United States v. Texas Education Agency (Austin Independent School District) Brief for Defendants-Appellees

    L i /

TABLE OF CONTENTS

QUESTION PRESENTED
STATEMENT

Page
.1

1
1 . 
2. 
3.

Procedural History ............  , ,
District Court Decision .........  . . .
Facts...................................
(a) History and Growth of AISD . . . .  
(H) tfexican-American Student Attendance(c) East Austin ................  . . .
(d) AISD Plan: Secondary Level . . .
(c) HEW Plan: Secondary Level ........
(f) AISD Plan: Elementary Level . . .
(g) HEW Plan: Elementary Level . . . .

1
5
9
916

21
2326
28
36

DISCUSSION . .
I. NO ERROR ON

11. no error IN
V\ E X1C A N - A Vi E R1C A N IS S U E 

APPROVING AISD PLAN .
37 
4 8



4

TABLE OF CITATIONS

V

Page
Alvarado v. El Paso Independent School District,
“"No.” 71-1555 (5th Cir, , decided June id, I9Y-T)...... 47

Avery v. Georgia, 345 U.S. 559 (1953)................ 4 3
Bivins v. Bibb County Board of Education, 424 F.2d 

97 (5th Cir. 1970).................................. 54
Cisneros v. Corpus Christ! Independent School 

District, 3Ĥ  F. Supp. 599 (S .D. Tex., 1970)
(No. 71-2397 on appeal)............. ............... 47

Davis v. School District, City of Pontiac, 309
F. Supp. 73̂ 7, aff'd 44 3 F.2d 573 (6th Cir. 1971).... 38,37,47

Delgado v. Bastrop Independent School District,
C. A. i.'o. 37TB (W.D. Tex. June 15, 1948)
(unreported) Preshall ............................. 37

Gonzales v. Sheely, 96 F. Subp. 1004 (D. Ariz.
19517 .............................................. 47

Green v. New Kent County, 391 U.S. 4 30 (1968)........ 4 8
Hernandez v. Driscoll Consol. Indenendent School

District, TTTTace NeXT ETRT~J29 Or.U7~TexT 1~95T).... 37,4 C
Hernandez v. Texas, 34 7 U.S. 4 75 (1951|).............. 47
Independent School District v. Salvatierra, 33 S.W.

2d 790 (Tex. Civ. App., 1930), cert. den. 284
u.s. 580 (1931)..................................... 37

Mendez v. Westminster School District, 64 F. Suop.
5IT4 (S.D. Cal. 19463, aff'd lFl F.2d 774 (9th Cir.- 
1 947) ......................... .................... 47

Romero v. Weakley, 226 F.2d 399 ( 9th Cir. 1955)...... 47
Ŝ ijnr,leion v, ucicKtsoii fuiinlcip̂ l S6p^r&t/6 octiooi

7ystew/'JJIS "Cir"; T (J67)777777........ •?2

i



Spranr.ler and United States v. Pasadena City 
Boa'rd~oT" Kduc.itTon, 311 P. Cupp, bl CC.O.
Cal. 1970)'. .V. ................’..................... 37

Sv.’ann v. Board of Education, ;I02 U.S. 1 (1971)...... 48
U.S.v.National Association of Real Estate Bds.,

70 S . c t .  7"11 , 339 ’ll.S. *W5 .........................  38

Whitus v. Georgia, 383 U.S. 5^5 (1967)..............  43
F. R. Civ. Froc. , Rule 52(a)........................  38

Page



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 71-2508

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.

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

Defendants-Appellees.

On Appeal from the United States District Court 
for the Western District of Texas

BRIEF FOR THE AUSTIN INDEPENDENT SCHOOL DISTRICT

QUESTION PRESENTED

Whether the district court erred in:
(a) Finding that the Austin Independent School 
District had not discriminated against Mexican- 
American students in any manner.
(b) Approving the school district's plan of 
student assignment for the 1971-72 school year.



STATEMENT

1. Procedura1 History
Oil August 7, 1970, the United States filed this desegrega­

tion suit in Federal Court for the Western District of Texas 
against the Austin Independent School District (AISD) pursuant 
to Section 407 of the Civil Rights Act of 1964, 42 U.S.C. 
2000c-6. The plaintiff alleged that AISD had traditionally 
operated and continued to operate a dual school system based 
on race by discriminating against both blacks and Mexican- 
Americans. On the same day the Court ordered AISD to collab­
orate with the Texas Education Agency (TEA) in preparing plans 
for immediate conversion to a unitary nondiscriminatory school 
system. The Department of Health, Education, and Welfare 
(HIV/) was also ordered to assist and aid the TEA in proces­
sing and reviewing all such plans developed. The parties 
were ordered to attempt to reach an agreement, but if no agree­
ment could be reached, they were to file their respective plans 
with the Court on August 21, 1970.

On August 27, 1970, a short hearing was held and the Court 
orally ordered the implementation of the interim plan offered 
by the United States with only a slight modification of the 
new Anderson High School zone. Besides the enlargement of 
the Anderson zone, the main features of the Order were the

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implementation of the provisions of Singleton v. Jackson 
Municipal Separate School System, 'll9 F 2d 1211 (Fifth Clr. 
1969). on September 'l, 1970, the Court entered a written 
order restoring the Anderson zone to its original boundaries; 
the order of August 27 was otherwise undisturbed. In its 
Order the Court also directed HEW to make a comprehensive 
study of AISD and prepare and submit a desegregation plan 
which would completely disestablish a dual school system;
The Court further ordered the officials of AISD to consult 
and fully cooperate with HEW in presenting to the Court a 
desegregation plan/ The plan, or the respective plans of 
the parties if they could not agree, were to be filed on

1/ See Paragraphs B, c, D, E, F, and G of Appendix A of the District Court's Order of September 4, 1970.
2/ Despite repeated orders by the District Court that the 
parties should attempt to work together toward a common de­
segregation plan, the evidence reveals and the court so found 
that despite AlSD's repeated attempts to communicate with

nn,r a*.??rlod of SGVeral months, nothing was forthcoming from LEV. until approximately 30 days prior to trial." The 
Court again repeated that "AISD was not given the benefit of
EW recommendations in drawing its plans, despite repeated 

efforts to obtain such recommendations, until*approximately 
30 days prior to trial." The Court concluded on this point 
by stating that this "case thus appears to depart substan­
tially from the usual run of school cases in that here the 
uncommunicative, uncooperative and recalcitrant party has not 
been the local school board, but the Department of Health, 
Education, ar.d Welfare." See Memorandum Opinion and Order of
u y 9, 197x, pg. 3 , 'i . Also see testiinonv of Dr. Davidson. Transcript pg. 832, line 2 0. ' :

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December 15, 1970; however, after several orders extending 
the filing date of the plans, the plans were finally submitted 
on May 1*1, 1971.3

A pre-trial conference was held on June 11, 1971, at 
which time the Court again urged the parties to negotiate a 
common plan; the case came to be heard on the merits on June 
1*J, lasting for six full days. On June 28, 1971, the Court 
handed down a seven page memorandum opinion and order on 
only one of the two major issues in the case: the Court
found that the Defendant had not discriminated against 
Mexican-Anericans. Rather than implementing a plan at that 
time, the Court ordered the parties to renegotiate in light 
of this finding, since it was clear that HEW had prepared its 
plan under the assumption that the Court would decide in its 
favor. On July 15, 1971, the parties reported back to the

3/ There is considerable question, especially in the District 
Court's opinion, whether HEW ever filed a comprehensive de­
segregation plan: "At this time, HEW filed with this Court
its comments on the desegregation plan formulated by the AISD. 
These comments (Letter from Thomas Kendrick, Senior Program 
Officer to Dr. Jack Davidson, Superintendent, AISD, dated and 
filed May 1*1, 1971) [Hereinafter called HEW recommendations] 
as they have been amended at trial, through the Introduction 
of Plaintilf's Exhibits 23, 25, and 26, and the Report and 
Submission filed with this Court on July 15, 1971, constitute 
the only documentary evidence of any desegregation plan devel- 
n£,e „̂'Uy "^W# , ^  trial> several further modifications to the “1J" were revualeu fur the first time throughthe oral testimony of Mr. A. T. Miller, the HEW Project Officer. 
See District Court Memorandum Opinion of July 19, 1971, pg.3-*<.

/
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Court and informed the Court that it had reached agreement on 
the high school plan but could not agree on the junior high 
school plan or the elementary school plan. Accordingly, on 
July 19, 1971, the Court handed down a second Memorandum 
Opinion and Order incorporating its first Opinion and imple­
menting the AISD plan with minor modifications.

