banc) [No.
71-2508, July 31, 1972], today decided, we pointed out, 
however, that “ [t]he school board need not, of course, 
lower its employment standards. A showing of a good 
faith effort to find sufficient qualified Mexican-Ameri- 
can teachers to achieve an equitable ratio, will rebut 
any inference of discrimination.” Id. a t____

We turn now briefly to the position of the United
States, the invited intervenor in this case. Essentially, 
it argues that we are confronted with de facto segrega­
tion with “maybe something more than isolated dis­
crimination.” The intervenor contrasts this with tradi­
tional dualism where the segregation is system wide 
because that is what the law required, and thus the 
remedy had to be system wide. But here, it is sug­
gested, the remedy should be applied only to the areas 
which have become segregated by Board action.

Such an approach is untenable here in view of our 
holding that over two-thirds of the public school stu­
dents in Corpus Christ! are the victims of unconsti­
tutional ethnic and racial segregation. There is estab­
lished here an overwhelming pattern of unlawful segre­
gation that has infected the entire school system. To 
select other than a system-wide remedy would be to 
ignore system-wide discrimination and make conver­
sion to a unitary system impossible. See Green v. Coun-



CISNEROS v. CORPUS CHRIST! IND. SCH. DIST. 21

ty School Board, supra. A majority of the Court, Chief 
Judge Brown and Judges Wisdom, Gewin, Thorn- 
berry, Goldberg, Simpson and Ingraham, concur in this 
part of the opinion. Judges Bell, Ainsworth, Morgan 
and Roney concur in the result.

REMEDY

We turn now to the remedy fashioned by the district 
court. We conclude that a different approach may a- 
chieve a constitutional result without involving the con­
version of the school system from a non-transporta­
tion to a transportation basis to the extent ordered 
by the district court.

On remand, the district court is directed to desegre­
gate the school system on the following basis:

(1) It is the prerogative and duty of those local of­
ficials having charge of the Corpus Christi Independent 
School District to formulate and implement student 
assignment plans.

(2) Where a student assignment plan is found to 
be unconstitutional, as here, because of the existence 
of segregation which has been imposed by statute or 
by official act against blacks and an identifiable ethnic 
group (here the mexican-american students), it is the 
duty of the school officials to forthwith formulate and 
implement such student assignment plan as will reme­
dy the discrimination which has been found to exist. 
Where one race schools continue to exist, school au­
thorities must show that such schools are not the re­



22 CISNEROS v. CORPUS CHRISTI IND. SCH. BIST.

suit of present or past discrimination on their part. 
Swann, 402 U.S. at 26.

(3) In the event the school officials abdicate this 
responsibility or fail to remedy the discrimination 
forthwith, the district court is empowered to and 
should proceed forthwith to remedy the discrimination.

(4) Usually in rural, and in some city school dis­
tricts where the population is diffused, assignment on 
a strict neighborhood basis has been sufficient to e- 
liminate discrimination in student assignments. It is 
apparent that this will not suffice in the Corpus Christi 
Independent School District, although it may suffice 
as to some schools. To the extent that it does not suf­
fice, the district court will proceed to employ other 
methods of desegregation.

(5) The pairing or clustering of schools, the realign­
ment of school assignment zones, and the relocation 
of portable school rooms will be methods of eliminat­
ing segregated schools. Pairing or clustering should 
be of schools in close proximity. The pairing or cluster­
ing of schools in close proximity and the realignment 
of school zones will result merely in an expansion of 
the neighborhood or community school concept. Such 
transportation problems as may arise will thereby be 
minimized. Another method of eliminating segregated 
schools with little increase in transportation is to re­
structure the assignment of students already being 
transported.

(6) If after utilizing the procedures outlined above, 
proscribed segregated schools still exist, the court 
must consider the pairing or clustering of schools in 
non-contiguous school zones. Swann, 402 U.S. at 28. No



CISNEROS v. CORPUS CHRISTI IND. SCH. BIST. 23
such pairing or clustering of non-contiguous school 
zones may be required until the court has exhausted 
ever}/ other possible remedy which would not involve 
increased student transportation. Whenever the court 
must exercise its power to pair or cluster schools lo­
cated in non-contiguous zones, it must minimize stu­
dent transportation requirements in such plan as is 
devised to pair or cluster schools located in non-con­
tiguous zones.

