Estes v. Dallas NAACP Brief for Eddie Mitchell Tasby
Public Court Documents
July 20, 1979
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Brief Collection, LDF Court Filings. Estes v. Dallas NAACP Brief for Eddie Mitchell Tasby, 1979. 004fbf11-b19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/c12beb37-126f-4c33-8c7a-f416859eac56/estes-v-dallas-naacp-brief-for-eddie-mitchell-tasby. Accessed May 03, 2025.
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IN THE
^itpriw (Emirt ni % us
October Term, 1979 F I L E D
No. 78-253
Nolan E stes, et al., Petitioner siichael rodak, jr„ clerk
v.
Metropolitan B ranches of the Da llas
N.A.A.C.P., et al.
No. 78-282
Donald E. Cu r r y , et a l, Petitioners,
V.
M etropolitan Branches of the Dallas
N.A.A.C.P., et al.
No. 78-283
Ralph F. BRINEGAR, et al., Petitioners,
v.
Metropolitan B ranches of the Dallas
N.A.A.C.P., et al.,
BRIEF FOR EDDIE MITCHELL TASBY,
ET AL., RESPONDENTS
E d w ard B. Clou tm an , III
Suite 200, 8204 Elmbrook Drive
Dallas, Texas 75247
Thom as E. A shton , III
Jessica A lexa n d e r
Suite 202, 912 Commerce Street
Dallas, Texas 75202
Jack Green berg
Jam es M. Na b r it , i l l
B ill Lann Lee
10 Columbus Circle, Suite 2030
New York, New York 10019
Att07'neys for Respondents
Tasby, et al.
Press of Byron S. A dams Printing, Inc., Washington, D.C.
INDEX
Table Of Authorities............................................... iii
Opinions Below ............................................................ 2
Jurisdiction.................................................................. 4
Constitutional And Statutory Provisions
Involved. ............................................................. 4
Questions Presented ................................... 5
Statem ent ............................ 6
I. Introduction and Summary of Proceedings . 6
II. The 1971 Proceedings on the Issue of the
Constitutional Violation............................... 13
III. The 1971 Remedy Hearing; Desegregation
Proposals................................. 30
A. Plaintiffs’ Proposal—the TEDTAC
Plan..................... 30
B. The DISD Plan and the Court-Ordered
Plan........................................................ 34
IV. The 1976 Remedy Hearing:..................... 41
A. The DISD Plan, the Hall Plan, Plaintiffs’
Plans A & B, the NAACP Plan................ 41
B. Court-Ordered Plan—Dallas Alliance
Concept as Developed by DISD. . . . . . . . 47
V. The 1978 Fifth Circuit Decision............. 55
Summary Of Argument........................................... 57
Page
Argument
I. The District Court Properly held that the
DISD was not a Desegregated Unitary
System in 1970-71 ........................................ 62
II. The Court of Appeals was Correct in
Deciding that the Court-Adopted
Desegregation Plan Failed to Comply with
Swann v. Charlotte-Mecklenburg Board o f
Education, 402 U.S. 1 (1971). .......... . 76
A. The District Court Erred in Refusing to
Use Affirmative Integration Measures
such as Pairing, Rezoning, or Transpor
tation in the Primary Grades and High
School Grades......................................... 81
B. The District Court Erred in Establishing
the Segregated East Oak Cliff Sub
district ............. 92
III. The Arguments of the Brinegar and Curry
Petitioners for a Modification or Overruling
of Swann should be Rejected .................... 97
A. The Brinegar and Curry Arguments that
Certain Neighborhoods must be exemp
ted from Participation in a Desegrega
tion Plan are without Merit......... 97
B. The Curry Petitioners’ Argument for an
Overruling of Swann should be
Rejected......................................................... 99
Conclusion ....................... 102
11
Page
Ill
TABLE OF AUTHORITIES
Cases: Page
Alexander v. Holmes County Board of Ed., 396 U.S.
19(1969).......................................... .............. . 63
Adickes v. Kress & Co., 398 U.S. 144 (1970)......... 70
Allen v. Board of Pub. Inst, of Broward County, 432
F.2d 362 (5th Cir. 1970), cert, denied 402 U.S. 952
(1971). . . ....................... 80
Arvizu v. Waco Independent School District, 495 F.2d
499 (5th Cir. 1974) rehearing 496 F.2d (1974) . . 79, 82
Austin Independent School Dist. v. United States,
429 U.S. 990(1977)....................... 71
Bell v. Rippy, 133 F. Supp. 811 (N.D. Tex. 1955)........ 3
Bell v. Rippy, 146 F. Supp. 485 (N.D. Tex. 1956) . . . . 4,13
Bivins v. Board of Public Ed., 342 F.2d 229 (5th Cir.
1965) . ................................................................... 16
Borders v. Rippy, 184 F. Supp. 402 (N.D. Tex.
1960) ........................ ..............................4,7,57,63
Borders v. Rippy, 188 F. Supp. 231 (N.D. Tex.
1960) .................................. 4,7-8
Borders v. Rippy, 195 F. Supp. 732 (N.D. Tex.
1961) ............... ..................................... 4,8, 15
Borders v. Rippy, 247 F.2d 268 (5th Cir. 1957).......... 4,13
Boson v. Rippy, 275 F.2d 850 (5th Cir. 1960).............. 4
Boson v. Rippy, 285 F.2d 43 (5th Cir. 1960).............. 4, 15
Bradley v. School Board, 382 U.S. 103 (1965).......... 24, 58
Britton v. Folsom, 348 F.2d 158 (5th Cir. 1965)........ 4, 16
Britton v. Folsom, 350 F.2d 1022 (5th Cir. 1965) . . . . 4,16
Brown v. Board of Education, 347 U.S. 483
<1954>................................................. 13,27,57,62,63
Brown v. Rippy, 233 F.2d 796 (5th Cir. 1956), cert,
denied 352 U.S. 878 (1956) .................................... 3
Carter v. West Feliciana Parish School Board, 396
U.S. 226(1969)___ . . . . . ....... . .......................... 58
Columbus Board of Education v. Penick, _ __ U.S.
----- (July 2,1979).............. 59, 67, 68, 70, 97, 98
Davis v. Board of School Commissioners of Mobile
County, 393 F.2d 690 (5th Cir. 1968)................ 58, 64
Davis v. Board of School Commissioners of Mobile
County, 402 U.S. 33 (1971)................ 5, 58, 62, 76, 77
Davis v. Board of School Commissioners of Mobile
iv
Page
County, 414 F.2d 609 (5th Cir. 1969). .............. 58, 64
Davis v. East Baton Rouge School Board, 570 F.2d
1260 (5th Cir. 1978)............................... 79
Dayton Board of Education v. Brinkman, 433 U.S.
406(1977) . . . ............................................. 70,71,72
Dayton Board of Education v. Brinkman, ___ U.S.
----- (July 2, 1979). . . . ............ 59,70,97
Ellis v. Board of Pub. Inst. Orange County, Fla., 465
F.2d 878 (1972) cert, denied 410 U.S. 966
<1973)............................................................ 67,79
Flax v. Potts, 464 F.2d 865 (5th Cir.), cert, denied 409
U.S. 1007(1972)........... 79)82
Gaines v. Dougherty County Board of Ed., 465 F.2d
363 (5th Cir. 1972)................................................. 79
Green v. County School Board, 391 U.S. 430
<1968>............................... 58,62,69,70,72,74,90,93
V
Page
. 62Griffin v. School Board, 377 U.S. 218 (1964)
Hereford v. Huntsville Bd. of Ed., 504 F.2d 857 (5th
Cir. 1974), cert, denied 421 U.S. 913 (1975).... 68,
Keyes v. School District No. 1, 413 U.S. 189
(1973)................. 59,67,97,
Lee v. Autauga County Board of Ed., 514 F.2d 646
(1975)....................................................................
Lee v. Demopolis City School System, 557 F.2d 1053
(5th Cir. 1977), cert, denied 434 U.S. 1014
(1978)........................... .......................................
Lee v. Macon County Board of Ed. (Calhoun County),
448 F.2d 746 (5th Cir. 1971).................................
Lee v. Macon County Board of Ed. (Merengo County)
465 F.2d 369 (5th Cir. 1972).................................
Lee v. Tuscaloosa City School System, 576 F.2d 39
(5th Cir. 1978).................. 68,
Lemon v. Bossier Parish School Board, 566 F.2d 985
(5th Cir. 1978).....................................................
Lockett v. Board of Education of Muscogee County,
342 F.2d 225 (5th Cir. 1965).................................
Lockett v. Board of Education of Muscogee County,
447 F.2d 472 (5th Cir. 1971).................................
Miller v. Board of Ed. of Gadsden, 482 F.2d 1234 (5th
Cir. 1973)...................................... 68,
Mills v. Polk County Board of Public Instruction, 575
F.2d 1146 (5th Cir. 1978)................................. 79,
Monroe v. Board of Commissioners of City of Jackson,
Tenn., 391 U.S. 450 (1968)...................................
69
98
68
79
79
79
79
79
16
82
79
82
72
VI
Pasadena City Board of Ed. v. Spangler, 427 U.S. 424
(1976)..................... ............................................. 71
Raney v. Board of Education of the Gould School
Dist., 391 U.S. 443 (1968)........................ . . . . . . 72
Rippy v. Borders, 250 F.2d 690 (5th Cir. 1957)............ 4
Rogers v. Paul, 382 U.S. 198 (1965)....................... . 24
Singleton v. Jackson Mun. Sup. School Dist., 348 F.2d
729 (5thCir. 1965). . . . . . . . . .............................. 16
Singleton v. Jackson Municipal Separate School
District, 419 F.2d 1121 (5th Cir. 1969) . . . . . . . 24, 58
Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1 (1971). .......................................... passim
Tasby v. Estes, 342 F. Supp. 945 (N.D. Tex. 1971) 2, 25, 77
Tasby v. Estes, 572 F.2d 1010 (5th Cir. 1978) rehear
ing denied 575 F.2d 300 ............................ . 3
Tasby v. Estes, 416 F. Supp. 644 (N.D. Tex. 1976).... 3
Tasby v. Estes, 412 F. Supp. 1185 (N.D. Tex.
1975) ................................................................ 3, 13
Tasby v. Estes, 412 F. Supp. 1192 (N.D. Tex.
1976) ................................................................. . 3
Tasby v. Estes, 444 F.2d 124 (5th Cir. 1971)................2, 20
Tasby v. Estes, 517 F.2d 92 (5th Cir. 1975), cert.
denied 423 U.S. 939 (1975)................. 2,7,20,78,79
Thompson v. School Board of City of Newport News,
Virginia, 465 F.2d 83 (4th Cir. 1972), cert, denied
413 U.S. 920 (1973)....................... ...................... 82
Thompson v. School Board of City of Newport News,
498 F.2d 195 (4th Cir. 1974)
Page
82
V ll
United States v. Board of Ed. of Valdosta, Georgia,
576 F.2d 37 (5th Cir.), cert, denied 99 S.Ct. 622
(1978).......................................... 68,71,79,95
United States v. Columbus Mun. Sup. School Dist.,
558 F.2d 228 (5th Cir. 1977) cert, denied 434 U.S.
1013(1978).......................................................... 68
United States V. DeSoto Parish School Board, 574
F.2d 804 (5th Cir.) cert, denied 99 S.Ct. 571
(1978).......................................................... 68,79
United States v. Montgomery County Board of
Education, 395 U.S. 225(1969).......................... 58
United States v. Scotland Neck Board of Education,
407 U.S. 484 (1972)............................................... 96
United States v. Seminole County Sch. Dist., 553 F.2d
992 (5th Cir. 1977)....................................... 68,71,80
United States v. South Park Ind. Sch. Dist., 566 F.2d
1221 (5th Cir.), cert, denied 99 S.Ct. 622
(1978)................................................................ 68,79
United States v. Texas Education Agency (Austin
Ind. Schl. dist., 532 F.2d 380 (5th Cir. 1976) . . . . . 82
United States v. Texas Education Agency (Richard
son Ind. Sch. Dist.), 512 F.2d 896 (5th Cir.
1975)............................................ 78
Washington v. Davis, 426 U.S. 229 (1976).............. 70, 71
Weaver v. Board of Public Inst., 467 F.2d 473 (5th Cir.
1972), cert, denied 410 U.S. 982 (1973).................. 79
Wright v. Council of City of Emporia, 407 U.S. 451
(1972) . . . . . ...................... .... ............................... 96
Page
V l l l
Constitutional Provisions and Legislative
History:
United States Constitution, Thirteenth
Amendment ........................................... 7
28 U.S.C. § 1331
§ 1343(3) & (4). ......... 7
42 U.S.C. §1981
§1983
§1988
§200Qc-8
§2000d ......................................................... 7
Texas Acts 1969, 61st Leg., p. 361, ch. 129 § 1 (effec
tive Sept. 1,1969) ................................................. 14
Texas Acts 1969, 61st Leg., p. 1669, ch. 532 § 2 (effec
tive June 10, 1969)..................... 15
Texas Acts 1969, 61st Leg., p. 3024, ch. 889 § 2 (effec
tive Sept. 1,1969).............................. . 13,14
Texas Acts 1969, 61st Leg., p. 179, ch. 75 § 4 (effective
Sept. 1,1969)......................................................... 14
Texas Constitution Art. 7, § 7 (1876) (repealed Aug. 5,
1969)......... 13
Texas Rev. Stat. Ann. Art. 2691 (Vernon 1965)
enacted 1905 ........................................................ 13
Texas Rev. Stat. Ann. Art. 2695 (Vernon 1965)
enacted 1905 ..................... ............................... • 13
Rex. Rev. Stat. Ann. Art. 2719 (Vernon 1965) enacted
1923...................................................................... 14
Texas Rev. Stat. Ann. Art. 2755 (Vernon 1965)
enacted 1965
Page
14
IX
Page
Texas Rev. Stat. Ann. Art. 2816 (Vernon 1965)
enacted 1905 ........................................................ 14
Texas Rev. Stat. Ann. Art. 2817 (Vernon 1965)
enacted 1905 ........................................................ 14
Texas Rev. Stat. Ann. Art. 2819 (Vernon 1965)
enacted 1911 ............................................. 14
Texas Rev. Stat. Ann. Art. 2893 (Vernon 1965)
enacted 1915 ..................... 14
Texas Rev. Stat. Ann. Art. 2900 (Vernon 1965)
enacted 1905 ............. 14
Texas Rev. Stat. Ann. Art. 2900a (Vernon 1965)
enacted 1957 ............................................. 15
Texas Rev. Stat. Ann. Art. 3901a (Vernon 1965)
enacted 1957 ................. 15
Other Authorities:
Robert Crain and Rita Mahard, “ Desegregation and
Black Achievement,” Law and Contemporary
Problems, Vol. 42 (Spring and Summer 1978). 85, 100
J. Freund, MODERN ELEMENTARY STATISTICS
421-22 (4th ed. (1973))............... 24
Christine Rosell, “ The Community Impact of School
Desegregation: A Review of the Literature,” Law
and Contemporary Problems, Vol. 42 No. 2
(Spring 1978)........................................................ 99
Report of the Select Committee on Equal Educational
Opportunity, 92nd Cong., 2d Sess. Senate
Report, No. 92-000; December 31, 1972, Table
7016, p. 117....................... 23
X
Page
U.S. Commission on Civil Rights, DESEGREGATION
Of The Nation’s Public Schools: A Status
Report, p. 20 (Feb. 1979)........................ . 101
IN THE
duprrot? (Emirt nf tlyr States
October Term, 1979
No. 78-253
NOLAN ESTES, et al., Petitioners,
v.
Metropolitan Branches of the Dallas
N.A.A.C.P., et al.
No. 78-282
DONALD E. Curry , et al., Petitioners,
V.
Metropolitan Branches of the Dallas
N.A.A.C.P., et al.
No. 78-283
RALPH F. BRINEGAR, et al, Petitioners,
v.
Metropolitan Branches of the Dallas
N.A.A.C.P., et al,
BRIEF FOR EDDIE MITCHELL TASBY,
ET AL., RESPONDENTS
2
OPINIONS BELOW
I. The principal opinions and orders in this case
are as follows:
1. Memorandum Order denying preliminary in
junction on school construction filed December 15,
1970, unreported.
2. Order of Court of Appeals for the Fifth Circuit
June 3,1971, vacating order as to school construction,
Tasby v. Estes, 444 F.2d 124 (5th Cir. 1971).
3. Memorandum Opinion filed July 16, 1971 on
violation issue, Tasby v. Estes, 342 F.Supp. 945 (N.D.
Tex. 1971).
4. Judgment entered August 2, 1971, unre
ported.
5. Supplemental Order for Partial Stay of Judg
ment, filed August 9, 1971, reported at 342 F.Supp.
949.
6. Memorandum Opinion on Final Desegregation
Order, filed August 17, 1971, reported at 342 F. Supp.
949.
7. Supplemental Opinion regarding Partial Stay
of Desegregation Order, filed August 17, 1971, re
ported at 342 F. Supp. 955.
8. Opinion of court of appeals filed July 23, 1975,
Tasby v. Estes, 517 F.2d 92 (5th Cir.), cert, denied
423 U.S. 939 (1975).
3
9. Memorandum Opinion and Order denying in
terdistrict relief, filed December 11, 1975, Tasby v.
Estes, 412 F.Supp. 1185 (N.D. Tex. 1975).
10. Opinion and Order on school desegregation
plans filed March 10, 1976, Tasby v. Estes, 412
F.Supp. 1192 (N.D. Tex. 1976).
11. Supplemental Opinion and Final Order on de
segregation plan filed April 7, 1976, reported in part
at 412 F.Supp. 1210. (N.B: The reported opinion omits
the important appendices to the Final Order which
detail the court-ordered plan. This portion is reprinted
in the Appendix to the Petition for Certiorari in No.
78-253 at pp. 84a-125a; and see corrections at 127a-
129a.)
12. Memorandum Opinion granting plaintiffs at
torneys fees, filed July 20, 1976, Tasby v. Estes, 416
F.Supp. 644 (N.D. Tex. 1976).
13. Opinion of Court of Appeals for the Fifth Cir
cuit filed April 21, 1978, Tasby v. Estes, 572 F.2d
1010 (5th Cir.), rehearing denied 575 F.2d 300 (1978).
II. The reported opinions in a prior desegregation
case against the Dallas Independent School District
which was litigated from 1955 to 1965 are as follows:
1. Bell v. Rippy, 133 F.Supp. 811 (N.D. Tex.
1955).
2. Brown v. Rippy, 233 F.2d 796 (5th Cir. 1956),
cert, denied 352 U.S. 878 (1956).
4
3. Bell v. Rippy, 146 F.Supp. 485 (N.D. Tex,
1956).
4. Borders v, Rippy, 247 F.2d 268 (5th Cir. 1957).
5. Rippy v. Borders, 250 F.2d 690 (5th Cir. 1957).
6. Boson v. Rippy, 275 F.2d 850 (5th Cir. 1960).
7. Borders v. Rippy, 184 F.Supp. 402 (N.D. Tex.
1960).
8. Borders v. Rippy, 188 F.Supp. 231 (N.D. Tex.
1960) .
9. Boson v. Rippy, 285 F.2d 43 (5th Cir. 1960).
10. Borders v. Rippy, 195 F. Supp. 732 (N.D. Tex.
1961) .
11. Britton v. Folsom, 348 F.2d 158 (5th Cir.
1965).
12. Britton v. Folsom, 350 F.2d 1022 (5th Cir.
1965).
JURISDICTION
The jurisdictional requisites are adequately set
forth in the briefs for petitioners.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The constitutional and statutory provisions in
volved are adequately set forth in petitioners’ briefs.
