Price v. Austin Independent School District Reply Brief of Appellants

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IN THE

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

NO. 90-8154

SAMANTHA PRICE, et al.,

Plaintiffs-Appellants,

v.

AUSTIN INDEPENDENT SCHOOL DISTRICT, et al.,

Defendants-Appellees.

Appeal from the United States District Court 
For the Western District of Texas 

Austin Division

REPLY BRIEF OF APPELLANTS 
McMURTHY, WILLIAMS AND POWELL

JULIUS LEVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
NAPOLEON B. WILLIAMS, JR. 
99 Hudson Street 
New York, New York 10013 
Tel: (212) 219-1900

LYDIA GARDNER 
702 San Antonio Street 
Austin, Texas 78701 
Tel: (512) 478-1600

Attorneys for Appellants 
McMurthy, Williams and Powell



TABLE OF CONTENTS
Page

iiTable of Authorities .....................................

ARGUMENT:
APPELLANTS PROVED CONCLUSIVELY ON THE BASIS OF 
UNCONTRADICTED EVIDENCE THAT APPELLEE AISD 
INTENTIONALLY USED THE SCHOOL SYSTEM TO CREATE 
EAST AUSTIN AS THE BLACK PART OF TOWN AND THAT 
THE RACIAL SEGREGATION PRODUCED UNDER THE AISD'S 
CURRENT NEIGHBORHOOD SCHOOL STUDENT ASSIGNMENT 
PLAN IS A VESTIGE OF THIS PRIOR INTENTIONAL 
DISCRIMINATORY SEGREGATIVE ACTION BY THE AISD

A. The Obligations of a Formerly Dual School
3

B. The Significance of Vestiges of Prior
8Discrimination. ..

C. Ambiguous Uses of the Term "Unitary." ....... 13

D. The Issues Should Be Resolved in Appellants'
17

CONCLUSION 20



TABLE OF AUTHORITIES
Page

Brown v. Board of Education (Brown I), 347 U.S. 483
(1954) ...............................................

Brown v. Board of Education (Brown II), 349 U.S. 294
(1955) ...............................................

Dayton Board of Education v. Brinkman, 443 U.S. 526
(1979) ..............................................

Dowell v. Board of Education, 890 F.2d 1483 (10th Cir.
1989), cert, granted, ___ U.S. ---, 110 S.Ct.
1521 (1990) .........................................

Green v. County School Board, 391 U.S. 430 (1968) ....

Milliken v. Bradley (Milliken I), 418 U.S. 717 (1974) .

Milliken v. Bradley (Milliken II), 433 U.S. 267 (1977)

Riddick v. School Board of Norfolk, 784 F.2d 521
(4th Cir.), cert, denied, ___ U.S. ---, 107
S.Ct. 420 (1986) ....................................

School Board of the City of Richmond v. Baliles, 829
F .2d 1308 (4th cir. 1987) .........................

7

7

8,10,18

19

8,14,15

8.9

8.9

17

17

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

United States 
532 F .2d

v .
380

Texas
(5th

Education Agency (Austin II) ,
C 11 • 1 ^ /

United States 
564 F .2d

v .
162

Texas
(5th

Educationo v- i q t 7 ̂
Agency (Austin HI) ,

C 1 i . X ̂ / / /

United States 
647 F .2d

v .
504

Texas
(5th

Education
r'  i -r- 1 Q Q 1  1

Agency (Austin IV) ,
c i r . i7oij

United States V . Texas Education Agency, A-70-CA-80 ...

8,10 

15 

11 

11
1,2,3, 

4,14



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

NO. 90-8154

SAMANTHA PRICE, et al.,

Plaintiffs-Appellants,

v.

AUSTIN INDEPENDENT SCHOOL DISTRICT, et al.,

Defendants-Appellees.

Appeal from the United States District Court 
F For the Western District of Texas

REPLY BRIEF OF APPELLANTS 
McMURTRY, WILLIAMS AND POWELL

Appellants and appellees agree on the following facts 

ncerning A-70-CA-80.

rst the action in united States v^JTexas_gduc*tion Agency, 

B , ’ was neither commenced nor maintained as a class action, 

■cond, the United States commenced the action in 1970, four years 

■ter the amendment in 1966 of Rule 23, Fed. R. Civ. P., requiring 

iat "(a)s soon as practicable after the commencement of an action 

rought as a class action, the court shall determine-by order



whether it is to be so maintained." No order maintaining the 

action as a class action was ever entered.