The length and time of travel for students under any 
plan must be considered in light of the age of the chil­
dren, and the risk to health and probable impingement 
on the educational process. Swann, 402 U.S. at 30-31. 
The material consideration in assessing the probable 
effect on health and the educational process as to each 
particular child will be the time required for trans­
portation as distinguished from distance. Under some 
plans, children will be transported from their neigh­
borhood school to the school of assignment rather than 
from their homes to the school of assignment. In such 
event, the time consumed in travel must include the 
time necessary to reach the neighborhood school or 
other point of embarkation.

In fashioning transportation plans the school board 
and district court must avoid invidious discrimination 
on the basis of race or national origin through the im­
position of the burden of desegregation on one or both 
of the minority groups. Lee v. Macon County Board 
of Education, supra at 753-54; Mims v. Duval County 
School Board, 5 Cir. 1971, 447 F.2d 1330, 1331-32.

(7) As the Supreme Court made clear in Swann, 
the requirement of . . any particular degree of racial 
balance or mixing . . as a matter of substantive con­



24 CISNEROS v. CORPUS CHRIST! IND. SCH. DIST.

stitutional right would be disapproved. 402 U.S. at 24. 
Such racial balance as may result from the pairing 
or clustering or rezoning of schools is constitutionally 
permitted as “an interim corrective measure.” Swann, 
402 U.S. at 27.'°

An overall amelioration of any possible discrimina­
tion will tend to be accomplished by the use of the 
mandatory majority to minority transfer provision of 
Swann, supra, 402 U.S. at 36-37, heretofore ordered by 
the district court. Such a provision will guarantee to 
both races an unfettered right to attend schools with 
members of an opposite race or identifiable ethnic 
group, and with transportation provided. The district 
court is directed to constitute a tri-ethnic committee 
in the school district to foster the use of the majority 
to minority transfer.10 11 A majority of the Court, Judges 
Bell, Thornberry, Coleman, Ainsworth, Godbold, Mor­
gan, Clark, Ingraham and Roney concur in this part of 
the opinion.

AFFIRMED IN PART, MODIFIED IN PART, AND 
REMANDED.

10In making certain that the school system is unitary and that the 
discrimination has been eliminated, we have required that 
specified reports be filed for three years and that the case 
not be dismissed thereafter without giving notice to plaintiff. 
Youngblood v. Board of Public Instruction of Bay County, 
Florida, 5 Cir. 1971, 448 F.2d 770; Wright v. Board of Public 
Instruction of Alachua County, Florida, 5 Cir. 1971, 445 F.2d 
1397. See Swann, 402 U.S. at 31-32 on the termination of 
federal court intervention in school cases,

i 'The record in Ellis v. Board of Public Instruction of Orange 
County, Florida, No. 71-2696, now pending in this Court, dis­
closes that in the 1970-71 school term, there were 2,095 trans­
fers of black students under the majority to minority transfer 
provision out of a total of 15,747 black students in the sys­
tem.



CISNEROS v. CORPUS CHRISTI IND. SCH. BIST. 25

GEWIN, Circuit Judge, with whom BROWN, Chief 
Judge, WISDOM, GOLDBERG and SIMPSON, Circuit 
Judges, join, concurring in part and dissenting in 
part:

This court today approves the district court’s find­
ings of fact and affirms its statement of the applicable 
law. But for reasons not stated in the opinion and cer­
tainly not apparent from the record, a majority of this 
court concludes that “ a different approach [as 
to remedy] may achieve a constitutional result without 
involving the conversion of the school system from a 
non-transportation to a transportation basis to the ex­
tent ordered by the district court.” I believe that to­
day’s modification-by-deletion of the district court’s 
remedy ignores both the facts as found and the pro­
cedure followed during that court’s year long effort 
to fashion a remedy. I therefore dissent from the “mod­
ification” of the ordered remedy.

As a member of the original panel which heard this 
appeal argued and as one who has painstakingly ex­
amined the record below, I fully concur with Judge 
Dyer’s graphic and detailed description of the opera­
tion of the Corpus Christi schools and the approval 
of the district court’s finding of school board segrega­
tion. I particularly endorse Judge Dyer’s explicit aban­
donment of distinctions in the constitutional rights of 
school children based on the source or purpose of state 
fostered segregation.