5
QUESTIONS PRESENTED
1. Respondents Tasby et alM the original plain
tiffs, believe that the question presented herein in as
follows:
Whether the court of appeals properly remanded
the case for a new pupil assignment plan and for
further findings where:
a. The district court ordered the desegregation
of a de jure segregated school system under a plan
which has resulted in three-fifths of Dallas’ Black
pupils still attending virtually all-Black schools, and
b. The court-ordered plan leaves the primary
grades (1-3) and high school grades (9-12) largely seg
regated by failing to attempt techniques of rezoning,
pairing or transportation to achieve effective deseg
regation of those grades although such methods are
used in Grades 4-8, and
c. The plan carves out a segregated “ subdistrict”
within the school system in the all-Black East Oak
Cliff section of Dallas thus leaving all grades segre
gated in this area, and
d. The district court failed to make appropriate
findings under Swann v. Charlotte-Mecklenburg
Board of Education, 402 U.S. 1, 26 (1971) and Davis
v. School Commissioners o f Mobile County, 402 U.S,
33, 37, (1971) to demonstrate that it had achieved
“ the greatest possible degree of actual desegregation,
taking into account the practicalities of the situation”
6
or that remaining one-race schools are “ not the result
of present or past discriminatory action” on the part
of the school district.
2. The Brinegar group of petitioners and the Cur
ry group of petitioners, interveners below, have stated
other questions including:
a. Whether the district court’s 1971 finding of a
constitutional violation, which the School District
never appealed, was correct.
b. Whether certain all-White or integrated neigh
borhoods, e.g., North Dallas and East Dallas, should
be exempted from the desegregation plan.
STATEMENT
I. Introduction and Summary of Proceed
ings.
This suit was commenced October 6, 1970, by re
spondents Tasby, et al., a group of Black and Mexi-
can-American parents on behalf of 20 children attend
ing pupil schools in the Dallas Independent School
District (DISD), seeking an injunction requiring a
comprehensive plan for the desegregation of the dis
trict. The complaint alleged that the DISD operated
for years under a “ de jure segregated attendance
plan” , that the current operation “ basically continued
the de jure segregation of its schools” , and the de
fendants have “ perpetuated the effects of the de jure
tri-system and have not carried out their duty to dis
7
mantle the segregated school system ‘root and
branch’ Complaint p. 6. The complaint alleged that
the district’s practices violated the Fourteenth
Amendment and the civil rights statutes1 and invoked
the civil rights and federal question jurisdiction of the
United States District Court for the Northern District
of Texas.2
The DISD had been sued in a prior case brought in
1955 to desegregate the district. See Opinions Below
Part II, supra. That case ended with a 1965 order
requiring a desegregation plan based on attendance
area pupil assignments which was to be effective in
all grade levels by September 1967.3 The prior litiga
tion is briefly summarized in the Fifth Circuit’s 1975
decision in this case. Tasby v. Estes, 517 F.2d 92, 95
(5th Cir. 1975). It required seven appeals to the Fifth
Circuit for the plaintiffs in that case to obtain an
order for a stair-step plan to eliminate segregation
under an overt dual system. The opinions in the case
by the late District Judge T. Whitfield Davidson are
remarkable for their frank espousal of a philosophy of
white supremacy and “ racial purity” and their praise
of slavery. See e.g., Borders v. Rippy, 184 F.Supp.
402, 405-409, 415-416 (N.D. Tex. 1960); Borders v.
1 The complaint also invoked the Thirteenth Amendment and
42 U.S.C. sections 1981, 1983 and 2000d.
2 Jurisdiction was alleged under 28 U.S.C. §§1331, 1343(3) and
(4); 42 U.S.C. §§1981, 1983, 1988, 2000c-8 and 2000d. See Com
plaint p. 1 and First Amended Complaint.
3 There were no proceedings in the case following the 1965
Order. See discussion, infra pp. 12-13.
8
Rippy, 188 F.Supp. 231 (N.D. Tex. 1960); Borders v.
Rippy, 195 F.Supp. 732 (N.D. Tex. 1961).
When the Tasby case was filed the DISD initially
defended on the ground that it was in compliance with
the constitutional requirements by virtue of having
obeyed Judge Davidson’s 1965 order. After a trial
limited to the issue of whether or not the DISD was
in compliance the district court on July 16, 1971 is
sued an opinion finding that extensive segregation of
Black and White students continued and that “ ele
ments of a dual system still remain” . 342 F.Supp. at
947. This finding of violation has never been appealed
by the DISD which did file an appeal on remedy is
sues. It was challenged on appeal by the Curry inter-
venors, a group of White parents from North Dallas,
who were granted leave to intervene on July 22, 1971,
after the completion of the trial on the violation issue
and the filing of the court’s opinion. The DISD has,
however, sought to minimize the extent of the viola
tion which existed and the extent of the trial court’s
findings. A more detailed description of the evidence
and findings on the violation is set forth in part II of
this statement below.
After finding a constitutional violation the district
court heard evidence on desegregation plans proposed
by the plaintiffs and defendants. The plaintiffs offered
a plan prepared by a team of experts from the Texas
Educational Desegregation Technical Assistance Cen
ter (TEDTAC). This plan would have desegregated
every school in the District by rezoning secondary
9
schools, and by pairing and grouping attendance
zones at the elementary level. On August 2, 1971 the
court ordered a limited desegregation plan. The Order
provided for only televised integration at the elemen
tary school level, approving the DISD’s elaborate ten
million dollar proposal for Black and White children
to participate in simultaneous instruction by two-way
television connections between their segregated
schools for a few hours each week. The plan also pro
vided for one weekly visit or joint activity of Black
and White pupils. The television plan was promptly
stayed by the Fifth Circuit at the request of the plain
tiffs and was never implemented. At the secondary
level, the district judge ordered some busing of Black
students to formerly White schools in certain neigh
borhoods located closest to the Black ghetto in South
Dallas. Initially in the August 2nd order the district
court ordered a more extensive high school desegre
gation plan with a pairing arrangement. But following
“ a public furor” —to use the Fifth Circuit’s phrase
(517 F.2d at 100)—the district court on August 9,
1971 stayed the high school plan on its own motion.
That high school plan was subsequently abandoned
by the district court in favor of a DISD proposal
involving the satelliting of a small number of Black
pupils to formerly White schools and the zoning of
small numbers of Whites into all-Black schools.
Cross appeals by the parties were orally argued in
the Fifth Circuit on December 2, 1971, but the case
was not decided by that court until July 23, 1975,
10
about 4 years after the district court’s judgment.
Thus at the elementary school level there was no de
segregation except that obtained under Judge Dav
idson’s 1965 order. Desegregation in secondary
grades was quite limited and in accordance with the
DISD ’s own proposal.
On July 23, 1975 the Fifth Circuit reversed the
judgment insofar as it approved the desegregation
plan, and ordered the formulation of a new student
assignment plan. 517 F.2d 92. The court found the
television plan insufficient because it “ does not at
tempt to alter the racial characteristics of the DISD’s
elementary schools’ ’. 517 F.2d at 104. The appellate
court rejected the high school plan because it found
that the DISD had attempted only the limited objec
tive of reducing the proportionate share of any racial
group’s population in a high school to a point just
below the 90% mark so that the school would not be
categorized as a “ one race” school. The court of ap
peals rejected the idea that the 90% mark was a “ mag
ic level” of compliance and said the plan fell short of
“ a bona fide effort to comply with the mandates of
the Supreme Court” . 517 F.2d at 104. The Fifth Cir
cuit rejected the Curry intervenors’ argument that
their North Dallas area should be insulated from the
plan because it was a newly developed community.
517 F.2d at 108.
On remand, the district court considered six deseg
regation plans presented by the parties and amici.
Four of the six plans included detailed pupil assign
11
ment arrangements and projections. They differed
considerably in the extent of desegregation proposed.
Plaintiffs’ expert witness Dr. Willie compared the
DISD plan with the plaintiffs’ two plans, and a plan
designed by Dr. Josiah Hall, the court appointed ex
pert. Using a rule of thumb that labeled schools still
segregated if their Anglo or minority populations ex
ceeded 70%, Dr. Willie’s comparison of the four plans
was as follows:
Segregated
Elementary
Segregated
Junior Highs
Segregated
Senior Highs
DISD Dr. Hall P i 's Plan A P i 's Pli
9 8 b9 2 23
1 J 8 0 4
11 _5 ]_
122 82 3 28
Plaintiffs’ Exhibit 14.
The plans filed by the Dallas NAACP and by the
Educational Task Force of the Dallas Alliance con
tained general outlines of pupil assignment patterns.
The NAACP plan contemplated that all schools would
more or less reflect the district wide Anglo-minority
ration with a 10% variance up or down. The Dallas
Alliance plan provided the concepts which the court
eventually adopted. The proposal left the assignments
in the lowest grades (K-3) and the high school grades
(9-12) virtually unchanged. Desegregation at those
levels was limited to voluntary transfers. The concept
provided for a desegregated pattern in grades 4-6 in
1 2
one set of schools and 7-8 in other schools using trans
portation and satellite zoning. The plan created an all-
Black subdistrict in the East Oak Cliff section in
which there would be no desegregated schools.
The court approved the Dallas Alliance concept and
ordered the DISD to plan the assignment details,
which were eventually incorporated in the Final Order
entered April 7, 1976. The plan left over 27,000 pupils
in 26 all-Black schools in the East Oak Cliff subdis
trict, plus more than 40 one-race schools in the other
subdistricts. See Appendix A to Final Order; Pet.
App. No. 78-253, 84a et seq. On April 21, 1978 the
Fifth Circuit in a unanimous opinion by Judge Tjoflat,
joined by Judges Coleman and Fay remanded the case
for a new plan and further findings. 572 F.2d 1010.
The court found that a large number of one-race
schools remained and that there had been no findings
as to the feasibility of achieving more integration by
using the desegregation techniques approved in
Swann v. Charlotte-Mecklenburg Board of Educa
tion, 402 U.S. 1 (1971). The Fifth Circuit was partic
ularly critical of the plan’s failure to further desegre
gate the high schools, because the pupils in grades 4-
8 in some areas were integrated in those grades and
then segregated again in grades 9-12. The court or
dered evaluation of the feasibility of applying the
techniques which desegregated grades 4-8 to grades
9-12 in the same areas. 572 F.2d at 1014-1015.
As matters now stand Dallas high schools are still
operated on substantially the same basis ordered by
13
Judge Davidson in 1965, except for limited changes
made by the DISD plan in 1971. The high school plan
which the Fifth Circuit rejected in the first appeal
was not substantially improved on remand and was
accordingly rejected again on the second appeal. Gen
erally speaking, pupils in grades K-3 are also still
assigned on the basis of the “ neighborhood” zones
developed by the Board under the 1965 court order.
II. The 1971 Proceedings on the Issue of the
Constitutional Violation.
The Texas Constitution and statutes required
school segregation in Dallas both before and after
Brown v. Board o f Education, 347 U.S. 483 (1954).
Texas Constitution Art. 7, §7 (1876) (repealed Aug. 5,
1969). See Bell v. Rippy, 146 F.Supp. 485, 487 (N.D.
Tex. 1956); Borders v. Rippy, 247 F.2d 268, 272, note
1 (5th Cir. 1957). See also Tasby v. Estes, 412 F.Supp.
1185,1189 (N.D. Tex. 1975). The array of Texas school
segregation laws listed below was not repealed until
1969, fifteen years after Brown, supra.4
4 Texas statutes mandating school segregation enacted in 1905,
1911, 1915, 1923 and 1957 were repealed in 1969:
1. Tex. Rev. Civ. Stat. Ann., art. 2691 (Vernon 1965) enacted
in 1905, provided for separate teachers’ meetings for white and
colored teachers. Repealed by Acts 1969, 61st Leg., p. 3024, ch.
889, § 2, effective Sept. 1, 1969.
2. Tex. Rev. Civ. Stat. Ann., art. 2695 (Vernon 1965) enacted
in 1905, provided for consolidation of small school districts by
race. Repealed by Acts 1969, 61st Leg., p. 3024, ch. 889, § 2,
effective Sept. 1, 1969.
14
Desegregation of the Dallas public schools finally
began at the first grade level in September 1961 (1971
3. Tex. Rev. Civ. Stat. Ann., art. 2719 (Vernon 1965) enacted
in 1923, provided for a free public segregated school system.
Repealed by Acts. 1969, 61st Leg., p. 3024, ch. 889, § 2, effective
Sept. 1, 1969.
4. Tex. Rev. Civ. Stat. Ann., art. 2755 (Vernon 1965) enacted
in 1905, provided that schools constructed with any funds vol
untarily given by one race for a school for that race could not be
used by another race without the consent of the district trustees.
Repealed by Acts of 1969, 61st Leg., p. 3024, ch. 889 § 2, effective
Sept. 1, 1969.
5. Tex. Rev. Civ. Stat. Ann., art. 2816 (Vernon 1965) enacted
in 1905, provided for taking the school census by “ color” of the
parent or guardian of the child. Repealed by Acts 1969, 61st
Leg., p. 3024, ch. 889, § 2, effective Sept. 1, 1969.
6. Tex. Rev. Civ. Stat. Ann., art. 2817 (Vernon 1965), enacted
in 1905, provided for the separation of school census forms by
race. Repealed by Acts 1969, 61st Leg., p. 179, ch. 75, §4, effec
tive Sept. 1, 1969; Acts 1969, 61st Leg., p. 3024, ch. 889, § 2,
effective Sept. 1, 1969.
7. Tex. Rev. Civ. Stat. Ann., art. 2819 (Vernon 1965) enacted
in 1911, provided that the county superintendent make separate
census rolls by race. Repealed by Acts 1969, 61st Leg., p. 3024,
ch. 889, § 2, effective Sept. 1, 1969.
8. Tex. Rev. Civ. Stat. Ann., art. 2893 (Vernon 1965) enacted
in 1915, provided that any child who lived more than two and
one-half miles from a public school for children of his same race
was not required to attend school. Repealed by Acts 1969, 61st
Leg., p. 3024, ch. 889, § 2, effective Sept. 1, 1969.
9. Tex. Rev. Civ. Stat. Ann., art. 2900 (Vernon 1965) enacted
in 1905, provided that no child could attend a public school
supported by public funds for another race. Repealed by Acts
1969, 61st Leg., p. 361, ch 129, § 1, effective Sept. 1, 1969; Acts
1969, 61st Leg., p. 3024, ch. 889 § 2, effective Sept. 1, 1969.
15
Tr. 436),* 5 6 when the Fifth Circuit reversed one of Judge
Davidson’s orders which endorsed a three-way system
of white, black and integrated schools. The Fifth Cir
cuit approved the DISD’s proposal for a grade-a-year
desegregation plan.® Superintendent Estes testified
that the DISD converted from a dual set of school
zones for Black and White pupils to single zones on
a grade-a-year basis until 1965 when the schedule was
accelerated to include all six elementary grades and
Grade 12. 1971 Tr. 435-436; 1971 Defendants Exhibit
4.7 The DISD eliminated the dual zones for Junior
10. Tex. Rev. Civ. Stat. Ann., art. 2900a (Vernon 1965) enacted
in 1957, provided that dual public school systems could not be
abolished except by election of the voters in the school district,
that school districts which maintained integrated schools for the
1956-57 school year be permitted to continue unless abolished,
and that school districts and persons violating these provisions
be subjected to penalty. Repealed by Acts 1969, 61st Leg., p.
1669, ch. 532, § 2, effective June 10, 1969; Acts 1969, 61st Leg,,
p. 3024, ch. 889, § 2, effective Sept. 1, 1969.
11. Tex. Rev. Civ. Stat. Ann., art. 3901a (Vernon 1965) enacted
in 1957, provided, inter alia, that no child should be compelled
to attend school with children of another race. Repealed by Acts
1969, 61st Leg., p. 3024, ch. 889, § 2, effective Sept. 1, 1969.
5 The 5 volume transcript of the 1971 hearings is cited herein
as “ 1971 Tr.’ ’. Volumes 1 and 2, pages 1-663 contain the hearing
on the violation question. Volumes 3-5, pages 664-1435 are the
1971 remedy hearing.
6 Boson v. Rippy, 285 F.2d 43 (5th Cir. 1960). The Fifth Circuit
did not approve the 12 year delay but remanded for further
proceedings on the timing. 285 F.2d at 47. See Borders v. Rippy,
195 F.Supp. 732 (N.D. Tex. 1961).
7 The acceleration of the plan was the result of two more ap
peals by plaintiffs. In September 1964 Judge Davidson denied
16
High schools in 1966 and for the final two grades (10
and 11) in September 1967. 1971 Tr. 437. The 1965
resolution gave the Superintendent complete discre
tion to “ prepare rules and regulations and establish
the boundaries of districts, in order to implement and
carry out the purpose and intent of this Resolution.”
Def. 1971 Exhibit 4. The resolution provided that
schools “ shall be racially desegregated” and that
“ single attendance districts shall be established” at
the various grade levels, and it provided for transfers
without regard to race. Ibid. The resolution and court
order contained no other details about the manner in
which desegregation was to be accomplished. Thus
the 1965 court orders did not prescribe the manner of
desegregation beyond specifying the grades to be in
plaintiffs’ motion to accelerate the 12 year plan. While plaintiffs’
appeal was pending the Fifth Circuit held in other cases that 12
year plans could no longer pass muster. Lockett v. Board of
Education of Muscogee County, 342 F.2d 225 (5th Cir. 1965)
(February 24, 1965); Bivins v. Board of Public Ed., 342 F.2d 229
(5th Cir. 1965) (February 25, 1965); Singleton v. Jackson Mun.
Sep. School Dist., 348 F.2d 729 (5th Cir. 1965) (June 22, 1965).
The day after Singleton, supra, the DISD passed a resolution to
establish single attendance zones for all elementary schools in
September 1965, for Junior High schools in 1966, and for High
Schools in 1967. See this resolution in the Tasby record as 1971-
Defendants Exhibit 1. When the Fifth Circuit was advised of the
resolution it vacated and remanded relying on the board’s good
faith. Britton v. Folsom, 348 F.2d 158 (5th Cir. 1965). It also
ordered the desegregation of grade 12, but despite that clear
direction Judge Davidson refused to order grade 12 desegregated
and plaintiffs appealed again. On September 1, 1965, the Fifth
Circuit again ruled that grade 12 must be desegregated imme
diately. Britton v. Folsom, 350 F.2d 1022 (5th Cir. 1965). See
1971 Defendants Exhibits 2, 3, and 4.
17
eluded, and there was no review of the DI SB ’s com
pliance or other proceeding in that case after 1965.
Superintendent Estes testified that attendance
areas were designated on the basis of such criteria as
building capacities, distance to schools, geographical
barriers, traffic arteries, projected enrollment and
continuity in curriculum. 1971 Tr. 590-592. He stated
that “ We have not considered race in the construction
of attendance zones in this district.” 1971 Tr. 527; see
also 589.
The earliest year for which school-by-school racial
enrollment data is available in the record is 1966-67.8
Racial segregation was very evident at that time. In
1966-67 there were 33 90-100% Black schools. Three-
fourths of all Black pupils (33,850 out of 43,816 or
77.26%) attended these 33 virtually all-Black schools
in 1966-67. There were 114 schools which had less
8 The 1966-67 figures are on the last two pages of Appendix 4
of the DISD answers to plaintiffs’ first set of interrogatories.
The answers were admitted into evidence at 1971 Tr. 6-11. The
Board answered that it did not have racial enrollment data avail
able for earlier years. Before and during the trial Judge Taylor
declined to require the Board to answer plaintiffs’ interrogatories
seeking racial enrollment data, school assignment maps and
other materials for years prior to 1965. See Transcript of hearing
on discovery matters June 8, 1971, pp. 1-15; see also 1971 Tr.
660. In so ruling Judge Taylor said “ . . . I want to know what
the situation is now, in the light of the development on the law
and what the School District is doing now, and has done since
’65. I don’t think it’s necessary to—if you want me to, I will say
that it’s pretty obvious to the Court that there must have been
de jure segregation or segregation prior to the Court order of
’65.” June 8, 1971, Tr. 15.
