Sierra v. El Paso Independent School District Court Opinion

    69T FEDERAL SUPPLEMENT

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802

total damage award in this aetion may aP
pear to be excessive, it reachEs such pro-

portions for the sole reason that Dr' Alaske
has been found to have submitted 551 sepa-

rate false claims.

The impact of both the Federal False

Claims Aet and the Illinois Public Aid Code

as applied to the facts of this case rests
with the combined legislative judgment

that the statutory forfeiture should be

large enough to punish and deter the
wrongdoer. In reaehing this conclusion,

the court is earrying out the mandate of
the Federal False Claims Act, which, from
the time of its enactment, has served to
impose severe penalties upon those who
chose to "plunded ] ... ti,e public trea-
sury." United States a. McNinch, 356

u.s. 595, 599, ?8 S.Ct. 950, 952,2 L.Ed.zd
1001 (1958). The speeific provisions of see-

tion 8A-? of the Illinois Public Aid Code to
the effect that "[a]ny person ... [who]
willfully, by means of a false statement . . .

attempts to obtain benefits or payments
.under this Code to which he . . . is not
entitled ... shall be liable for ... the sum

of $2,000 for each excessive claim ..."
require that equally severe treatment
should be applied to Dr. Alaska for the 551

claims submitted by him to the Department
of Public Aid.

For the reasons stated above, the court
hereby finds that defendant, Dr. St. Barth
Alaska, has violated the Federal False

Claims Act, 31 U.S.C. E 231, and that the

Federal Government is entitled to a dam-

age award of $1,121,551.52. The court also

finds that Dr. Alaska has violated the Illi-
nois Public Aid Code, Ill.Rev.Stat. ch. 23,

5 8A-? (1982), and that the State of Illinois
is entitled to a damage award of $1,131,-

327.28.

Leopoldo SIERRA, Antonio Mbreno, Ce-

ear Caballero, Fermin Doralo, Patricia
Roybal Sutton and Paul Moreno, Plain-
tiffs,

v.

The EL PASO INDEPENDENT SCHOOL
DISTRICT and Ronald K. Mcleod, In-
dividually and in His Official Capacity
as General Superintendent of the El
Paso Independent School District and
Harold Wigge, Paul H. Carlton, Mre.
Frankie R Tanzy, Mrs. William D. Tip-
pin, Mrs. Richard Thurman, Arturo
Aguirre and Judith Ridley, Individually
and in Their Official CaPacities as

Members of the Board of Trustees of
the El Paso Independent School Dis-
trict, Defendants.

No. EP-83{A-203.

United States District Court,
W.D. Texas,

El Paso Division.

April 3, 1984.

Plaintiffs representing class of all
Mexican-American voters in independent

school district brought suit eontending that
system for electing members of board of
trustees for school district violated Four-
teenth and Fifteenth Amendments and Vot-
ing Rights Act. The District Court, Hud-

speth, J., held that: (1) plaintiffs failed to
prove any discriminatory intent in connec-

tion with adoption of any feature of scheme

for electing school board members, as re-

quired to support finding of unconstitution-
al vote dilution; (2) amendment of Voting
Rights Act substituting "results test" for
prior requirement that discriminatory pur-
pose be shown was eolstitutional; and (3)

"t-I".g., 
by-place, maSo?ity rirnoff, nonpar-

tisan election of school board trustees tend-

ed to depriie Mexican-Americans of equal
opportunity to elect candidates of their
choice, in violation of Voting Rights Act.

Judgment accordinglY.

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SIERRA v. EL PASO INDEPENDENT SCHOOL DIST'
Clr.P!t9'l rtrryP'E (lL),

803

to school district to draft its own plan for

reapportionment.

7. States e27(10)
Apportionment is

tive responsibilitY.

E. statcg €=27(10)

Government body in question must be

afforded reasonable opportunity to produce

apportionment plan that is constitutionally
permissible.

Raul Noriega, Texas Rural Legal Aid,

Inc., San Antonio, Tex., J.B. Ochoa, Cathy

Barnes, El Paso Legal Assistance, El Paso,

Tex., for plaintiffs.

Sam Sparks, Grambling & Mounce, H'

Keith Myers, EI Paso, Tex., for defendants'

MEMORANDUM OPINION
AND ORDER

HUDSPUIH, District Judge.

This is an action for declaratory and in-

junctive relief pursuantta 42 U.S'C' S 1983

and the Voting Rights Act of 1965 as

amended, 42 U.S.C. S 19?3. The Plaintiffs
represent a class of all Mexican'American

vi;ers within the El Paso Independent

School District. Their suit contends that

the present system for electing members of
the Board of Tlustees for the El Paso

Independent School District violates the

Fourteenth and Fifteenth Amendments to

the Constitution of the United States and

the Voting Rights Act in that the members

of the class they represent have less oppor-

tunity than other members of the elector'

ate to partieipate in the political proeess

and to elect representatives of their choice

to the position of school board trustee'

According to the Plaintiffs, this denial of
egual opportunity arises from the fact that

echool board trustees are elected in an at-

large, by'place, malority 
'runoff 

eleetion,

rather than by election from single-member

districts. On October 25, 1983, the Court

certified this proceeding as a class action

pursuant to Rule 23, Federal Rules of Civil
-Procedure, 

with the elass described as all

*

l. Cdnrtitutional Law e226.3(l)
Elections Fl2(3) 

"Diseriminatory purpose must be shown

to support finding of unconstitutional votc

dilution under eitler Fourteenth or Fif-

tcenth Amendments. U.S'C'A' Const'

Amends. 14, 15.