On August 3, 1971, notice of appeal was filed by the 
United States, and in its brief the Government is assigning 
error to: (1) The Court's finding that AISD had not dis­
criminated against Mexican-American students in any manner; 
and (2) The Court's approval of the School District's de­
segregation plan for the 1971-72 school year. While it is 
difficult to see, the Government's main argument seems to be 
that the District Court's finding as to the Mexican-American 
issue is clearly erroneous in part; moreover, the District 
Court's findings as to this issue are too general, and there­
fore it is impossible to tell which Mexican-Americans wore 
discriminated against. Accordingly, the Government is now 
seeking a remand for more specific findings; while it does 
not explicitly say so, the Government implies that its plan

1



will re-drawn according to now, proper, and more specific 
findings.̂

2. District Court Decision
In its brief, the Government has leveled several charges 

against the District Court's Memorandum Opinion and has argued 
that these deficiencies of the Opinion serve as a basis for 
reversal. One of the main criticisms of the Government is 
that the District Court's findings are too general, or that 
the District Court "did not make specific findings of fact 
but instead made general recitations mixing findings of 
ultimate fact with conclusions of law." (Appellant's Brief, 
PE* 38) The Government further complains that "it is often 
not possible to tell what legal standards were followed in V

V  See Appellant’s Brief, pgs. 90-51: "The HEW Plan, which
was prepared in response to the District Court Order of Sep­
tember 4, 1970, to make a comprehensive study and prepare a 
plan 'which will completely disestablish a dual school sys­
tem' was based on the assumption that de jure discrimination 
against both blacks and Mexican-Americans existed system-wide; consequently, it was drawn to eliminate the ethnic and racial 
ldentifiabllity of every school in the system....We agree that 
the scope of the remedy ordered in cases of this kind ought 
to be consistent with the nature of the violation... Since it 
now appears that the evidence as to de jure discrimination 
against Mexican-Americans does not extend to all Mexican- 
Aine-rican schools as assumed by the HEW plan, a remand to the 
District Court to consider the extent of the relief warranted in this case appears proper."

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assessing the facts or even which alleged facts were accepted 
as true and which were rejected as false." (Appellant's Brief, 
IG. 39.)

It is difficult indeed to understand exactly v/hat the 
Government has in mind in making these statements. It is 
clear that upon a reading of the lower court's opinion, it 
considered the whole array of evidence, both the oral testi­
mony and the lengthy number of exhibits introduced, because 
the Court actually recites almost item for item all of the 
evidence:

While alleging such de jure segregation, against 
Mexlean-Americans, the Plaintiff failed in main­taining its burden of proof.
Texas has never required by law that Mexlcan- 
American children be segregated, and the AISD, 
unlike some other school systems, has never en­
acted regulations to this effect. Since no dis­
criminatory rule or regulation has existed,
Plaintiff has sought to demonstrate a history of 
discriminatory practices against Mexican-Americans.
All that Plaintiff has succeeded in showing is 
that at one time the AISD had overlapping school 
zones for Pease and the West Avenue schools, and 
for Metz and Zavala. During' this period, prior 
to World War II, the West Avenue and Zavala 
schools were referred to as "Mexican" schools, 
since their enrollment was totally Mexlcan- 
American, and since their programs were designed 
to meet the needs of a largely migrant population 
with a fluctuating attendance pattern. Even dur­
ing this period, there were a number of Mexican- 
Americans attending the so-called "Anglo" schools.
A pattern of de jure segregation is not estab­
lished by the statement of a former student that 
Mexican-Americans were encouraged to attend 
Zavala rather than Metz in 1936-^1, the testi­
mony of an educational expert that concentration

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of Mexican-Americans in certain schools is detri­
mental, the opinion of an interested, but non­
expert cltisen that segregation continues, and 
the implication of a recent student that the 
education in one minority school is inferior.
The only other evidence on the issue of Mexican- 
American segregation consists of testimony by 
certain AISD administrators and former school 
board members. Taken as a whole, the testimony 
of the witnesses, particularly that of Dr. Wilburn,
Mr. Cunningham, and Dr. Davidson, conclusively 
shows that at no time during the existence of the 
AISD has there been de jure segregation against 
Kexican-Anericans, and this Court so finds.
(Memorandum Opinion, June 28, 1971.)
It is difficult to understand how the Court could use 

clearer language stating to the Government that it has con­
sidered all the evidence proffered by both parties, and it 
lias found that the Government failed to prove that AISD dis 
criminated against Mexican-Americans. In addition to the 
above, the Court entered the following specific findings in 
Footnote 12: 1 2

Specifically, the Court makes the following find­
ings of fact, based on the record as a whole:

(a) The Austin Independent School District has 
never adopted, published, or promulgated any 
written or unwritten rules, regulations, or 
policies having as their purpose the discrimina­
tion against, or segregation or isolation of 
Mexican-Americans.

(b) The Austin Independent School District has 
never discriminated against, or attempted to dis-

segrcgate Mexican-criminate against, Isolate >orAmericans in form whatsoever, part: :u. •iy m :
(1) site location of schools
(2) school construction

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(3) drawing of school attendance zones
(4) student assignments
(5) faculty assignments
(6) staff assignments
(7) faculty and staff employment
(8) extracurricular activities; and
(9) transportation
(c) The Zavala and West Elementary Schools were 

not built for the purpose of discriminating against, 
isolating or segregating students on the basis of 
Kexlcan-American ethnic origin. (Memorandum Opinion,June 28, .1971.)
In addition to the above findings, the Court also made 

findings in Its Memorandum Opinion of July 19, 1971, concern­
ing the respective plans filed by both parties. For reasons 
which will bo discussed later, the Court found the HEW plan 
unacceptable and ordered the Austin plan implemented with 
minor modifications. Finally, In its Memorandum Opinion of 
June 28th, the lower court entered findings that "AISD has 
adequately desegregated faculty and staff, transportation, 
extracurricular activities, and facilities." Memorandum 
Opinion, June 28, 1971.5

5/ See Defendant's Exhibits 
appeal the Government is not Court.

Nos. 2'l, 79, and 81. In its 
attacking this finding cf the

i
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3. Facts
(a) History and Growth of AISD
There are many factors in this case which prevent an easy 

or complete understanding of the facts. First, the record 
Itself is very large, the transcript being over 1,200 pages, 
and the list of exhibits well over 100; moreover, the exhibits 
themselves complicate the case, since many of them are school 
district maps with a variety of different and changing zones. 
The period of time involved - over 50 years - is long and the 
scene - the community of Austin, Texas - is constantly chang­
ing due to the enormous growth the community has always en­
joyed. The evidence itself is often quite old and stale and 
therefore often ambiguous or unclear. Finally, the issues in 
this desegregation case are more complex than the usual since 
the Government, in addition to alleging discrimination against 
blacks, is also alleging that officials of AISD have unoffi­
cially discriminated against Mexican-Americans by various 
actions.

The record in this case reveals that both the Austin com­
munity and its school district have experienced remarkably 
substantial and constant growth throughout this century.
Since 1900, the City of Austin has increased from around 
22,000 in population to over 25 0,000, an average growth of 
over ^0 percent per lU-year period. (Defendants Exhibit No. 
59, pg. 6; Defendant's Exhibit No. 91, pg. 2.) The population

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of the Austin school system has naturally reflected this grovth, 
increasing from around 3,600 in 1900 to around 55,000 in 1971. 
(Plaintiff's Exhibit No. 1, Defendant's Exhibit No. 59, pg. 12.)

It- Is, however, considerably more difficult to describe 
from the record the concentration and distribution of both the 
general population and student population throughout the years; 
it is also quite difficult to describe from the record the 
physical characteristics of the City - the commercial a.reas, 
public facilities, traffic flow and congestion, etc. This is 
especially difficult for the early years before 1950 since 
the record is more sparce here. But an attempt- must be made 
for it is impossible to formulate a rational school policy 
without this Information. It simply will not do, as the 
Government does, to merely quote figures, for that is only a 
part of the picture.

By examining Defendant's Exhibits Nos. 69 and 13 and 
Plaintiff's Exhibit No. 2 , and by relating these exhibits to 
any of the various maps in evidence, it is clear that prior 
to 1950, especially in the earlier years, the student popula­
tion was in or near what is now the center of the City. For 
example, Austin High School and the old Allan Junior High 
School oite are now in areas that could be considered part

or very close to, the central business area of nn-.v.
The same could be said of the majority of the elementary

1
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schools prior to 1950. Much of what is now the central busi­
ness area, the State office complex and The University of 
Texas campus, was originally residential in nature.6

Throughout all of the years involved, the City of Austin 
experienced rapid population growth, However, after 19 1̂0, 
no new schools were built until the early 1950's, primarily
because of World War II. (Defendant’s Exhibit No. 1 3, pg. 2 .) 
But since 1950, the AISD has been engaged in almost continuous 
construction, resulting in the opening of 36 new elementary 
schools, nine new .junior high schools, and seven new high 
schools. (Defendant’s Exhibit No. 1 3.)