18
than 10% Black pupils and enrolled nine-tenths of the
Anglos and Hispanics (107,173 out of 118,079 or
90.76%). The 1966-67 enrollment data is summarized
below in a table which shows the number of schools
and pupils in each percentage range. Anglos, Hispan
ics and “ others” are combined in the Board’s figures
for 1966-67. The table indicates the racial separation
of Black pupils during 1966-67:
1966-67
Percentage of
Anglo, Hispanic
& Other Students
No. of
Schools
Anglo, Hispanic
& Other Students
No. %
Black Students
No. %
90-100 114 107,173 90.76 560 1.28
80-89 6 3,882 3.29 770 1.76
70-79 5 2,386 2.02 856 1.95
60-69 4 1,528 1.29 789 1.8
50-59 1 447 .38 442 1.01
40-49 1 278 .24 302 .69
30-39 2 547 .46 1,095 2.5
20-29 1 404 .34 1,045 2.38
10-19 4 832 .71 4,107 9.37
1-9 10 578 .49 11,241 25.66
Less than 1% 23 24 .02 22,609 51.6
Total 171 118,079 100 43,816 100
% o f Total 72.94 27.06
S ou rce : This ta b le was d eriv ed from the data in d e fen d an ts '
Answers to In te r r o g a to r ie s ( f i r s t s e t ) Appendix 4
( la s t two p a g e s ).
19
It is possible to identify the names of the all-Black
schools in Dallas in the early 1960’s despite the ab
sence of detailed enrollment data, because faculties
were segregated and the all-Black faculties are in the
record.9 The faculty figures identify 37 all-Black
schools in the pre-1965 period. There were 28 all-Black
faculties in 1960-61, three new schools were opened in
the early 196Q’s with Black faculties, and the DISD
converted six all-White faculties to all-Black in the
1962-64 period.10
9 Defendants’ Answers to Interrogatories (first set), No. 1(d).
10 Twenty-eight schools with all-Black faculties in 1960-61
were: Lincoln H.S., Madison H.S., B.T. Washington H.S., Se
quoyah Jr. H.S., Arlington Park, J.H. Brown, Carr, Carver, Co
lonial, Darrell, Douglass, Dunbar, Crispus Attucks, Eagle Ford
(Black), Ervin, Frazier, Harllee, Harris, Hassell, Johnston, Polk,
Ray, Rice, Roberts, Thompson, Tyler, Wheatley, and Starks.
Three schools opened in the period with all-Black faculties were
Ervin Jr. H.S., Pinkston H.S., Roosevelt H.S. Six schools con
verted from all-White to all-Black faculties were Holmes Jr. H.S.,
Zumwalt Jr. H.S., Pease, Stone, Miller, and Mills. Answers to
Interrogatory 1(d).
The conversions from all-White to all-Black faculties were:
Schools Years White Teachers Black '
Holmes 1963-64 26 0
1964-65 0 50
Zumwalt 1964-65 42 0
1965-66 0 33
Pease 1963-64 12 0
1964-65 0 24
Stone 1963-64 17 0
1964-65 0 17
Miller 1962-63 20 0
1963-64 0 26
Mills 1961-62 15 0
d. 1962-63 0 24
20
During the period from 1965 to the trial in 1971 the
DISD built at least 15 schools which were either all-
White or all-minority by the time of the trial, and five
others were opened as such shortly thereafter.11 Re
spondents Tasby et al. and the NAACP took four
appeals to the Fifth Circuit complaining of the district
court’s refusal to enjoin the DISD from building a
series of new one-race schools. Dr. Estes testified
“ The policy of the District has been during the pre-
SwanfnJ era not to consider race in the construction
of school facilities.” 1971 Tr. 527-28. The Fifth Circuit
twice remanded and held in 1975 that the district
court had erred in not granting plaintiffs some relief
against the continued building of new one-race
schools. Tasby v. Estes, 444 F.2d 124 (5th Cir. 1971);
Tasby v. Estes, 517 F.2d 92, 104-106, 110 (5th Cir.
1975). In 1978 the Fifth Circuit approved a site ac
quisition complained of by the NAACP, but ordered
the district to study the feasibility of sending White
pupils to the school which had been planned as anoth
er all-Black facility. Tasby v. Estes, 572 F.2d 1010,
11 All-White schools opened between 1965 and the trial were
Carter, Skyline, Hulcey, Alexander, Cochran, Conner, Gooch,
Nathan Adams, Rowe, Runyon, Turner. Minority schools were
Arlington Park, Darrell, Marshall, Edison, Seguin, Tyler, Navar
ro, Jackson and Young. PI. 1971 Exhibit 3; 1971 Tr. 494-500.
Another fourteen one-race facilities benefited from construction
additions between 1965 and 1971. Of further note is the fact that
the five new facilities opened post-1971 were the subject of ob
jection by plaintiffs prior to their completion. Despite plaintiffs’
unsuccessful attempts to enjoin this construction the DISD
opened each as a one-race facility.
2 1
1016-1018 (5th Cir. 1978). Nevertheless, since the 1978
Fifth Circuit decision, the 1979 DISD report to the
court shows that two new virtually all-Black high
schools have been opened in the disputed shopping
center, e.g., A. Maceo Smith High School 97.64%
Black and East Oak Cliff Alternative School 99.21%
Black.
The DISD did not adopt a racial majority-to-mi-
nority transfer plan until the eve of the 1971 liability
trial, and it was not announced until the trial. 1971
Tr. 560-563, 645-647. Prior to the 1971 trial pupils
were required to remain in their attendance area
schools and there was no “ freedom of transfers’ ’ pol
icy except for certain transfers for “ curriculum en
richment” . 1971 Tr. 561.
Despite the 1965 order, pupil segregation was still
extensive in 1970-71 the year this suit was filed. In
that year there were about 181 schools enrolling
165,694 pupils who were 94,354 Anglos (56.94%),
56,621 Blacks (34.17%), 13,948 Mexican Americans
(8.42%) and 771 Asians, American Indians and others
(.47%). A full nine-tenths of the Black students at
tended 48 schools which were less than 10% White;
sixty-three percent of them were in 36 schools which
had less than 1 percent Anglo pupils. More than two-
thirds of the Anglos were concentrated in 69 over 90%
Anglo schools. The following table gives a detailed
analysis of the 1970-71 enrollments and depicts the
great extent of segregation:
1970 - 71
Percentage
Of White
Students
No. of
Schools
White Students
No. %
Black
No.
Students
%
Hispanic Students
No. %
Other Students
No. %
90-100 69 64,995 68.88 242 .43 1,991 14.27 253 32.81
80-89 21 16,466 17.45 516 .91 2,051 14.7 179 23.22
70-79 15 6,555 6.95 442 .78 1,439 10.32 93 12.06
60-69 8 2,252 2.39 218 .39 976 7.0 82 10.64
50-59 1 215 .23 107 .19 40 .29 2 . 26
40-49 7 1,609 1.7 529 .93 1,365 9.79 58 7.52
30-39 1 79 .08 9 .01 144 1.03 6 .78
20-29 5 983 1.04 1,181 2.09 1,657 11.88 25 3.24
10-19 6 650 .69 2,416 4.27 1,552 11.13 28 3.63
1-9 12 439 .47 14,859 26.24 1,696 12.16 34 4.41
Less than 1% 36 111 .12 36,102 63.76 1,037 7.43 11 1.43
TOTAL. 181 94,354 100 56,621 100 13,948 100 771 100
% Of Total 56.94 34.17 8.42 .47
Source: This table was derived from the data in Defendants ' Answers
to Interrogatories (First Set) Appendix 1. (See also
Plaintiffs' 1971 Exhibits 1, 2.)
23
The net effect of the board’s policies between 1965
and 1970 was to increase the extent of segregation of
Black pupils during the years when desegregation was
supposedly being implemented. The 1972 Mondale
Committee Report found that the percentage of Dal
las Blacks in 90-100% Black schools was 82.6% in
1965, 87.6% in 1968 and 91.4% in 1971.12
In 1970-71 the DISD had 7,293 teachers: 1,856 were
Black, 73 were Chicano and 5,364 were Anglo. Plain
tiffs’ 1971 Exhibit 4. Plaintiffs established at the 1971
trial that there had been relatively little progress in
faculty desegregation in the DISD. Plaintiffs’ 1971
Exhibit 4 listed the many one-race schools with vir
tually one-race faculties. This exhibit established that
of 1,865 Black teachers in the DISD, 1,694 or 88.8%
taught in schools with 90% or greater racial minority
students, and only 88 Black teachers or 4.7% were in
schools with 90% or greater white enrollments.13 Su
12 Report of the Select Committee on Equal Educational Op
portunity, 92nd Cong., 2d Sess. Senate Report No. 92-100; De
cember 31, 1972, Table 7-16, p. 117. The 1968 and 1971 figures
in the Senate Report are consistent with exhibits in the record.
(See Defendants’ Answers to Interrogatories (first set) Append
ices 1 and 3). The record does not contain racial enrollment data
by school for 1965. (See note 8, supra).
13 We have now subjected the student and faculty enrollment
figures in the Defendants’ Answers to Interrogatories, first set,
to a more detailed analysis and calculated the correlation be
tween the percentages of black students and teachers in each
school in the system in 1970-71. The calculations yield a coeffi
cient of correlation (r) of .91, and a coefficient of determination
(r ) of .83. The coefficient of determination indicates that the
racial composition of the students accounts for or is associated
24
perintendent Estes testified that in 1968-69 the DISD
began a phased faculty desegregation program, by
assigning more than one ethnic group to the faculties
of 20 of the 182 schools. 1971 Tr. 455. In 1969-70 the
system had “ over forty” faculties “ with more that
one ethnic group represented” . Id. at 455. In 1970-71
Dr. Estes said “ we had all of our twenty-one high
schools, twenty-three junior highs, and over sixty per
cent of our elementary schools that had more than
one ethnic group represented on their faculty.” Id. at
455-456. After the start of the 1971 trial the DISD
announced for the first time its plan to desegregate
the faculties of all schools in accordance with the Fifth
Circuit’s Singleton decision. 1971 Tr. 456, 647-652.
See Singleton v. Jackson Municipal Separate School
District, 419 F.2d 1211 (5th Cir. 1969). Dr. Estes also
indicated an awareness of this Court’s Montgomery
decision on faculty desegregation (1971 Tr. 650)
(United States v. Montgomery County Board o f Ed.,
395 U.S. 225 (1969)), but said that the Board had not
decided to adopt a Singleton plan until after the
Swann decision. 1971 Tr. 651. Of course, this Court’s
first faculty desegregation decisions had been made
six years earlier. Bradley v. School Board, 382 U.S.
103 (1965); Rogers v. Paul, 382 U.S. 198 (1965).
Dr. Estes testified that 19 schools had changed
from White to predominantly Black between 1965 and
with about 83% of the variation in faculty racial compositions.
See J. Freund, Modern Elementary Statistics 421-22 {4th ed.
1973).
25
the 1971 trial, and that these changes were due to
changing neighborhood racial patterns, primarily in
the South Oak Cliff area of Dallas during these years.
1971 Tr. 514-422. Dr. Estes said that 1 High School,
3 Junior High schools and 15 elementary schools
changed from White to Black during the 1965-1971
period.14 The district court stated in its opinion on the
violation issue that “ ft]he School Board has asserted
that some of the all Black schools have come about
as a result of changes in the neighborhood patterns
but this fails to account for the many others that
remain as segregated schools.” Tasby v. Estes, 342
F.Supp. 945, 947 (N.D. Tex. 1971).
The validity of the court’s finding is easily dem
onstrated by observing that 31 schools which had all-
Black faculties in the early 1960’s had 90% or more
Black pupils at the time of the 1971 trial.15 Indeed in
1979, 30 of the pre-1965 all-Black schools remain over
14 The schools named by Dr. Estes were South Oak Cliff High,
Holmes Jr. High, Boude Storey Jr. High, Zumwalt Jr. High, and
Pease, Bushman, Stone, Bryan, Lisbon, Thornton, Budd, Russell,
Oliver, Marsalis, Earhart, Juarez, Lanier, City Park, and Roberts
elementary schools. (At one point Dr. Estes said there were 16
such schools but only 15 elementary schools were named). 1971
Tr. 514-522.
15 Of the 37 pre-1965 all-Black schools which we have been able
to identify by their faculties in note 10 supra, 31 of them had
over 90% Black pupils in 1970-71, 3 were between 82 and 98%
Black and Mexican-American combined, and 3 were no longer
open. Compare Answers to Interrogatories (first set), Answer to
Int. 1(d) with Appendix 1 of the same answers.
26
90% Black.16 Similarly, if one compares the list of all-
Black schools in 1966-67 with the current list of all-
Black schools in the Board’s April 1979 report to the
district court, it is evident that most of the 1966
Black schools have not been desegregated. Twenty-
eight schools which were virtually all-Black in 1966-
67 are still all-Black in 1979; the 28 schools listed in
the note below were 90 to 100% Black in both 1966
and 1979.17 There were five other all-Black schools in
16 Compare list of schools in note 10, supra from Board’s An
swer to Interrogatory 1(d) with April 15, 1979 report by DISD
to the District Court. Of the 36 schools listed in note 10, supra
all are 90% or more Black in 1979 with the following exceptions:
Polk—83.05% Black, Sequoyah—47.65% Black, B.T. Washing
ton (now Arts Magnet school)—47.65% Black. The remaining
exceptions are schools which have been closed since 1965, e.g.,
Attucks, Eagle Ford (Black) and Starks. Zumwalt Jr. H. building
was designated under the Court-ordered plan to be used as part
of the all-Black S. Oak Cliff H.S. The B.T. Washington H.S. was
closed from 1969 until reopened in 1976 as the Arts Magnet high
school.
17 Schools under 10% White in 1966 and 1979:
Less than 1% White in 1966-67
Lincoln H.S., F.D. Roosevelt H.S., James Madison, H.S., J.N.
Ervin Middle School, Arlington Park Comm. Lrn. Center, John
Henry Brown Elem. Sch., Colonial Elem. Sch., B.F. Darrell
Comm. Lm. Center, Paul L. Dunbar Elem. Sch., J.N. Ervin Elem.
Sch., Julia C. Frazier Elem. Sch., Fannie C. Harris Elem. Sch.,
Thomas C. Hassell Elem. Sch., J.W. Ray Elem. Sch., Chas. Rice
Elem. Sch., H.S. Thompson Elem. Sch., Priscilla L. Tyler Comm.
Lrn. Center, Phyllis Wheatley Elem. Sch.
1-9% White in 1966-67
O.W. Holmes Middle Sch., J.N. Bryan Elem. Sch., C.F. Carr
Elem. Sch., G.W. Carver Elem. Sch., N.W. Harllee Elem. Sch.,
Albert S. Johnston Elem. Sch., Roger Q. Mills Elem. Sch., Alisha
27
1966-67.18 Seven of the all-White schools of 1966 re
main over 90% White, and another eight are 80-100%
White in 1979.19
The Curry intervenors, who were allowed to inter
vene as defendants after the trial on the violation,
argued that the desegregation remedy should not ap
ply to their area of North Dallas because it had not
been a part of the DISD at the time of the Brown
decision. However, each of the schools in the area
claimed by the Curry group was established as a one-
race White school during the years of dual school
M. Pease Elem. Sch., Harry Stone Middle Sch., Sarah Zumwalt
Jr. H.S. (now part of S. Oak Cliff H.S.)
18 Schools under 10% White 1966-67 but not in 1979
P.C. Anderson Career Academy, K.B. Polk Elem. School, Booker
T. Washington Elem. Sch. now Arts Magnet school), Winnetka
Elem. Sch., Joseph J. Rhoads Elem. Sch.
19 Schools over 90% White in both 1966-67 & 1979
W.T. White H.S., Wm. L. Cabell Elem. Sch., Tom C. Gooch Elem.
Sch., Victor H. Hexter Elem. Sch., Arthur Kramer Elem. Sch.,
Richard Lagow Elem. Sch., Nancy Moseley Elem. Sch.
Schools over 90% White in 1966 & 80-90% White in 1979
Bryan Adams H.S., George B. Dealey Elem. Sch., Everette Lee
Degolyer Elem. Sch., Chas. A. Gill Elem. Sch., Edwin J. Kiest
Elem. Sch., B.H. Macon Elem. Sch., Urban Pk. Elem. Sch., Harry
C. Withers Elem. Sch.
Note should be made that for elementary and middle schools,
the overall school percentage for Anglo is the utilized measure
ment. In grades K-3 as of 1979, many more elementary schools
will be 80% to over 90% Anglo.
2 8
operation. The schools all opened with all-White fa
culties:
School Year Opened Facu lty (yea r )
N. Adams 1967 26 White - 1967
C ab e ll 1958 26 White,, 1 H isp. - 1960-61
D egolyer 1961 28 W hite - 1961
Gooch 1965 24 W hite - 1965
Marcus 1963 13 White - 1963
W ithers 1961 28 W hite - 1961
Marsh J r . H,S 1962 37 White - 1962
W.T. W hite H.iD. 1964 38 W hite - 1964
Answers to interrogatories (first set) 1(d).
Each of these schools had over 90% White pupils
in the 1966-67 year, with the exception of Nathan
Adams which opened the following year as an over
90% White school. Answers to Interrogatories (first
set), Appendix 4 (last two pages). Gooch, Cabell and
W.T. White H.S. remain over 90% White, and Dego-
lyer and Withers are 80-89% White in 1979.
The district court’s opinion of July 16, 1971 found
that “ elements of a dual system still remain” , and
that the DISD had been aware of, but had not com
plied with, Fifth Circuit decisions ordering various
desegregation steps until after the case was filed.20
20 The court wrote at 342 F.Supp. 945, 947-948:
When it appears as it clearly does for the evidence in this case
that in the Dallas Independent School District 70 schools are
29
The court found that there was insufficient evidence
to show there had been de jure segregation of Mexi-
can-Americans in Dallas, but did find that Mexican-
Americans were a distinct and clearly identifiable eth
nic group, and ordered that any desegregation plan
must take this fact into consideration.21
90% or more white (Anglo), 40 schools are 90% or more Black,
and 49 schools are 90% or more minority, 91% of black students
in 90% or more of the minority schools, 3% of the black students
attend schools in which the majority is white or Anglo, it would
be less than honest for me to say or to hold that all vestiges of
a dual system have been eliminated in the Dallas Independent
School District, and I find and hold that elements of a dual
system still remain.
The School Board has asserted that some of the all-Black
schools have come about as a result of changes in the neighbor
hood patterns but this fails to account for many others that
remain as segregated schools. The defendant School Board has
also defended on the ground that it is following a 1965 Court
order. This position is untenable.
The Green and Alexander cases have been handed down by
the Supreme Court since the 1965 order of the Court of Appeals
for the Fifth Circuit to the Dallas Independent School District.
There have been too many changes in the law even in the Fifth
Circuit and it is fairly obvious to me that the defendant School
Board and its administration have been as aware of them as I.
For example, the case of Singleton v. Jackson Municipal Sepa
rate School District, 419 F.2d 1211 was handed down in Decem
ber of 1969. This was the case in which the Court ordered, among
other things, desegregation of faculty and other staff, majority
to minority transfer policy, transportation, an order with refer
ence to school construction and site selection, the appointment
of bi-racial committees. The Dallas School Board has failed to
implement any of these tools or to even suggest that it would
consider such plans until long after the filing of this suit and in
part after the commencement of this trial.
21 The finding that Mexican-Americans were an identifiable
minority group was made on the basis of considerable evidence
30
III. The 1971 Remedy Hearing; Desegrega
tion Proposals.
A. Plaintiffs’ Proposal—the TEDTAC Plan.
At the 1971 hearing plaintiffs endorsed a desegre
gation plan which would have effectively desegregat
ed the entire DISD. The plan, called the TEDTAC
plan (1971 Pi’s. Exhibits 122, 123, 124, and 125), was
the product of several months work by a team of 8
staff members of the Texas Educational Desegrega
tion Technical Assistance Center, University of Texas
at Austin. TEDTAC had previously worked on deseg
regation plans for 41 other school districts. 1971 Tr.