Third, intervention by the African- American and Mexican- 

American students Overton et al., in United States v. Texas 

Education Agency, supra. was ordered in the Court of Appeals and 

not in the district court. The district court, however, failed to 

enter any subsequent order permitting intervention in the district 

court, and the intervenors similarly failed to move for class 

certification.

Fourth, when the district court, in United States v. Texas 

Education Agency, supra. entered its November 5, 1979 holding AISD 

liable for intentionally assisting the creation, and maintenance, 

of a black part of Austin, it did so without certifying the action 

as a class action. Although the 1980 remedial consent decree 

stated that the action was a class action, the language of the 

consent decree was drafted by the then counsel for the parties to 

the action.

Fifth, no party, or purported intervenor, to the action in 

United States v. Texas Education Agency, supra. is, or was, a party 

to the present action.

2



ARGUMENT

APPELLANTS PROVED CONCLUSIVELY ON THE BASIS OF 
UNCONTRADICTED EVIDENCE THAT APPELLEE AISD INTENTIONALLY 
USED THE SCHOOL SYSTEM TO CREATE EAST AUSTIN AS THE BLACK 
PART OF TOWN AND THAT THE RACIAL SEGREGATION PRODUCED 
UNDER THE AISD'S CURRENT NEIGHBORHOOD SCHOOL STUDENT 

ASSIGNMENT PLAN IS A VESTIGE OF THIS PRIOR INTENTIONAL 
nTSCRIMINATORY SEGREGATIVE ACTION BY THE AISD.

The principal argument which appellees make in their brief is 

that appellants did not prove that AISD adopted the current 

neighborhood school student assignment plan for the purpose of 

producing the racial segregation currently in the school system, 

and that the district court's finding of the absence of such 

intentional discrimination is not clearly erroneous under Rule 

52(a), Fed. R. Civ. P.
In addition, appellees argue that because the parties in 

united states v. Texas Education Agency stipulated, in the years 

preceding adoption of the present student assignment plan, to the 

entry of a consent decree stating that AISD was a unitary school 

district, then, as a matter of law, the Court must hold that all 

vestiges of AISD's prior racial segregation have been eliminated, 

notwithstanding appellants' presentation of uncontradicted evidence 

showing the existence of such vestiges and notwithstanding the 

findings below of the presence of such vestiges.
A. The Obligations of a Formerly Dual School System.
Appellees' arguments, however, show that they fundamentally 

misunderstand the rights appellants assert and misunderstand the 

nature of the constitutional obligations which the AISD, as a

3

r



V

formerly dual school system, has towards students affected by its 
past intentionally discriminatory actions. Appellees argue that 
AISD is to be analogized to a school district which has never 
practiced ds jure racial segregation and that its constitutional

obligations are to be determined likewise.
A school district which has never practiced intentional racial 

discrimination is only liable for racial segregation in its schools 
resulting from its intentionally discriminatory acts. AISD 

apparently assumes that if this standard were applied to it. then
it will be liable for segregative actions resulting from its pupil

• • .niv if those assignment policies areassignment policies only it those
themselves intentionally discriminatory.

under this model, no amount of proof of the causal
relationship between the resulting segregation and other past 
unconstitutional, segregative actions by the AISD would ever be 
relevent oh the issue of liability under the Fourteenth Amendment.

indeed, under this model, AISD would escape liability even if 
it were conclusively shown that in the past it had carried out 
actions for the specific purpose of creating a black section of 
Austin in which all African- Americans resided so that m  the 
future any neighborhood school pupil assignment plan adopted by 
AISD would cause a disproportionately high percentage of students
to attend racially segregated schools. The only relevent purpose,

.. Kn thP nurDOse behind the current pupil AISD contends, would be the purpose
assignment plan.