2. Constitutional Law F226.3(ll)
Schools e53(l)

Mexican-American voters within school

district failed to prove sny discriminatory

intent in connection with adoption of any

feature of scheme for electing school board

memhrE, as required to support finding of

unconstitutional vote dilution; nor was

board's failure to change procedures since

19?1 despite complaints from minority
groups evidence of intent to discriminate'

U.S.C.A. Const'Amends. 14, 15'

B. Elections @lZ(2)
Amendment of Voting Rights Act sub-

stituting "results test" for prior require-

ment that discriminatory purpose be shown

was constitutional. Voting Rights Act of

1965, S 2, 42 U.S.C.A. 5 19?3.

{. Elections @lZ(Zl
Under amended Voting Rights Act,

electoral praetices and procedures that cre
ete discriminatory results are prohibited,

even though governmental body in ques-

tion did not install or maintain electoral

practice or procedure for purpose of d]1
srimination. Voting Rights Act of 1965,

E 2,42 U.S.C.A. 5 19?3.

b. Schools effi(f )

At-large, by-place, majority runoff,

nonpartisan election of school board trus-

tees tended to deprive Mexican-Americans

of equal opportunity to elect candidates of

their choice, in violation of Voting Rights

Act, and therefore, school district would be

required to implement single-member dis-

tricts in plaee of at-large scheme' Voting

Rights Act of 1965, 5 2, 42 U'S'C'A'

5 19?3.

6. Schools eb3(1)
It would not be permissible for court

to adopt plan for reapportionment of school

district without first affording opportunitl'
591 F.SuPP.- 19

:

primarily a legisla'

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g04 ser FEDI:RAL 8UPPLEMENT

Mexican-American voters'residing i' th-t 1l - 
td is not disputed that more tha0 50

paso Indepentlent scnoli oiJo''J *a "u *;"j. ;;-th*; thg 
reside within the El

Mexican'Ameriont *#in-ii" iutu'" t*itl fffi;d"';;dentschool District are Mexi-

become erigibre "ol'i'"etections 
ro' f;u1trlTiiillf;: ::ttr'T:i:'i:ii

H"",#r"";i ii" so"ta of rrustees of the 
ilH;"-"'M"*i""n-Am""ic"n' However'

;iiF"l*mx;i. i:Hli,i'trx':* + [:f .,f ffit[?l'"::r*,xJ*',,f i E
;#;;;;;;iio, rgea' rhe court's rind- ::ilJ;i;",'-ir'" Praintirrs contend that

;;il i""t ".a 
conclusions of law are il;;;;;, by-place, majoriW runoff svs-

inio"po""t"a in this opinion' i"* r; "i";ting 
school board trustees tm-

The El paso Independent School Oi:t:, ;j}{,ff-;tfi"s the voting strength of

is the fifth largest il;;il;; school dis- ilJffi-d*;;cans' and makes it difficult

trict in the state "f 
T:;'"t':;"op-e'u[t ro ;;; lh"t to elect'representatives of their

elementary 'na 
t"to"'iJuw'tt'l*o' "ta li"tt""i"ln" '"t'oot 

uoata' Therefore'

serves approximattlffi;dt 't'a"ntt' 
It ;i;i;;fft contend that the present election

is located entirelv *d;';; u"ti"ti"t "t I'l'*,n'tt"t"t", both the constitution and

El Paso County, f"*"' and covers-.more tire Voting Rights AcL

than 200 square rnit".]-'tt " 
school districl tr, rl It is now well settled that discrim-

ir';r;;;;uv " uorta-of seven elected t i*" pr"pot" mustbe shown to support

trustees' At least tintu 
'g"' 

all trustees ;;;ffi-"f unconstitutional vote dilution

have been elected -t'r"g" it"t" the district i#;;';i"; ir'" Foott""nth or Fifteenth

as a whole in no'p"J"ln "i"ttiont' -ptiot ffi;;u.n";;t the constitution of the unit-

to 1940, candidates *"I"t.**gered two- 
"J-il*t. 

Rooer2l' Lodse' 458 u's' 613'

vear terms, rna "r"tiilnt;;ffild 
annual- ;ilffi' lzt"z' t1L'Ed'2d 1s12 (1982);

ly. In 1940,,n. *#*r. i..*"."a,".i:r ii, iA"o,e a. Bolden,446 U'S' 55' 100

years, still .t gg"'"d, and e]e-ctions are ;tt it'q";; i'pa'za 4? (1980)' In the

held every t*o y"n'-*' All candidates ran ti;;';;"' lh"'" i" no evidence that the

at large and not uv'pr"*'t*rl 1960' when board of trustees adopted any feature of

the board, pursuant"##ii;;6itr'3i ffiil election svstem for the purpose

enacted by the t"*Jr"'ili"i"-'e' irovided oi"iitt"i*it'"ting 'against 
any minority or

for the election "t;;ffi'';ir* 
[*ta 11' ilil;ffi' 