1016. TEDTAC began working on a Dallas plan fol
lowing a request from Judge Taylor in October 1970.
1971 Tr. 966. The Project Administrator, Pete Wil
liams, met with the Superintendent and all principals,
and then teams of staff members visited every school
in the district and collected data. 1971 Tr.967-970;
1029-1040. This was followed by a three month period
of drawing and redrawing attendance lines to produce
the final product. 1971 Tr. 969. Joe Price, the team
captain, explained the plan in detail. 1971 Tr.986-
1006; 1114-1117; 1150-1168.
The TEDTAC plan would have desegregated each
high school in the city by redrawing attendance lines.
The high school plan is 1971 Pl.Ex. 123; the proposed
offered by plaintiffs. See 1971 Tr. pp. 102-378; testimony of
Richard Medrano, Dr. George I. Sanchez, Rene Martinez, Carlos
Vela, Horacio Ulibarri, and Henry Ramirez.
31
new zone map follows page 20. The plan used elon
gated zones to assign minority pupils in the central
and southern parts of the district and White pupils in
the northern area to the same schools. The plan pro
posed White enrollments in the high schools which
ranged from a high of 84% to a low of 40%. The
highest projected Black percentage in any high school
would have been 41%. (The district-wide ratios in
1970-71 were Anglo 56.94%, Black 34.17% and Mex-
ican-American 8.42%.)
The Junior High proposal (PL 1971 Ex. 124) by
TEDTAC was also a rezoning plan, based upon com
binations of new proposed elementary zones. Each of
the junior high schools would have been desegregated
with the Anglo pupils ranging from a high of 81 to a
low of 31%. Ibid. Black student percentages ranged
from 15% to 48%. The proposed zone map is at PI.
1971 Ex. 124 following p.20.
The elementary school plan (PI. 1971 Ex.125) de
segregated as many schools as possible by pairing or
grouping contiguous school zones, and grouped the
remaining schools on a non-contiguous basis. 1971 Tr.
999-1003. It was the view of the TEDTAC team that
non-contiguous pairing was essential if all racially
identifiable schools were to be desegregated. 1971
Tr.1184. White student percentages would range from
87% to 22%, and Black percentages from zero to 50%.
PL 1971 Ex. 125.
TEDTAC estimated the transportation required by
the elementary plan as 12,500 students in contiguous
32
zones and 21,600 in non-contiguous zones. 1971
Tr.1115. TEDTAC Administrator Pete Williams be
lieve that it was not necessary to plan a bus trans
portation program for high school pupils, because few
would actually use school buses. 1971 Tr. 983-985. He
said that secondary students usually provide their
own transportation and tend to think of school buses
as something for younger children. Ibid. The DISD
estimated that the TEDTAC plan would make 35,000
secondary pupils and a total of 70,000 pupils eligible
for busing. 1971 Tr. 1313-1314; 1324-1327.
The TEDTAC staff used scaled maps to estimate
the distances pupils would be required to travel under
the plan. 1971 Tr. 1155-1160. Mr. Price testified to
the longest distances in each non-contiguous group or
pair; the contiguous pairs were all shorter distances.
He estimated the distances in the non-contiguous
pairs ranged from 7 to 18 miles. 1971 Tr. 1157-1160.
Plaintiffs also presented illustrative travel time stud
ies. Twilla Young drove from Arlington Park Elemen
tary to White High School in both directions meas
uring 14.8 miles and 26 minutes in one direction and
15 miles in 24 minutes in the other direction. 1971 Tr.
1287-1293. She drove from Burnett Elementary to
Darrell Elementary 23.9 miles and 35 minutes one
way and 22.1 miles and 32 minutes in the other direc
tion.
When the TEDTAC plan was finally presented in
court it was not advocated by TEDTAC, but was
merely presented as a feasible proposal. 1971 Tr.988.
33
Instead TEDTAC administrator Williams advocated
his invention the television plan which, as modified,
was urged by the DISD and eventually ordered by
the court. However Mr. Williams did testify that the
TEDTAC plan advocated by plaintiffs was “ educa
tionally sound, administratively feasible, and finan
cially plausible.” 22 1971 Tr. 1185. Mr. Williams testi
fied that in his opinion bus trips not in excess of 45
minutes one-way were acceptable, but that longer
trips might interfere with the school day. 1971
Tr.1186-1187. One of his reasons for finally not ad
vocating the plan was a fear that some of the trips
might be longer than 45 minutes. 1971 Tr. 1233.23
Mr. Bryan Vinson, operator of a private bus com
pany which transports private school children in Dal
las, testified that he transports pupils from 10 min
utes to an hour, and that the average ride of these
private school children in Dallas was 45 minutes. 1971
Tr.1301-1303. Superintendent Estes testified that
based on his experience working at H.E.W. he knew
22 Judge Taylor noted the abuse and criticism TEDTAC re
ceived for creating the proposal: ‘ ‘That agency has been harassed,
intimidated, pressured and abused in many other ways, and it
did not deserve this type of treatment. The politicians have made
their speeches, have called their office demanding names, sug
gesting loss of employment sometimes subtly and sometimes not
so subtly. Some of the staff of TEDTAC have been obliged to
unlist their phone numbers in order to escape harassing telephone
calls.” 342 F.Supp. at 949.
23 Mr. Williams also said he did not recommend the TEDTAC
plan because he thought the community would react badly to the
idea of buying a lot of buses. 1971 Tr. 1232-1233.
34
that about 39% of all pupils in the country were bused
to school. 1971 Tr. 951-952. The DISD’s own 1971
proposal for secondary schools included a few bus
trips of an estimated 30 minutes. 1971 Tr. 852.
In the Memorandum Opinion of August 17, 1971
(342 F.Supp. 949), Judge Taylor declined to order the
TEDTAC plan stating:
The Court has concluded that to adopt the ger
rymandering, pairing, and grouping plan submit
ted by Plaintiffs, accompanied by the massive
crosstown bussing required to implement such a
plan, would result in extensive “ abrasions and
dislocations” and a disruption of the educational
process, and is rejected in the light of the teach
ing of Allen v. Board of Public Instruction of
Broward County, 432 F2d 362 (5th Cir. 1970), to
keep “ such problems at a minimum” .
342 F. Supp. at 950-95).
B. The DISD Plan and the Court-Ordered
Plan.
The desegregation plan filed by the DISD July 23,
1971, (Def.1971 Ex.20) entitled “ Confluence of Cul
tures” provided a student assignment plan for senior
and junior high schools based upon rezoning with the
use of a few satellite zones in Black neighborhoods
from which pupils were bused to formerly White
schools.24 Supt. Estes explained the high school plan.
24 In addition to the assignment plan the proposal provided for
desegregation of faculty and staff, for a majority to minority
35
1971 Tr. 680-705. He testified the plan would elimi
nate every 90% or more White high school and all but
one 90% or more Black high school. Id. at 680. The
plan created three satellite zones in which Black pup
ils would be bused to White high schools, e.g., from
the Ray school area to Hillcrest High (about 20-30
minutes) (Id. at 694), from Arlington Park area to
White High school (350 students about 30 minutes)
(Id. at 695) and from the Harris and Hassell areas to
Bryan Adams. Id. at 698.
Dr. Estes explained that in drawing high school
attendance zones the DISD had attempted to mini
mize the changes in zone lines:
Q. The student assignment in the high schools
for ’71-72 under the School Board’s plan. Now,
you said yesterday in drawing this plan you, the
Board had attempted to maintain the continuity
and integrity of the high school zones. Now, what
does that mean?
A. That’s correct.
Q. What does that mean exactly?
A. This means to maintain as nearly as possible
the feeding schools associated with that partic
ular high school so that the traditions, the cus
toms, the localities that have been established,
the articulation and coordination of the curricu
lum that has been developed over a period of
transfer option, for a recognition by the district of an affirmative
duty to use school location and abandonment to promote inte
gration, and for a tri-ethnic committee. Def. 1971 Ex.20.
36
years, the communication between department
heads, between classroom teachers and among
the principals can be maintained so as to enhance
the possibility of continued quality education.
Q. So for these reasons you have attempted to
minimize the changes in the zone lines at the high
school level?
A. Yes sir, that’s correct.
1971 Tr. 842; Dr. Estes cross-examination by Mr.
Surratt.
The effect of the rezoning with the limited objective
of reducing one-race schools to a point just slightly
under the 90% level was indicated by the projections
in the DISD plan of ethnic composition for the 1971-
72 year. For example Black schools such as Lincoln,
Pinkston, and Roosevelt were projected at 88%,
88.2%, and 86.4% minority pupils respectively in the
plan, and Anglo schools had similar minimal integra
tion.25
The DISD plan’s treatment of the junior high
schools was similar to the high school plan. A few
Black pupils were bused from satellite zones to White
schools with the objective of reducing the number of
90% or more White schools from 10 to 1. The plan left
four 90% or more minority schools (Edison, Holmes,
Sequoyah, and Zumwalt) and another at a slightly
25 For example, the DISD projections for Anglo percentages
included Adams, Hillcrest, Jefferson, Kimball, Samuell, White
and Wilson between 80 and 88% Anglo. Def. 1971 Ex.20.
37
lower level (Storey—85,2% minority). It had eleven
White schools ranging from 79.4%—93.6% Anglo.
1971 Def. Ex. 20.
The secondary school plan finally ordered by the
district court was basically the same as the DISD
proposal just described. 517 F.2d at 100. Initially
Judge Taylor rejected the plan and ordered more bus
ing of Blacks from satellite zones and a high school
pairing arrangement. Unreported Order of August 2,
1971. However a week later, after the pairing order
had touched off public criticism, the district court
“ stayed” and ultimately abandoned this plan, stating
that it was unfair and unreasonable. 342 F.Supp. at
951; see 517 F.2d at 100. The district court then ob
tained a secondary plan from the DISD that was vir
tually identical with the original plan and approved it
in an ex parte proceeding. 517 F.2d at 100.
The DISD ’s television desegregation plan for ele
mentary schools did not change the pupil assign
ments. The DISD's own statistical summary of its
plan indicated that it would not eliminate any racially
identifiable elementary schools. Indeed the number
would be increased by the opening of 4 new Black
schools:
38
ELEMENTARY SCHOOL
STATISTICAL SUMMARY
RACIALLY IDENTIFIABLE SCHOOLS
1970-71 1971-72
Popu lated by student bod ies
90% o r g r e a te r W hite 50 50
Popu lated by student bod ies
90% o r g r e a te r B lack 32 36*
Popu lated by student bod ies
90% o r g r e a te r m in o rity 37 41*
’♦A d d it io n a l e lem entary sch oo ls f o r 1971-72
P e a r l C. Anderson
James Madison
Jose Navarro
Erasmo Seguin
D e f . 1971 E x . 20.
The district court ordered implementation of the
television plan on a basis somewhat different from
that proposed by the DISD. 342 F.Supp. at 952. The
court provided for two-way audio and visual contact
between the Anglo and minority classrooms, and also
ordered that classes be paired for television purposes
on a 2-1 Anglo-minority ratio. The board’s proposal
would have had only one-way video communication,
and would have left 10 Black schools in Oak Cliff
without even a television pairing with Anglo schools.
DISD 1971 Ex. 20; 1971 Tr. 890. Dr. Estes testified
that the DISD was prepared to spend 10 million dol
lars to implement the television plan. 1971 Tr. 729.
As previously Indicated, in 1975 the Fifth Circuit
reversed both the elementary and secondary plans
ordered in 1971 and remanded the case for a new
hearing. 517 F.2d 92. The court of appeals stayed the
39
television plan pending appeal. Thus elementary
school pupils in Dallas remained assigned to “ neigh
borhood schools” under DISD zones adopted before
the case until a new plan was implemented in Septem
ber 1976 after the second remedy hearing which is
described below. Actual desegregation under the 1971
order was limited to the secondary level.
The results of the 1971 order after four years of
implementation are indicated by the December 1975
school enrollments contained in the DISD answers to
interrogatories by the Strom intervenors. Strom Ex.
1. In December 1975 71.27% of Black pupils (44,736
of 62,711) attended 58 schools with less than 10%
Anglo pupils. There were 23 schools with zero White
pupils and 13,289 Blacks, and 7 schools with only 1
White student each and 7,416 Blacks. The full extent
of the racial isolation is shown by the following table:
December 1975
Percentage
of White
Students
No. of
Schools
White
No.
Students
%
Blade
No.
Students
•s
Hispanic
No.
Students
%
Orner
No.
Students
%
90-100 20 9,546 16.41 175 .2b 405 2.14 130 8. 99
80-89 30 19,802 34.04 1,857 2.96 1,440 7.6 3->7 24.71
70-79 8 5,268 9.06 1,094 1.74 BoU 3.48 80 5.84
60-69 11 9,797 16. 84 3,860 D. 15 1, d70 o.29 2U6 14. ZD
50-59 14 5,789 9.95 1,354 2.16 3,213 1 o. 96 1 64 1 1. J8
4U-49 8 2,410 4.14 1,442 2.29 1,405 7.*2 yo 6.7b
30-39 10 2,159 3.71 2,091 3.33 1,770 9.34 92 6.37
20-29 8 1,718 2.95 3,069 4. ay 1,642 b. 67 117 8. 1
10-19 10 1,189 2.04 3,093 4.93 3, zU9 16.94 83 5.74
1-9 15 442 .76 8,766 13.97 3,23b 17.09 107 7.4
Less tnan 1% 44 56 .1 35,970 57.3 391 2 .06 11 .76
Total 178 58, 176 100 62,771 100 18,943 99.99 1,445 100
i of Total 41.16 44.41 13.4 1. U2
Source: Ibis table is derived from data in St ran Exhibit 1
(DISD answers to Stran interrogatories).
41
IV. The 1976 Remedy Hearing.
A. The DISC Plan, the Hall Plan, Plaintiffs’
Plans A & B, the NAACP Plan.
At the 1976 remedy hearing six desegregation
plans were presented. Four plans contained pupil as
signment proposals in sufficient detail to determine
the impact on each one-race school. The greatest
amount of desegregation would have been achieved
by plaintiffs’ Plan A. Plan B achieved somewhat less
desegregation, and Dr. Hall’s Plan and the DISD Plan
achieved even less. The NAACP Plan which proposed
desegregation of every school and the Dallas Alliance
Plan were the other proposals submitted at the hear
ing. The latter plans were pupil assignment concepts
without completely detailed pupil assignment
schemes. The analysis of the plans in the district
court’s opinion describes their assignment techniques
in some detail, but fails to state the extent of deseg
regation each plan was designed to achieve. 412
F.Supp. at 1199-1203.
The DISD Plan (Def. Ex. 12) described in the dis
trict court opinion (412 F.Supp. at 1199-1200), indi
cates that as of December 1, 1975 the district enrolled
141,122 pupils of whom 58,023 (41.1%) were Anglo,
62,767 (44.5%) were Black, 18,889 (13.4%) were Mex-
ican-American, and 1,443 (1%) were listed as “ other” .
Tr. Vol. 1. 60-61; Def. Ex. 12.26 The plan defined as
26 Citations to testimony at the 1976 hearing are to Volume
and page numbers in the transcript. The 1976 transcript consists
of 10 Volumes, each of which is paginated beginning with page
1 .
42
“ integrated” all schools in which the minority enroll
ment was between 25% and 74%, and there was no
reassignment of pupils to or from 55 such schools. Tr.
Vol. I. 149, 162; Def. Ex. 12. This feature exempted
from participation in the plan 40% of all White pupils
and 24% of minority pupils. Tr. Vol. I ll, 19. The
Board plan limited desegregation by busing to grades
4-8, in a proposal which paired 38 Anglo schools with
16 minority schools. Tr. Vol. I. 99-101. Less than 5%
of the Black students in the district were involved in
the pairing arrangement. Id. at 236.
The DISD Plan proposed a continuation of the ma-
jority-to-minority transfer plan which it was estimat
ed would involve 1,300-2,000 students, and proposed
the establishment of a number of magnet schools
(called Vanguard schools, Academies and Magnets at
the elementary, middle and high school levels respec
tively) with an estimated 2,500 pupils at the begin
ning. Id. at 247-248. Overall the plan would have as
signed about 20,360 Black students (one-third) to in
tegrated schools (as defined by the DISD) and left
two-thirds of them or 42,824 in predominantly Black
schools. Id. at 306-307. It would have left between 97
to 100 one-race schools. Id. at 308. Under the DISD
plan most Whites and Mexican-Americans were de
segregated but most Blacks were left isolated. Tr.
Vol. I ll , 21-22.
Another desegregation plan (Hall Ex, 5) was pre
sented by Dr. Josiah Hall, who was appointed by
Judge Taylor as desegregation consultant to the court
43
in late 1975, and called as a court witness. Tr. Vol.
IV. 118. Dr. Hall served as Superintendent of Schools
in Miami, Florida (Dade County) from 1957 to 1968,
and worked from 1968-1972 as Asst. Director of the
Florida School Desegregation Consulting Center at
the University of Miami. He had assisted in drawing
plans for twenty Florida school systems. Id. at 119-
120. He prepared a plan by drawing a set of guidelines
which he delivered to Dr. Estes and his staff who
produced the plan in accordance with the instructions.
Id. at 121-122. The guidelines and plan were then
amended by Dr. Hall who worked with the DISD
administrative staff. Ibid. Dr. Hall’s guidelines in
cluded inter alia:
1. Assign kindergarten and first grade pupils to
schools near their homes without references to ethnic
groups. Id. at 129. (Dr. Hall’s exclusion of grades K-
1 was based on the 45 minute shorter school day for
these grades, and on avoiding separate bus runs for
these pupils).
2. Assign pupils in other grades so that no school
will have more than approximately 75% minority pup
ils or less than approximately 30% minority pupils.
Ibid.
3. Where individual schools or adjacent schools
meet the 75-30% target leave them intact or combine
them. Id. at 129-130.
4. Assign pupils so that they spend a maximum
of 30 minutes being transported. Id. at 130.
44
5. Organize other schools into grades 2-5, 6-7, 8-
9 and 10-12, and arrange a pattern moving inner city
pupils in grades 2-5 outward, and pupils in grades 6-
7 from outer city inward. Id. at 131.
6. Should time and distance or other significant
factors prevent achieving the 75-30% minority range
this time and distance information should be carefully
documented, and any such schools should have su
perior facilities. Id. at 132.27
Dr. Hall recommended staggering school opening
times to reduce busing costs. Id. at 154. Dr. Hall did
not conduct any actual time-distance studies in rela
tion to the schools in the Oak Cliff area which were
left all-Black under his plan. Id. at 176-177. Dr. Hall’s
plan left about 29,973 Black pupils in all-Black
schools, plus another several thousand in grades K-l
who were excluded from his plan to make a total of
about 34,000 in all-Black schools. Id. at 814-185; Hall
Ex. 5. Plaintiffs’ expert witness Dr. Willie said Dr.
Hall’s plan would leave 34 one-race schools with 50%
of the Blacks in the system segregated. Tr. Vol. III.
29.
Plaintiffs presented two plans prepared by Plain
tiffs’ attorney Edward Cloutman (Vol. I ll , 230 et.
seq .) and staff following guidelines set forth by Plain
27 Other guidelines stated by Dr. Hall had to do with utilizing
remedies in Title VII of Public Law 93-800, insuring that trans
portation should not be disproportionate for any ethnic group,
and using 72 passenger school buses. Id. at 132-137.
45
tiffs’ expert witness Dr. Charles V. Willie, a Professor
at the Harvard University Graduate School of Edu
cation. Dr. Willie had served as one of the court-ap
pointed masters in the Boston school desegregation
case (Tr. Vol. III. 2-5) and was a Black native of Dallas
who had attended its segregated public schools. Id. at
15. Dr. Willie proposed that desegregation should be
based on creating several desegregated subdistricts
each of which would have no population group con
stituting less than about one-third or more than two-
thirds. Id. at 5-6. He recommended a uniform grade
structure, and that attendance areas should be re
drawn and not based upon those used during the pe
riod of segregation. Id. at 7. He thought the plan
should deal with all grades in the system, exempting
only kindergarten because it was a voluntary program
which pupils were not required to attend. Id. at 10.