4



Appellees' model equates racial segregation created as the 

result of AISD's previous unlawful, intentionally discriminatory 

action with racial segregation created by other actors or created 

by forces having nothing to do with AISD or created by lawful,

nondiscriminatory actions by AISD.
In short, appellees argue that racially segregated schools 

which demonstrably arise from past illegality are to be viewed as 

being no more than cases of disproportionate impact arising from 

legal actions.
All this follows, appellees contend, from the fact that

certain individual parties in United States_v.— Texas— Education

Agency. supra. consented to the entry of a consent decree stating 

that the action was a class action and that the school district was 

unitary.
Once a school district is declared unitary, appellees argue, 

a federal court should limit the scope of its inquiry under the 

Fourteenth Amendment to one single fact, namely, did the school 

district have a specific intent to discriminate on racial lines in 

the adoption of its current school assignment policies.

With the inquiry so limited, it is immaterial whether there 

are past judicial findings of the school district's segregative 

intent to bring about long— term racial segregation in the schools. 

Similarly, it is irrelevant whether specific evidence exists 

directly tracing the current segregation in the district's schools 

to its former intentional discriminatory actions in maintaining a 

dual school system or in making East Austin the black part of town.

5



The effect, of course, of appellees' arguments is to single 

out school desegregation cases for discrimination by making them 

judicial cases in which unique principles of law apply. For 

example, collateral estoppel ceases to be a doctrine applicable to 

school defendants in these cases and past judicial findings of 

vestiges of discrimination created by the distict become 

irrelevant. In addition, school cases become cases in which 

injuntions have only a temporary effect and one that is not 

commensurate with the scope of the violation.

Finally, under this model, the defendants in school cases are 

enabled to make the effects of their intentional discriminatory 

actions felt indefinitely, and are allowed, after a suitable 

probationary period of three years, to perpetuate the effects of 

their wrong-doing without the subsequent victims having any 
recourse to relief.

Appellants believe that such arguments, although they have 

been embraced at times by a number of federal judges, have no place 

in the jurisprudence of constitutional law. They weaken the rule 

of law by allowing wrong- doers to profit from their wrongs and by 

rendering null and void past judicial findings and past judicial 

orders for relief. Such arguments are based upon a profound 

misreading of equal protection principles governing school 

desegregation cases. Because of the importance of the issues in 

this case, appellants have explained these principles at length 
below.

6



The Supreme Court's decision in Brown v. Board of Education 

(Brown I), 347 U.S. 483 (1954) articulated the first of these 

principles. The Court said in Brown v. Board of Education, supra, 

that intentional racial segregation by government violates the 

equal protection of the laws guaranteed by the Fourteenth Amendment 

and the due process clause of the Fifth Amendment. Brown v. Board 

of Education, supra. 347 U.S. at 495.

The following year, in Brown v. Board of Education (Brown II) , 

349 U.S. 294, 300 (1955), the Supreme Court addressed a second 

important issue in school desegregation cases, namely, the question 

of relief to redress the constitutional violation. In deciding 

this issue, the Court first emphasized that it is a "fundamental 

principle that racial discrimination in public education is 

unconstitutional," id. 349 U.S. at 298, and that "(a)11 provisions 

of federal, state, or local law requiring or permitting such 

discrimination must yield to this principle." Id.

The relief to which the plaintiffs in a school desegregation 

case are entitled to obtain from the district court, the Supreme 

Court said in Brown II, was an order directing a school district 

operating dual school systems for white and black students to make 

a "transition to a system of public education freed of racial 

discrimination", id. 349 U.S. at 299, or, as the Court also put it, 

"to effectuate a transition to a racially nondiscriminatory school 

system." .Id. 349 U.S. at 301.

7



5 , The Significance of Vestiges of Prior Discrimination.
The meaning of this directive was further spelled out in Green 

v. School Board of New Kent County, 391 U.S. 430 (1968). There,

the Court said the district court should order racially dual school 

systems to make a transition to a "unitary system in which racial 

discrimination would be eliminated root and branch." Id. 391 U.S. 

at 438.
In short, the Court said, the scope of the remedy must be 

commensurate with the scope of the constitutional violation, and 

the constitutional wrong-doing must be undone. See, for example, 

Milliken v. Bradley (Milliken I), 418 U.S. 717, 738, 744 (1974).