After years of tortuous school desegregation litiga­
tion in this court reflected by hundreds of opinions in



26 CISNEROS v. CORPUS CHRISTI IND. SCH. DIST.

numerous volumes, the majority now stumbles and fal­
ters over issue which we have decided and laid to 
rest in almost every geographical area of this circuit. 
To realize this fact it is not necessary to cite cases; 
they are legion. We have dealt with practically all ma­
jor school systems and many minor ones throughout 
the six states over which we exercise jurisdiction. 
These decisions have dealt in positive and often stern 
fashion with the school systems of Atlanta, Savannah, 
Jacksonville, Miami, Jackson, Birmingham, Mobile, 
Montgomery, Jefferson Parish, Houston, Fort Worth 
and numerous others.

In most instances we were following mandates from 
the Supreme Court which directed us in unequivocal 
terms to write a decree “that promises realistically 
to work, and promises realistically to work now.” Our 
opinions have related to all facets of desegregation 
and school integration including transportation, facul­
ty and staff integration, pairing and clustering, non- 
curricular activities, school construction, the sale of 
school property, faculty ratios, hiring and firing teach­
ers, racial protests and many others. We have not been 
a timid or inactive court in dealing with these prob­
lems. At times I have disagreed and have expressed 
my views in dissents, but the court is bound and should 
be bound by the long list of majority decisions we have 
rendered.

There is no justification for changing the rules and 
guidelines which we have hammered out just because



CISNEROS v. CORPUS CHRISTI IND. SCH. DIST. 27

the problem presented in this case relates to prohibited 
racial discrimination against a substantial number of 
Mexican-Americans and a small number of black stu­
dents. I can not and will never embrace the idea that 
the children in Corpus Christi have different or lesser 
rights than the children in Jackson, Birmingham, At­
lanta, New Orleans, Jacksonville and Houston, just be­
cause they are Mexican-Americans. Moreover, I con­
tinue to assert that the Constitution must be applied 
with equal force in all areas of the nation •— North, 
South, East and West.

Aside from rhetorical criticism of “bussing” the ma­
jority opinion utterly fails to demonstrate any defect 
in the remedy fashioned by the district court or to 
offer any guidance on the key substantive questions: 
(1) how much desegregation is required?; and (2) 
how much bussing is too much? The prescribed seven 
point “remedy” procedure essentially directs the dis­
trict court to retrace its steps.

The district court ordered the school board to submit 
an acceptable plan (Point # 2 )’ and the court then held 
hearings and sought the assistance of private litigants 
and public agencies to devise a plan of its own (Point 
#3).

As the majority opinion recognize, over two-thirds 
of the 46,000 public school students in Corpus Christi

'These headings refer to numbers in the majority opinion under 
the Section entitled “Remedy.”



28 CISNEROS v. CORPUS CHRIST! IND. SCH. DIST.

are the victims of unconstitutional ethnic and racial 
segregation. The majority also finds that the rigid im­
position of a neighborhood school plan upon the historic 
pattern of marked residential segregation In Corpus 
Christi produced this school segregation. It is there­
fore absurb to believe that the use of strict neighbor­
hood assignment (Point #4) or the pairing of close 
schools to expand the neighborhood or community 
school concept (Point #5) will significantly alleviate 
the existing segregation.

Even a brief examination of the district court’s o- 
pinion of July 2, 1971, reveals that the court did exhaust 
the possibilities of zone realignment, and the pairing 
and clustering of schools in close proximity. The court 
had the benefit of the Supreme Court’s opinion 
in Swann v- Charlotte-Mecklenburg Board of Educa­
tion, 402 U.S. 1, 28 L.Ed.2d 575 (1971) and made specific 
inquiry as to the effects of bussing (Point #6).

The district judge noted that he had made no attempt 
to meet any certain ratio throughout the school district, 
but that no school should be without a substantial num­
ber of students from minority ethnic groups, and no 
school should be without a substantial number of Anglo 
students. The court found that in Corpus Christi where 
the Mexican-American and black students are almost 
one-half the student population, attendance in any 
school of less than 20% Anglo students or of less than 
20% Mexican-American and black students (com­
bined) would be insubstantial. The majority opinion



CISNEROS v. CORPUS CHRISTI IND. SCH. BIST. 29

does not object to this technique and I find no fault 
with a balance of “substantiality” as a constitutional­
ly permitted ‘interim corrective measure’. (Point #7).