He thought that magnet schools which would have
the district-wide racial ratios were useful, and that
there should be a few such schools with extraordinary
program offerings. Id. at 11.28
Plaintiffs’ Plan A, (PI. Ex. 16) was preferred by the
majority of the class members who met with counsel
to consider the plans. Tr. Vol. III. 286. Plan A would
have desegregated every school in the district. Id. at
28 Dr. Willie also advocated a program to monitor desegrega
tion (Id. at 8), and affirmative action to hire minority teachers
and administrators, (Id. at 11), human relations training for
school staff (Id. 12), community preparation (Id. at 13), and due
process procedures for student discipline (Id. at 14).
46
293. The plan used Dr. Willie’s concept of creating
integrated subdistricts and then using pairing to de
segregate the schools within each subdistrict. Id. at
239. Plan B used the same techniques but achieved
less success in desegregating the system because it
was based on a 30 minute time limit for pupil trans
portation. Id. at 261. This 30 minute limit resulted in
leaving eight elementary schools, two junior highs
and one high school all Black in the Oak Cliff area in
the southern part of the city. Plan A which desegre
gated all of the schools had some bus trips which
plaintiffs knew to be longer than 30 minutes. Id at
373. One of the longer proposed pairings, between
Lisbon school in Oak Cliff and Withers school in
northern Dallas, was measured as 22 miles and the
trip required 35 minutes when the distance was meas
ured on a Sunday. Id. at 375, 382. Plaintiffs estimated
that Plan A transported 55,484 pupils for purposes of
desegregation; the district court opinion stated a
higher figure of 69,000 students based on a DISD
exhibit. PI. Ex. 16; Def. Ex. 21; 412 F.Supp. at 1200.
Similarly, plaintiffs stated that Plan B bused 37,847
students for desegregation and the DISD thought it
was 47,000. PL Ex. 16; Def. Ex. 21; 412 F.Supp. at
1200.
The NAACP Plan (NAACP Ex. 2) was devised by
Dr. Charles Hunter of Bishop College in Dallas. He
proposed a system of pairings in which pupils would
be bused to and from segregated neighborhoods in
both directions in grades 1-3 and 4-6, and a desegre
47
gated feeder pattern for secondary schools. Tr. Vol
IV. 6. The plan proposed to eliminate all one-race
schools. Id. at 41. Dr. Hunter calculated that about
40,000 students would be bused under his plan. Id. at
47. He estimated that the maximum transportation
time would be 40 minutes. Id. at 53-44.
B. Court Ordered Plan—Dallas Alliance
Concept as Developed by DISD.
The desegregation plan contained in the final order
of April 7, 1976 (Pet. App. No. 78-253, pp. 53a-129a),
was based on concepts of the Educational Task Force
of the Dallas Alliance, an amicus curiae in the case,
and was developed in its details by the DISD in ac
cordance with the district court’s direction. The con
cept was presented by Dr. Paul Geisel, Executive Di
rector of the Dallas Alliance. Tr. Vol V. 2 et. seq. The
Dallas Alliance proposal as revised March 3,1976 was
in Court Exhibits 8-9, Tr. Vol. IX. 361. The Alliance
proposed the general concepts which appear in the
final order, including creating a group of desegregated
subdistricts but also an all-Black Oak Cliff subdis
trict; leaving grades K-3 on a neighborhood assign
ment plan; using the integrated subdistricts to deseg
regate grades 4-8 by busing pupils to schools located
in the center of the subdistricts (all formerly White
schools); assigning high school students to the nearest
area high school; and establishing several magnet
high schools. Court Exhibit 8. The plan attempted to
limit busing to 30 minutes. Tr. Vol. V. 49. Dr. Geisel
acknowledged that at the K-3 level between 108 and
48
138 schools would remain one-race schools under the
concept. Id. at 197-198. He acknowledged that the
plan would leave an estimated 18,000 students in the
all-Black Oak Cliff subdistrict. Id. at 208. He esti
mated the plan would require transportation of about
14,000 students, and said that the attempt was to
keep bus rides down to 20 minutes. Id. at 258. The
Alliance proposal left seven one-race high schools;
three in North Dallas and four in the Black area in
the south. Id. at 335.
Appendix A to the district court’s Final Order of
April 7, 1976 (Pet. App. No. 78-253, 84a-120a, 123a-
125a) contains projected enrollments by race in each
subdistrict and school except the voluntary district
wide magnet schools. The tables in Appendix A detail
the extent of desegregation which was sought and the
degree of segregation which was to continue. Id. at
84a et seq.
The order projected enrollments for 19 high schools
with attendance districts.29 The substantial segrega
tion which the order contemplated at the high school
level is indicated in the note below which is drawn
from the court’s appendix.30 The court ordered plan
29 The Magnet high schools are apparently not included in the
projection.
30/ Senior High Schools
9-12 Bldg.
School Anglo Black M-A Minority Total Cap.
Northwest
Subdistrict
No. . * No. t No. % %
Hillcrest- 16 34 96.2 38 2.2 27 1.6 3.8 1249̂ -'/ 1800
49
contemplated that there would be five all-Black high
schools enrolling nearly 80% of all Black high school
students (11,323 out of 16,269 or 69.59%). Note 30,
supra.
School Anglo Black M-A Minority Total Cap.
No. % No. % No. % %
Thos.
Jefferson 1583 68.4 465 20. 1 267 11.5 21.6 2315 2100
North Dallas 280 17.2 b20 38.1 728 44.7 82.6 1628 1100
L;G. 2/
Pinkston— 108 4.9 1506 68.2 594 26.9 95.1 1633^ 3000
W.T. White 2585 96.1 43 1.6 61 2.3 3.9 2689 2600
Northeast
Subdistrict
Bryan Adams 3240 95.2 0 0 163 4.8 4.8 3403 3500
James
Madison 0 0 1685 98. 1 30 1.7 99.8 1715 2100
Skyline 2040 64.6 925 29.3 193 6.1 35.4 3158 4000
Woodrow
Wilson 888 59.0 287 19.0 331 22.0 41.0 1506 1500
Southeast
Subdistrict
Lincoln 0 0 1380 100.0 0 0 100.0 1380 2100
W.W. 3/
Samuel1— 1650 89.0 89 4.3 140 6.7 11.0 2079 3000
H. Grady
Spruce 1667 71.7 412 17.7 246 10.6 28.3 2325 3000
Southwest
Subdistrict
David W.
Carter 705 38.3 1051 57.0 87 4.6 61.7 1843 2000
Justin F.
Kimball 1653 74.6 306 13.8 258 11.6 25.4 2217 2100
1/ The former Franklin school will house 450 ninth grade
students from Hillcrest High School.
2/ The former Edison school will house 575 ninth grade
students from L.G. Pinkston High School.
3/ Children enrolled in the program for the deaf are included.
50
In the newly created East Oak Cliff subdistrict the
plan contemplated that there would be two high
schools, four middle schools and 20 elementary
schools which would be over 90% Black. Pet. App.
No. 78-253, 113a-118a. The total projected pupil pop
ulation of the East Oak Cliff subdistrict was:
PupiIs Percentage
Anglo 512 1.9
Bl ack 26,202 95.3
Mexi can-
American 783 2.8
Id. at 84a.
To explain the manner in which the plan desegre
gates some grades but not others in the “ integrated”
subdistricts we use as an example the C.F. Carr school
area, a minority area located in the Plan’s Northwest
subdistrict. At the K-3 level, pupils living in the Carr
area attend Carrschool which serves only those
grades. Carr was projected by the court to be .3%
Sunset 1216 60.8 124 6.2 661 33.0 39.2 2001 1800
Adamson 440 32.6 438 32.5 471 34.9 67.4 1349 1300
East Oak Cliff
Subdistrict
Roosevelt,F.D. 7 • .3 2590 99.1 17 .6 99.7 2615 2200
South.Oak
Cliff—/ 0 0 4162 100.0 0 0 100.0 2762 2600^
Seagoville
Subdistrict
Seagoville 817 81.1 148 14.7 43 4.3 19.0 1008 7507-12
4/ The former Zumwalt School will house 1,400 ninth grade students frcm
South Oak Cliff High School.
Source: Pet. Appendix No. 78-253, pp. 90a, 97a, 104a, 111a, 117a, 119a.
51
Anglo, 96.1% Black, and 3.3% Chicano. Id. at 85a.
Carr area pupils in grades 4-6 are bused northward to
attend the Burnet school. Id. at 86a-87a. Burnet also
receives pupils from the Anglo Cabell school area as
well as its own area and was projected by the court
ordered plan to be 52.3% Anglo, 38.1% Black and
9.6% Chicano. Id. at 86a. The plan provided that pup
ils in grades 7 and 8 who live in the Carr area would
be transported a considerable distance farther north
to the E.D. Walker school, which would be fed by
pupils from about ten other schools. Walker was also
projected to be desegregated under the plan with a
student body 51.9% Anglo, 46.8% Black, and 1.3%
Chicano. Id. at 88a. Then at the high school level in
grades 9-12 pupils living in the Carr area are assigned
to the nearby L.G. Pinkston High School. Id. at 91a.
However, since the plan does not use the same deseg-
regative methods at the high school level, the Carr
area pupils attend a predominantly minority high
school. Pinkston was projected by the plan to enroll
4.9% Anglos, 68.2% Blacks, and 26.9% Chicanos. Id.
at 90a. The Pinkston area was made up of the attend
ance zones of Carr and five other predominantly mi
nority elementary schools. Id. at 91a. The pattern at
Carr is duplicated throughout the “ integrated” sub
districts of the plan: Minority pupils are segregated
in grades K-3 and 9-12. They attend desegregated
schools in grades 4-8 when they are bused to formerly
all-White schools in the northern part of the school
district.
52
The court ordered plan was implemented in Septem
ber 1976. The DISD report to the district court filed
in April 1979 indicates the results achieved after three
years of operation. In 1979 Black students continued
to be substantially isolated in the DISD. Nearly three
out of every five Black pupils attended a 90% or more
Black school. To be precise, 58.93% of all Black pupils
(38,484 out of 65,302) attend schools which are less
than 10% Anglo. The accompanying chart indicates
the results of 24 years of school desegregation litiga
tion against the DISD.
1979
Percentage
of White
Students
90-100
No. of White
No.
Students
%
Black
No.
Students
%
Hispanic
No.
Students
%
Other
No.
Students
%
7 3,643 8.14 129 .2 153 .7 51 3.76
80-89 1 1 4,628 10.35 309 .47 414 1.9 107 7.89
70-79 9 4,574 10.23 1,013 1.55 363 1.66 59 4.35
60-69 8 3,681 8.23 1,365 2.09 558 2.55 83 6.12
50-59 22 11,295 25.25 6,568 10.06 2,552 11.69 253 18.64
40-49 24 7,906 17.68 5,002 7.66 4,580 20.97 275 20.26
30-39 20 5,004 11.19 4,707 7.21 4,319 19.78 187 13.78
20-29 13 1,711 3.83 2,671 4.09 2,251 10.31 139 10.24
10-19 15 1,635 3.65 5,054 7.74 4,044 18.52 123 9.06
1-9 24 547 1.22 13,475 20.63 2,158 9.88 56 4.13
Less than 1% 34 104 .23 25,009 38.3 446 2.04 24 1.77
Total 187 44,728 100 65,302 100 21,838 100 1,357 100
% of Total 33.57 49.02 16.39 1.02
Source: This table is derived from data in the
April 15, 1979 DISD Report to the District Court.
54
The 1979 DISD report to the Court indicates that
there are now eight high schools with 90% or more
minority pupils enrolling 59% of the Black high school
pupils (11,047 of 18,718). The East Oak Cliff subdis
trict in 1979 enrolled a total of 26,770 pupils in 26
schools, e.g., three high schools, three middle schools
and twenty elementary schools; 25,830 (96.49%) of
these pupils are Black, 648 (2.42%) are Mexican-
American, 273 (1.02%) are Anglo, and 19 (.07%) are
other ethnic groups.31
The voluntary desegregation programs in the dis
trict involve relatively small numbers. In 1979 the
maj ority-to-minority transfer program was used by
1,403 pupils or about 1.5% of the pupils in the district.
Ninety-six percent of the maj ority-to-minority trans
fer pupils were Black. A total of 8,641 pupils or 6.47%
of the district’s pupils were involved in the magnet-
type schools at all levels: 2,466 at Vanguard schools
(grade 4-6), 2,719 pupils at Academies (grade 7-8) and
3,456 at Magnets (9-12).
The April 1979 report also indicates the current
extent of pupil transportation “ for desegregation pur
poses” in the DISD:
31 The April 1979 report indicated the 26 schools currently in
the East Oak Cliff subdistrict (excluding Magnets): Smith, Roo
sevelt and South Oak Cliff High Schools, Ervin, Storey and
Stone Middle Schools, and the following elementary schools:
Bowie, J.N. Bryan, Budd, Bushman, Darrell, Harllee, Johnston,
Lisbon, Marsalis, Marshall, McMillan, Miller Mills, Oliver, Pat
ton, Pease, Russell, Seguin, Thornton, Young.
Grades 4-6
55
8,127
Grades 7-8 3,846
Vanguards 328
Academies 806
Magnets 3,456
16,456
Thus about 12.4% of the pupils in the DISD are being
bused “ for desegregation purposes” .
¥. The 1978 Fifth Circuit Decision.
On May 22, 1978 the Fifth Circuit remanded the
case to the district court “ for the formulation of a
new student assignment plan and for findings to jus
tify the maintenance of any one-race schools that may
be a part of that plan.” 572 F.2d 1010, 1018. The
opinion of the court by Judge Tjoflat, speaking for a
unanimous panel with Judges Coleman and Fay stat
The DISD acknowledges that the creation of
the all black East Oak Cliff subdistrict and the
existence of a substantial number of one-race
schools militate against the finding of a unitary
school system. It contends, however, that this is
the only feasible plan in light of natural bound
aries and “ white flight.” The district court was
instructed in the opinion of the prior panel to
consider the techniques for desegregation ap
proved by the Supreme Court in Swann v. Char-
lotte-Mecklenburg Board of Education, 402 U.S.
ed:
56
1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). We can
not properly review any student assignment plan
that leaves many schools in a system one-race
without specific findings by the district court as
to the feasibility of these techniques. Davis v.
East Baton Rouge Parish School Board, 570
F.2d 1260 (5th Cir. 1978). There are no adequate
time-and-distance studies in the record in this
case. Consequently, we have no means of deter
mining whether the natural boundaries and traff
ic considerations preclude either the pairing and
clustering of schools or the use of transportation
to eliminate the large number of one-race schools
still existing. See Mims v. Duval County School
Board, 329 F.Supp. 123, 133-34 (M.D. Fla.) affd
447 F.2d 1330 (5th Cir. 1971).
Of particular concern are the high schools that
are one race. Although students in the 4-8 grade
configurations are transported within each sub
district to centrally located schools to effect de
segregation the district court’s order leaves high
school students in the neighborhood schools.
Within three of the four integrated subdistricts,
this results in high schools that are still one-race
schools. The district court is again directed to
evaluate the feasibility of adopting the Swann
desegregation tools for these schools and to re
evaluate the effectiveness of the magnet school
concept. If the district court determines that the
utilization of pairing, clustering, or the other de
segregation tools is not practicable in the DISD,
then the district court must make specific find
ings to that effect.
572 F.2d at 1014-1015 (footnotes omitted).
57
SUMMARY OF ARGUMENT
I. The District Court Properly Held that the
DISD was not a Desegregated Unitary
System in 1970-71.
Dallas schools were operated on a racially segre
gated basis pursuant to an elaborate code of segre
gation statutes that were not repealed until 1989. The
progress of desegregation was slow and limited during
ten years of litigation from 1955 to 1965 before sev
eral district judges who simply refused to enforce
Brown v. Board o f Education for years and whose
judgments in the case were reversed on appeal seven
times. See Opinions Below, supra. The strong reluct
ance of the court to desegregate the Dallas Schools is
exemplified by Judge Davidson’s unusual opinion in
Borders v. Rippy, 184 F.Supp. 402 (N.D. Tex. 1960),
Desegregation finally began with a grade-a-year plan
in 1961 which was accelerated to reach all grade levels
in 1967 as the result of several appellate decisions.
The last order in the case by Judge Davidson in 1965
approved a DISD plan to desegregate the schools
under a resolution which gave the Superintendent
carte blanche as to how to desegregate the system.
This case was filed in 1970 after the first litigation
had been dormant for five years during which period
the level of segregation in the DISD actually in
creased. Plaintiffs proved at the 1971 liability trial
that over 90 percent of Black pupils attended schools
which were 90% or more Black, that faculties were
still largely segregated in the same pattern as the
58
students, and that the school district had not taken
steps to comply with intervening decisions of this
Court or of the Fifth Circuit which spelled out the
affirmative duty to dismantle the dual school sys
tems. Green v. County School Board, 391 U.S. 430
(1968); Swann v. Charlotte-Mecklenburg Board of Ed
ucation, 402 U.S. 1 (1971); Davis v. School Commis
sioners o f Mobile County, 402 U.S. 33 (1971); Bradley
v. School Board, 382 U.S. 103 (1965); United States
v. Montgomery County Board o f Education, 395 U.S.
225 (1969); Singleton v. Jackson Municipal Separate
School District, 419 F.2d 1211 (5th Cir. 1969), rev’d
in part on other grounds sub. nom. Carter v. West
Feliciana Parish School Board, 396 U.S. 226 (1969).
The DISD acknowledged at the trial that its faculty
segregation was not in compliance with Singleton,
and that it had not adopted a maj ority-to-minority
transfer program as required by the governing case
law. The Board contended that its pupil assignment
policy based on neighborhood zones are lawful, but
readily admitted that zones had not been desirned to
eliminate one race schools. This placed the board in
conflict with Fifth Circuit decisions such as Davis v.
Board o f School Commissioners, o f Mobile County,
393 F.2d 690 (5th Cir. 1968); Davis v. Board o f School
Commissioners, o f Mobile County, 414 F.2d 609 (5th
Cir. 1969), as well as this Court’s decisions in Swann
and Davis, cited supra. The district court’s finding
that the system was not unitary was not appealed by
the DISD which limited its appeal to remedy issues.
The arguments of the Curry and Brinegar intervenors,
59
neither of whom participated in the liability trial, at
tacking the court’s finding of a violation are entirely
without merit. Their arguments that additional find
ings of “ intentional” segregation are required in a
case such as this are entirely put to rest by this
Court’s recent decision in Columbus Board of Edu
cation v. P en ick ,____U.S. _____ (July 2, 1979) and
Dayton Board of Education v. Brinkman, ____ U.S.
____ (July 2, 1979) (Dayton II). The DISD had not
fulfilled its affirmative duty to desegregate and
“ [ejach instance of a failure or refusal to fulfill this
affirmative duty continues the violation of the Four
teenth Amendment.” Columbus, supra, slip opinion
at 8. Because the remaining segregation in the system
was so extensive, affecting 90% of Black pupils when
the case was filed, a system-wide remedy was required
in accordance with Swann and Davis. Cf. Keyes v.
School District No. 1, 413 U.S. 189 (1973).
II. The Court of Appeals was Correct in De
ciding that the Court-Adopted Desegre
gation Plan Failed to Comply with
Swann.
The District Judge announced his opposition to
“ massive busing” at the start of the case, before any
evidence on remedies, and in the order directing the
DISD to file a plan to comply with the Swann case.