Before initiating such an ambitious building program, the 
Austin School Board engaged the services of a professional 
planner, Jac L. Gubbels, in order to obtain advice on the 
best location of its new schools. The result was a lengthy 
report filed by Mr. Gubbels (Defendant's Exhibit No. 91) m  
19^7 in which he stated on Page One of that report that "the 
purpose of this survey is to determine the proper location 
for the schools of the City of Austin, Travis County, Texas, 
for the twenty-year period ending in 1966." (Defendant's 
Exhibit No. 91) The report reveals many factors that were

cnt K?rans“ lpfpgs?°?S7™52? the pres-

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considered in determining site locations, but. several stand 
out: first, "tne school sites were selected in areas where
the population will naturally concentrate. For this reason, 
the direction of growth was analyzed with care to avoid any 
artificial forcing of development."? (pg. 1) Second, "pres­
ent and future major thoroughfares must be considered in pro­
viding accessibility of the school site to the student popu­
lation." (pg. 5) Third, "it would be a grave mistake to 
locate a school site which may later prove to be in the mid­
dle of a newly developed industrial center." (pg. 5) Finally 
other factors includei"density of population per acre, the 
number of dwelling units per acre, the distribution of white 
and non-white population,^ the occupancy of dwelling units, 
whether owner or tenant, the necessary acreage and location 
of the acreage for the anticipated population expansion, the

7/ This is extremely Important with regard to the Mexican- 
American question since the report explicitly evidences no 
intent to draw and isolate Mexicp.n-Americans, which is a 
major part of the Government's argument.
8/ At the time the Gubbels Report was written, 19^7, the 
AlSD was required by state law to operate a dual school sys­
tem based on race. Mexican-Americans were considered white 
and Gubbels made no distinction between the Anglo and Mexican- 
American population. Evidence that Mr. Gubbels was not mak­
ing an attempt to isolate Mexican-American students can be 
seen fro:.", the attendance zone he drew for the proposed East
A u stin  R 1 erh h O Hn r \ 1 • 1 V  ̂no 1 nHo<5 1  ̂y rrti  ̂ o p v1 V*» c* f\ rr~] r \------ , .. — o “ —- ■—... — “*• - .... 0   population was present or likely to move into.

i -12



percentage of the population of school age and the distribu­
tion of the school age population in the existing and anti­
cipated future sections of the city." (pg. 6) In addition 
to these general guidelines, more specific factors became 
Involved when choosing a site for a particular school, since 
there are substantial differences among the senior high, 
junior high, and elementary schools,9

The wisdom of the School Board in consulting and follow­
ing Mr. Gubbels advice was borne out, for in the 20 years 
following 1950, Austin grew rapidly, both in population and 
size. Its population almost doubled, going from about 132,500 
in 11950 to 252,000 in 1970, while its area more than doubled, 
going from about 38 square miles to 8l square miles.-*-0

Equally significant in terms of a sound educational policy 
is the change in distribution of the school age population. 
Such information is difficult to ferret from the record, but 
the record does soundly support the proposition that the cen­
ter of the City, starting at the Colorado River and going 
north has become Increasingly commercialized, thus displacing 
the residential areas. There are primarily three forces at

9/ See Defendant's Exhibit No. 91, pgs. 19, 25, 32-33. Com­
pare this for similarity with Mr. Cunningham's testimony con­
cerning site location. Transcript, pgs. 381-386, pgs. ^5^-467.
10/ Defendant's Exhibit No. 59, pgs. and 6.

1 -13-



v.’ork to cause such a large displacement: first, the central
business area, which is tending to displace all residential 
sites from the Colorado River on the south, 13th Street on 
the north, Interregional Highway on the east, and Lamar Blvd. 
on the west; second, the State office building complex which 
now stretches basically from 11th Street to 19th and from 
Interregional Highway* on the east to Lavaca Street on the 
west; third, The University of Texas campus, which extends 
from 19th to approximately 29th Street and from several 
blocks east of Interregional on the cast to Guadalupe on 
the west. Furthermore, surrounding this rather large area 
is a "proliferation of bachelor housing and young couples, 
student housing___for those attending the University."11

A comparison of the student population totals for 1990
to 1970 will show the substantial decrease in student popula
tions that has been occurring in the central areas through 

3 2these years:

Y l / See Transcript, pg. M7-^52.
12/ Compare Plaintiff's Exhibits Nos. 3A and 3F.



“ 19*19-50 1970-71
Mathews 1039 826
Pease 67 513 368

Palm 17961 1240
Bryker Woods 714 528

•• Baker 762 395
Lee 891 462
Ridgetop 923 644

. Rosedale 1077 892

Zavala 1333 889lif
In addition to reflecting the decline of student popula-

tion in the center of the City, the exhibits also conversely 
show the increase in population away from the City's center 
in almost all directions. The consequence of this is that 
the schools, especially the elementary schools, have been 
located over an increasingly wide area as the Austin School 
Board attempts to keep up with the growing and spreading 
population. In conclusion, the AISD which was rather small 
and compact even as recent as 1950, is now composed of 72

13/ Pease incidentally dropped from 116’J in 1948-49 to 675 in W 9-50. (Plaintiff's Exhibit 3A)
?.h°^ e flsures represent only the white students (Anglo 

S V ^ l ^ - C ^ r i c a n )  since the black student was not enumer- ated in the 1949-50 census. In 1970-71, black students were 
present In these school zones as follows: Mathews, 132; Pease,
0, Palm, 32; Metz, 4; Bryker Woods, 0; Baker, 0; Leo, 20;Ridgetop, 1; Rosedale, 0; Zavala, $2.

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schools spread over an area 30 miles north and south and about 
2b miles east and west, with a total area of 230 square miles.15 

(b) Mexican-American Student Attendance
One of tne two major issues in this case relates to alleged 

discrimination against Kexican-American students, discrimina­
tion not in the form of any official action but rather in the 
form of student assignment and school construction. The 
Mexican-American student population of AISD is presently 
around 20 percent, but this was not always so. (Defendant's 
Exhibit 23) In 1920-21, the Latin population was only 5.6 
percent of the total white student population, but by 1930 
it had almost tripled going up to 1̂ 1.87. Over the next 20 
years it gradually reached around 20 percent, where it has 
since remained. (Plaintiff's Exhibit No. 1)

• The evidence in this case demonstrates that Mexican- 
American students have always attended schools in Austin with 
Anglo students, very often in substantial numbers. Defendant's 
Exhibit No. 69 reflects that there has never been a year 
when Mexican-American children were not present at almost all 
schools in the District and on all levels. Despite what one 
would assume would be ample evidence if it were true, the 
Government failed to produce one single witness who could

15/ There are now seven high, ten junior high, and 55 elemen­
tary schools.

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testify that he was refused enrollment In any school due to 
his ethnic origin as a Mexican-American. In fact, the Govern­
ment's own witnesses lent support to the Defendant's case. 
Richard Moya, a Mexican-American, testified that in 19^1 he 
transferred from Zavala, a predominantly Mexican-American 
elementary school, to Metz, a predominantly Anglo elementaryc
school. Dr. Sanchez, an extremely prominent educator who 
has been a full professor at The University of Texas since 
191)0 and who has had substantial contact with AISD, testified 
that he has never heard of a single case of discrimination 
against Mcxican-Americans on the secondary level and that 
he had knowledge that Mexican-American students attended 
schools with Anglos. He also answered that if he had ever 
hoard of any discrimination, he would have complained loud 
and clear.^ (Transcript, pgs. 130-137)

16/ Other evidence, which is not very clear or well developed 
because of the difficulty of working with the large number of 
items involved, is the family census card, Form G-9. (See Ex­
hibit No. 70, as an example.) This card, which the School Dis 
triet began keeping in 193^, serves as a record of a family 
during the duration in the school system. Once a family no 
longer has children in the school system, its card is removed 
to the inactive file. Exhibit No. 70 is a family card of 
Alberto Aguirre, obviously of Mexican-American origin, and it 
reflects that as the family moved, the child changed schools 
from Zavala to Zilker and then from Zilker to Becker. This 
would evidence that there Is nothing in the administration of 
AISD that would require a Mexican-American family to live in 
any part of town on account of his children or to send his 
children to a particular school of their national origin.
This evidence was not introduced because it involves hundreds 
of thousands of cards dating back to 193^ (Transcript, pg. 525 
Tne m xou, no we v or, prGiiereu uiioso aocuments to the Govern­
ment to allow an opportunity to determine if Mexican-American 
families were required to live only in certain zones due to 
allegedly discriminatory practices. The Government, however, 
made no such use of this data. (Transcript, pgs. 528-53^)

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Although the records reflect that Mexican-American students 
were in all schools throughout the District at all times and. 
that no Mexican-American student was ever refused admission 
because of his ethnic origin, the records do reflect that 
prior to World War II certain schools had an almost complete 
Mexican-American enrollment: West Avenue, Comal, and Zavala.
The first two of these three schools were closed many years 
age, and only Zavala remains open today. The evidence dis­
closes that these schools, especially the Zavala School on 
which there is the most evidence, represented a response of 
the AISD to meet educationally two very serious and substantial 
problems suffered by many of the Mexican-American children
prior to World War II. First, although the exact percentages 
are not known, many of these children could not speak English
or had great difficulty with the language. Second, a very 
large percentage of these children were from migrant farm
families who consequently started school as late as December 
and left as early a3 April, and many of whom were considerably 
over-age for their grade level. (TR. , pg. i\2G)

Dr. Sanel^ez himself wrote that many Spanish-speaking children 
did not enter school until October, November, or even December, 
and that many of them left school a month or two before the 
close o: the school year, and that this problem was certainly 
acute from 1920 to World War II. (Transcript, pg. 158) Mr. 
Cunningham, who actually taught at Zavala when It opened In 
1936, testified that at the beginning of the school year the

-18-



school population was around 250, but by the first of February 
it would be close to 500; by the last six weeks of the school 
year the number of students would drop down to 375 or ^00.
Dr. Lee Wilburn, who also taught at Zavala when It first 
opened and served as Assistant Principal, testified that 
there was a special arrangement of the curriculum because 
they knew that a large percentage of the students would 
arrive late in the fall semester and would be withdrawn 
early in the spring because they were members of migrant 
labor families. (Transcript, pg. 698) Later on Dr. Wilburn 
also testified that they had these migrant children for 
approximately five months out of the year. (Transcript, pg.
713)

There is also ample testimony, including some from the 
Government's own witness (Transcript, pg. 1̂2), that many of 
the students who attended these schools could not speak 
English or had great difficulty with that language. Mr.
Cunningham testified that "help was being offered for___
children with bilingual situations," (Transcript, pg. 320) 
and Dr. Wilburn testified that they had "many children (at 
Zavala), particularly those that were there for the first 
time, who did not speak any English when they came to school.
anu we communicated with them in Spanish." (Transcript,
70 2 )

PE'

1 -19-



The evidence further reveals that extra attention and 
help were given to these children and many new and special
programs were initiated to help overcome the disadvantages 
of the background. Zavala was the only elementary school, 
for example, that had an industrial arts and homemaking pro­
gram (Transcript, pg. 715); it was the first elementary 
school to have an open shelf library, giving the students 
greater access to the books. (Transcript, pg. 721) The 
School also initiated a breakfast program at Zavala, the 
first in Austin (Transcript, pg. 707), and it was also one 
of the first schools with a hot lunch program (Transcript, 
pg. 726). Another special problem was that many of the 
children were much older than their grade level and conse­
quently special efforts were made at Zavala to help a child 
reach his correct grade level (Transcript, pg. 700).