-wi*, respect to those as'

numbered po.itr# 
"ii*t, 

"i .""ai- p".t" oi the sy'stem in effect before 1971'

dates was still by straight plurality' .ho*'- il"i''*iiiit-ti*plv offered no evidence at

ever, without any provisign for " '.rij:tj:y "jit""""i"g 
the purpos" 9'putp::":^:l

run'off' In 19?1' [i" t"gitttto'u "*"nd"d t,-r* "t'""r 
board memters who participated

Section 23'11 of 
""'t*it 

nducation code i'-a"tig'i'g the seheme for electing trus-

to permit ,.r,""r ailt'i';;";;; T:.. il:"'i;;;xample' on January le' 1e60'

election p'ot"du'"-1i no candidate receives ft Uo"'a of trustees oassed the resolution

a majoriry "f 
th";;;:.i'i"rln"r,i.rr", "ri,trfi".1n. 

election of members to the

position. o, N""r:;;r' ri, 
- igrr, ,h; ;;"i board by numbered positions' How-

Board of Trustees of the Et.PTo InLeI;- "'"t' q; only evidence offered by the

dent School oot'i"t adopted the majoriiv pt"intitr' ':*'*]13 lF TlJff: :1 :il:

ffi;;i'[T'l-il:t *;*r,:':i ;3.' ffi""i'""J[ xii' "'''' "i;iliJ l]l'ln
Since 19?2, therefore' alt trustees traie ii'i' ff'" *i:^:t#'#il:ff:iffitff;
been chosen i, x'irrg", by-place, majorit-'- bate or discusstot-o, 

the board in adopting

runoff, nonpartisan elections' upon the purpose

l.Oncotherlargeindependenl'-s'1":l'SY"ttdislriclse'lsllic'rrithinthebordersofElPaso
(the Yslcta r"a"'"i'"ii'r'""i r'1,;'1i1' 

' '::i:ll 
cr'untr '

i"ig"" in Texas) and sc'cr:' r'::'..'': s!r

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SIERRATI. EL PASO INDEPENDETIT SCHOOL DIST. 805
clrt u S9l rsupp. t02 (t9&l)

the by-place.procedure. No other 
"Jid"n.", 

proved the idea of single.member districts.
direct or circumstantial, was offered by the On May 10, 1.97?, the board's attorneys and

Plaintiffs whieh would tend to prove the the school administration were directed to
stste of mind or intent of the board mem- develop a plan for the implementation of
bers of that era. With respect to the 1971 single-member districts (Plaintiffs' Exhibit
board resolution adopting the majority run- 148). The catch was that the Texas Educa-
off procedure, the trial testimony of past tion Code at that time required the election
board members negates discriminatory in- of school board members from the district
tent. For example, Javier Montes, a Mexi- at large.r Section 23.024 of the Texas Edu-
can-American board member, stated that eation Code, which authorizes the El Paso
he supported the resolution because of his Independent School District to elect trus-
belief that a newlycnaeted state law man- tees by singlemember districts did not be-
dated runoff elections.2 Another Mexican- come effective until August 29, 1983. By
American board member, Elman Chapa, that time, Plaintiffs had already instituted
testified that he supported majority runoffs this suit.6 In short, the record fails to
because of his concern about low voter substantiate the Plaintiffs' claim that the
turnout in school board elections, and his school board's inaction since lg?1 is indica-
belief that a runoff might develop more tive of discriminatory intent. The Court
interest.s The minutes of the board meet- must find in favor of the Defendants with
ing at which the runoff election procedure respect to the Plaintiffs' constitutional
was adopted (Plaintiffs' Exhibit 144) failed claims, and then turn to the elaims asserted
to reflect any discussion or debate which under the Voting Rights Act.
would indicate that the majority runoff was
intended to dilute minority voting strength. t3l In an amended answer submitted
In short, the Plaintiffs have failed to sus- just before trial, and in the agreed pretrial
tain their burden of proving discriminatory order, the Defendants contend that the
intent in connection with the adoption of 1982 amendment to Section 2 of the Voting
any feature of the present scheme for Rights Act is unconstitutional. The Court
eleeting school board members. also permitted the Texas Association of

Recognizing that they lack proof of dis- School Boards to file an amicus curiae brief
criminatory purpose in connection with the in which the constitutionality of the 1982

adoption of these election procedures, the amendment is questioned. In light of these

Plaintiffs contend that the board's failure challenges to the constitutionality of the

to change the procedures since 1971 despite Act, notice was given to the Attorney Gen-

complaints from minority groups is evi- eral of the United States pursuant tp 28

dence of an intent to discriminate. The U.S.C. S 2403(a) and the Attorney General

Court finds that the evidence in this regard has filed a brief in support of the constitu-
is, if anything, to the contrary. 'On Octo tionality of the 1982 amendment. Fortu-
ber 22,19?6, theboard adopted aresolution nately, this issue is greatly simplified by
calling for a referendum on the question the decision of the United States C,ourt of
whether trustees should be elected at large Appeals in Jones u. City of Lubbock, 727

or by single.member districts (Plaintiffs' F.zd 364 (sth Cir.1984), in which the consti-

Exhibit 145). The referendum was held in tutionality of the 1982. amendment to Sec-

19??, and 53 percent of those voting ap tion 2 of the Voting Rights Act is specifi-

2. Mr. Monres was elected to the board of trus- 4. The Texas legislature had enacted legislation
tees in 1970 in a straight plurality election, and which permitted the election of school tnrstees
was reelected in 1976 under the majority runoff from single-member districts only in Dallas and
procedure, Houston.

