467 F. 2d 848 - United States v. Texas Education Agency

* * *

In the Texas schools surveyed, 22 percent of Chicano pupils are retained in first grade.

Id. at 43. Fourth, the Commission surveyed pupils who were average for grade assignment and found that "Mexican-Americans in the survey area are as much as seven times as likely to be average as their Anglo peers". Finally, the Commission concluded:

Involvement in extracurricular activities makes the school experience more meaningful and tends to enhance school holding power. The Commission found, however, that Mexican American students are underrepresented in extracurricular activities. This is true whether Mexican Americans constitute a majority or a minority of the student">student enrollment in a school.

See Appendix on next page.APPENDIX C

            Ethnic Make-Up of New Schools Opened After 1954
School               Opening Date  White  Black  Mexican-American  Total
Crockett             1968           1763     10               110   1903
Johnston             1960            118     17               474    609
Lanier               1966           1251      6                38   1355
Reagan               1965           1488     68                48   1604
Senior High School
Junior High Schools
Allan                1957            235     --               720    955
Burnett              1961           1202     --                --   1202
Lamar                1955            806     --                 3    809
Martin               1967             34    189               743    966
Murchison            1967            770     --                 1    771
Pearce               1958            295     --                 3    298
Porter               1958            477     --                22    499
Webb                 1968            643     50                50    743
School              Opening Date  White  Black  Mexican-American  Total
Elementary Schools
Allison             1955            127     --               268    395
Andrews             1962            287     --                 9    296
Barton Hill         1964            225     --                 5    230
Blanton             1964            435     --                 4    439
Brown               1957            224     --                --    224
Cunningham          1962            155     --                 6    161
Dill                1955            165     --                --    165
Cullett             1956            323     --                --    323
Harris              1955            275     --                --    275
Oak Springs         1958             --    426                --    426
Ortega              1959             52     --               266    318
Pecan Springs       1957            141     --                --    141
Read                1962            311     --                --    311
St. Elmo            1960            229     --                34    263
St. John            1958             --    229                --    229
Sims                1956             --    188                --    188
Walnut Creek        1961            273     --                18    291
Wooten              1955            258     --                 1    259

BELL, COLEMAN, AINSWORTH, GODBOLD, MORGAN, CLARK, INGRAHAM, and RONEY, Circuit Judges (specially concurring):

We concur in the result reached in the opinion prepared by Judge Wisdom to the extent of reversing and remanding the cause to the district court with direction that the dual school system and all discriminatory segregation against Mexican-American and black students be eliminated "at once" and that the Austin Independent School District "operate now and hereafter" only a unitary non-discriminatory school system. Alexander v. Holmes County Board of Education, 1969, 396 U.S. 19, 20, 90 S.Ct. 29, 24 L.Ed.2d 19.

In our view the remedy which the district court is required to formulate should be formulated within the entire context of the opinion in Swann v. Charlotte-Mecklenberg Board of Education, 1971, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554, and the companion case of Davis v. Board of School Commissioners of Mobile County, 1971, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577.

In giving effect to Swann we have in mind that the Supreme Court has placed the primary responsibility for desegregating public schools on the "informed judgment" of the district courts. It is necessary, however, in the appellate process, where many complicated school cases involving urban school systems are within the jurisdiction of this court, that some definitive direction be given with respect to the remedy which is to be fashioned in the district courts. This is particularly true where the school systems are organized as is Austin on a neighborhood basis with no transportation being furnished now except in the rural parts of the system.

There are two key passages in Swann which have to do with the remedy which is appropriate in school desegregation cases and we read these as being concomitant. The first is concerned with the power of the federal courts. The other pertains to the constitutional duty of the school authorities. With respect to power the Supreme Court said:

"[A] school desegregation case does not differ fundamentally from other cases involving the framing of equitable remedies to repair the denial of a constitutional right. The task is to correct, by a balancing of the individual and collective interests, the condition that offends the Constitution.

In seeking to define even in broad and general terms how far this remedial power extends it is important to remember that judicial powers may be exercised only on the basis of a constitutional violation. Remedial judicial authority does not put judges automatically in the shoes of school authorities whose powers are plenary. Judicial authority enters only when local authority defaults.

School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; absent a finding of a constitutional violation, however, that would not be within the authority of a federal court. As with any equity case, the nature of the violation determines the scope of the remedy. 402 U.S. at 15-16, 91 S.Ct. at 1276.

The difference between the broad power of the school boards in making student">student assignments and the limitations on the power of the federal courts is explicit and at once apparent from Swann. In the federal courts, the nature of the violation determines the scope of the remedy.