In summary these schools and especially Zavala were 
special schools built for the purpose of attempting to help 
those Mexican-American children with substantial disadvan­
tages; there is even testimony to the effect that the school 
was opened at the request of the Mexican-American community 
(Dr. Wilburn's testimony, Transcript, pg. 696). The students 
responded and their interest and success in completing their 
tuuciinuiis xiicieabcu Siiaipay \i.pansci*jLpi/, Pg. 7-*-5) • A read­
ing of Dr. Wilburn's testimony clearly reveals that these

-20-



schools, especially Zavala, did not represent an attempt by 
AISD to remove the Mexican-American students from the Anglo 
population; rather it was a serious attempt to help those 
Hexican-American students living in those neighborhoods who 
needed and wanted the extra attention and help that was pro­
vided at these schools.

(c.) East Austin
The major difficulty in this case stems out of the living 

patterns of the population. East Austin, north of Seventh 
Street, has traditionally been and still remains the residential 
area for the blacks. There are many different reasons which 
brought this about, but surely the main reason was an economic 
one, since it was probably the one main area in town in which 
they could afford to live. Certainly, the presence of the 
majority of their schools, including both secondary schools, 
surely reinforced this living pattern. South of East Seventh 
Street to the Colorado River was originally an Anglo neighbor­
hood with a minority of Hexican-American residents. However, 
by 1920 this part of East Austin had begun to change to pre­
dominantly a Hexican-American neighborhood as greater numbers 
of the Hexican-Americans moved into the City. Again, economics 
of the area largely caused this pattern. (Plaintiff's Exhibit 1)

The relation of this area of town to other parts of town 
has certainly undergone change over the years and this has 
complicated the problem. In Austin's earlier days the area 
was not remote from the rest of Austin's population, but that 
situation has changed considerably over the past 20 years,
which a study of the maps and exhibits will show.

-21-



The boundaries of East Austin are Interregional Highway 
31; on the west, 19th Street on the north, the School District 
on the east, and the Colorado River on the south. An investi­
gation of the areas around East Austin will reveal the problem 
of isolation of that area. First, both to the east and south 
is undeveloped land, except for a small area south of the 
Colorado River known as Montopolis. The western boundary of 
this area Is marked by Interregional Highway, the largest and 
busiest thoroughfare of the City. Going west from this high­
way to Lamar Boulevard and going north from the Colorado River 
to approximately Airport Boulevard is an area, discussed pre­
viously, that has a declining student population due to an 
ever-increasing commercialization of this area. Due north 
of East Austin is a small Anglo area known as Maplewood and 
adjacent to Maplewood on the east is Municipal Airport. Thus 
not only is East Austin a definite and distinct region of the 
City, but due to the growth of the City it has been becoming 
more remote from the other major residential areas. Fortunately, 
there is a major exception to this trend and this is the area 
developing east of the airport, where East Austin is beginning
to come into substantial contact with a developing major Anglo 

17area. '

17/ The proposed location and attendance zone of the new North­
east Senior High and Junior High Schools seeks to take advantage 
of this development, resulting In a naturally integrated student 
body (Defendant's Exhibits Nos. 31, 32, and 37).

-22-



Another hope/ul sign for the future development of the 
City is the migration of the minorities from East Austin.
In 1950-51, 93 percent of the black population lived in East 
Austin, whereas in 1970, 86 percent lived there, a decline 
of ! percent. The migration of Mexican-Americans from that 
area is considerably higher; in 1950-5 1, 89 percent of the 
Latins lived in East Austin, whereas in 1970-71, that figure 
declined to 64 percent, a drop of 25 percent. (Transcript, 
pg. 312-314) Another and equally encouraging aspect of this 
movement is that these people are moving into all parts of 
Austin and not Into another confined area. (Transcript, pg. 523)

(d) AloD Plan.: Secondary Level
In the last school year (1970-71) there were 2100 black 

high school students (14* of total high school population) in 
AISD, out of these 916 (432) attended Anderson, an all-black 
school, and 619 (29%) attended Johnston High School.1  ̂ On 
the junior high school level, there were 1570 black students 
(152 of the total junior high population), 739 (462) of which 
attended the all-black Keallng Junior High, and another 527 

(332) at Allan and Martin.^

W x  W f S e h o o l  an ethnic makeup as follow No, H3)' ’ •’ nerican. 6% Anslo (Defendant's Exhibl

iffy fh7 A]1an had a student body of *137 (*t2J)blacks u j / O I /»; Lex ican-Ameri canq hr /ii5\ . r v . /uxetews,90 black- ( n o  7no 7 ’ nd ^ ^ ) Anglos; Martin has

-23-

Cf 
M



School

nation this year .. ^m-olementata
jpon the ' Davids"’

devised by Dr. JacK 
d n a n ’ ulU he substantia
>. these fibres

, „l level, Anderson ui^ h schoo attcndan'
,n the old Anderson

—  tn > addition) Opt

nt.s Exhibit ho. 1>
20 as a resul ,

Gh school 7.ono. atte.v
, students «ho «erc 

lr'h SC> ° ‘ plus about 281 st ’<J38 at Anderso ^  ^  ^
, *,«. Exhibit ho.ant  ̂ -yvrentar/,,n ln which the person
hast Austi of 19-'
cf 6.85 at Travis to

&hiblt K0' 37L  hiDh school lev-
°" th° 3 o l .ndthe re-son!’ri1,h School ana

J" ' ,1 U  produce results
least Austin ' reenter'

21 The resulting perco
plan.

•------ D e f e n d a n t ' s  E x h ib it  "pO/ Compare vrr

ndent of 
On the 

of the 
e re-zonei 
. 5 (Defen- 
/. ustin 

,0 black 
ast Austin 

. .n Defen- 
.tside of 
..in a low 
\Defendant’

r Kealing 
vs out of 
h school 
vs in the

it's Exhibi

cuts the 
Defendant’



other Junior high schools will range from a low of 5*1% at 
0. Henry to 2C}.2% at Allan. All of the other junior high 
schools (except Fulmore at 5.9£ black) will range from 9.2% 

to 19.2% black (Defendant's Exhibit No. 37). The number of 
students zoned out of East Austin will be approximately 939 
(721 at Healing, plus 2*12 zoned out of Allan, minus 47 zoned 
into Martin).*^

Anderson and Healing students were zoned into both con­
tiguous and non-contiguous areas which will require trans­
portation of these students. On the high school level 23 
busses will be needed, and the total cost for the year 
including operational cost will be $279,885. On the junior 
high level 17 busses will be needed, and the total cost here 
will be $207,895. The shift in student attendance will re­
quire some adjustments in building capacity. On the high 
school level the desegregation plan will require the purchase 
of an additional 1*) portables plus moving 10 others, for a 
cost of $17^,900. On the junior high level eight new port­
ables will be needed and four transferred for a total cost 
of $63,900. In conclusion the total cost of the senior high 
plan will be $*159,785 and for the junior high $207,855; the

22/ These figures are derived from Defendant's Exhibits Nos. 2T and 37.
1 -25-



entire cost for the secondary plans, which provides for no 
racially identifiable black school, will be $662,610.^3

(e) HEW I’lan: Secondary Level
It is difficult to determine whether the Government is 

appealing the high school plan. In its report of July 15, 
1971, the Government stated that it had reached an agreement 
with AISd on a high school plan. However, It also stated 
that such an agreement does not imply acquiescence in the 
Court's findings. Moreover, the Government clearly Implies 
in its brief that the Johnston High School site was chosen 
to discriminate against Mexican-Americans.

HEW's proposal anticipates closing Anderson as a high 
school and utilizing it as a junior high; the Anderson 
students would be rezoned to surrounding high schools. The 
zone^H for Johnston High School would be rezoned "to remove 
its racial identiflability." (Letter of May l k , 1971, from 
Thomas Kendrick to Dr. Davidson) HEW was not able to be too 
specific concerning this zone and its projected ethnic 
makeup, allegedly because up-to-date pupil-locator maps were

23/ All of these figures were derived from Defendant's Exhibi 
Ho. 37. This Exhibit also contains the size of the new high 
school zones in the "Mileage Chart for 1971 to i973."
2k/ The Government utilized a map in explaining the new zone 
Tor Johnston, but failed to introduce it as an exhibit.

!