3. Mr. Chapa was elected to the board in 1968 in
a straighi plurality election and reelected in 5' The Plaintif{s' original complainl u'as filed

1974 uider the mi1ority runoff procedure. In June 27' 1983'

1980, he ran for reelection but lost in a runoff.

L_. &.i_ -_



g06 sel FEdERAL SUPPLEMENT 
:

cally upheld. Following"binding Fifth cir- guage minorityl, as provided in subsec-

cuit prlcedent, tlis court also holds t1,at tion (b) of this eection.

the 1g82 amendment to Section 2 of the "(b) A violation of subsection (a) of this
Voting Rights Act is constitutional. section is established if, based on the

r4r rn amending section 2 or the voting AfffiJ":[::Tj,gJii;i1,1]',]'IJ-]Xl
Rights Act in 1982, Congress reacted to the tion or eleciion in the State or political
decision of the Supreme Court in City of subdivision are not equally open to par-
Mobile o. Bolden, supra, by substituting a ficipation by members of a class of citi-
"results test" for the prior requirement zens protected by subsection (a) of this
that discriminatory purpose be shown. Ve- section in that its members have less
lasquez o. City of Abilene, Teras,725E.2d opportunity than other members of the
101?, 1021 (sth Cir.1984); Jones a. City of eiectorate to partieipate in the political

!{!"iii!i i!{,1;, Hffi:::,X1".'ff1*: H:r:il:"1 ffi'"""i"TltrTn'i"ffi1
ate discriminatory results are prohibited, bers of a protected class have been eleet-
even though the governmental body in ed to office in the State or political subdi-
question did not install or maintain the stance that may be
erectorar praetice or procedure for the pur- :::ffi"':J* ;;::;;*, rhat nothing in
pose of discrimination. Jones a. City of this section establishes a right to have,#tr;2"y"'i;r#ifff"ll,'n" senate members or a protected class elected in

numbers equal to their proportion in the
"The amendment to the language of population."

Seetion 2 is designed to make clear that
plaintiffs need not prove a discriminatory As an aid to the interpretation of the

purpose in the adoption or maintenance amended Act' the legislative history of the

of the challenged syst€m or practice in 1982 amendment lists certain objective fac-

order to establish a violation. Plaintiff tors which should guide the courts in de-

must either prove sueh intent, or, alter- termining whether a specific election sys-

natively, must show that the challenged tem has discriminatory results:

syst€m or practice, in the context of all "1. the extent of any history of official

the circumstances in the jurisdiction in discrimination in the state or politieal

question, results in minorities being de- subdivision that touched the right of the

nied equal access to the political pro- members of the minority group to regis-

cess.,, ter, to vot€, or otherwise to participate in

S.Rep. No. 41?, g?th cong., 2d Sess., 1982 ', the democratic process;

U.S.CodeCong.&Ad.NewsatlTT,20S.,,2.theextenttowhichvotinginthe
As amended, section 2 of the Voting elections of the stat€ or political subdivi-

Rights Act, 42 U.S.C. S 19?3, reads as fol- sion is racially polarized;

lows: "3. the extent to which the state or

,,(a) No voting qualification or prerequi- political subdivision has used unusually

.lt" to voting, standard, practice, or prG large election districts, mairrity vote re-

cedure shall be imposed. or applied by quirements, anti-single shot provisions,

any, State or political subdivision in a or other voting practices or procedures

manner which results in a denial or that may enhance the opportunity for

abridgment of the right of any citizen of discrimination against the minority

the United States to vote on account of group;

race or color, or in contravention t,f iirt' "4. if there is a candidate slating pro-

guarantees set forLh in s('i".,()n cess, r+'hether the members of the minori-

rgzgur0tzl of this title [\r.hich aplr, .,i{- t1'group have been denied access to that

Act's protection to members of ir: ' l-: process;

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SIERSil v. EL PASO INDEPENDEIIT SCHOOL DIST. 807

"8. the extent to which *. *!ff;J'ol*,|in(l[) unut 
"""",it 

years, au balots
the miirority group in the at8te or politi- were printed exclusively in English, and
cal subdivision bear the effects of dis- this tended to deter voting by Mexican-
crimination in such areaa aa education, American voters who did not understand
employment and health, which irinders the English language. See Grares a.their ability to participate effectively in Boro"r, supra. These past discriminatorythe political process;
"6. whether political practices still contribute to some extent to

been charaererized by "#fl?flil,:";: 
the fact that Mexican-Americans register

cial appeals; and vote in lower percentages than eligible

"7. the extent to which members of the Anglo voters'

I

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minority group have been elected to pub-
lic office in the jurisdiction."

S.Rep. No. 417 at 2U29, 1982 U.S.C,ode
Cong. & Ad.News at 206-7; Jones o. City
of Lubbock, supra. In addition to these
seven factors, Congress listed two others
which are less significanl but which might
have limited relevance in certain situations.
They are (1) whether there is a significant
lack of responsiveness on the part of elect-
ed officials to the particularized needs of
the members of the minority group, and (2)
whether the policy underlying the state or
political subdivision's use of such voting
qualifieation, prerequisite to voting, stan-
dard, practice or pnocedure is tenuous.
S.Rep. No. 417 at 29,1982 U.S.Code Cong.
& Ad.News at 207; Jones a. City of Lub-
bock, supra. In the instant case, there-
fore, the Court must proceed to analyze the
evidence presented at the trial on the mer-
its in light of these Congressional factors.