Having defined the power of the district court in fashioning desegregation plans, the Supreme Court turned in Swann to the question of the constitutional duty of the school authorities and the responsibility of the district courts. It was said:

". . . it should be clear that the existence of some small number of one-race, or virtually one-race, schools within a district is not in and of itself the mark of a system that still practices segregation by law. The district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation and will thus necessarily be concerned with the elimination of one-race schools. No per se rule can adequately embrace all the difficulties of reconciling the competing interests involved; but in a system with a history of segregation the need for remedial criteria of sufficient specificity to assure a school authority's compliance with its constitutional duty warrants a presumption against schools that are substantially disproportionate in their racial composition. Where the school authority's proposed plan for conversion from a dual to a unitary system contemplates the continued existence of some schools that are all or predominately of one race, they have the burden of showing that such school assignments are genuinely nondiscriminatory. The court should scrutinize such schools, and the burden upon the school authorities will be to satisfy the court that their racial composition is not the result of present or past discriminatory action on their part." 402 U.S. at p. 26, 91 S.Ct. at p. 1281.

Given these principles, and the other definitive instructions contained in Swann and Davis, we have concluded that the district court should proceed to eliminate the dual school system as it has existed in Austin together with any and all discriminatory segregation which exists against Mexican-American and black students on the following basis:

(1) It is the prerogative and duty of those local officials having charge of the AISD to formulate and implement student">student assignment plans.

(2) Where a student">student assignment plan is found to be unconstitutional, as here, because of the existence of segregation which has been imposed by statute or by official act against blacks and an identifiable ethnic group (here the Mexican-American students), it is the duty of the school officials to forthwith formulate and implement such student">student assignment plan as will remedy the discrimination which has been found to exist. Where one race schools continue to exist, school authorities must show that such schools are not the result of present or past discrimination on their part. Swann, 402 U.S. at 26, 91 S.Ct. 1267, 28 L.Ed.2d 554.

(3) The power of the district court will depend first upon a finding of the proscribed discrimination in the school system. Swann, 402 U.S. at 16, 91 S.Ct. 1267, 28 L.Ed.2d 554. In determining the fact of discrimination vel non, whether imposed by statute or as a result of official action, the district court must identify the school or schools which are segregated as a result of such discrimination. This identification must be supported by findings of fact. The importance of such a determination will be seen in some populous school districts embracing large geographical areas. There may be segregated schools which are the result of unconstitutional statutes or of official action. There may be other one race schools which are the product of neutral, non-discriminatory forces.1

(4) The district court should give the school officials an opportunity to remedy the discrimination found to exist. Here, it is only in this court that the holding has been made that discriminatory segregation exists against Mexican-American students and that the proposed part-time integration plan of the school district is inadequate as a desegregation plan. Thus the local school officials should be afforded an opportunity to consider the matter anew. In the event the school officials abdicate this responsibility or fail to remedy the discrimination forthwith, the district court is empowered to and should proceed forthwith to remedy the discrimination.

(5) Usually in rural, and in some city school districts where the population is diffused, assignment on a strict neighborhood basis has been sufficient to eliminate discrimination in student">student assignments. It is apparent that this will not suffice in the AISD although it may suffice as to some schools. To the extent that it does not suffice, the district court will proceed to employ other methods of desegregation.

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

(7) If after utilizing the procedures outlined in (5) and (6) above, proscribed segregated schools still exist, the court must consider the pairing or clustering of schools in non-contiguous school zones. Swann, 402 U.S. 28, 91 S.Ct. 1267, 28 L.Ed.2d 554. No such pairing or clustering of non-contiguous school zones may be required until the court has exhausted every other possible remedy which would not involve increased student">student transportation. Whenever the court must exercise its power to pair or cluster schools located in non-contiguous zones, it must minimize student">student transportation requirements in such plan as is devised to pair or cluster schools located in non-contiguous zones.

The length and time of travel for students under any plan must be considered in light of the age of the children, and the risk to health and probable impingement on the educational process. Swann, 402 U.S. 30-31, 91 S.Ct. 1267, 28 L.Ed.2d 554. The material consideration in assessing the probable effect on health and the educational process as to each particular child will be the time required for transportation as distinguished from distance. Under some plans children will be transported from their neighborhood school to the school of assignment rather than from their homes to the school of assignment. In such event, the time consumed in travel must include the time necessary to reach the neighborhood school or other point of embarkation.

In fashioning transportation plans the school board and district court must avoid invidious discrimination on the basis of race or national origin through the imposition of the burden of desegregation on one or both of the minority groups. Lee v. Macon County Board of Education, 5 Cir., 1971, 448 F.2d 746, 753-754; Mims v. Duval County School Board, 5 Cir., 1971, 447 F.2d 1330, 1331-1332.