-26-



not available.̂  The cost of transportation according to 
HEW would be $3^2,860. (Plaintiff's Exhibit No. 23)26 
While the HEW high school plan projects serious crowding of 
several of the high schools, no cost factor has been assigned 
to the necessity of providing portables, which naturally re­
duces the overall cost of their plan. (Plaintiff's Exhibit 
No. 22)27

On the junior high school level HEW anticipates closing 
the present healing Junior High and utilizing Anderson as a 
junior high school. Pearce would be rezoned to include some 
of the former Healing students, and Martin would be rezoned 
to remove its racial identif lability. This plan a.lso contem­
plates extensive crosstown bussing to remove bla.ck students

25/ If HEW was lacking- my information necessary to formulate c: plan, it was not due to any lack of cooperation on t 
of A13D, since HEW always received the information it from AISD. (Transcript, Dg. 550) Part of regard was tlie failure of HEW 
as stated-by Jud
July 19, 1971, pgs. 3-5.

he cart 
i id requested the problem in this to consult and work with AISD, 

e Jack Roberts in his Memorandum Opinion of

26/ The United States has suggested In Exhibit 23 that there 
would be reimbursement from the State to the AISD for opera-

the testitri°ny Of Leon R. Graham (Transcript, pga. 103x-on reveals that there are many factors to be con- 
sioered before determining the amount of reimbursement, 
lhere is no assurance that the school district would be reim­
bursed in an amount even close to the Government's estimate.
27/ Thu 
Travis 
it can

iour nigh senoois or Crockett, Lanier, McCallum, and 
would have a combined total of 2725 students more than presently accommodate.

i -27-



to Anglo .schools and to bring in Anglo children from Porter, 
Fulmer, Webb and Burnet. The transportation cost including 
operational cost for the first year would amount to $240,320 
(Plaintiff's Exhibit No. 25); again no cost factor is con­
sidered for the overcrowding that would result from the HEW 
plan. (Plaintiff's Exhibit No. 24)

(f) AILD Plan: Elementary Level
Desegregation of the elementary schools in a workable 

fashion presented the most difficult problems for AISD. A 
study of Defendant's Exhibit No. 11 v/ill revea.l part of the 
reasons: fifty-four elementary schools with relatively small
zones spread across the entire district.28 The black ele­
mentary schools, located in East Austin, cannot physically 
be integrated by redrawing the attendance zones, because not 
only are these schools remote, but ail of the adjacent schools 
already had a substantial amount of integration or were school; 
predominantly attended by Mexican-Americans. The approach 
ol the AISD then was to attempt some means of desegregating

the black elementary schools, while at the same time pro­
viding sound educational programs for Mexican—Americans:

Now with this kind of dilemma, which I guess 
is faced by urban school systems all over the country, we began to look at some means of 
doing this on an educational basis. And in

£6/ The closing of St. John's Elementary School, the onlv 
r ̂  !̂-LclCK bCiluo-L outsnue oi mast Austin, reduces the nu^b®r of elementary schools from 55 in 1970-71 to 54 for 1971-72.

i

-28-



pursul
school
school
Americ
began
all bl
were p
some 1
tion a
all whlookin
emerge
provid
blacks
chilor

ng the questions of how many black 
we had, how many Mexican-American 
v;hlch were predominantly Hexlcan-

ms ar-» 11r rr. ̂ny Anglo schools, it 
to be apparent that we had about 7 
ack schools, we had 7 schools which 
redominantly Mexican-American, we had 
6 schools that had a level of segrega- 
nd some 27 schools that were basically 
ite at the elementary level. So, in 
g at that, the consideration began to 
, would there be a possible way to 
e some good educational experience for 
, for Mexican-Americans and for Anglo 
en in a way that could be planned by

educators and could at the same time meet 
the requirements of lav?. I hope you will 
notice that our primary consideration in this 
was some way to make this experience educa­
tionally sound. As a matter of fact, in 
studying it, we tried to say let's take what 
in many communities is a tough kind of problem 
and see if there is any possibility of turning 
it into an educational advantage. It was on that 
basis there that we began to look at approaching 
the things from an educational stand point. (Testimony of Dr. Davidson, Transcript pgs.775- 
776)

Dr. Davidson's plan, a completely new approach, achieves
substantial integration for all of Austin's school children.
in a manner consistent not only with traditionally sound
educational goals but also with new developing techniques in
education, especially team teaching:

One of the developing techniques in education 
today is the utilization of what is termed 
(team) J teaching, and as we were working on 
some pr*0£\2?cinis !'or* tr.02.m &ncl ^ ^

?9/ On pg. 777 , line 18, the court reporter apparently omitted the word "team" in front of "teaching".
1 -29-



teaching and continuous progress of our 
children at our elementary level, the idea 
began to emerge that if it is possible to 
team teachers together, is it not also 
possible to team schools together for multi­
cultural activities; and so we looked at the 
possibility of taking these seven basically 
all black schools, the 7 schools that were 
predominantly Mexican-American and the 27 or 
so schools that were predominantly white and 
establishing some teams of companion schools. (Transcript, pgs. 777-778)

In addition, this plan attempts to stress the different
cultures— black, Mexican-American, and Anglo— of the Austin
community and how they can be maintained and how the different
cultures live together in our society:

it became pretty important to look at ways 
that the culture of the blacks, the culture 
of the Kexican-Amerlcans, and the culture of 
the Anglos could be maintained and stressed 
at the same time how these different cultures 
live together in our society. (Transcript, pgs. 777-778)

The prominent features then of the Davidson plan are:
(1) the retention of the basic neighborhood school concept 
substantially modified; (2) utilisation of new and developing 
techniques of education, i.e. team teaching, and application 
of this concept so as to team schools; (3) emphasis on the 
cultural variety of our three ethnic groups in such a way 
that wholesome attitudes are developed and all the students
come to respect anu appreciate the contributions of each 
ethnic group.

-30-

/



The plan or educational Integration envisions the estab­
lishment or sir teams of "companion schools." Those are com-

postd.or 0ne Virtually 211 black school, one school predominantly 
or Mexican-American students, and four schools of predominantly 
Anglo enrollment. (See Defendant's Exhibit No. 78.) Within 
each team there is established a central coordinating commit­
tee consisting of the six principals, six teachers (one from 

or), one to three Instructional coordinators from the 
central administrations, resource personnel for special areas 
of con.erned parents, and staff specialists. This multi- 
cultuial commuted, since It consists of representatives from 
minority and majority race students, will be called upon regu­
larly to assess and review these planned educational programs.
AS a means of providing authentic evaluation from minority 
croups, one such committee will be established with a special 
F rvlsor, group consisting of a predominantly number of 

minority representatives. This w in assure continuing evalua­
tion concerning activities for minority students.

The program activities have three basic components:
(1) Planned sequential visits between the 
schools of different ethnic backgrounds by 
grace levels and by groups of students;
(P) Programmed visitations to establish learn-— ° resource centers with the Cit”
centers will be established in the’areaiTof

-31-



social sciences, fine arts sciences, and 
avocational interests. Students will be 
transported for these education activities.
(3) Multi-cultural field study trips within 
the teams of companion schools.

Specific program activities are planned for these multi­
cultural inter-site visitations. The coordinating planning 
advisory council for that team of schools would preplan the 
educational activities to be pursued by the specific students. 
This has been accomplished by one team.for illustration to 
the District Court and is continuing at the present time.
Iii the inter-site visitations, a groat number of educational 
possibilities exist. One example can be cited in the study 
of Texas history. Fourth grade students from each of these • 
schools would study the developing history of Texas and the 
contributions made by the different ethnic groups in that 
history. Stressed particularly would be the contributions 
of Mexican-Americans and blacks, as well as Anglo citizens.
The culture of each of the groups would be studied. In the 
inter-site visitations of these fourth grade students, this 
study would culminate with group discussions on an inter­
ethnic basis, musical programs related to their studies, art 
forms prepared by the students depicting cultural development 
dramatic skits presented in both Spanish and English with 
emphasis on the important contributions of each culture and 
how these cultures have helped produce the multi-cultural 

i

-32-



ethnic society in which we live today. Another possibility 
is the study of neighborhood and environmental conditions 
in which the various groups live. This provides an oppor­
tunity for understanding and appreciation of both the liv­
ing conditions and the life styles of other people. Specific 
programs in literature, language, communications, history, 
sociology, music, art, drama, and practical arts are planned 
for these inter-site visitations.

The four learning resource centers, three of which were 
to be established in Anderson, Kealing, and Baker, provide 
opportunities for larger groups of students to assemble 
together than is possible with inter-site visitations. The 
science resource center could be established at Baker, the 
center for avocational interest at Anderson, and the centers 
for fine arts and social sciences of Kealing. In these visits 
to the learning centers, students would have planned activities 
with large groups of students. These planned activities would 
include small group seminars, as well as the large groups.
These centers will be equipped with materials and equipment, 
exhibits, displays, and demonstrations, which will emphasize 
both the academic areas' of interest and the multi-cultural 
involvement. These centers provide tremendous opportunities 
for educational enrichment on a multi-cultural basis.

/ -33-



An individual child within a particular classroom in 
a specific school could be expected to visit these learning 
resource centers approximately 23 times per year. This is 
computed on the basis of using the centers approximately 
150 out of the 180 school days per year. This would be 
equivalent to approximately 13% of the instructional year
to be spent in these learning resource centers for special, 
planned educational activities. If inter-school educationally 
integrated activities were provided for 150 days of the school 
year, each child in each class of each school in the teams of 
companion schools could participate approximately 25 times 
during the instructional year. This would amount to approxx- 
matcly 14? of the instructional year's time. The total of 
the inter-school visitations and the sessions at the learning 
resource centers would be approximately 2(% of tho year's 
scheduled time. When one adds the multi-cultural field study 
trips to such things as regional science centers, children's 
theatres, symphony orchestra concerts, ot. cct., it can bo 
seen that approximately one-third of the student's total 
time in school during the year would be spent in these planned 
multi-cultural activities.