The first factor to be considered is
whether past official discrimination has af-
fected the right of Mexican-Americans to
register, vote, or otlerwise to pafticipate in
the political process. In this connection,
two forms of past discrimination stand out:
the poll tax and the English language bal-
Iot. It is now well established that, prior to
the repeal of the poll tax, the requirement
that citizens pay a poll tax as a prerequisite
for voting eligibility impaeted heavily upon
persons in the lower income group, which
in terms of El Paso County meant predomi-
nantly Mexican-Americans. The effect of
the poll tax requirement lingered on even
after its repeal. and in part has aecounted
for the lower level of Jlexican-American
voter registration. See (lr.ot.es r,. Berne,s,
378 F.Supp. 640, 656 (\\'.ir.Tr>r.i9?4). Fur-

The next factor to be eonsidered is
whether voting in the elections of the
school district is racially polarized. The
evidence adduced at trial establishes clear-
ly that voting in school district elections
tends to be highly polarized along ethnic
lines. The Plaintiffs' expert witness, Dr.
Robert Brischetto, condueted a study of 15
school board trustee races between 1gT4
and 1982 in which one or more Mexican-
American candidates opposed one or more
Anglo candidates. In 11 of those 15 races,
Dr. Brischetto concluded that voting polari-
zation was high. Of the remaining four
raees, polarization was moderate in two
and low in two. In an effort to check his
findings with respect to the school board
races, Dr. Brischetto also analyzed 12 races
for El Paso Community College trustees
and six races for city councilman positions.
He found high voting polarization in eight
of the 12 Community College races, and in
four of the six city council races. A1-
though not directly in point, these latter
findings do tend to substantiate Dr. Bris-
chetto's conclusion that voting in the school
board elections, as well as other elections
conducted in El Paso County, is highly
polarized along ethnic lines. Another polit-
ical scientist who testified for the Plain-
tiffs, Dr. Rodolfo De La Garza, had con-
ducted studies of Mexican-American voting
patt€rns in El Paso County, and he conclud-
ed that ethnicity was the largest single
determining factor in most elections con-
ducted in El Paso.

Even more persuasive to the Courr tl.r.:
the te-qtimon!' of the expert witnesses, h' .

{.,\'r'r. was the testimony of the pract



----__

808

politicans 6 who are thoroughly familiar
with voting behavior in'El Paso County'
These witnesses testified unequivocally
that bloc voting by Mexican-Americans for
Mexiean-American candidates and by At g-

los for Anglo candidates is a political faet
of life in El Paso, and one with which all
candidates must deal in plotting their re-

speetive campaign strategies'

The Defendants attempted to counter the

evidence presented by the Plaintiffs with
respect to voting polarization with the testi-

mony of Dr. William Wachtel, a statistieian
with no prior experience in analyzing elee-

tion results or studying voting polarization.

Dr. Wachtel analyzed the same elections

studied by Dr. Brischetto, but used a dif-
ferent methodology in that he tried to de-

tect the presence or absence of polarization

by studying the votes cast for each cand!
date separately, rather than grouping all
Anglo candidates and all Mexican-American
candidates involved in the same school

board race. Dr. Wachtel's methodology is

obviously inferior to that used by Dr' Bris-

chetto, and would have a tendency to pro
duce distorted results. It is interesting to

note, however, that even Dr. Wachtel's
analysis revealed significant voting polari-

zation along ethnic lines.?

In summary, the Court finds from the
evidence that polarization is a well-kno*'n
and well-understood phenomenon in all po-

litical races in El Paso County, including
school board races, and that the ethnicity
of a candidate is one of the most important
factors in determining voter preference.

The Court must next consider the extent
to which tlre present scheme for electing
school board trustees (at large, by place,

majority runoff, nonpartisan election) en-

hances the opportunity for discrimination
against Mexican-Americans. There can be

little doubt from the evidence that the

present at large system places Mexican-

Americans at a significant disadvantage in

5. These included State Representative Paul Mor-
eno, District Judge Edward Marquez, City Coun-

cil Member and former County Clerk, Alicia
Chacon, and Mrs. Margarita Blanco, a u)oman
who has campaigned for manv candidates in
various political races over the past 30 years'

59r FED.ERAL SUPPLEMENT

electing candidates to the position of trus-
tee for the El Paso Independent School

District. The vast size of the district, and

its large population, render it almost impos-

sible for a candidate to rely solely upon a

door-to-door or person'teperson campaign'

Traditional forms of political advertising
(e.g. billboards, mailings, news media ad-

vertising) are very expensive, and it is diffi-
cult for Mexican-Americans, who generally

represent a lower-income group' to raise

funds necessary for an adequate district
wide campaign. Furthermore, the lack of
aecess to campaign funds is not alleviated

in school board races by the presence of a
political party or even a slating organiza-

tion; eleetions are nonpartisan and there is
no slating process in the true meaning of
that term. These disadvantages are great-

ly enhanced by the other features of the

school district's electoral system, to wit:
staggered terms, filing by numbered posi-

tions, and majority runoff. Staggered
terms and numbered positions (by place

filing) tend to create head-to-head races

and to promote majority-minority confron-

tation. Rogers o. Lodge, supra, 458 U.S.

at 621, 102 S.Ct. at 3280; City of Rome u.