The Supreme Court gave fuller content to this requirement in 

Mi 1 liken v. Bradley (Milliken II), 433 U.S. 267 (1977), when it

held that the remedy must "be related to 'the condition alleged to 

offend the Constitition,'" id, 433 U.S. at 280, and must "be 

designed as nearly as possible 'to restore the victims of 

discriminatory conduct to the position they would have occupied in

the absence of such conduct.'" Id.
These duties, however, could be fulfilled only if the school 

district satisfied two additional obligations. The Supreme Court 

described one of the obligations in Dayton Board of Education v._ 

Brinkman. 443 U.S. 526 (1979), where it said:
"Given intentional segregated schools in 1954 

the Court of Appeals was quite right in 
holding that the Board was thereafter under a 
continuing duty to eradicate the effects of
that system", Dayton Board of_Education v_̂
Brinkman. 443 U.S. 526, 537 (1979) citing
Columbus Board of Education— y_j— penick, 44 3 
U.S. 449, 458 (1979).

8



V

Inorder to eliminate racial discrimination "root and branch" from 

the school system, the offending school district must satisfy its 

"continuing duty to eradicate the effects of that system". See. 

Swann v. Charlotte-Mecklenburg Board of Education. 402 U.S. 1, 15 

(1971), where the Court said the obligation is to "eliminate from 

the public schools all vestiges of state-imposed segregation."

In Milliken II, supra. the Supreme Court enforced this 

obligation by approving a judicial order requiring the Detroit 

school district to provide remedial education and other educational 

services to victims of past racial segregation in the school system 

on the ground that "(t)he educational components ... ordered into 

effect ... are plainly designed to wipe out continuing conditions 

of inequality produced by the inherently unequal dual school system 

long maintained by Detroit." Id., 433 U.S. at 290.

The decision in Milliken II, supra. illustrated one aspect of

the continuing nature of the obligation to eradicate the effects

of past discrimination. The Court held, in that case, that the

remedial programs which it approved "were not, and as a practical

matter could not be, intended to wipe the slate clean by one bold

stroke..." £d. 433 U.S. at 290. Continuing, the Court said:

Rather, by the nature of the antecedent 
violation ... the victims of Detroit's de jure 
segregated system will continue to experience 
the effects of segregation until such future 
time as the remedial programs can help 
dissipate the continuing effects of past 
misconduct. Milliken II, supra. 433 U.S. at
290.

Similarly, in Milliken I, supra. the Court said that it would 

have approved an inter-district remedy affecting separate school

9



districts if the plaintiffs in the case had established that "there 

has been a constitutional violation within one district that 

produces a significant segregative effect in another district." 

Id, 418 U.S. at 745.

Or alternatively, said the Court, the plaintiffs would have 

been entitled to an inter-district remedy if the "racially 

discriminatory acts of the state or local school disticts, or of 

a single school district have been a substantial cause of 

interdistrict segregation." Id. 418 U.S. at 745.

The Supreme Court described the other constitutional obligation 

that must be satisfied by a formerly dual school district in Davton 

v. Board of Education v. Brinkman, supra. There, the Supreme Court 

said that the school district has:

"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'". Davton 
Board of Education v. Brinkman, supra, 443 
U.S. at 538, citing Columbus Board of 
Education v. Penick, supra. 443 U.S. at 460.

Like the preceding subsidiary duties, this duty was also a

continuing one.

The Supreme Court decision in Swann v. Charlotte-Mecklenburg 

Board of Education. supra. approved the use of busing for 

desegregation as a remedy in school desegregation cases. The 

school district still, however, has the obligations described 

above. Accordingly, the school children, in a case where busing 

is granted as a remedy, are entitled to a remedy that addresses 

"the condition that offends the Constitution" and one in which "the

10



nature of the violation determines the scope of the remedy". Id. 

402 U.S. at 16. But this means that the plaintiffs in such a case 

are entitled, given available alternatives, to be subjected only 

to pupil assignment policies which do not give rise to racial 

segregation directly traceable to the district's past segregative 

practices and policies.
Appellants, in their brief on appeal, demonstrated how the 

current pupil assignment plan segregates the elementary schools in 

a manner that is directly traceable to the AISD's past segregative 

actions in making East Austin the black part of town. 