(8) As the Supreme Court made clear in Swann, the requirement of ". . . any particular degree of racial balance or mixing . . ." as a matter of substantive constitutional right would be disapproved. 402 U.S. at 24, 91 S.Ct. at 1280. Such racial balance as may result from the pairing or clustering or rezoning of schools is constitutionally permitted as "an interim corrective measure." Swann, 402 U.S. at 27, 91 S.Ct. 1267, 28 L.Ed.2d 554.2

An overall amelioration of any possible discrimination will tend to be accomplished by the use of the mandatory majority to minority transfer provision of Swann, supra, 402 U.S. at 36-37, 91 S.Ct. 1267, 28 L.Ed.2d 554, heretofore ordered by the district court. Such a provision will guarantee to both races an unfettered right to attend schools with members of an opposite race or identifiable ethnic group, and with transportation provided. The district court is directed to constitute a tri-ethnic committee in the school district to foster the use of the majority to minority transfer.3

We have previously outlined the requirements of desegregating school systems from the standpoint of faculty, staff, transportation, extracurricular activities, and facilities. Singleton v. Jackson Municipal Separate School District, 5 Cir., 1970, 419 F.2d 1211. See also Carter v. West Feliciana Parish School Board, 5 Cir., 1970, 432 F.2d 875, 878-879, explicating the Singleton rule to preserve and maintain a non-discriminatory merit system in faculty selection and retention. This left only the question of student">student assignment and we know from experience that this question has resolved itself principally into student">student assignment in urban school districts. Fidelity to the principles announced in Swann and Davis and the use of the approach outlined herein offers the best promise of promptly resolving the student">student assignment question posed in an urban school district such as Austin.

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

The remaining judges on the Court join in Judge Bell's special opinion concurring in the result but formulating the so-called remedy as if there were no record before the Court. Judges Wisdom, Coleman, and Simpson constituted the original panel in the instant case. Judges Gewin, Goldberg, and Dyer constituted the original panel in Cisneros v. Corpus Christi Independent School District, No. 71-2397, 5 Cir., 459 F.2d 13, a companion en banc case released simultaneously with the instant case.

VIII. Discussion of Judge Bell's Special Opinion

The vice in the special opinion is its irrelevance. The opinion consists of abstract admonitions most of them old-hat to this Court, so general as to be unrelated to the facts and the issues in this case. The so-called steps to be taken to desegregate are the steps always taken in a school desegregation case.

The case took six days to try. There are numerous exhibits including important statistics showing the students and teachers by ethnic group in each school in Austin. A series of maps show population patterns over the years and site locations of all the schools. The case was well briefed by the parties, intervenors, and amici curiae. The record is as complete today as it will be a year from now when the same issues will be presented. The questions cry for settlement. Instead of the judicial resolution of controverted issues squarely before the Court, the majority opinion produces generalized statements that would be innocuous except that the looseness of their language opens the way for recalcitrant school boards to evade the Supreme Court's mandate in Swann:

"The district judge or school authorities should make every possible effort to achieve the greatest possible degree of actual desegregation and will thus necessarily be concerned with the elimination of one-race schools."

The important issue in this case, as in Cisneros, is whether Mexican-Americans, who never were subjected to statutory segregation, are entitled to the same benefits of school desegregation as blacks or whites. The district judge in this case recognized that in Austin Mexican-Americans are an identifiable ethnic minority, but because he found no de jure segregation afforded them no relief. The Court is under the inescapable duty to face this issue: indeed, the Court must say that the district judge was clearly erroneous in applying an improper standard. In the opinion on the merits we demonstrated that "de jure" segregation is not limited to statutory segregation; the actions of the school board constituted "state action" within the meaning of the Fourteenth Amendment. Cisneros is in accord and boldly discards the de facto-de jure dichotomy. I concur in the substantive holdings in Cisneros, but I prefer to apply the term "state action" to the Board's acts and to regard the Board's discrimination against Mexican-Americans as de jure discrimination.

The special opinion does not meet this issue or deal with the merits in any way. As Judge Godbold correctly noted in his opinion, "The validity of the de facto-de jure dichotomy remains unanswered" in Judge Bell's opinion for the majority. Judge Bell does employ the words "official action" (not a term of art, as is "state action"), but without identifying the acts, in spite of a record that unquestionably shows the state action that was discriminatory. For example, the majority does not discuss the proven fact that the AISD promoted segregation by locating black schools in black areas, Mexican-American schools in Mexican-American areas and assigning students and teachers to those schools on the basis of their race. To confuse the AISD and district court further the opinion takes great pains to state that there may be "one race schools which are the product of neutral, non-discriminatory forces".