United States,446 U.S. 156, 185 n. 21, 100

S.Ct. 1548, 1566 n. 21, 64 L.Ed.2d 119

(1980); Jones u. City of Lubbock, supra.
The majority runoff provision has the natu-

rai effect of enhancing the underlying tend-

ency toward ethnic polarization, and gives

a great advantage to Anglo candidates to

the detriment of minority candidates. r?o9-

ers a. Lodge, supra 458 U.S. at 627' 102

S.Ct. at 3280; Jones a. City of Lubbock,

supra. Taken in combination, the by-place

and majority runoff requirements effective-
ly prevent single shot voting. Further-
more, the absence of any subdistrict resi-

dency requirement has contributed to the

fact that no person residing'tn any of the

South El Paso preeincts that have the heav-

iest concentration of Mexican-American

7. Dr. Wachtel found high polarization in the
votes cast for I I of 33 school board candidates
and nine of 2l citv council candidates.

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SIERRA V. EIJ i'iSO INDEPENDENT SCHOOL DIST.. 
Cltc rt 39t F.6gPP. iI2 (t90a)

residents has ever beenLlected to the posi'

tion of trustee of the El Paso Indryendent
School District. When the present at-large
by-place majority runoff nonpartisan elec-

tion scheme is considered in conjunction
with the history of official discrimination
and the pattern of polarized voting, the
conclusion is inescapable that Mexican-
Americans have less opportunity than do
other members of the eleetorate to partiei-
pate in the political process and to elect
representatives of their choice to the school
board.

The next factor to be considered is
whether there is a candidateslating pro
cess in connection with school board elec-

tions, and, if so, whether Mexican-Ameri-
cans have been denied access to the slating
process. The Court finds from the evi-
.dence that no slating process exists. A
good illustration of the kind of "slating
process" meant by Crcngress is found in

Velasquez u. City of Abilene, Teros, su-
pra, in which the Court of Appeals de-

scribes the organization known as Citizens
for Better Government. This organization
is identified as "a white'Anglodominated
slating organization which exercises nearly
complete control over Abilene's city politics
through its endorsement and support of
candidates." Velosquez a. City of Abilene,
Teros, supra at 1019. Nothing even re-
motely resembling the Citizens for Better
Government exists with respect to school
board elections in the El Paso Independent
School District. In fact, the evidence does

not indicate the existence of any slating
organization, effective or ineffeitive, in
connection with school board elections.

The Plaintiffs argue that an informal
slating process exists in the sense that
vacancies which occur on the board of trus-
tees between elections are filled by vote of
the remaining incumbent trustees, and the
persons so appointed then run for election

E. In a brief filed after the trial's conclusion, the
Plainriffs attempl to bolster their claim as to the
existence of a slating process by quoting from
deposition tcstimon]- not offered in evidence
(Plainriffs'p('sttrial brief, pp. l5-17). The prop-
osition llr;" tire Courl mal' nol consider an1'

809

as incumbents. Whatever this procedure
may be called, howev*, it stretches the
English language beyond its limits to call it
a "slating process." By the same token, it
is not a slating proeesB for an incumbent
trustee to contact his friends and to encour'
age them to run for vacancies on the school
board. Finally, if either of these proce
dures could be tcrmed a slating proeess,

the evidenee is elear that the process is
open to Mexiean-Americans as well as to
Anglos. This fact may be illustrated by
two specific examples: (1) Arturo Aguirre
testified that he was appointed to fill an

unexpired term and ran for eleetion the
following year as an incumbent; and (2)

Javier Montes testified that he was eontact-
ed by Elman Chapa, a friend from the
Bowie High School Alumni Association,
and encouraged to run for a vacant position
in 1970. To make a long story short, the
evidence simply does not support the Plain-
tiffs' half-hearted claim of the existence of
a slating process, and, if there is a slating
process, it is obviously open to Mexican-
Americans.8

The Court must next consider the extent
to which Mexican-Americans within the El
Paso Independent School District bear the
effects of discrimination in the areas of
education, employment and health, which
hinders their ability to participate effective-
ly in the political process. There can be no
question that in past years there was dis-

crimination against Mexican-Americans in
the areas of employment and education.e
Past discrimination in these areas is partly
responsible for the findings made earlier in
this opinion to the effect that Mexican-
Americans historically oceupy a lower eco-

nomic status, that many are not proficient
in the English language, and that Mexican-
Americans tend to register and to vote in
lesser numbers,than their Anglo counter-
parts. The trial record is insufficient to

evidence that is outside the record would seem
to require no further elaboration.

9. No evidence rr'as presented which would indi-
cate discrimination against Mexican-Americans
in the area of health. Plaintiffs apparently
make no contentions along those lines.