Finally in its enigmatic decree that bussing be min­
imized even if after exhausting other possibilities 
segregated schools remain, the court is perfectly ob­
scure on the point which will dominate the proceedings 
to follow below.

I believe the Supreme Court has delineated the stand­
ard with respect to transportation of students. In Davis 
v. Board of School Commissioners of Mobile County, 
402 U.S. 33, 28 L.Ed.2d 477 (1971) the Court rejected 
a desegregation plan prepared by this court because 
it was based on treating the western section of the 
county in isolation from the eastern section. The court 
stated:

Like the District Court’s plan, the Court of Ap­
peals’ plan was based on treating the western 
section in isolation from the eastern. There 
were unified geographic zones, and no trans­
portation of students for purposes of desegre­
gation. The reduction in the number of all- 
Negro schools was achieved through pairing, 
rezoning, and adjusting grade structures with­
in the eastern section.

A district court may and should consider the 
use of all available techniques including re­



30 CISNEROS v. CORPUS CHRIST! IND. SCH. DIST.

structuring of attendance zones and both con­
tiguous and noncontiguous attendance zones.
See Swann, supra, at 22-31, 28 L.Ed.2d at 570- 
575. The measure of any desegregation plan is 
its effectiveness.

On the record before us, it is clear that the 
Court of Appeals felt constrained to treat the 
eastern part of metropolitan Mobile in isola­
tion from the rest of the school system, and 
that inadequate consideration was given to the 
possible use of bus transportation and split zon­
ing. For these reasons, we reverse the judg­
ment of the Court of Appeals as to the parts 
dealing with student assignment, and remand 
the case for the development of a decree “that 
promises realistically to work, and promises 
realistically to work now.”

402 U.S. at 36-38, 28 L.Ed.2d 580-81. Without reason or 
authority the majority opinion abandons the mandate 
of Davis and numerous other Supreme Court decisions.

I realize that the remedy as ordered by the district 
court presents serious financial and administrative dif­
ficulties. It is a very substantial matter to direct the 
bussing of one-third of the district’s students. Rut I 
do not find it at all surprising that such a remedy might 
be required in a system where over two-thirds of the 
students attend segregated schools. The remedy or­
dered is the consequence of the district court’s con­



CISNEROS v. CORPUS CHRIST! IND. SCH. DIST. 31

sideration of precisely those factors and priorities 
which this court now decrees. I would affirm the order 
with leave to the district court to amend the order 
as the practicalities of the situation require in order 
to avoid undue 'hardships or burdens on the School 
Board.

COLEMAN, Circuit Judge, concurring in part and dis­
senting in part:

Given the decision on the merits as outlined in the 
majority opinion, I concur in the procedures discussed 
with reference to the appropriate remedy.

As in United States v. Texas Education Agency, 5
Cir., 1972,____F.2d____  (en banc) [No. 71-2509, August
2, 1972] I would defer decision on the merits in this case 
until we shall have received the guidance of the Su­
preme Court which ought to come with the decision 
of the Denver case, now on the calendar of the Supreme 
Court.

I, therefore, dissent to deciding the Corpus Christi 
case at this time.

Seeing, however, that the case nevertheless is to be 
decided, I wish briefly to express some separate views 
of my own. This is done with considerable reluctance 
because when the Supreme Court speaks in the Denver 
case my observations may turn out to be legally incor­
rect or useless.



32 CISNEROS v. CORPUS CHRIST! IND. SCH. DIST.

I am compelled to say that I am unable to agree, 
as a legal proposition, that the United States is a Coun­
try which is composed of “many nations within a na­
tion”. We have Americans of Mexican extraction, of 
Polish extraction, of Irish extraction, of many other 
extractions, and we have Americans who are either 
poor or rich. Even so, an American is an American, 
without prefix or suffix — as Mr. Sam Rayburn once 
said (on another subject).

The idea that there are mexican-americans, afro- 
americans, or any other hyphenated americans, leads 
either to divisions among the people or to political 
“power plays”, or both. If a person is an American, 
that should “end it” and he ought to remember “E 
Pluribus Unum”.