-34-

1



Special care was taken to make sure that the children
from the various schools in each of the six clusters 
would be learning together in an integrated atmosphere; 
moreover, measures were taken so that the same children 
would be together during the inter-site visits, classes 
at the learning resource center, and on field trips. In­
structional groups of 28 to 32 students will be composed 
of four multi-ethnic student teams consisting of 6, 7 , or 
8 students each, depending on the size of the companion 
school groups. The students in each instructional group
will normally be in the same grade level and will be balanced 
ethnically. This will enable students to interact with the 
same group of individuals over a period of a school year, 
thus providing an opportunity for greater in-depth learning 
and understanding.

As was mentioned earlier, the Davidson plan will still 
utilize the neighborhood school concept on the elementary 
level. Students will report to their regular schools in the 
morning and then be transported as a class under the super­
vision of their teachers to one of their planned activities. 
At the end of the day, they will be returned to their home 
school again as a class under the supervision of their tea­
chers. No new busses will be required for transportation

1 -35-



since the same busses used for secondary schools will be 
used again for the elementary school plan; operational cost 
will amount to about $100,000. (Transcript, pg. 831)3°

(g) HEW Plan: Elementary Level
The HEW Plan for the elementary schools employs a cluster 

concept which would involve permanent assignments of students 
to schools which on the average would be approximately ten 
miles from their home (Defendant's Exhibit 82, Attachment A), 
and would require the crosstown bussing of 8,900 students 
(Plaintiff's Exhibit 26). The plan, obviously devised with­
out any educational planning, is undeveloped and vague; it 
fails to explain for example how children are to be grouped 
in those schools which have been paired with other schools 
(some contiguous and some non-contiguous). And two of their 
proposed clusters achieve only minimal Integration; Cluster 
ho. 5 has only 1% black and Cluster No. 6 has 2% (Defendant's 
Exhibit 82, pg. 5 ). The bussing of the students, of course, 
would be unsupervised and not educationally oriented as would 
be the case in the Davidson Plan. The number of busses re­
quired would, according to HEW's figures, be around 65 and 
the estimated cost before any reimbursement would be $717,900.31

a« fullfr and more complete discussion of the Davidson { c.n for tne elementary schools, see Transcript ngs 772-800 and Defendant's Exhibit No. 80 ’ PS t ( i

|1/ All of the cost figures estimated by HEW for its own "Ians
serlous doubt and the lower court itself found

DleLnt oTCStl?ated the number or busses required to im- oni n f f n f y sch001 Plan- According to AI3D, who m v  f°nsiderod ,I10r° rellable in its cost estimates, thee -̂ementary proposal would cost $1 ,708,000, and the entire 
' Plan ^oula cost $2,910,579. (Defendant's Exhibit No. 82)

-36-



DISCUSSION

I. NO ERROR ON MEXICAN-AMERICAN ISSUE
In its allegations of AISD discrimination against 

HexJcan-Amcrican students, the Government admits that no 
such discrimination has ever been officially practiced.
The Government v;as forced to admit this because no state 
law has ever required segregation of Mexican-American students, 
nor had the Austin School Board ever adopted any rule, regula­
tion, or policy statement to this effect. And Texas courts 
have for years held that those school districts that did prac­
tice segregation of Mexican-Amcricans were in violation of the 
constitution. Independent School District v. Salvatlcrra,
33 S.W .2d 790 (Tex.Civ.App. 1930), cert. den. 28h U.S. 580 
(1931) ; Delgado v. Bastrop Independent School Dlstrlct , C.A.
No. 388 (W.D. Tex. June 15, 19^8)(unreported); Hernandez v, 
Driscoll Consolidated Independent School District, 2 Race Rel. 
L.R. 329 (S.D. Tex. 1957).

The Government alleged though that AISD practiced dis­
crimination against Mexican-American students through its 
"actions" and decisions (Transcript, pg. 17) and thus is guilty 
of de jure segregation. Spongier and United States v. Pasadena 
City Board of Education, 311 F.Supp. 6l (C.D. Calif., 1970).

-37-
1



The most recent and major case on do jure segregation of 
this type is Davis v. School District, City of Pontiac,
309 F. Supp. 73*1, 741-42 (E.D. Mich., 1970), aff'd 443 F 2d 
973 (6th Cir. 1971). It was the Davis case which the District 
Court followed in determining whether some form of de jure 
segregation had been practiced against Mexican-Americans:

Where a Board of Education has contributed 
and played a major role in the development 
and growth of a segregated situation, the 
Board is guilty of de ju.rc. segregation.
Davi s , supra, p . 74 2 .

Following the broad principle and applying it to all the 
evidence presented at trial, the court found that the Govern­
ment failed to sustain its burden of proving AISD discrimina­
tion against Mexican-American students. The finding of the 
lower court with respect to this issue is similar to any 
other finding of fact and should not be set aside unless 
clearly erroneous. Rule 92, F.R.Civ.Proc. An appellate 
court cannot set aside findings as clearly erroneous merely 
because it might give the facts another construction, resolve 
the ambiguities differently, or find a more sinister cast to 
actions which the district court apparently deemed innocent. 
U.S. v. National Association of Real Estate Dds. , App. D.C. 
1950, 70 S.Ct. 711. 339 U.S. 485. $4 L.Ed. 1007. It is clear 
that the findings of fact entered by the district court

1 -38-



pursuant to the legal principles onnunclated In Davis, supra 
are not clearly erroneous, but to the contrary, they are 
supported by substantial evidence.

In actuality, the Government has leveled against AISD 
two charges of discriminatory actions, unrelated in time and 
somewhat in manner. The first charge is aimed at certain 
actions of the School Board made from around the 1920's to 
the en.a of World War II. This, of course, involves three 
elementary schools, West Avenue, Comal, and Zavala, the first 
two having closed many years ago, whose student body was pre­
dominantly, if not entirely, Mexlcan-American. The Government's 
charge in essence is that these schools, together with their 
open attendance policy, evidenced an intent upon the part of 
the Austin School Board to segregate and isolate Mexlcan- 
American students from the majority Anglo population. The 
Government has also tried to bolster its case by introducing 
evidence from school board minutes between 25 and 50 years old 
of isolated remarks in referring to the "Mexican" school, com­
plaints from a committee of parents from Winn over their school 
having to take all the Mexlcan-American students from the re­
cently closed Bickler, certain complaints from Mexlcan-American 
parents and the Mexican consul concerning the lack of any Anglo

-39-



The second charge revolves around thestudents at Zavala, 
enumerations of "Latin Americans" in the census beginning 
around 19;,8, the construction policy of AISD beginning 
around 1953, and its method of drawing attendance zones.

The record as a whole reveals not only did the Government 
fail to sustain its burden of proof, but also that it put 
on a very weak case. If their allegations concerning dis­
crimination were true, especially in the years before Zavala 
was given its own definite geographic zone in 1953, it would 
appear that there would be ample ora], testimony to this effect 
Yet the Government failed to introduce even one witness who 
could testify that he was refused admission to a nearby 
grade school and required to go to a "Mexican" school. Surely 
this glaring omission of evidence must have weighed heavily 
in the lower court's decision. Moreover, the Government's 
only witnesses on this issue supported AISD's position.
Richard Moya, who had attended Zavala for his first three 
years, transferred to Metz, a predominantly Anglo grade school 
in 19^1 when his family moved. Dr. Sanchez testified he had 
never heard of a single case of discrimination against Mexican 
American students In the AISD.^

3?/ There should be little doubt t 
would have taken action if such a 
participated in both the Driscoll 
supra. (Transcript, pgs. 92, 116)

hat this prominent educator 
situation had arisen; he 
case, supra, and Delgado,



Also the "documentary" evidence introduced by the Government, 
i.e., the school board minutes, hardly deserve to be labeled 
as exhibits. They are extremely old and stale and now prac­
tically impossible to clarify. And these minutes badly need 
such clarification. For example, the committee of parents 
from ttinn, a favorite of the Governments, could easily have 
been complaining over the possible overcrowding at their 
school resulting from the closing of Bickler. It Is unfair 
to infer, as the Government does, that these people wanted 
to discriminate against Mexican-Americans. This incident, of 
course, will probably never be explained since it occurred 
around 23 years ago. The various references to the "Mexican 
school" and the complaints of various Mexican-American parents 
and a Mexican consul, all occurring from 25 to 50 years ago 
are likewise extremely weak documentations of discrimination. 
As to the closing of Bickler Elementary School, Mr. Cunningham 
testified that that was necessary due to the residential popu­
lation being pushed out by commercialization in the vicinity. 
(Transcript, pg. 323) Finally, the zone line for Zavala, 
over which the Government complains, was originally drawn 
next to the school; however, since Zavala and Metz were only
three blocks away, it is rather obvious th i- V-

d  is  l / l i c ;  u u u n u u i .  j

-41-



lir .c would necessarily run next to one of the schools. 33
On the other side of this question, the AISD presented 

sone very substantial evidence. Defendant's Exhibit No. 69 

reveals that in every year in question, Mexican-American 
students attended all schools in Austin and on all levels, 
with one or two occasional exceptions. Furthermore, the 
teftimony of Hr. Cunningham and Dr. Lee Wilburn clearly show 
thft the so-called "Mexican" schools were not built for the 
purpose of segregating Mexican-American students, but rather 
were designed to provide those students who needed them an 
opportunity to take advantage of the special programs offered. 
There is no question that a large number of Mexican children 
could attend school an average of only 9 or 6 months because 
they were members of migrant families; it is also clear that 
many of the Mexican-American children could speak no English, 
or very little; finally, many of these students were over-age 
for their grade level. The programs and curriculum at Zavala 
were designed to compensate for these deficiencies and offer 
the children extra help in their education. The programs were 
successful (Transcript, pg. 720), but the children were still 
free to attend other schools (Transcript, pg. 723).