T'EDERAL SUPPLEMENT810 591

l'
permit the Court to make findings over and
above these generalizations. For example,
there is no evidence of ariy present discrim-
ination against Mexiean'Americans in the
field of education. On the contrary, the El
Paso Independent School District is doing
an admirable job, considering its limited
financial resources, of furnishing a quality
education to all students within the school
district, 70 percent of whom are Mexican-
American. Furthermore, although there
was testimony concerning unusually high
rates of unemployment in the areas of
South El Paso which have the highest con-

centration of Mexican-American population,
the record fails to show how many of those
affected by unemployment are recent immi-
grants or resident aliens as opposed to
citizens. The evidence also fails to show
how many residents of South El Paso were
educated (or not educated) in Mexico rather
than in the United States.

The next factor to be considered is

whether political campaigns for the office
of trustee have been characterized by overt
or subtle racial appeals. Mrs. Maxine Sil-

va, a candidate for trustee in the 1948

school board election, testified that during
her campaign she received telephone calls
in whieh she was aecused of being a "wet-
back," and subjected to other ethnic slurs.
The Court accepts the testimony of Mrs.
Silva, and finds it to be quitc eredible. It
was her further testimony, however, that
times have changed, and that the same

atmosphere does not exist today. In fact,
Mrs. Silva is again a candidate for trustee
in the 1984 school board election. The oth-
er evidence offered by the Plaintiffs in this
regard is much less convincing. For exam-
ple, one Felipe Peralta, testified that he

was a victim of ethnic appeals and slurs as

a candidate for trustee in 1970. However,
the winning candidate in that school board
race was Javier Montes, a Mexican-Ameri-
can, who reeeived approximately 3,500

votes to Peralta's 800. The claim is also
made that in the 1972 school board election,
two candidates, Jose Pinon, Jr. and Cleofas
Calleros, were defeated on the trasis of
their ethnicitr'. \\'hat the testin-,otti' :rs a

whole actuallr rereils. hou'ever. is thar the

nerys media and the public identified.both
candidates with an organization called ME-
CHA, a group of militant college students
that was in the process of conducting dem-

onstrations on the campus of the Universi-
ty of Texas at El Paso. It must be remem-
bered that 1972 was the year of the Nixon-
McGovern landslide, and that being per-

ceived by the public as a "radical" probably
would have occasioned the defeat of any
candidate in any race in any district in the
Unitcd States in that particular year. The
Court is unable to find in the record any
concrete evidence of any "racial appeals"
as such in connection with the campaigns
of these two candidates. The Court is also
persuaded by the testimony of another wit-
ness for the Plaintiffs, Judge Edward Mar-
quez, who testified that he had observed
every election in El Paso since 1960, and

that the only race in his memory that in-
volved ethnic appeals was the election of El
Paso Community College Trustees in 1976.

That election, of eourse, had no relation to
the EI Paso Independent School District.

Finally, the Court must take into consid-
eration the extent to which Mexican-Ameri-
cans have been eleeted to office in the El
Paso Independent School District. The De-

fendants offered evidence that, since 1950,

seven of the 2E trustees, or 25 percent,
have been Mexican-Americans. This statis-
tic is somewhat misleading, in that one of
the seven Mexican-Americans, Mr. Emilio
Peinado, was appointed to fill a vacancy on

the board in 1960, and resigned in 1963

with6ut having run for election. Although
the percentage of Mexican-Americans that
have been elected to the school board is
somewhat less than the percentage of reg-

istered voters who are Mexican-American,
the difference is not great enough to be

significant in and of itself. However, it
does have a tendeney to veri$ the earlier
finding that Mexican-Americans find it
more difficult than Anglos to be elected to
the school board.

T\'o other factors which have iimited rel-
evance, but which the Court nrat consider,
are whether there is a laci'. ,'l r"':l)()nsive-
ness on the part of school ti"..,:, s to the

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SIERRA v. EL'PASO INDEPENDEIYT SCHOOL DIBT.
Clt .1591 F.Supp.el2 (tltt)

particularized needsof Mexican-Americ8ns, counseling minority gtudents. The evi-
and whether the [olicy underlying t]re dence furt]rer shows that achievement tcst
present at'large election system ls tcnuous. gcores recorded by Mexican-American stu-
Taking the second factor firs! the Court dents have improved markedly in the last /
finds that the policy is certainly tenuous in few years. Since 45 percent of the dis-
light of the 1977 referendum vote in favor tricts, 60,(X[ students come from families
of single-member districts, which presum- who are elassified as ,,impoverished,', the
ably reflects the opinions of the majority of school district earries out the largest school
voters within the school district, and the lunch, breakfast, and milk programs in the
1983 action of the Texas Legislature in State of Texas. Although these programs
authorizing single-member districts for are funded with federal funds, the school
school districts the size of the El Paso district must administer them for the bene-
Independent School District. These two fit of the students. Finally, a program offacts combined make it difficult to justify the school district that has partieular rele-the continuation of the at-large election vance to this case is the praetice of causing
system even on the basis of political theo- high sehool principals to be deputized as
ry, quite apart from consideration of minor-
iiy-votrng rights. 

rrDruErdLru,ur'',ur- 
ffir?"1"3Iff,1i;"il'_"ilr|;;ffit#;:::