The Fifth Circuit has twice reversed plans approved
by the district judge which left much of the segrega
tion intact. The first district court order reversed by
60
the Fifth Circuit avoided any reassignment of elemen
tary school children by adopting a ten million dollar
plan for Black and White children to get common
instruction for a few hours each week by television
while remaining in their segregated schools. Because
this order was stayed, and the appeal was not decided
for years, there was no elementary school relief until
1976 six years after the case was filed. The secondary
school plan which was reversed on the first appeal
was designed to achieve minimal desegregation by
bringing one-race schools to a point just below the
90% one-race point. A few Black students were as
signed to White schools and a few Anglos (only a
handful of whom subsequently attended) were as
signed to 100% Black schools to bring them slightly
under 90% Black enrollments. The Fifth Circuit held
that this was not a bona fide desegregation effort.
On remand, the district court adopted another plan
which insured that much segregation would remain.
The approved plan limited affirmative desegregation
steps to grades 4-8 thus excluding the primary and
high school grades from any additional desegregation,
except for voluntary transfers. By limiting real deseg
regation efforts to less than half the grades in the
system the Court insured that the dual system would
not be dismantled. Failure to desegregate high
schools, was justified on the basis of the failure of the
1971 effort, and the fear of White flight. The segre
gation in the system was reinforced by the plan’s
creation of a new all-Black subdistrict consisting of
61
26 schools and over 26,000 Black pupils who were
precluded from desegregation at any grade level, ex
cept by voluntary transfers out of the subdistrict. The
Fifth Circuit properly remanded the case for the de
velopment of a new plan and for specific findings to
justify any one-race schools which may be a part of a
new plan. The Fifth Circuit remand was required by
Swann and Davis because the DISD had failed to
achieve the greatest possible degree of actual deseg
regation, taking into account the practicalities of the
situation. The DISD should be ordered to promptly
adopt a plan in compliance with Swann and Davis.
III. The Arguments of the Brinegar and
Curry Petitioners for a Modification or
Overruling of Swann should be Rejected.
The remaining arguments of the intervening groups
representing integrated neighborhoods in East Dallas
and Anglo areas of North Dallas are insubstantial and
without merit. The argument for a special rule ex
empting their areas from inclusion in a desegregation
plan is contrary to Swann's requirement of system-
wide remedies. Their position would engraft onto the
law a new principle designed to create havens for
white flight by establishing zones in a dual system
which would be exempt from desegregation remedies.
The Fifth Circuit quite properly saw no merit in the
argument when it was advanced by the Curry group
in the 1971 appeal.
The Curry arguments for an overruling of Swann
are based on anti-busing social science testimony
62
which was highly disputed at the trial and which the
district court declined to attempt to evaluate. Re
spondents disagree with virtually all of the Curry as
sertions about the desegregation process, and submit
that their rebuttal witnesses entirely discredited the
Curry evidence. In view of the recency of this Court’s
decisions on the subject we make no detailed submis
sion on the point and rely on Columbus and Dayton
II, as a reaffirmation of Swann.
ARGUMENT
I. The District Court Properly Held that the
DISD was not a Desegregated Unitary
System in 1970-71.
The district court’s 1971 finding of a constitutional
violation is unassailable. The finding rests on a record
which demonstrates conclusively that, prior to the
filing of the suit in 1970, the DISD had not effectively
dismantled the dual school system as required by this
Court’s decisions in Brown v. Board o f Education,
347 U.S. 483 (1954); Green v. County School Board,
391 U.S. 430 (1968); Swann v. Charlotte-Mecklenburg
Board of Education, 402 U.S. 1 (1971) and Davis v.
Board of School Commissioners o f Mobile County,
402 U.S. 33 (1971).
Until 1961 the DISD was totally segregated under
an elaborate and detailed code of school segregation
laws. Statement supra at Part II. The D ISD’s defense
of its segregation was so strong and the district court
63
was so reluctant to enforce Brown that the DISD was
not enjoined to desegregate all grade levels until sev
en appeals produced the 1965 order calling for com
plete desegregation by September 1967—thirteen
years after Brown I. One must read the opinions of
Judge Davidson, and his predecessors on the district
bench in the earlier Dallas school case32 to recall the
realities of the era of massive resistance to Brown,
and the sad fact that “ the dilatory tactics of many
school authorities” ,33 sometimes met with judicial ap
proval rather than disapproval. Such was the case in
Dallas. See Opinions Below, part II., supra.34
A reading of Judge Davidson’s opinions in the prior
Dallas school case conveys an understanding of the
context of the 1965 order which approved a school
board resolution giving the Superintendent virtually
complete discretion, and little or no direction, as to
how to desegregate the system. Statement supra Part
32 See Opinions Below, Part II, supra; see particularly Borders
v. Rippy, 184 F.Supp. 402 (N.D. Tex. 1960).
33 The quoted phrase is from Swann v. Board of Education,
402 U.S. 1, 14 (1971), and appears in a passage which refers to
Alexander v. Holmes County Board of Ed., 396 U.S. 19 (1969);
Griffin v. School Board, 377 U.S. 218 (1964); and Green v. Coun
ty School Board, 391 U.S. 430 (1968).
34 The DISD brief complains of the burden of two and a half
decades of school desegregation litigation, but contains no word
of acknowledgement that the DISD shares any responsibility for
the delay in establishing a unitary system. The opinions below
make it evident that the DISD had many opportunities over the
years to shorten the litigation by bona fide compliance with
Brown.
64
II. The arguments of some of the petitioners that the
pupils in Dallas have been assigned to schools by the
federal courts since 1965 are readily dispelled by a
reading of the 1965 proceedings and order. Ibid. The
Tasby respondents filed this case after five years ex
perience under the 1965 order had increased the level
of segregation of Black pupils and the DISD had ig
nored intervening decisions by this Court and the
Fifth Circuit in desegregation requirements. Ibid.
The “ desegregated” DISD attendance areas were
established without any effort to eliminate one-race
schools even though Fifth Circuit Law held that was
a School Board’s duty. See Davis v. Board of School
Commissioners o f Mobile County, 393 F.2d 690 (5th
Cir. 1968); Davis v. Board o f School Commissioners
of Mobile County, 414 F.2d 609 (5th Cir. 1969); State
ment, supra Part II. The district failed to begin a
faculty desegregation program until 1968, and when
the suit was filed Black schools were readily identifi
able by their disproportionately all-Black faculties,
while only a handful of Black teachers taught in White
schools. Statement, supra Part II. The district had
not promoted integration by affirmative race-con
scious means such as rezoning, pairing or clustering
of schools, changes of grade structures, or transpor
tation prior to the suit. In 1970-71 the Magnet school
program had not been developed except at Skyline
High School which was virtually all-White. Prior to
the filing of the lawsuit and thereafter the DISD con
tinued to plan, build and open new one-race schools in
65
a manner which was found by the Fifth Circuit to
violate the principle of Swann. Ibid. Prior to the 1971
trial the DISD did not acknowledge any duty to plan
new schools so as to promote desegregation. Ibid. All
of this evidence was uncontradicted and came from
the DISD witnesses and records.
The trial court’s finding that the system was dual
in 1970-71 thus rests on more than the strong showing
of racial isolation. However, in view of the prior sta
tutory dual system the statistics themselves were so
compelling that Judge Taylor wrote . . . “ it would be
less than honest for me to say or to hold that all
vestiges of a dual system have been eliminated in the
Dallas Independent School District, and I find and
hold that elements of a dual system still remain.” 342
F.Supp. 947. That was indeed the only supportable
conclusion about a system which had never taken
affirmative steps to bring about integregation and
which had 90% of its Black pupils in 90% or more
Black schools and over 60% of them in 99-100% Black
schools. In subsequent reference to this finding,
Judge Taylor in 1976 equivocated somewhat, stating:
“ This Court has kept in mind throughout these pro
ceedings that its findings in 1971 were that the ‘ves
tiges’ of a dual school system remained in the DISD,
and not that the DISD was a dual system at that
time.” 412 F.Supp. at 1196. However, less than a
month later in a Supplemental Opinion of April 7,
1976 Judge Taylor reaffirmed unequivocally his find
ing that the system was dual:
6 6
So that there can be no mistake about this
matter the Court will state once again: it has no
interest in “ running the school district” or in
playing the role of dictator to the School Board
or Dr. Estes and his staff. However, the Court
will not stand aside where the DISD has been
found to operate a dual school system which dis
criminates between Anglo and minority schools,
as was found in 1971 and as was reemphasized
in the disparity shown in Dr. Chase’s report and
other evidence introduced during the recent hear
ings. The DISD must provide equal educational
opportunity for all its students, in non-student
assignment matters as well as in the area of stu
dent assignment.
* * *
With regard to the first item, the Court is quite
aware that one of the central findings of the
Chase Report was that a disparity remains be
tween the predominantely Anglo centers and the
predominantely minority centers in the areas of
(a) facilities, (b) staffing patterns, and (c) educa
tional offerings. The Court adopted these find
ings of Dr. Chase on page 9 of its Opinion when
it said “ . . . there is still a gap between intent to
provide equal educational opportunity and the
achievement of this goal.”
The Court is of the opinion that the DISD can
and must correct these disparities—that is what
“ providing equal educational opportunity” is all
about.
412 F.Supp. at 1211.
67
Petitioners’ briefs make a great deal of the fact that
the 1971 liability finding is couched in terms of “ ves
tiges of a dual system” (emphasis ours). 342 F.Supp.
at 947; Pet. Br. No. 78-253, pp. 58-60; Pet. Br. No. 78-
283, pp. 24-26; Pet. Br. No. 78-282, p. 9. The DISD
argues that there was a mere “ trace” of a dual system
in 1970-71, and the “ the dual system was no more.”
Pet. Br. No. 78-253, p. 59. The argument is thin indeed
when it is measured against the simple facts stated
by the district judge that in 1970-71 “ 91% of Black
students [are in] 90% or more . . . minority schools,
3% of the black students attend schools in which the
majority is white or Anglo.” 342 F.Supp. at 947. Pe
titioners’ emphasis on the word “ vestiges” should not
be permitted to conceal the obviously substantial ex
tent of the racial isolation in Dallas in 1970*71. The
segregation of 90% of Black pupils is clearly substan
tial and requires and system-wide remedy. Swann,
supra; Davis, supra; Keyes v. School District No. 1,
413 U.S. 189 (1973); Columbus Board of Education v.
P enick ,____U.S_______ (July 2, 1979), slip opinion 5-
7.
The fact that this case reopened litigation to deseg
regate the DISD after five years experience with a
prior court order which had conspicuously failed to
eliminate the dual system does not create any novel
issue. The Fifth Circuit has required many districts
to improve older ineffective desegregation plans in
light of Swann. See e.g., Ellis v. Board of Pub. Inst.
Orange County, Fla., 465 F.2d 878, 879-890 (1972),
5
cert, denied 410 U.S. 966 (1973); Lee v. Autauga Coun
ty Bd. o f Ed., 514 F.2d 646, 648 (1975)(“ The 1970
plan is a remedy for state-enforced segregation and
not a judicial eraser that wiped clean the county’s
constitutional slate.” ); Hereford v. Huntsville Bd. of
Ed., 504 F.2d 857 (5th Cir. 1974), cert, denied 421 U.S.
913 (1975); Lee v. Tuscaloosa City School System,
576 F.2d 39 (5th Cir. 1978); Miller v. Board o f Ed. of
Gadsden, 482 F.2d at 1234 (5th Cir. 1973); United
States v. Board o f Ed. o f Valdosta, 576 F.2d 37 (5th
Cir.), cert, denied 99 S.Ct. U.S. 622 (1978); United
States V. South Park Ind. Sch. Dist., 566 F.2d 1221
(5th Cir.), cert, denied 99 S.Ct. 622 (1978); United
States v. Columbus Mun. Sep. School D ist, 558 F.2d
228 (5th Cir. 1977), cert, denied 434 U.S. 1013 (1978);
United States v. DeSoto Parish School Board, 574
F.2d 804 (5th Cir.), cert, denied 99 S.Ct. 571 (1978);
United States v. Seminole County Sch. D ist, 553 F.2d
992 (5th Cir. 1977).
Swann would have had little impact if the courts
had not applied it to school districts which had earlier
desegregation plans, because most southern systems
had some orders before 1971. A sequence of events
similar to that in Dallas occurred in Swann. As this
Court recently recalled in Columbus Board of Edu
cation v. Penick, ____ U.S. ____ , (July 2, 1979), in
Swann an initial plan had been entered in 1965—the
same year as Judge Davidson’s order in Dallas-—and
affirmed on appeal by the Fourth Circuit, but the case
was reopended and in 1969 the school board was re
68
69
quired to adopt a more effective plan, Columbus, slip
opinion p. 9; Swann, supra, 402 U.S. at 7. Indeed in
Swann unlike Dallas, the 1965 pupil assignment pro
gram had been scrutinized in detail by both the court
of appeals and the district court. Swann v, Charlotte
Mecklenburg Board of Ed., 369 F.2d 29 (4th Cir,
1966), affirming 243 F.Supp. 667 (W.D. N.C. 1965).
In Dallas the development of desegregation was
left entirely to the discretion of the school authorities
save for the direction that desegregation include cer
tain grade levels on a specified schedule. Judge Dav
idson never passed on the attendance areas adopted
by the DISD or ruled that the system had become
unitary; his order of August 27, 1965 merely found
that the “ plan of desegregation was adopted in good
faith and is being implemented and carried out with
due diligence and constitutes deliberate speed under
local circumstances and conditions” , and approved
the plan and ordered “ defendants to proceed with
integration in accordance with such plan” . Def. 1971
Ex. 2.
In both Swann and Dallas it was dear that the
school districts had not, prior to the reopening of the
cases, taken steps to obey the mandate of Green to
“ dismantle the well-entrenched dual systems” and
fulfill the “ affirmative duty to take whatever steps
might be necessary to convert to a unitary system in
which racial discrimination would be eliminated root
and branch.” Green, supra, 391 U.S. 430, 437-438
70
(1969). It was that failure which supports the court
orders requiring new desegregation steps.
When the record and findings in Dallas at the time
of the violation hearing in 1971 are measured against
this Court’s recent Columbus decision, supra, and the
companion case Dayton Board o f Education v. Brink-
man, ____ U.S. ____ (July 2, 1979) {Dayton II), the
existence of a constitutional violation in Dallas in
1971 seems undebatable. Columbus and Dayton re
affirm Green and Swann and the concept of an affirm
ative duty to desegregate. Some of the petitioners
argue that there was no violation in 1971 because the
district court failed to make findings that the DISD
engaged in acts of intentional segregation after the
1965 court order. Thus it is argued by Brinegar et. al.
that the segregation which existed in 1970-71 vas not
“ intentional” and thus was not unconstitutional,35 cit
ing Washington v. Davis, 426 U.S. 229, 239 (1976);
Dayton Board o f Education v. Brinkman, 433 U.S.
35 The Brinegar argument was not urged by Brinegar et. al. in
either court below. In the district court Brinegar et. al. contended
that some East Dallas schools were already desegregated by
reason of residential integration and that such areas should not
be subject to a busing plan. In the Fifth Circuit Brinegar et. al.
urged affirmance of the district court’s plan, but never made an
argument that there should not be any remedy at all. It should
be noted that Brinegar et. al. intervened in the case in 1975 after
the Court of Appeals had affirmed the 1971 liability holding.
This Court might simply decline to deal with the Brinegar ar
gument on the ground that it was not raised or passed on below.
Adickes v. Kress & Co., 398 U.S. 144, 147, n.2 (1970) and cases
cited.
71
406 (1977){Dayton I); Austin Independent School
Dist. v. United States, 429 U.S. 990 (1977); and Pas
adena City Board of Ed. v. Spangler, 427 U.S. 424
(1976). Pet. Br. No. 78-283, pp. 23-35. Curry et.al.
argue similarly that the DISD adopted “ a racially
neutral plan” in 1965 and that the 1971 finding of
liability in this case is contrary to Pasadena, supra,
and Dayton I, supra.36
But of course segregation established pursuant to
racial segregation statutes is “ intentional.” 37 Colum
36 Curry et.al. did not participate in the 1971 liability trial
because they did not seek to intervene until July 9, 1971 making
a motion for a continuance of the trial which was scheduled to
and did begin three days later on July 12, 1971. See Docket
entries. The district court allowed the intervention on July 22,
1971 after having filed the opinion determining liability. Curry
et.al. appealed the 1971 judgment arguing that their North Dal
las area was not subject to be included in the desegregation plan
because it was developed after Brown. The Fifth Circuit rejected
this argument. 517 F.2d at 108. The DISD supported the District
Court’s order in the 1971 appeal, and stated unequivocally in a
brief: “ This appeal, on the other hand, involves only the issue of
remedy.” Supplemental Brief of DISD in Fifth Circuit No. 71-
2581, p. 3. Although the DISD petitioned for certiorari arguing
other points (Pet. for Certiorari No. 75-265), Curry et.al. did not
file a certiorari petition. Instead they have continued to seek to
relitigate the findings of a trial in which they did not participate.
Their present brief attacks the Fifth Circuit’s 1975 decision with
arguments not made in the first appeal. Pet. Br. No. 78-282, pp
18-19.
37 The Fifth Circuit rejected similar arguments based on Span
gler and Washington v. Davis, supra, in United States v. Semi
nole Cty. Sch. Bd., 553 F.2d 992 (5th Cir. 1977); United States
v. Board of Education of Valdosta, 576 F.2d 37 (5th Cir.), cert,
denied 99 S.Ct. 622 (1978).
72
bus and Dayton II demonstrate that this Court ad
heres to its holding in Green, supra, 391 U.S. at 437-
442, and companion cases,38 that it is the effectiveness
of a desegregation plan in dismantling dual systems
that determines compliance with Brown. Mr. Justice
White’s opinion in Dayton II stated:
But the measure of the post -Brown conduct of
a school board under an unsatisfied duty to liq
uidate a dual system is the effectiveness, not the
purpose, of the actions in decreasing or increas
ing the segregation caused by the dual system.
Wright, supra, at 460, 462; Davis v. School Com
missioners o f Mobile County, 402 U.S. 33, 37
(1971); see Washington v. Davis, 426 U.S. 229,
243 (1976). As was clearly established in Keyes
and Swann, the Board had to do more than aban
don its prior discriminatory purpose. 413 U.S. at
200-201, n .ll, 402 U.S. at 28. The Board has had
an affirmative responsibility to see that pupil
assignment policies and school construction and
abandonment practices “ are not used and do not
serve to perpetuate or re-establish the dual
school system,” Columbus, ante, at ____, and
the Board has a ‘heavy burden’ of showing that
actions that increased or continued the effects of
the dual system serve important and legitimate
ends. Wright, supra, at 467, quoting Green v.
County School Board, 391 U.S. 430, 439 (1968).
Slip opinion, pp. 10-11.
38 Raney v. Board of Education of the Gould School Dist., 391
U.S. 443 (1968); Monroe v. Board of Commissioners of City of
Jackson, Tenn., 391 U.S. 450 (1968).
73
In Columbus the Court, after quoting the language
from Green, supra, that school boards were “ clearly
charged with the affirmative duty to take whatever
steps might be necessary to convert to a unitary sys
tem in which racial discrimination would be eliminat
ed root and branch” (slip opinion at 8, quoting Green,
391 U.S. 430, 437-438), went on to state:
Each instance of a failure or refusal to fulfill
this affirmative duty continues the violation of
the Fourteenth Amendment. Dayton I, 433 U.S.
at 413-414; Wright v. Council o f City of Emporia,
407 U.S. 451, 460 (1972); United States v. Scot
land. Neck City Board o f Education, 407 U.S. 484
(creation of a new school district in a city that
had operated a dual school system but was not
yet the subject of court-ordered desegregation).
Slip opinion at 8.
Using language which might be addressed to the
Curry and Brinegar arguments with equal relevance
the Court in Columbus said:
The Board’s continuing “ affirmative duty to
disestablish the dual school system” is therefore
beyond question, McDaniel v. Barresi, 402 U.S.