Consequently, both the resulting segregation in the schools and the 

racial status of East Austin are vestiges of the AISD's past 

segregative actions. Moreover, continued implementation of the 

current plan perpetuates the effects of AISD's past intentional 

segregative actions.

The AISD has a continuing duty to eliminate these vestiges. 

Appellants recognize that, as a practical matter, the elimination 

of the neighborhood segregation successfully caused by the AISD, 

see. United States v. Texas Education Agency (Austin III), 564 F.2d 

162, 164-165,170, 171, 173 (1977); Austin IV, 579 F.2d 910, 911- 

912, 916 (1978), cannot be easily accomplished or accomplished 

overnight.
However, the current assignment plan, which is only one of 

several available alternatives, can be eliminated and another plan 

substituted in its place. Moreover, as the record shows, 

alternative pupil assignment plans can be drawn which are more

11



effective in neutralizing the segregative effects of AISD's former 
neighborhood residential segregation strategy. see, Record M J _ 
147.

Appellees do not deny, on this record, that uncontradicted 
evidence presented at trial shows the continued existence of 
vestiges of the AISD's past intentional discriminatory actions, 
see, Professor Yale Rabin's testimony. Record 108-121, and 
accompanying exhibits, indeed, the district court below, in making 
its findings of fact, said:

.•••• Professor Rabin testified in the
i^th^ ~ ertL°n CaSe in 1979 ’ His testimony m  the present case was based on two census
maps one compiled in 1970 and one in 1980 
The Court finds that the maps indicate a clear 
majority of the Black population in AISD 
continues to live east of Interstate 35 
Professor Rabin declared that the racial 
isoiation of Blacks in east Austin reflect
iadpCltYhS discriminatory past. This Court made such a finding in holding AISD to be 
operating a dual school system in 1979. Page 15 of slip opinion. y

Thus, the district court agreed, and specifically found, that 
the reason for concentrations of African- Americans in certain 
geographical areas of Austin is the persistence of the legacy of 
the city's and the school district's segregative actions. see, 
page 16 of district court opinion.

Moreover, professor Rabin's uncontradicted testimony showed 
that there had been an intensification during the ensuing years in 
the concentration of African-Americans in East Austin, Record 112, 
but that there had not been any significant dispersion of African- 
Americans from the concentration. Record 113-114, 117-iis.

12



Professor Rabin confirmed, again in uncontradicted evidence, 

that this concentration of minorities gave rise to the minority 

schools under appellees' current plan. Record 116. Professor 

Michael Stolee's testimony also confirmed that the schools racially 

segregated under the current plan are basically the same schools 

that were segregated in 1978. Record 141.

C. Ambiguous Uses of the Term "Unitary."

The district judge did not deny any of this but rather deemed 

it irrelevant on the ground that "Professor Rabin's testimony is 

of historical demographic interest, (since) it does not impugn the 

motives or intent of AISD Trustees in adopting the assignment plan 

in April, 1987.

In concluding thus, the district judge erred as a matter of 

law. Effectively, he negated the school district's constitutional 

obligation to eradicate the vestiges of its past discrimination and 

not to perpetuate the effects of that discrimination.

The reason for the judge's mistake in applying the wrong 

principle of law is clear. Essentially, the judge assumed that a 

standard of intentional discrimination had to be applied to the 

adoption in 1987 of the pupil assignment plan and not to the 

adoption of past discriminatory policies and practices by AISD 

which gave rise to the segregation under the current pupil 

assignment plan.

The judge made this mistake because he wrongly assumed that 

it was required as a consequence of the district court's 1980 

consent order in United States v. Texas Education Agency stating

13



that the district was unitary. This error, appellants believed, 

arose because of an ambiguity in which the term "unitary" has been 

used in some of the cases and briefs.

In Green v. School Board of New Kent County, supra. the 

Supreme Court said that a formerly dual school system was."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." Id. 391 U.S. at 437-438. This 

can be read in two ways.

One way is to say that a unitary system is the opposite of a 

dual system, i.e .. a unitary system is one in which the school 

district has simply ceased practicing racial discrimination.

The other way to read it is to say that a system is unitary 

if the discrimination, including all vestiges of the 

discrimination, has been eliminated "root and branch." This latter 

way equates a unitary school system with one which has satisfied 

its constitutional obligation to eradicate all vestiges of its 

prior segregative acts.