Americans of Mexican ancestry are members of the 
white race. Therefore, if any children of Mexican an­
cestry are being required to attend a school which by 
comparison is deficient in faculty, or curriculum, or 
school plant, then the school board should be man- 
datorily required to correct the deficiencies right 
where they exist. This should be done not because the 
children are of Mexican ancestry but because all chil­
dren in these United States are entitled to the equal 
protection of the law.

This would avoid the highly artificial and necessarily 
unstable expedient of requiring children to spend a 
substantial portion of their days on buses and in 
strange localities.



CISNEROS v. CORPUS CHRISTI IND. SCH. DIST. 33

In Brown v. Board of Education, 347 U.S. at 
494 (1953), the Supreme Court said:

“To separate them [black children] from 
others of similar age and qualifications solely 
because of their race generates a feeling of 
inferiority as to their status in the community 
that may affect their hearts and minds in a 
way unlikely ever to be undone.”

The same effect is inevitable when children are re­
minded every day that they live in a community of 
such inferiority [so considered by those in authority] 
that they must be bussed out of it for an education, 
but condemned to remain in it at all other times. Such 
children will not become integral parts of the com­
munities to which they are bussed. The real, and last­
ing, remedy would be to improve the housing, the 
schools, and the living conditions where the children 
live. The government is equally as able to do this as 
it is to conduct daily upheavals in mass, via the bus.

My sympathies are with children who are faced with 
the lack of educational opportunity. I would not claim 
to cure the problem by the application of a “band-aid” 
of doubtful, if not harmful, value.

GOLDBERG, Circuit Judge, with whom BROWN, 
Chief Judge, and WISDOM, GEWIN and SIMPSON, 
Circuit Judges, join, concurring in part and dissenting 
in part:

I concur in every word and syllable of Judge Dyer’s 
opinion of superlative excellence until the section cap­



34 CISNEROS v. CORPUS CHRIST! IND. SCH. DIST.

tioned “Remedy” is reached. Discerning no error in 
the decree of the district court, I would affirm without 
qualification or equivocation.

The Board argues that the remedy fashioned by the 
district court is so excessive that it is erroneous. I 
entertain no doubt whatsoever that the methods 
adopted by the district court in its plan to desegregate 
the school system, e.g., the pairing of schools and alter­
ations of attendance zones, are within the scope of the 
court’s remedial powers. Swann v. Charlotte-Mecklen- 
burg, 1971, U.S. 1, 91 S.Ct. 1267, 28 L.Ed,2d 554. But 
the critical factor is that the majority itself makes 
clear today that it entertains no such doubt. Thus, my 
dissent is compelled as much by confusion at what 
the majority has done as by disagreement with 
its remedy. I fail to understand why the majority would 
agree to the substantive requirements as set forth in 
Judge Dyer’s fine opinion, and then remand to the 
district court for a remedy based on findings of fact 
that have already been made.

The majority concludes that student assignment 
plans are initially the prerogative of the school board. 
So the district court held, and so we have held on a 
number of occasions. Yet the majority remands. The 
majority admits that the school board must bear the 
burden of proof if it wishes to maintain a system found 
to be unconstitutionally segregated. So the district 
court found. Yet the majority remands. The majority 
concludes that the district court must proceed to de­



CISNEROS v. CORPUS CHRISTI IND. SCH. DIST. 35

segregate if the board fails to do so. The district court 
found that the board in Corpus Christi failed to desegre­
gate to any substantive degree, and the district court 
then proceeded to fashion a remedy. A very able dis­
trict judge requested that the school board submit a 
comparative plan for integrating its schools. The board 
refused to offer any constructive suggestions whatso­
ever. Cisneros v. Corpus Christi Ind. School Dist., S.D. 
Tex. 1971, 330 F.Supp. 1377. It is astounding that the 
school board would then urge that this court delay im­
plementing the district court order when the school 
board itself failed to advance any constructive sug­
gestion of its own. It is even more astounding that 
a majority of this court now condones the board’s be­
havior. Yet the majority remands.

The majority endorses pairing, clustering, and re­
alignments of school zones, as indeed it must under 
the precedents of this court and of the Supreme Court. 
See especially Brown v. Board of Education of Bes­
semer, Alabama, 5 Cir. 1972, slip op. 71-2892 [July 
11, 1972], The district court paired, clustered, and re­
aligned school zones. Yet the majority remands. The 
majority concludes that transportation may as a last 
resort be required to eliminate segregation in the 
Corpus Christi schools. If transportation is required, 
the majority intones, then the district court must order 
busing. The district court found as a matter of fact 
that some transportation would be required in Corpus 
Christi. Yet the majority remands.