• ~ ̂ 4- U ,33/ This ~cno  ̂ ^^ 
changing capacities of the schools.(Transcript,j uui,̂ u i/<ii uÛ ii uhe years due to

Pg. 322)

2-
1



The second charge of discrimination against Mexican- 
Amcricans made by the Government against AISD concerns the 
following: (1) the enumeration of Latin Americans in the
census beginning around 194 8; (2) the building program after 
1993. The Government has attributed some sinister motives 
to Mr. Cunningham's tabulating the number of Mexican-Americar. 
students beginning in 194 8. The Government has argued that 
the use of this Information in connection with the building 
program of AISL aided AISD in segregating Mexican-American 
students.

As legal support that this type of activity— i.e. enu­
merating Latin Americans— is unconstitutional discrimination* 
the Government has cited Avery v, Georgia, 345 U.S. 559 (1553;
and V.1 hit us_v. Georgia* 385 U.S. 595 (1987). The Government's
reliance on these cases is clearly misplaced* for those cases 
involve the use of certain information by the State in such a 
manner that it raised very strong prime facie case of race 
discrimination against blacks in jury selection.

To begin* Mr. Cunningham was not instructed by the school 
board to initiate a separate census for Latin-Americans. 
(Transcript, pg. 453) Ho began this on his own* as a student 
under Dr. Sanches. for a reasearch project. The cross-exam!na

tion of Dr. Sanchez reveals that many of his graduate students

1 -43-



wrote their theses on the education of Mexican-American
children in Austin. After his research project, Mr. Cunning­
ham continued on his own to keep this information:

The exhibit indicates the division of three 
groups there, your Anglo-American, Latin 
American and Negro, and it was kept. I kept 
it. I started it as a research project when 
I was taking the course under Dr. Sanchez, 
and I have kept it ever since then, as long 
as we kept the census. It is very interesting 
and revealing, and we have had the opportunity 
to present the statistics to the administration 
and the Curriculum Department for their use in 
beefing up the school in the Curriculum Depart­
ment. (Transcript, pgs. 327-328)

In its Memorandum Opinion of June 28, 1971, the district 
court found that "the evidence adduced at trial, especially 
the testimony of Mr. Cunningham, shows that the AISD has 
followed a policy of 'racial neutrality' in locating facilitie 
The AISD considers neighborhood need, not race, in choosing 
school sites". (Pg. 4) There is more than ample evidence in 
the record to support the court's finding here.

The Government has based its’ case on this issue of school 
construction on four events: the opening of 0. Henry Junior
high School in 199^ and the attendant moving of the west
boundary of Allan from the Colorado River to Lamar Boulevard 
(Plaintiff's Exhibit Nos. 10A and 10B); the location of the 
new Allan Junior High School in East Austin, after the old



Allan burned In 19‘37 (Plaintiff's Exhibit Nos. 10B and IOC); 
the location of Johnston High School in East Austin in I960; 
and the location of Martin Junior High School in 1967 after 
AISD v/as forced to vacate University Junior High School by 
the University of Texas (See Exhibit No. 67).

At no point in the trial has the Government ever suggested 
that any of the.- schools were unnecessary, nor is there any 
evidence to suggest otherwise. As mentioned earlier, due to 
a combination of tremendous growth and the failure to construct 
schools during World War II and five years thereafter, there 
was a tremendous need for new schools. Furthermore, if the 
schools were to be accessible and serve the population, they 
would obviously have to be built away from the central area.
The AISD did nothing more than follow the advice of a profes­
sional planner and, accordingly, located the schools where 
they were logically needed. It is significant that the 
Government has also never suggested that the locations were 
illogical or poorly planned. Nor have they even seriously 
suggested what would be a more logical, convenient, or even 
available location. Finally, the Government has not alleged 
that the attendance zones for these schools were gerrymandered 
or inconsistent with AISD'3 own sound policies in this regard, 
except for a small and temporary optional area. (Defendant's 
Exhibit No. 8, Optional Zone No. 6)

1 -'15-



As the Gubbe.ls report and Mr. Cunningham's testimony 
reveal, the selection of a school site, especially a large 
one like a junior or senior high site, involves many con­
siderations and factors which seriously narrow the possi­
bilities. All of the site selections were consistent with 
a sound educational policy, and there is nothing to suggest 
that these sites were chosen with a purpose to discriminate.
The Government has tried to suggest that Martin could have 
been located at Hancock site, between 3&th and l̂lst Streets 
and Peck, and Red River Streets (located at P and 22 on the 
map). However, as Mr. Cunningham testified and as the exhibits 
show, this site which 'was considered was rejected because of 
poor accessibility and because the area immediately south was 
diminishing in population. (Transcript, pg. 380) As to
Johnston High School, no alternative site or attendance zone

v llwas suggested by the Government.-^

3Ji/ In its brief, the Government wrote that the Superintendent 
recommended a more centrally located site (Plaintiff's Exhibit 
No. 11-A). This is another example of the Government's use 
of "documentary" evidence and the use of it to raise unjustified 
inferences. That particular paragraph reads "Mr. Carruth also 
pointed out a site which might be available from the city of 
Austin nearer the center of the school population. This site 
is near the rive1’ and jn the southwest part of the district". 
This is so weak it is evident why the Government failed to 
pursue it.

i - i \ G -



There are also several actions which clearly show no 
discriminatory intent on the part of ATSD. For example, 
A1SD maintained University Junior High for many years while 
it was thoroughly integrated, and the only reason it was 
abandoned was due to the termination of the agreement with 
the University of Texas by the University over the protest 
of AISD. (TR. p. 478; Df. Ex. 67 ) Also, the zone that was 
drawn for University Junior High in 1957 could have easily 
been redrawn sc as to transfer the bottom area of that zone 
to Allan and thus lower the percentage of minorities at 
University. (Plaintiff's Exhibit No. IOC).

There is no disagreement with the cases cited by the 
Government to the effect that Mexican-Americans are an

O f*ethnic g r o u p . N o r  is there any -disagreement with Davis, 
supra, which the lower court followed. However, all of

35/ Hernandez v. Texas, 347 U.S.. 4 75 (1954); Alvarado v. El 
Paso Independent School District, No. 71-1555"'( 5th Cir. . 
decided June T 6, 19717; Nendoz v. Westminister School Dis­trict, 64 F.Supp. 544 (S.D. Calif. 1 9 ^ T ] aff'd, lbl F2d~ 
W  C9th Cir. 1947); Gonzales v. Sheely, 96 F.Su d d. 1004 
(D. Ariz. 1951); Romero v. Weakley, 22d F2d 399 (9th Cir. 
1955); Cisneros and United "States v. Corpus Christ! Inde­
pendent S c h o o l ' D i s t r i c t F.Supp. 599 Ts7b. Tex. 1970)(No. 71-2307 on appeal).

-47-

1



theso cases hold that a complaining party must show some 
action on the part of a school board which was a major or 
substantial cause in brining about a segregated school 
system. The record reveals no such action on the part of 
the AISD and the district court's finding to this effect 
is clearly supported by substantial evidence.
II. NO ERROR IN APPROVING AISD PLAN

The District. Court, in an attempt to implement a plan, 
sought to achieve maximum desegregation under a plan that was 
reasonable, realistic, and workable. Green v. County School
Board, 391 U. S . 430, (1969); Swann v. _Board of Education,
402 U. S. 1 (1971). After a careful review of both plans, 
the Court ordered the implementation of the Austin plan as 
modified by the immediate closing of Kealing Junior High 
School and St. John's Elementary School.

There are many compelling reasons behind the District 
Court's decision to reject the original HEW plan. To begin 
with,' this plan was premised on all three levels on the 
existence of discrimination against Mexican-American students. 
The District Court, after having found no discrimination 
against Mexican-Americans, could not then order AISD to de­
segregate those schools with a predominantly Mexican-American 
enrollment oince judicxax powers may bo exercised only on 
the basis oi a constitutional violation." Swann, supra.

/
-48-



Rather than immediately ordering the implementation of 
a plan after having found no discrimination against Mexican- 
Americans, the lower court afforded HEW an opportunity to 
reverse its plans either through negotiations with AISD or 
separately if negotiations failed.

The parties did renegotiate in light of the Court's 
Memorandum Opinion of June 28, 1971, and reached an agree­
ment on the high school plan, but failed to agree on the 
junior high or elementary level. The Court accordingly 
elected to implement the AISD plan.