Language in the decision in Green v. School Board of New Kent 

County. supra. further contributed to the confusion by making it 

seem as if the Court preferred the former construction. This 

occurred as a result of the Court's attempt to explain why the 

pattern of separate white and black schools in New Kent County 

constituted a racially dual system. The Supreme Court explained it 

in the following way:

Racial identification of the system's schools 
was complete, extending not just to the

14



composition of student bodies at the two 
schools but to every facet of school 
operations— faculty, staff, transportation, 
extracurricular activities, and facilities.
Green_v. School Board of New Kent County.
supra. 391 U.S. at 435.

This gave rise to the famous six criteria of Green v. School 

Board of New Kent County, supra. which school officials, and some 

judges, generally offer as a measure for determining whether a 
school district is unitary.

This dual use of the term "unitary," to mean either 

satisfaction of the six criteria of Green, supra. or the 

elimination of discrimination and its vestiges "root and branch," 

is the source of much confusion and the cause for the errors below 
by the district judge.

Appellees have furthered this confusion in two ways. First, 

they want the Court to believe that the latter construction of 

unitary was used when the district court in 1980 and 1983, referred 
to the school district as being unitary.

This use of the term, however, conflicts with the facts since 

no evidence was presented to the district court at that time to 

show that the vestiges of the AISD's prior discrimination had been 

eliminated. Moreover, no hearings were conducted by the district 

court for this purpose. Yet, such a hearing would have been 

necessary in light of the findings of vestiges of AISD's 

discrimination described in Austin II, III, and IV, as well as in 

the district court's own 1979 memorandum opinion and order. No 

reason exists, of course, for believing that any of these vestiges 
have been eliminated.

15



Indeed, the consent order and the stipulation make it clear 

that the parties used the term "unitary" only to mean that 

implementation of the then busing desegregation plan would enable 

the school district to satisfy the six criteria of Green, supra. 

In this Court, however, appellees pretend that the declaration of 

unitariness was based upon proof, or consent of the parties in that 

action, that all of the vestiges had been eliminated. Nothing, 
however, in any of those orders says this.

The second way in which appellees have heightened the 

confusion is to treat this issue as being simultaneously an issue 
of law and an issue of fact.

Thus, for example, when appellants argue that the court below 

made a specific finding that there are continuing vestiges of 

AISD's past discrimination which cause its current neighborhood 

school assignment plan to segregate the schools, or when appellants 

argue that professor Rabin presented uncontradicted testimony 

showing the continuing effects of AISD's past discrimination in 

resegregating the school system through the current plan, appellees 

seek to have the Court treat the issue as an issue of law not 

subject to contrary factual findings or proof.

On the other hand, appellees want the Court to believe that 

the prior unitary declaration was based upon a specific factual 

showings that all vestiges had been eliminated and not upon the 

obvious fact that the court-ordered 1980 busing remedy would, when 

implemented, enable the school district to satisfy the six Green



criteria, i.e. , desegregating the student body, faculty, staff, 

transportation, extracurricular activities, and facilities.

D. The Issues Should Be Resolved in AppellantsJ— Favor.

The ambiguity created by this dual use of the term unitary can 

be straightforwardly resolved in the instant action since it is a 

factual matter whether the 1980 decree or the 1983 stipulation 

dismissing the action had an evidentiary basis for determining that 

all vestiges of AISD's prior discrimination had been eliminated.

It was precisely to avoid confusion such as this that the 

Fourth Circuit in Riddick v. School Board of Norfolk, 784 F.2d 521, 

543 (4th Cir.), cert. denied. 107 S. Ct. 420 (1986), emphatically

emphasized that "Our holding is a limited one, applicable only to 

those school systems which have succeeded in eradicating all

vestiges of de jure segregation."
In the absence of a showing that the school system has 

eradicated all vestiges of its de jure segregation, the Fourth 

Circuit said in School Board of the City of Richmond ,v_.— Baliles, 

829 F . 2d 1308 (4th Cir. 1987), a decision rendered a year after

Riddick, supra, that:
It is well established that once a court has 
found an unlawful dual school system, the 
plaintiffs are entitled to the presumption 
that current disparities are causally related 
to prior segregation, and the burden of 
proving otherwise rests on the defendants....
This presumption ends once the school district 
has achieved unitary status....