With regard to the element of respon- of age while attending high school. Since
siveness, the Plaintiffs make much of a two-thirds of the high school students in
previous decision styled Aluarado o. El the district are Mexican-American, the re-
Paso Independ,ent School District, 426 sult will be the registration of more Mexi_
F.Supp. 575 (W.D.Tex.19?6), affirmed 593 can-American voters. In summary, the
F.zd 577 (5th Cir.1979), in which the Court Court is unable to find any evidencl of a
found that the EI Paso Independent school present lack of responsiveness by the
District had discriminated against Mexican- school board to the particularized needs of
American students in certain respects. Mexican-Americans.
Most of the events involved in that law
suit, however, oceurred before 19?0, and t5] The Voting Rights Act requires that
they are not probative of any lack of re- the totality of the circumstances be con-
sponsiveness on the part of the present sidered in determining whether a particular
board of trustees. On the contrary, the system of electing public officials results in
Court has already found earlier in this the denial to a particular class of citizens of
opinion that the El Paso Independent equal opportunity to participate in the polit-
School Distriet is presently doing a com- ical process and to elect representatives of
mendable job of furnishing educational ser- their choice. In the instant case, the
vices to Mexican-American students. For present atJarge, by-place, majority runoff,
example, the El Paso Independent School nonpartisan election of school board trus-
District was a pioneer in bilingual educa- tees does tend to deprive Mexican-Ameri-
tion, developing a eomprehensive program cans of an equal opportunity to elect candi-
in the earl"v* 1970s finaneed entirely with dates of their choice. This finding is based
Iocal funds prior to the enaetment of any primarily upon the consideration of the
legislation by the State of Texas. Further- first three faetors, to wit: (1) historical
more, the district has taken affirmative discrimination of an official nature that
aetion to reeruit qualified Mexican-Ameri- affected the exercise by Mexican-Ameri-
can teachers for the sehool system, and has cans of their fights to register and vote;
promoted those who have shown leadership (2) the high degree of voter polarization
ability to supervisory positions such as along ethnic lines in elections conducted by
school principals. Teachers employed by the El Paso Independent School Districi;
the school district have been encouraged to and (3) the exteni to which the at-large,
go back to college and to obtain master's by-place, majority runoff, nonpartisan elec-
degrees with specialization in the area of tion procedure errhirr;ces tire diffjeulties

tll



69I FEDERAL SUPPIPMENI.

it'
t.

812

faced by a Mexican-Americarl'candidate
aeeking election to the position of school,
board trustee. It is not without signifi-
eance that, at the piesent time, and for the
last four years, a school district, of which
?0 pereent of the students are Mexican-
American, of which over 50 percent of the
residents are Mexican-American, and of
which 43 percent of the registered voters
are Mexican-American, has had only one
trustee out of seven who is of Mexican-
American descent. Although the other fac-
tors listed by Congress must be considered,
and although each has been considered in
this opinion, the Crcurt's findings with re-
spect to the first three factors in combina-
tion inescapably point to a result which
violates the Voting Rights Act as amended
in 1982. Therefore, judgment must be en-
tered in favor of the Plaintiffs, and lhe
Defendants must be ordered to implement
single-member districts in place of the
present at-large scheme.

16.8l The Plaintiffs have proposed a
specific plan for the creation of seven sin-
gle-member districts within the EI Paso
Independent School District (Plaintiffs' Ex-
hibit 78). It would not be permissible, how-
ever, for the C,ourt to adopt the plan pro
posed by the Plaintiffs or anyone else with-
out first affording an opportunity to the
school district to draft its own plan for
reapportionment. It is now well settled
that apportionment is primarily ar legisla-
tive responsibilitv. Chapman tt. Meier,
420 U.S. t, 27,95 S.Ct. 751, 766, 42 L.Ed.2d
766 (1975); Jones t. City of Lubbock, su-
pra. The governmental body in question
must be afforded a reasonable opportunity
to produce an apportionment plan that is
constitutionally permissible. lVise u. Lip-
scomb, 437 U.S. 535, 540, 98 S.Ct. 2493,
2497,57 L.Ed.2d 411 (1978); Jones a. City
of Lubbock, supra. ln this case, therefore,
the El Paso Independent School District
and its Board of Trustees will be required
to prepare and to submit to the Court as
soon as possible an apportionment plan di-
viding the district into seven single-member
districts. The Plaintiffs will be given an
opponunitl'to obiect ro tne plan proposed.
and. if necessar\. a ii :.' r.{ s'ill be held on

their objectionl, if any. All frrther at-
large elections, including the onelscheduled
for April 7, 1984, must be restrained and
enjoined pending the approval by the Court
of a constitutionally permissible plan for
the election of trustees from single.mem-
ber districts. A judgment will be entered
accordingly.

FIRST COMMODITY TRADERS,
INC., Plaintiff,

Y.

HEINOLD COMMODITIES, INC. and
Yern Pherson, Defendants.

No. 81 C 5757.

United States District Court,
N.D. Illinois, E.D.

April 11, 1984.

Brokerage firm brought action against
another brokerage firm alleging breach of
contract under which second firm would
provide capital to support business generat-
ed by first with first bringing customers to
second and sen'icing those customers for
second and with the two dividing commis-
sions. The District Court, Getzendanner,
J., held that: (1) the contract was termina-
ble at will; (2) even if contract were not
terminable at will, termination of contraet
by defendant was proper due to plaintiff's
breach of contract; (3) plaintiff firm was
not entitled to recover under theory of un-
just enrichment; and (4) account stated
was established. '

Ordered aecordingly.

l. Removal of Cases c>48

Aetion on contraet between two bro-
kerage firms was properly removed to the