On the junior high school level the major difference 
between the two parties revolved around the use of the 
Anderson High School facilities. The AISD had planned on 
utilising this facility as one of its major resource centers 
for its educational Integration plan or. the elementary level, 
but the Government urged its use as a junior high school site 
There are several substantial reasons why the Court ordered 
that this site not be used as a junior high school. First 
a reasonable attendance cannot be drawn for this area and 
still produce an integrated junior high. The only way to 
achieve integration of such a facility would require carving 
out non-contiguous zones in other parts of the District and

j . ' i  i  t; X C c i j  o x  v t; b l  u o o  uuWii i / u o o i i i ^  « T  h  a. 5 w O l i l u  j O x' C 0 d x k3C

substantially increase the number of students who would have

i - 4 9 -



to bo transported across town without affecting the level 
of integration in the schools. Because of the increased in­
convenience and cost involved and because of the educational 
disadvantages attendant with bussing, especially in an urban 
area, the lower court ordered the Austin plan implemented.
There are also other considerations Involved here. The AISD 
plan for junior high schools follows zone lines and feeder 
patterns established for high schools thus providing continuity 
within all secondary schools. It also allows the use of the 
Anderson and Kealing facilities to carry out the Defendant's 
elementary educational integration program and to assist in 
the development of the new teacher education program to be 
pursued jointly by AISD and the College of Education of The 
University of Texas. Finally, this plan provides integra­
tion throughout the entire majority Anglo population, rather 
than isolated areas, thus substantially increasing the plan's 
stability and chance of success.36

36/ The experience with the Maplewood area is an excellent ex­
ample of what happens when only certain zones are selected.
Up until 1969-70 the Maplewood Elementary attendance zone area 
had an ethnic composition as follows: 75.53 Anglo, 11 .53
Mexican-American, and 133 black. In August of 1970, the 
Court ordered the Maplewood area (plus one small area west 
of Interregional Highway) zoned into Anderson High School.
The Court later rescinded this zone change since it proved 
to be a total failure due to the immediate movement of a 
large humoor oi wuxco 1 am ax loss out uf that area. The next 
school year (1970-71) the ethnic composition of that area 
was 53? Anglo, 13? Mexican-American, and 3^% black. (Plaintiff's Exhibit No. 3F)

-50-



The most dlfi icult problem posed by this case was desegre­
gation of the elementary schools in a manner that was workable, 
realistic, and reasonable. It is impossible to desegregate 
these elementary schools except by non-contlguous zoning which 
would, of course, require massive, extensive, and costly cross- 
town bussing. The Court decided for several reasons to order 
a plan which would minimize bussing. The ATSD has traditionally 
engaged in the very limited transportation of its outlying 
rural students and those engaged in special education. 37 

Therefore, it does not have the present facilities to engage 
in extensive bussing. Futhermore, the Court found that the 
added time requirements incident to bussing were educationally 
undesirable because of the reduced attendance at school, the 
increase in dropouts, and the severe limiting of student par­
ticipation in extracurricular activities occurring before and 
after school. The Court also noted other disadvantages inci­
dent to massive urban bussing: reduction of parental parti­
cipation in school activities, particularly where it necessi­
tates dividing a family's children among a number of schools;

present Austin has only *17 school busses, seven of
iou?e,are ,S??r0S* °f that ;,0> 27 are used in regular (rural) ° 1 3.are usod for special education students. Pres-

} ? * £ * * *  **• bussed on those 27• UI'u w > ru

-51-
i



the strain on the capability of health facilities in individ­
ual schools to deal with at-school injuries and illnesses; 
the increased anxiety levels, particularly among the young, 
which constitute psychological barriers to learning progress; 
community opposition and consequent loss of support of the 
school system; the lack of facilities at the various schools, 
especially in inclement weather, to handle the increase in 
assembly of students awaiting transportation; the substantial 
safety hazards involved in the transportation of so many stu­
nts' through the heavy traffic complex of downtown Austin, the 
Capitol complex, and The University of Texas campus, especially 
since the main north-south traffic artery is undergoing major 
construction involving the closing of traffic lanes and con­
sequent detours; finally, the excessive transportation costs 
involved in transporting 8,900 elementary students. 38

The Court accordingly decided on the Austin elementary 
plan as the best means for achieving maximum desegregation 
consistent with workability, reasonableness, and cost. The 
Austin plan for elementary schools will cost only $100,000 
since it utilizes existing building facilities and transportation

38/ See Defendant's Exhibit No. 82, Pgs. 15-17 for a list of 
the programs possibly affected due to a reallocation of fundsneeded to firar~^ ucu4V w v‘'v' ***-'•* ^ * •

-52-



HEW' s plan, by their own figures which the Court found to be 
understated, would cost $717,900; however, according to 
AIuD s estimates which the Court considered more reliable,
HEW s plan would cost $1,708,000 ($1,573,000 for transporta­
tion and $135,000 for portables). There is also a great deal 
of difference in the manner of transportation. HEW's plan 
would Involve the unsupervised transportation of these small 
children during heavy traffic hours. In sharp contrast, 
under the Austin plan the children would be transported as 
a class, under the supervision of their teacher, and during 
low-traffic hours. The HEW plan destroys the neighborhood 
concept and all of its advantages, while the Austin plan 
retains it as an underlying structure. Finally, many of 
the special educational programs designed for the educationally 
disadvantaged would either not be possible under the HEW plan
or seriously hindered. (Defendant's Exhibit No. 82, pgs. 6 

and 1 0.)

There are numerous problems with the HEW plan as originally 
presented and modified that are detailed and explained further 
in Defendant's Exhibit No. 82. For all of these reasons, the ' 
Court found that A1SD had met their burden of showing the 
non-feasibility of the HEW proposals. (Memorandum Opinion,

ls* 1971 • program provisos a stimulating
and exciting educational experience in the process of desegre­
gation and helps' promote a positive attitude toward the

-53-



1

integration of elementary schools. Such positive attitudes 
must bo the key to successful integration rather than forced 
bussing and other techniques currently utilized which are 
arousing heated opposition throughout the nation at all 
levels of our society. This plan will result in a continually 
increasing percentage of time being spent in multi-cultural 
educational programs as attitutdes and understandings continue 
to develop. As the District Court found, it is in no way 
similar to the minimal integration involved in Bivins v. Bibb 
County Board of Education, 42*1 F 2d 97, 98 (Fifth Circuit, 1971) 
It is an honest and direct approach to the problem, and its 
hallmark is education. Rather than simply mixing students in 
an artificial and contrived manner, it involves the students, 
the teachers, and the community in a new and substantial way 
so as to come to grips with the problems of prejudice and dis­
crimination. Its emphasis is on the richness of our multi­
cultural community, and it embraces all three ethnic groups 
in the community. The programs are designed so that the stu­
dents are brought together in a complete ethnic mix in small 
classes of 28-32 and units of 6-8, in which classes the stu­
dents remain throughout the year. This will allow the students 
an opportunity to learn together and from each other.

'ihe District Court held in its opinion that the elementary 
plan -

- 5 * 1 -



"possesses great educational benefits. It Is a program 
designed specifically to develop in elementary school 
children the capacity to understand, appreciate and 
respect cultural values other than their own by pro­
viding, in a structured, supervised program, a common 
bond of experience with members of other ethnic groups. 
The central thrust of the AISD plan is to eliminate 
the mutual fears that lie at the heart of racial pre­
judice, and the discriminatory attitudes that flow 
from such fears, through educational activities speci­
fically tailored to reach the objectives."
AISD respectfully prays that the decision of the District 

Court be affirmed in this regard and that the AISD plan be 
afforded an opportunity to be tried and tested.

The Court also approved the 1973 construction plan of 
AISD as explained in Defendant's Exhibits Nos. 31, 32. and 
33, and as modified by the Report and Submission of the 
parties filed on July 15, 1971. Under this construction 
plan, new sites for the junior and senior high schools have 
been strategically located so as to promote maximum integra­
tion. moreover, if necessary the AISD will preserve the 
present non-contiguous zones in order to maintain an equit­
able level of desegregation in each high school in the sys­
tem.

i
-55-



CONCLUSION

Appellees respectfully pray that the decision of the 
District Court be in all things affirmed.

Respectfully submitted,

D
DONALD S. THOMAS
Capital National Bank Bldg.
Austin, Texas 78701

P n  7vL
. . O

SAL LLVATJ.NO 
5700 Cameron Road 
Austin, Texas 78723

/  /7  ■'/' <>
/ /  P7. 'vjJTld- 

y. In. NATTLRSON, J
Colorado Street Austin, Texas 78701

1

-56-



CERTIFICATE OF SERVICE

I hereby certify that I have served the foregoing Brief 
for the Austin Independent School District on each of the
attorneys of record in this
postage prepaid, on this 21s

Hr. Joseph D. Rich 
Attorney
Department of Justice 
Washington, D.C. 20530
Hr. Brian K. Landsberg 
Attorney
Department of Justice 
Washington, D.C. 20530
Mr. Jack Greenberg 
10 Columbus Circle 
New York, New York 10019

Hr. James Heidelberg 
319 Aztec Building 
211 E. Commerce Street 
San Antonio, Texas 78205

ase by mailing two copies,
day of September, 1971, to:
Mr. Will iam Sess.1 ons 
United States Attorney 
Department of Justice 
Washington, D.C. 20530
Mr. James McCoy 
Assistant Attorney General 
Capitol Station 
Austin, Texas 78701
Mr. Mario Obledo 
319 Aztec Building 
211 E. Commerce Street 
San Antonio, Texas 78205
Mr. Gabriel Gutierrez, Jr. 
1010 East 7th Street 
Austin, Texas 78701

f j /J )
f r t 'M . PATTERSON", J iy . 

/l^O C Colorado Street 
'  Austin, Texas 78701