• • • •
....  (I)n school desegregation cases,

the burden does not shift back to the 
plaintiffs until the school system achieves
unitary status. School Board_of— the— City— oX
Richmond v. Baliles, supra, 829 F. 2d at 1311.

17



This view of the effect of unitary status is consistent with 

the argument appellants have presented in this brief. Although it 

places the burden of proving that current racial disparities in the 

school system are causally related to past intentional

discriminatory actions of the AISD, it still provides an 

opportunity for plaintiffs in a school desegregation case to 

satisfy that burden. Additionally, it reaffirms the duty of 

formerly dual school system to eradicate vestiges of their past 

discrimination and to refrain from taking actions which will 
perpetuate those vestiges.

This point was emphasized by the Supreme Court in Davton Board

— Education—v._Brinkman. supra , when speaking of the segregative
actions taken by the Dayton school board, it held:

The Dayton Board, however, had engaged in many 
post-Brown I actions that had the effect of 
increasing or perpetuating segregation. The 
District Court ignored this compounding of the 
original constitutional breach on the ground 
that there was no direct evidence of continued 
discriminatory purpose. But the measure of 
the post-Brown I conduct of a school board 
under an unsatisfied duty to liquidate a dual 
system is the effectiveness, not the purpose, 
of the actions in decreasing or increasing the 
segregation caused by the dual system. Id. ,
443 U.S. at 538.

In the instant action, the AISD's neighborhood school 

assignment plan has compounded the original violation committed by 

the school district inasmuch it operates to perpetuate the 

remaining vestiges of that violation. Since appellants' proof on 

this issue is uncontradicted and, in fact, is supported by an 

express finding of the district court below, appellants submit that

18



V

the judgment below should be reversed and a judgment entered in 

favor of appellants.

There is no issue in the present lawsuit of enforcing the 1980 

Consent Decree. That issue, and only that issue, was presented in 

appellants' earlier motion for a preliminary injunction, but a 

panel of this Court decided the issue adversely to appellants.1

The issues on this appeal, and in this lawsuit as it has 

advanced towards trial, have nothing to do with enforcing the 1980 

Consent Decree. Rather, appellants seek only to have the Court 

apply the proper constitutional standard to whatever pupil 

assignment plan the AISD adopts. That standard, of course, is one 

that precludes the AISD from compounding its original 

constitutional violation by adopting a plan which builds upon the 

vestiges of its prior discrimination by resegregating its schools.

Of course, if the Consent Decree had not expired and 
there had been an outstanding injunction still in effect requiring 
implementation of the busing plan, then appellees' abandonment of 
the busing plan without specific judicial modification of the 
injunction, would have rendered any new plan unlawful. See, Dowell 
v. Board of Education. 890 F.2d 1483 (10th Cir. 1989), cert. 
granted. ___U.S. ____ , 110 S.Ct. 1521 (1990).

19



CONCLUSION
For the reasons set forth above, the judgment below should be 

reversed and judgment entered for appellants.

Date: October 1, 1990.

Respectfully submitted,

Austin, Texas 78701 
(512) 478-1600

JULIUS L.CHAMBERS 
CHARLES STEPHEN RALSTON 
NAPOLEON B. WILLIAMS, JR.
99 Hudson Street, 16th Floor 
New York, New York 10019 

(212) 219-1900

Attorneys for Appellants 
McMurtry, Williams and Powell

20



CERTIFICATE OF SERVICE

I hereby certify that I have this 1st day of October, 1990, 

served a copy of the foregoing Reply Brief for Appellants upon the 

following attorneys, by United States mail, first class, return

postage guaranteed, addressed as follows.
William H. Bingham, Esq.
James R. Raup, Esq.
McGinnis, Lochridge & Kilgore 
Texas Bank Building 
900 Congress Avenue 
Austin, Texas 78701

David Van Os, Esq.
Van Os, Rubinett & Owen, P.C.
900 Congress Avenue, Suite 400 
Austin, Texas 78701

r  ■ i•- ( _____  '
NAPOLEON B. WILLIAMS, JR.