39, 41 (1971), and it has pointed to nothing in the
record persuading us that at the time of trial the
dual school system and its effects had been di
sestablished. The Board does not appear to chal
lenge the finding of the District Court that at the
time of trial most blacks were still going to black
schools and most whites to white schools. What
ever the Board’s current purpose with respect to
74
racially separate education might be, it knowing
ly continued its failure to eliminate the conse
quences of its past intentionally segregative pol
icies. The Board “ never actively set out to dis
mantle this dual system /’ 429 F.Supp. at 260.
Slip opinion at 10. These holdings of Columbus and
Dayton I I are a reaffirmation of the holding of Green,
supra. Portions of Mr. Justice Brennan’s opinion in
Green also seem as if they had been written in re
sponse to the Brinegar and Curry arguments:
In the context of the state-imposed segregated
pattern of long standing, the fact that in 1965
the Board opened the doors of the former
“ white” school to Negro children and of the
“ Negro” school to white children merely begins,
not ends, our inquiry whether the Board has tak
en steps adequate to abolish its dual, segregated
system. Brown II was a call for the dismantling
of well-entrenched dual systems tempered by an
awareness that complex and multifaceted prob
lems would arise which would require time and
flexibility for a successful resolution. School
board such as the respondent then operating
state-compelled dual systems were nevertheless
clearly charged with the affirmative duty to take
whatever steps might be necessary to convert to
a unitary system in which racial discrimination
would be eliminated root and branch.
391 U.S. 430, 437-438 (1968).
Further, Green stated the rule reaffirmed in Swann,
Columbus and Dayton, that desegregation plans must
75
be measured by their “ effectiveness” and that courts
should evaluate such plans in practice until “ state-
imposed segregation has been completely removed.”
391 U.S. at 439,
And of course Swann, supra, provides a complete
answer to the Curry argument based on the alleged
racial neutrality of the DISD’s post-1965 neighbor
hood attendance areas. Putting aside for the moment
the fact that the district court did not find all of the
attendance areas racially neutral in the 1971 liability
opinion, Swann makes it plain that mere “ neutrality”
does not fulfill the affirmative duty to dismantle the
dual system:
Absent a constitutional violation there would
be no basis for judicially ordering assignment of
students on a racial basis. All things being equal,
with no history of discrimination, it might well
be desirable to assign pupils to schools nearest
their homes. But all things are not equal in a
system that has been deliberately constructed
and maintained to enforce racial segregation. The
remedy for such segregation 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 avoided in the interim period when
remedial adjustments are being made to elimi
nate the dual school systems.
No fixed or even substantially fixed guidelines
can be established as to how far a court can go,
but it must be recognized that there are limits.
The objective is to dismantle the dual school sys
76
tem. “ Racially neutral” assignment plans pro
posed by school authorities to a district court
may be inadequate; such plans may fail to coun
teract the continuing effects of past school seg
regation resulting from discriminatory location
of school sites or distortion of school size in order
to achieve or maintain an artificial racial sepa
ration. When school authorities present a district
court with a “ loaded game board,” affirmative
action in the form of remedial altering of attend
ance zones is proper to achieve truly non-discrim-
inatory assignments. In short, an assignment
plan is not acceptable simply because it appears
to be neutral.
402 U.S. 1, 28 (1971).
The DISD had clearly failed to dismantle the dual
system when this case was brought in 1970. The ar
guments of Brinegar et.al. and Curry et.al. that the
courts below had no remedial authority to deal with
that failure are plainly untenable in light of this
Court’s decision in Green, Swann, Columbus and Day-
ton II.
II. The Court of Appeals was Correct in De
ciding that the Court-Adopted Desegre
gation Plan Failed to Comply with Swann
v. Charlotte-Mecklenburg Board of Edu
cation, 402 U.S. 1 (1971).
The first trial in this case took place about three
months after this Court in Swann and Davis directed
the use of busing, pairing, rezoning and similar “ af
firmative action” measures to dismantle dual school
77
systems, and rejected the argument that desegrega
tion could be limited to walk-in schools. Swann, supra,
402 U.S. 1, 27-31; Davis, supra, 402 U.S. 33, 37. In
the wake of Swann and Davis Judge Taylor, who
presided over the trials in this case, annouced his firm
opposition to busing. He did so in the very order
directing the school district to prepare a desegrega
tion plan to comply with Swann. Judge Taylor’s first
opinion rejecting busing was issued July 16, 1971,
before the Court had heard any evidence on remedies.
Tasby v. Estes, 342 F.Supp. 945, 948-949 (N.D. Tex.
1971):
Now all of this is not as grim as it sounds. I
am opposed to and do not believe in massive
cross-town bussing of students for the sole pur
pose of mixing bodies. I doubt that there is a
Federal Judge anywhere that would advocate
that type of integration as distinguished from
desegregation. There are many many other tools
at the command of the School Board and I would
direct its attention to part of one of the plans
suggested by TEDTAC which proposed the use
of television in the elementary grades and the
transfer of classes on occasion by bus during
school hours in order to enable the different eth
nic groups to communicate. How better could
lines of communication be established than by
saying, “ I saw you on TV yesterday,” and be
sides that, television is much cheaper than bus
ing and a lot faster and safer. This is in no sense
a Court order but is merely something that the
Board might consider.
78
Several weeks later, Judge Taylor’s above-quoted
suggestion did become “ a Court order” rejecting a
busing plan because it would create unspecified ‘ ‘abra
sions and dislocation” (342 F.Supp. at 950), and en
dorsing a plan to leave the schools segregated except
for television at the elementary level and minimal
satellite zoning at the secondary level. Id. at 951-955.
The litigation which has followed in the ensuing eight
years has revolved around the district court’s oppo
sition to busing39— announced at the start— and the
countervailing efforts of the Fifth Circuit to insure
that the teachings of Swann and Davis were faithfully
applied.
The court of appeals has twice held that desegre
gation plans adopted by the district court were inad
equate to dismantle the dual system and failed to
comply with Swann v. Charlotte-Mecklenburg Board
of Education. 402 U.S. 1 (1971). Tasby, supra, 517
F.2d 92; 572 F.2d 1010. We believe those conclusions
were clearly justified. Indeed we submit they were
compelled by a conscientious application of Swann
and Davis, as well as by a line of Fifth Circuit deci
sions requiring other school districts and district
courts to adopt effective desegregation plans. Among
many Fifth Circuit decisions rejecting inadequate de
39 See also United States v. Texas Education Agency, (Rich
ardson Ind. Sch. Dist.), 512 F.2d 896 (5th Cir. 1975), where the
Fifth Circuit reversed an order by Judge Taylor which had failed
to desegregate the few Black pupils in a suburb of Dallas by
pairing nearby schools.
79
segregation plans are: Davis v. East Baton Rouge
School Board, 570 F.2d 1260 (5th Cir. 1978) (decision
by same panel as Tasby, also in April 1978); Flax v.
Potts, 464 F.2d 865 (5th Cir.), cert, denied 409 U.S.
1007 (1972) (involving Ft. Worth, Texas); Gaines v.
Dougherty County Board of Ed., 465 F.2d 363 (5th
Cir. 1972); Ellis v. Board o f Public Instruction o f
Orange County, 465 F.2d 878 (5th Cir. 1972), cert,
denied 410 U.S. 966 (1973); Arvizu v. Waco Independ
ent School District, 495 F.2d 499 (5th Cir. 1974), on
rehearing 496 F.2d 1309 (1974); Hereford v. Hunts
ville Board of Ed., 504 F.2d 857 (5th Cir. 1974); Lee
v. Demopolis City School System, 557 F.2d 1053 (5th
Cir. 1977) cert, denied 434 U.S. 1014 (1978); Lee v.
Macon County Board of Ed. (Calhoun County), 448
F.2d 746 (5th Cir. 1971); Lee v. Macon Cty. Bd. o f Ed.
(Marengo County), 465 F.2d 369 (5th Cir. 1972); Lee
v. Tuscaloosa City School System, 576 F.2d 39 (5th
Cir. 1978); Lemon v. Bossier Parish School Board, 566
F.2d 985 (5th Cir. 1978); Miller v. Board of Ed. of
Gadsden, 482 F.2d 1234 (5th Cir. 1973); Mills v. Polk
County Board of Public Instruction. 575 F,2d 1146
(5th Cir. 1978); Weaver v. Board of Public Inst., 467
F.2d 473 (5th Cir. 1972), cert, denied 410 U.S. 982
(1973); United States v. Board o f Education of Val
dosta, Georgia, 576 F.2d 37 (5th Cir. 1978), cert, den
ied 99 S.Ct. 622 (1978); United States v. South Park
Ind. School Disk, 566 F.2d 1221 (5th Cir.), cert, denied
99 S.Ct. 622 (1978); United States v. Desoto Parish
School Board, 574 F.2d 804 (5th Cir.), cert, denied 99
80
S.Ct. 571 (1978); United States v. Seminole County
School Dist., 553 F.2d 992 (5th Cir. 1977).
The decision below is consistent with this long line
of decisions in which the Fifth Circuit has refused to
sanction desegregation plans which leave one-race
schools still segregated without a real justification
under the principles of Swann. Indeed the Fifth Cir
cuit’s insistence that pairing and grouping of schools
be used where feasible to eliminate one-race schools
pre-dates Swann. Allen v. Board o f Pub. Inst, o f Bro
ward County, 432 F.2d 362, 367 (5th Cir. 1970), cert,
denied 402 U.S. 952 (1971) and cases cited. Swann
would have been nullified if the Fifth Circuit had not
been demanding in requiring a justification for one-
race schools.
The Fifth Circuit’s 1978 remand for a new pupil
assignment plan and for further findings to justify
the maintenance of any remaining one-race schools
under that plan was a correct application of the prin
ciples of Swann and Davis. The 1976 court-adopted
plan admittedly leaves many Dallas pupils in racially
segregated schools. The remand for a new plan was
appropriate because the 1976 plan failed to achieve
the greatest possible degree of actual integration us
ing the desegregation methods approved in Swann
and Davis, and the district court failed to find that
further desegregation was not practicable using such
methods. Cf. Swann, supra 402 U.S. at 26. There were
also no specific findings, nor could there have been,
to demonstrate that the remaining segregated schools
81
were not the products of the dual system. Cf. Swann,
supra 402 U.S. at 26.
The 1976 plan adopted by the district court made
two principal choices which determined that a great
deal of segregation would be untouched. One was the
plan’s use of affirmative action steps to promote de
segregation only in grades 4-8. The choice to deseg
regate five grades and leave eight other grades (K-3
and 9-12) untouched by the plan (except for voluntary
individual transfers) guaranteed that substantial seg
regation would remain. After three years of imple
mentation, the plan has fulfilled this guarantee. The
other decisive choice was the creation of a new all-
Black East Oak Cliff subdivision within the school
system and the adoption of a policy that students
“ would only be assigned to schools within the attend
ance subdistrict in which they live” . 412 F.Supp. at
1202, 1203-1204. This decision excluded a projected
26,202 Black pupils, roughly 42% of all Blacks in the
system in 1975-76, from any possibility of being as
signed by the Board to a desegregated school. We
discuss these two aspects of the 1976 plan separately
below.
A. The District Court Erred in Refusing to
Use Affirmative Integration Measures
such as Pairing, Rezoning, or Transpor
tation in the Primary Grades and High
School Grades.
The decision to limit affirmative desegregation
measures to grades 4-8, and to leave the “ neighbor
8 2
hood school” attendance areas intact for the lower
and upper grades insured that desegregation in Dallas
would affect less than half the system. We submit
that there was no sufficient justification for leaving
either category of schools completely untouched by
affirmative desegregation measures. In other cases
the Fifth Circuit has rejected similar categorical ex
clusions of parts of school systems from desegrega
tion plans, and the decision to remand in this case is
consistent with those prior holdings. Flax v. Potts,
464 F.2d 865 (5th Cir.), cert, denied 409 U.S. 1007
(1972) (no justification for excluding first grade from
Fort Worth, Texas plan); Arvizu v. Waco Independent
School Dist., 495 F.2d 499 (5th Cir. 1974); on rehear
ing 496 F.2d 1309 (1974) (no justification for not in
tegrating grades 11 and 12); Mills v. Polk County
Board o f Public Inst., bib F.2d 1146 (5th Cir. 1978)
(not proper to leave grades 1 and 2 segregated);
United States v. Texas Education Agency (Austin
Ind. Sch. Dist.), 532 F.2d 380, 393 (5th Cir. 1976),
(exclusion of grades 1-5 from plan not proper); vacated
on other grounds 429 U.S. 990 (1976); but cf. Lockett
v. Board o f Education o f Muscogee County, 447 F.2d
472 (5th Cir. 1971) (permitting omission of kindergar
ten from plan based on peculiarities of kindergarten
program); see Thompson v. School Board of City of
Newport News, Virginia, 465 F.2d 83 (4th Cir. 1972),
(en banc), cert, denied 413 U.S. 920 (1973) (en banc)
(remanding on issue of exclusion of grades 1 and 2);
contra Thompson v. School Board o f City o f Newport
News, 498 F.2d 195 (4th Cir. 1974) (en banc) (approv
83
ing exclusion of grades 1 and 2 by 4-3 vote of Fourth
Circuit.
The primary grades were left largely segregated by
the failure to use either substantial rezoning or pair
ing techniques in any part of the school system at
these grade levels. The categorical exclusion of these
grade levels precluded any analysis of the circumstan
ces of individual schools to weigh the feasibility of
pairing or busing. The use of busing to integrate the
primary grades was excluded notwithstanding the
fact that in some areas primary school children might
be integrated with relatively short bus rides. There is
simply no record basis for a conclusion that the tech
niques used to integrate grade 4 and 5 would not be
workable in the earlier grades. The DISD doesn’t pro
vide walk-in schools for every pupil in the primary
grades. Some of the “ neighborhood zones” are quite
large in area as may be observed from an inspection
of the elementary attendance zone maps, and pupils
who live more than two miles from school are provided
transportation. Nearly 5,000 pupils were provided free
transportation by school bus or otherwise in the
DISD prior to this case. 1971 Tr. 452. Primary grade
pupils are transported in the DISD; they are just not
transported for desegregation purposes.
Swann indicates that decisions as to the use of
busing for integration must be based on a principle of
accomplishing as much desegreation as possible with
out interfering with the educational process or im
pairing the health of children. Swann, 402 U.S. at 29-
84
31. The Court in Swann understood that throughout
the country large numbers of children of all age
groups are bused to schools for reasons having noth
ing to do with desegregation. By indicating in the
Swann opinion that the ages of children affect the
practicalities of busing the Court did not endorse the
wholesale exclusion of younger children from deseg
regation plans. Swann, supra, 402 U.S. 1, 29-31. The
district court’s only finding to justify the exclusion of
primary grades was an agreement with Dr. Estes’
bare assertion that K-3 children were not mature
enough to be bused. 412 F.Supp. at 1204. Surely the
Fifth Circuit stated an unexceptionable rule in holding
that a district court must make more specific findings
about time and distance or other similar matters
which are asserted to justify one-race schools. 572
F.2d at 1014. There is not and could not be a finding
in Dallas that time and distance considerations pre
clude all additional desegregation of the primary
grade pupils.
The failure to desegregate the primary grades op
erates to weaken the entire process of desegregation.
While we rely primarily on the case law cited above
for our position, we do point out to the court that
there is a strong consensus among social science stu
dents of desegregation that integration in the early
grades has the most beneficial effects on the achieve
ment of minority children. A very careful review of
the literature on the effects of desegregation on
85
achievement by Robert Crain and Rita Mafaard40 led
them to state that:
“ A comparison of the 73 studies leads to one
important conclusion: that desegregation is no
ticeably more likely to have a positive impact on
black test scores if it begins in the earliest
grades, and effects are especially likely to be pos
itive for first grades.” 41
Robert Crain testified in the Dallas case about the
great importance of desegregating the early grades.
Tr. Vol. I l l p. 434. We reprint in the footnote below
a long excerpt from the Crain and Mahard article
which asserts that starting desegregation in early
grades has noticeable advantages.42
40 Robert Crain and Rita Mahard, “ Desegregation and Black
Achievement,” Law & Contemporary Problems, Vol. 42 (Spring
and Summer 1978) (Publication forthcoming; also published as
a working paper of the National Review Panel on Schooi Deseg
regation Research, Institute of Policy Sciences and Public Af
fairs, Duke Univ.).
41 Id. at “ Abstract” .
42 Crain and Mahard, op. cit.:
“ Age at First Desegregation”
The review of these studies is inconclusive or debatable on
nearly every point except that desegregation in the early grades
is superior to desegregation in the later grades. Of the studies
we have reviewed, 13 found a more positive impact for those
students desegregated in earlier grades. Oniy 3 have found the
opposite and these 3 seem to be explainable. Beker’s study in
Syracuse was a tiny sample—his control group contained only 23
students, which can hardly be sorted by grade to get meaningful
results. A second case where a positive finding was found for a
86
higher rather than a lower grade was in Evans’ study of the first
year of desegregation in Forth Worth, but his own follow-up a
year later reversed this conclusion. The third case of a more
positive finding in the upper grade is in the Dade County study
referred to earlier, but this seems to be explained not by the high
performance of upper-grade students in white schools, but by a
rather dramatic drop in the performance of the upper-grade stu
dents in segregated schools, whose achievement went down
about a third of a year over the preceding year’s class even
though black achievement in other grades went up. The 13 pos
itive findings are methodologically stronger. Included are the
two northern experimental designs by Mahan and Zdep as well
as the seemingly well done study by Schellenberg. Even some
studies whose overall effects are zero show positive results in
early grades. St. John and Weinberg report three other studies
in which stronger results occurred in the lower grades and both
reviewers conclude that desegregation in early grades is prefer
able.
In a final test of the hypothesis we compared the outcome of
desegregation reported in the different studies depending on
which grades were tested. These results also indicate that early-
grade desegregation is more successful. Of twelve studies of
desegregation at the junior high school and high school level,
five show negative effects, while none of ten studies done in the
first and second grade show negative results. Table 4 presents
the data for the southern and northern halves of the sample we
have reviewed, and as well as the data for 21 studies reviewed
by Weinberg and St. John but not by us. All three samples
support the hypothesis.
The table suggests that the critical point is around the 2nd
and 3rd grade, since only 9 of the 21 cases of desegregation in
grades 3 or 4 showed positive results. The poor outcomes of
desegregation for third and fourth graders is suggestive, since
these grades are in the center of an age range which Michael
Inbar has called “ vulnerable age.” Inbar (1976) found that per
sons migrating to Israel between the ages of 6 and 11 were less
likely to later attend college than those who came at either
younger or older ages. He has replicated this result using migra
tion to Canada and regional migration within the United States.
87
We submit that there is no more justification for
the failure to adequately desegregate the high schools
than there is with respect to primary grades. There
has not been a bona fide high school desegregation
effort in Dallas. The Fifth Circuit’s 1975 opinion held
that the 1971 plan was an unsatisfactory minimal
effort to get the one-race schools slightly under the
90% point. 517 F.2d at 104. Yet that 1971 plan re
mains essentially intact today, with the addition of
Magnet schools in 1976 being the only real change.
That badly flawed 1971 effort failed to achieve even
its limited objective when only 50 of 1,000 White
pupils, who were assigned to all-Black schools in an
effort to get the schools into the 80-90 percent black
range, actually attended the Black schools. Ironically
Judge Taylor cites the failure of the weak 1971 effort,
which the Fifth Circuit had held not be bona fide, as
his reason for not attempting any further high school
desegregation in 1976. 412 F.Supp. at 1205. Judge
Taylor concluded from this experience that anti-bus-
Crain and Weisman (1972) found a similar pattern for blacks who
migrated from the south to the north at this age. Inbar quotes
Harry Sullivan (1953) as theorizing that the elementary school
years are an important period of establishing social relationships
and recommending that social relationships not be disrupted in
this time. If this theory is correct, the kind of social migration
which occurs as a result of desegregation may have effects anal
ogous to geographic migration.