In short, every single finding of fact that is neces­
sary to support the majority’s substantive reasoning



36 CISNEROS v. CORPUS CHRISTI IND. SCH. BIST.

has already been made. Yet the majority remands. 
The remedy that the majority has engrafted onto the 
reasoning of the district court and of this court will 
produce no substantive changes whatsoever in the trial 
court’s original decree — except delay. Without 
so much as a hint that the findings by the trial judge 
with regard to the remedy were erroneous, the ma­
jority cavalierly consigns the plaintiffs to another 
round of litigation and the school children of Corpus 
Christi to another round of segregated education.

“There is a constitutional right that must be 
vindicated by a desegregation plan — a right 
possessed by the students of the district, not 
by the parties involved in the negotiations. If 
a constitutional right to attend 'integrated 
schools actually exists, there must be a way 
of ensuring that it is not bartered away in a 
trade-off for other goals or lost because of in­
competence or inadvertence.”

Comment, “Busing, Swann v. Charlotte-Mecklenburg, 
and the Future of Desegregation in the Fifth Circuit,” 
49 Texas L. Rev. 884, 907 (1971).

The board alleges that it will sustain a financial bur­
den in providing any buses necessary for implementa­
tion of the court’s student assignment plan. In Swann 
the Court found that bus transportation was a normal 
and accepted tool of educational policy. Notwithstand­



CISNEROS v. CORPUS CHRISTI IND. SCH. DIST. 37

ing the fact that the “remedy . .. may be administra­
tively awkward, inconvenient, and even bizarre in 
some situations and may impose burdens on some; 
but all awkwardness and inconvenience cannot be a- 
voided in the interim period when remedial adjust­
ments are being made to eliminate the dual school 
systems.” Swann v. Charlotte-Mecklenburg, 401 U.S. 
at 28, 28 L.Ed.2d at 573. Busing is transportation, noth­
ing more. If it is possible to integrate the schools of 
Corpus Christi without the purchase of a single bus, 
then that is clearly preferable. But the critical question 
is integration not transportation.

“It is imperative, then, that the Nation’s judi­
cial system be able to deal efficiently with the 
basic concept of busing. If the judiciary does 
not, the future of desegregation may be en­
dangered. . . . Whatever the wisdom of the 
judiciary’s original involvement in desegrega­
tion, it would be tragic for the forces of equali­
ty to be frustrated, after victory in so many 
bloody battles, merely because the courts 
could not rise to the task presented them.”

49 Texas L. Rev. at 910.

I doubt that the extent of busing that might be neces­
sary under the district court’s original plan has been 
fully explored by the majority or the school board. 
I think it is not unlikely that far less transportation 
and at less cost may be required than that which has 
been estimated. Because of the density of Mexican-



38 CISNEROS v. CORPUS CHRISTI IND. SCH. BIST.

American and black children in the “corridor” area 
of Corpus Christi, which is approximately in the center 
of the school district, there may well be a number 
of alternatives in rearranging boundaries that would 
reduce the number of children to be bused. Further­
more, during this appeal a bond issue has been ap­
proved in which $5.9 million is allocated for building, 
renovating, and rebuilding various schools. A number 
of alternatives that do not require transportation are 
now available in careful site selections. All of this is 
not to say that the implementation of the district 
court’s plan should be postponed or placed in limbo 
while other avenues finally leading to a unitary school 
system are explored. The school board had its chance,, 
the district court made its findings, and both should 
now be concluded. Desegregation of the Corpus Christi 
school system is long overdue, and the plan approved 
by the district court should be promptly put into effect. 
But I suggest that with some innovation the segregated 
system could have been and now can be eliminated 
without the dire consequences that are conjured up 
by the school board.

Swann and its lineal ascendants and forefathers com­
mand us to be sensitive to the trial court’s proximity 
to the problems. This reference to the trial court’s lo­
calization is particularly persuasive when the trial 
judge himself, as here, concludes that some drastic 
action is required. See Comment, “School Desegrega­
tion after Swann: A Theory of Government Responsi­
bility,” 39 U.Chi,L.Rev. 421 (1972).