It has been widely argued that desegregation should begin in
the early grades. It is gratifying to see the data support our
conventional wisdom so clearly, although if the Inbar finding is
relevant, even third grade may not be early enough.
88
ing sentiment was so strong that only a voluntary
Magnet Plan would be effective in Dallas to eliminate
the high school segregation. Id. at 1205, n.50.
The Fifth Circuit criticized the failure of the 1976
plan to desegregate high schools (572 F.2d at 1014):
Of particular concern are the high schools that
are one race. Although students in the 4-8 grade
configurations are transported within each sub
district to centrally located schools to effect de
segregation, the district court’s order leave high
school students in the neighborhood schools.
Within three of the four integrated subdistrict,13
this results in high schools that are still one-race
schools.14
13 This excludes East Oak Cliff, the black sub
district, and Seagoville, and the one predomi
nately Anglo subdistrict.
14 In the Northwest subdistrict, one high school
is 95% minority and two high schools are 96%
Anglo. In the Northeast subdistrict, one high
school is 99.8% minority and one is 95% Anglo.
In the Southeast subdistrict, one school is 100%
minority and one is 89% Anglo.
The point made by the court of appeals is a cogent
one. It seems obvious that, if a feeder plan can effec
tively desegregate the 7th and 8th grades in parts of
the city, a comparable feeder plan could integrate the
same students in grades 9-12. If anything, desegre
gation of the high schools should be more feasible
because the high school buildings have larger pupil
capacities than the schools serving lower grades, and
89
consequently can serve broader geographic areas.43
Larger schools serving broader areas are readily
adaptable to serving more heterogeneous student pop
ulations. And, of course, many high school students
go to school in their own automobiles, bicycles and
public transportation. 1971 Tr. 684-685, 983-984. In
the Statement, supra at Part IV we have explained
the manner in which pupils at Carr school, a minority
school in the Northwest subdistrict, are segregated in
an all-Black school in grades K-3, desegregated in
grades 4-6 in Burnet School and in grades 7-8 at Walk
er, and then are segregated again at Pinkston High
School. The treatment of Carr typifies the plan’s
treatment of minority schools in the center of the city.
The Fifth Circuit directed that the district court
reevaluate the effectiveness of the Magnet concept
noting that the NAACP brief on appeal quoted Dr.
Estes as having conceded its ineffectiveness. 572 F,2d
at 1015, n.15. At the 1976 trial Dr. Estes estimated
that at the beginning about 2,500 pupils would attend
Magnet schools. Tr. Vol. I. 247. The DISD Brief in
the Fifth Circuit advised that in fall 1976 the four
Magnet high schools enrolled 3,688 pupils (including
part time). DISD Br. 5th Cir. No. 76-1849, p. D-13.
43 See capacity figures in App. A to Final Order; Pet. App. No.
78-253, 84a et seq. We calculate that the median high school
building capacity for the 19 high schools listed in the appendix
is 2,100 students. The range is from 750 at Seagoville to 4,000
at Skyline. The capacity of South Oak Cliff was expanded to
4,000 under the plan by housing 1,400 of its 9th graders at the
former Zumwalt junior high building.
90
The April 1979 DISD report to the District Court
indicates 3,456 pupils attending Magnet high
schools.44 Thus, the actual experience with Magnet
schools in the three years the 1976 plan has been
implemented indicates that the Magnet schools in
volve only a small percentage of the pupils. The 1979
total of 3,456 is approximately 8.7% of the total high
school enrollment of about 39,734. Given the very
limited impact of the Magnet program, the Fifth Cir
cuit remand for on evaluation of other assignment
alternatives was required by Green v. County School
Board, 391 U.S. 430 (1968). Magnet schools are a form
of free choice in pupil assignments. When a plan relies
entirely on Magnet schools to eliminate a dual system
it must be evaluated in terms of Green s holding:
“ If the means prove effective, it is acceptable,
but if it fails to undo segregation, other means
must be used to achieve this end.”
Green, supra, 391 U.S. at 440.
After three years the plan has resulted in continu
ing extensive racial isolation of Black high school pup
ils. The DISD's April 1979 report to the district court
indicated that there were 8 high schools enrolling less
than 10% Anglo pupils; these 8 schools enrolled
44 In addition to the small numbers of pupils, there is only
slight desegregation at the Business Management Magnet which
has but 9.5% Anglo pupils.
91
11,047 or 59.01% of the 18,718 Black high school
students and only 90 Anglo pupils.45
The Fifth Circuit’s remand order was if anything
too moderate. The court might properly have unequi
vocally directed the desegregation of all levels of the
DISD system, and the high school plan which had
been previously rejected in 1975 might have been re
pudiated in stronger terms than the court used in its
opinion. In any event, the remand was amply justified
by the failure of the DISD to use affirmative deseg
regation measures in more than half the grade levels
in the system.
46 The following table indicates the 1979 high school enroll
ments:
High schools --- 1979
Percentage
of White
Students
No. of
Schools
White
No.
Students
%
Black
No.
Students
%
Hispanic
No.
Students
%
Other
No.
Students
%
90-100 1 2,180 13.91 106 .57 87 2. 39 10.77
80-89 1 2,555 16.3 144 .77 202 4.64 161 16.85
70-79 3 3,104 19.8 731 3.91 174 4. 36 9.95
60-69 0 0 0 0 0 0 0 0 0
50-59 4 5,059 32.27 3,159 16.88 1,014 23.29 100 27.62
40-49 4 1,913 12.2 869 4.64 1,258 28.9 65 17.96
30-39 1 90 .57 174 .93 33 .76 0 0
20-29 1 60 .38 154 .82 44 1.01 1 .28
10-19 3 625 3.99 2,334 12.47 1,121 25.75 48 13.26
1-9 2 64 .41 1,983 10.59 380 8.73 8 2.21
Less than 1% 6 26 .17 9,064 48.42 40 .92 4 1.1
Total 26 15,676 100 18,718 100 4,353 100 362 100
% of Total 40.08 47.86 11.13 .93
Source: This table is derived from data in the
April 15, 1979 DISD Report to the District Court.
92
B. The District Court Erred in Establishing
the Segregated East Oak Cliff Subdis
trict.
The creation of one all-Black and five majority
White subdistricts had a drastic negative impact on
the desegregation of the DISD. This feature of the
plan also justified the court of appeals’ action in re
manding for a new plan because it excluded a proj
ected 26,202 (41.74%) of the system’s 62,767 Black
students from the desegregation process. Pet. App.
No. 78253, 84a. The establishment of an all-Black
East Oak Cliff subdistrict was segregatory on its face.
When the plan was ordered the DISD was 42.1%
Anglo, 44.5% Black and 13.4% Mexican American.
Pet. App. No. 78-253, 84a. The carving out of the East
Oak Cliff subdistrict transformed the balance of the
DISD into a majority Anglo system, and desegrega
tion was limited to the area thus established. The
remaining area was projected by the court to be 51.3%
Anglo, 32.5% Black and 16.2% Mexican American,
while the East Oak Cliff district would be 1.9% Anglo,
95.3% Black, and 4.7% Mexican American/6 Ibid.
The district court justified the decision to create an
all-Black subdistrict by a generalized reference to
“ practicalities of time and distance’ ’:
The Court is of the opinion that, given the prac
ticalities of time and distance, and the fact that 46
46 The calculation excluded Seagoville. The remaining area in
cluding Seagoville was projected at 51.88% Anglo, 32.18% Black
and 15.93% Mexican American. Pet. App. No. 78-253, 84a.
93
the DISD is minority Anglo, this subdistrict
must necessarily remain predominantly minority
or black, 412 F.Supp. at 1204.
But the court failed to make specific findings about
the times and distances which would be involved in
integrating the Oak Cliff schools or to supply any
details to demonstrate what “ practicalities” required
that every one of the 26 all-Black schools in East Oak
Cliff remain all-Black. The court of appeals was par
ticularly justified in a remand for more findings on
this point in view of the plaintiffs offer of two plans
which would have provided much more integration in
Oak Cliff. Plaintiffs’ Plan A outlined a method to
desegregate all of the schools with 45 minute maxi
mum bus trips and Plan B would have desegregated
all but 11 of the Oak Cliff schools with 30 minute
maximum bus trips.
The governing principle was stated by the Court in
Green v. County School Board, 391 U.S. 430. 439
(1968) when the Court held that where more promising
courses of action are available there is a heavy burden
to explain “ a preference for an apparently less effec
tive method.” The district court’s conclusory com
ments about the impracticality of desegregating Oak
Cliff are not sufficient to validate such extensive seg
regation involving more than 40% of the Black stu
dents in the DISD.
The proponents of the plan to leave over 40% of
the DISD’s Black pupils in one-race schools in East
Oak Cliff, had the heavy burden of overcoming “ a
94
presumption against schools that are substantially
disproprotionate in their racial composition” . Swann
v. Charlotte-Mecklenburg Board of Education, 402
U.S. 1, 26 (1971). The petitioners failed to demon
strate that the plan to establish an entire subdistrict
of one-race schools was ‘ ‘genuinely nondiscriminato-
ry” . Ibid. In remanding for additional findings the
Fifth Circuit performed its duty to ‘ ‘scrutinize such
schools” and to place “ the burden upon the school
authorities . . . to satisfy the court that their racial
composition is not the result of present or past dis
criminatory action on their part.” Ibid.
The petitioners argue that the Oak Cliff schools
need not be desegregated because they changed from
all-White to all-Black schools since desegregation be
gan. This argument is flawed on several grounds.
First, it simply is not true as to many of the East Oak
Cliff Schools. Among the East Oak Cliff schools, are
a number which were all-Black in the early 1960’s.47
Dr. Estes’ list of schools which had changed from
White to Black since 1965 included only 12 of the 26
47 Nine East Oak Cliff subdistrict schools which had all-Black
faculties in the pre-1965 period are Roosevelt, Ervin, Stone (con
verted from White to all-Black faculty), Darrell, Harllee, John
ston, Miller (converted to Black), Mills (converted to Black),
Pease (converted to Black). See note 10 supra. The conversion of
faculties from all-White to all-Black was a clear de jure act of
segregation which may be presumed to have had a serious impact
on the schools as well as the surrounding neighborhoods. A num
ber of the other schools in the area were opened since 1965, and
were either opened as all-Black schools or became all-Black short
ly thereafter.
95
schools in the East Oak Cliff subdistrict. See note 14
supra. Second, the change of schools from White to
Black did not occur in the context of a unitary system.
Most of the changes occurred prior to the filing of the
lawsuit when the DISD plainly had not dismantled
the dual system and the remainder during the pen
dency. The most the DISD proved was that a number
of schools which were once all-White became all-Black
in neighborhoods of changing racial populations.
There was no showing that such schools were deseg
regated as part of a unitary system. See Argument I,
supra. The changes which occurred between the filing
of the suit and the 1976 trial were still not in a deseg
regated unitary context, because there was no ele
mentary school desegregation under the 1971 order
and the secondary level integration was minimal and
inadequate as the Fifth Circuit held in the 1975 opin
ion. 517 F.2d 92. The school district may not avoid
its duty to desegregate by relying upon demographic
changes in schools which took place during the oper
ation of a dual system or which may have resulted
from the board’s inadequate efforts to desegregate.
Keyes, supra; United States v. Board of Education of
Valdosta, Georgia, 576 F.2d 37,38 (5th Cir.), cert den
ied 99 S.Ct. 622 (1978).
The establishment of the new East Oak Cliff sub
district, along with a rule that pupils would only be
assigned to schools in the subdistrict where they
lived, created a new impediment to desegregation by
institutionalizing the segregation of the Black schools
96
of the southern DISD into a separate administrative
unit. For desegregation purposes the DISD was trans
formed from a single unit which was 42.1% Anglo,
44.5% Black and 13.4% Mexican American, into two
new units, one of which consisted of several parts
which, in the aggregate were 51.3% Anglo, 32.5%
Black and 16.2% Mexican American. The other unit,
East Oak Cliff, would be 1.9% Anglo, 95.3% Black,
and 4.7% Mexican American. Pet. App. No. 78-253,
84a. Carving out the new sub-unit hinders the process
of desegregation in a manner not dissimilar in its
effect to the creation of the splinter districts which
the court disapproved in United States v. Scotland
Neck Board of Education, 407 U.S. 484 (1972) and
Wright v. Council o f City o f Emporia, 407 U.S. 451
(1972). Creation of the East Oak Cliff sub-district pre
cludes meaningful desegregation of that area and
should be condemned on the reasoning of Scotland
Neck and Wright, supra. The fact that the new sub
unit has no independent governmental status removes
from the case one of the factors which divided the
Court in Wright. Compare the dissenting opinion of
the Chief Justice in Wright, supra, 407 U.S. at 471
with the concurring opinion of the Chief Justice in
Scotland Neck, supra, 407 U.S. at 491.
97
III. The Arguments of the Brinegar and
Curry Petitioners for a Modification or
Overruling of Swann should be rejected.
A. The Brinegar and Curry Arguments that
Certain Neighborhoods must be Exempt
ed from Participation in a Desegregation
Plan are without Merit.
The Brinegar petitioners representing neighbor
hoods in East Dallas argue that the Court should rule
that desegregated neighborhoods are not “ vestiges of
the dual system” and accordingly that pupils living
in such areas may not be reassigned or transported
as part of a desegregation plan. Pet. Br. No. 78-283,
pp. 35 et. seq. The Curry Petitioners representing an
Anglo North Dallas area contend that no action of
the DISD has been found to have caused their area
to be all-White, and accordingly no remedy should
apply to North Dallas. Pet. Br. No. 78-282, p.3Q. The
essence of the position of both groups is an objection
to having minority children bused to the schools in
their areas.
This Court’s decision in Keyes v. School District
No. 1, 413 U.S. 189 (1973) held that in a system with
out a history of statutory segregation, proof of inten
tional segregation involving a substantial portion of
the school system was sufficient basis to require a
system-wide remedy. The principle was reaffirmed in
Columbus Board o f Education v. Penick, ____ U.S.
____, (July 2, 1979) and Dayton Board of Education
v. Brinkman,___ U.S.____(July 2, 1979) {Dayton II).
98
Columbus rejected an argument that Keyes had been
implicitly overruled, and applied its principle to affirm
a systemwide desegregation order. Slip opinion at 7,
n.7, 14-17. See also Dayton II, slip opinion at 13-14.
The principles of Keyes apply a fortiori to a statu
tory dual system such as Dallas. Both the East Dallas
and North Dallas areas were parts of the dual system
which had not been dismantled when the suit was
filed. No separate administration existed for either
geographical area. The district court must have flex
ibility to include schools in any part of the system in
a remedy to make it workable and effective. Swann
calls for systemwide remedies to dismantle dual sys
tems. It would be defeated by a doctrine such as
petitioner Curry urges which would handcuff the dis
trict court and require it to recognize, or indeed to
create, havens for white flight within the system. In
Swann the court approved a modification of the school
board’s high school plan which was suggested by the
court’s expert consultant for the purpose of integrat
ing the all-White Independence High school so it
would not become a refuge in which pupils might
avoid desegregation. Swann, supra, 402 U.S. 1, 8-9.
Such flexibility should be preserved in Dallas.
If the school attendance zones of the East Dallas
area are truly integrated a satisfactory plan may well
be evolved which avoids transporting pupils to or
from such areas. That may well be the efficient and
sensible way to arrange the plan. But desegregation
planners ought not be constrained in advance that
99
such neighborhoods may not ever participate in pair
ing, grouping, rezoning or other affirmative desegre
gation steps, because that would induce a rigidity into
the situation which might well prevent the most effi
cient and practicable plan to eliminate one-race
schools in other areas of the city.
B. The Curry Petitioners’ Argument for an
Overruling of Swann should be rejected.
Respondents disagree with virtually every asser
tion in Part III of the Curry Argument which calls on
the court to overrule Swann. However we make no
point-by-point rebuttal to the argument in this brief
because the Court has no recently reaffirmed Swann
last term in the Columbus and Dayton II decisions.
Arguments similar to the Curry attack on busing as
a remedy failed to command a majority of the Court.
See the dissenting opinion of Mx. Justice Powell in
Columbus and Dayton II. We refer the Court to the
careful and detailed statement signed by 38 social
scientists stating the current social science evidence
on school desegregation, its relationship to residential
segregation, and the current state of knowledge about
the desegregation process which was submitted to the
Court last term in Columbus. Brief for Respondents
in No.78-610, App.la-28a, “ School Segregation and
Residential Segregation: A Social Science State
ment” . With regard to the “ white flight” issue see
also the excellent summary of the research by Chris
tine Rossell, “ The Community Impact of School De
segregation: A Review of the Literature.” Law and
100
Contemporary Problems, Vol. 42, No. 2 (Spring 1978)
(Publication forthcoming. Originally presented to the
National Review Panel on School Desegregation Re
search, Oct. 1977). With regard to academic achieve
ment issues see Crain and Mahard, op. Cit. supra n.
40.
At the trial respondents called witnesses to rebut
the social science testimony offered by the Curry
group. The testimony summarized at pages 33-39 of
the Curry brief was contradicted on virtually every
point by respondents’ witnesses Dr. Robert L. Crain,
Senior Social Scientist for the Rand Institute,
Tr.Vol.VIII 408 et seq.; Dr. Karl E. Taeuber, Prof, of
Sociology University of Wisconsin, Tr. Vol. IX 126 et
seq.; and Dr. Joe R. Feagin, Prof, of Sociology Uni
versity of Texas at Austin, Tr. Vol. IX 318 et seq.;
see also testimony of Dr. Charles L. Evans, Director
of Research Program Evaluation, Fort Worth Inde
pendent School District, Tr. Vol. IX 285 et seq. Judge
Taylor made no findings as to the merits of the Curry
expert evidence. The soundness and reliability of
much of the Curry testimony was strongly challenged
by plaintiffs witnesses,47 but the district court made
47 For example, Robert Crain described one study by David
Armor, a Curry witness also employed at the Rand Corporation
as “ bizarre, dumb” and “ a very weak design” . Tr. Vol. VIII 445,
447. Karl Taeuber described James Coleman’s white flight study
as not a sound and reliable statistical analysis. Tr. Vol. IX
152.He found another David Armor study characterized by both
arithmetic errors and questionable scientific procedures. Id. at
182-185.
101
no effort to resolve the conflicts. See 412 F.Supp. at
1205, n.50. We believe that the district court was
correct in not attempting to make a detailed analysis
of the highly partisan educational and sociological
testimony offered by the Curry group in support of
their anti-busing thesis. Both courts below under
stood that they remain bound by Swann and that it
ought not be lightly ignored or set aside on the basis
of highly debatable social science and educational the
ories.
This Court’s decision in Green and Swann brought
a sensible pragmatic approach to desegregation of de
jure segregated school systems. The real testimony
to the workability and effectiveness of these doctrines
is the fact that the schools of the southeastern part
of the country, are now less racially segregated than
those in any other region of the nation. U.S. Commis
sion on Civil Rights, DESEGREGATION OF THE
NATION’S PUBLIC SCHOOLS: A STATUS RE
PORT, p. 20 (Feb. 1979). The Fifth Circuit should be
encouraged in its efforts to observe the principles of
Swann with scrupulous care, because the same STA
TUS Report emphasizes that much remains to be done
to bring about full compliance with Brown v. Board
o f Education.
102
CONCLUSION
For the foregoing reasons respondents respecfully
submit that the judgment of the Court of Appeals
should be affirmed.
Respectfully submitted,
E d w ard B. Clou tm an , III
Suite 200, 8204 Elmbrook Drive
Dallas, Texas 75247
Thom as E. A shton , III
Jessica A lexa n d er
Suite 202, 912 Commerce Street
Dallas, Texas 75202
ja c k Greenberg
JAMES M. NABRIT, III
B ill Lann Lee
10 Columbus Circle, Suite 2030
New York, New York 10019
A ttorneys for Respondents
Tashy, et al.