CISNEROS v. CORPUS CHRISTI IND. SCH. BIST. 39

Admittedly the trial court performed needed major 
surgery in order to purge the system of ethnic preju­
dice and discrimination. Such surgery has heretofore 
been confirmed as a therapeutic necessity. I would 
not incise again and apply a Band-Aid to the incision, 
as the majority 'has done with its “remedy.” The re­
mand would permit and even auspicate a jejune and 
mild antiseptic. The ghetto line is clearly marked 
“Ayres Street” in Corpus Christi, and designating it 
as the ethnic division point, has infected the whole sys­
tem. First aid to a toe and then to a finger finds no 
support in the Supreme Court’s diagnosis and progno­
sis for ending segregation in schools “root and 
branch.” I do not read Swann as a countermanding 
order to patch up the school district and return it to 
action with a terminal case of the Mexican-American 
counterpart to Jim Crowism. See Comment, “Project 
Report: DeJure Segregation of Chicanos in Texas 
Schools,” 7 Harv. Civ. Lib. — Civ. Rights L. Rev. 307. 
If the Supreme Court wanted to let roots and branches 
of discrimination foliate, it would have so decreed. Un­
til its orders are clarion, I will use every effort to de­
spoil any system that permits unconstitutional dis­
crimination in the public schools by whatever descrip­
tive semantics -— de facto, de jure, state action. In 
fact, the Supreme Court reversed one of this court’s 
decisions in a companion case to Swann, Davis 
v. Board of School Commissioners, 1971, 402 U.S. 33, 
91 S.Ct. 1289, 28 L.Ed.2d 577. To me this response not 
only vindicated the efforts that this court has made 
toward maximizing the integration of the school sys­
tems, but indicated that even more rigorous action on 
our part was called for. Yet the majority remands.



40 CISNEROS v. CORPUS CHRISTI IND. SCH. DIST.

This is not the hour, this is not the day, and Corpus 
Christi is not the place for courts to flag in their striv­
ing for constitutional schools, for quality education, 
for integrated education. I am aware that the board’s 
resources are not unlimited. If the district court finds 
after a plenary hearing with full findings of fact and 
conclusions of law that the board is unable to carry 
out any of the plans, then that court or this court may, 
of course, adjust its order accordingly. Our court must 
of necessity rely to a large extent on the informed 
judgment of the district court, the majority’s actions 
today notwithstanding. In my judgment, however, it 
is also necessary to say clearly that the days of “with 
all deliberate speed” are gone, and gone forever. The 
district court plan should be implemented now, for 
“ [t]he obligation of every school district is to ter­
minate dual school systems at once and to operate 
now and hereafter only unitary schools.” Alexander 
v. Holmes County, 1969, 396 U.S. 19, 90 S.Ct. 14, 24 
L.Ed.2d 41. The majority’s so-called “remedy” in this 
case is not an abdication of our past efforts. It is a 
regression. “Equal protection of the laws” means equal 
protection, not equivocal protection.

AINSWORTH, Circuit Judge, with whom BELL and 
RONEY, Circuit Judges, join, concurs in the result, 
and in the remedy which the District Court is directed 
to provide on remand of this case.



CISNEROS v. CORPUS CHRISTIIND. SCH. DIST. 41

GODBOLD, Circuit Judge, with whom COLEMAN, 
MORGAN, and CLARK, Circuit Judges, join, files the 
following special opinion.

For the reasons set out in the special opinion of Judge 
Godbold in United States of America v. Texas Educa­
tion Agency, et al., No. 71-2508, decided this date, we 
would hold this appeal in abeyance pending further 
action by the Supreme Court of the United States, and 
we dissent from consideration of the merits at this 
time. Directed as we are by a vote of eight judges 
to seven to consider the merits, we concur in only that 
part of the opinion of Judge Dyer headed “Remedy.”

BROWN, Chief Judge, with whom WISDOM, GEWIN, 
THORNBERRY, GOLDBERG, DYER and SIMPSON, 
Circuit Judges, join:

To Judge Godbold’s dissent I reiterate my response 
in 71-2508, United States of America v. Texas Educa­
tion Agency.

Adm, Office, U.S. Courts—Scofields’ Quality Printers, Inc., N. O., La.