The special opinion speaks of formulating the remedy "within the entire context" of Swann, but conspicuously absent is any reference to Swann's emphasis on the affirmative constitutional duty imposed on school officials. The affirmative duty doctrine, on which Jefferson rests, was firmly expressed by the Supreme Court in Green v. New Kent County School Board, 1968, 391 U.S. 430, 437, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716:

"School boards * * * [are] clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch".

Of course new plans must be submitted. But this Court should let the litigants and the district court know in what respects the present plan was defective by fulfilling the judicial duty of a reviewing Court to decide the justiciable questions put to it. This Court should let the AISD know now that on the record before us it was clearly erroneous for the district judge to hold that there was no de jure discrimination against Mexican-Americans in Austin, Texas.

This Court should decide now, not a year from now, that the court-approved plan for Austin school desegregation was constitutionally defective for the following reasons. (1) The plan put almost the entire burden of bussing on the blacks by closing black schools, and bussing two-thirds of all blacks in the school system, a few Mexican-Americans, and no whites. The plan contemplates assigning Mexican-Americans to black schools or to predominantly Mexican-American schools but only a handful to Anglo schools. (2) Unlike any school plan this Court has approved, the Austin plan excluded desegregation of the elementary grades. Part-time desegregation does not comply with the constitutional command that the school system be fully converted to a unitary system. (3) The plan required, as the evidence proved, that two black schools should be closed for racial reasons-the fear of a white flight to the suburbs, if the schools should be desegregated. Each of these schools, Anderson and Kealing, was within the desirable junior high school range in capacity and acreage. (4) The plan contains no provision for requiring the school board to increase the number of Mexican-American teachers from its present three percent to a percentage more closely representative of the student">student population of Mexican-Americans of twenty percent. Such a provision is a logical extension of the requirement in a black-white system that in each school the faculty represent the ratio of black teachers to white teachers in the entire school system. In a black-white school system the teacher ratio closely approximates the student">student ratio.

The most destructive feature of Judge Bell's opinion is its ambiguous treatment, in subparagraph 3, of the Justice Department's about-face. Ever since Brown the Department has taken the position that school segregation is system-wide in nature and must be remedied by system-wide measures. Infection at one school infects all schools. To take the most simple example, in a two school system, all blacks at one school means all or almost all whites at the other. Up to now, neither the Department of Justice nor this Court has ever spoken of "incidents" or "pockets of discrimination" or required the district court, as Judge Bell puts it "to identify the school or schools which are segregated"; or stated that the "identification must be supported by findings of fact"; or asserted that some "one race schools . . . are the product of neutral, non-discriminatory forces". These are blatant euphemisms to avoid desegregating the system, preserving the whiteness of certain schools.

Nowhere in any opinion of this Court has there ever been any requirement of racial balance except as to the black-white teacher ratio. But when a school system is converted to a unitary system by pairing and clustering of schools, or other methods, it is a fact of life that such conversion cannot be accomplished without bussing. I sincerely hope that I have not misrepresented Judge Bell's position. The point is that the Department of Justice dreamed up a new defense for school boards in desegregation cases, that is, that there need not be system-wide desegregation of Mexican-Americans. And if this argument applies to Mexican-Americans, will it not in the future also apply to blacks? In short, the argument undermines all of the desegregation cases since Brown by eroding the principle that the dual system must go, lock, stock, and barrel. I may have misread the majority opinion. The opinion may have ignored this issue, in spite of the stress placed on it in briefs and oral arguments of the Assistant Attorney General. But I read subparagraph 3 as an invitation, an ambiguous invitation, but an invitation to school boards to seek refuge in demographic patterns with respect to all-white or predominantly white schools.

The majority opinion may have value to first year law students-except for the defects I have pointed out-as an exposition of the judicial process in school desegregation cases generally. It is also an example of how a reviewing court can pass the buck, give the school board a delay, and confuse the district court on remand. It is said that it marks a turning point for this Court. It is the first backward step for a Court that has labored mightily to follow faithfully the mandates of the Supreme Court and of Congress in the field of civil rights.

I respectfully dissent from the majority opinion relating to the so-called remedy.

GEWIN, Circuit Judge, with whom JOHN R. BROWN, Chief Judge, and WISDOM, GOLDBERG and SIMPSON, Circuit Judges, join:

For the reasons stated in my opinion concurring in part and dissenting in part in Cisneros v. Corpus Christi Independent School District, No. 71-2397, 5 Cir. 459 F.2d 13, I dissent from the majority opinion outlining a remedy in this case.

GODBOLD, Circuit Judge, with whom BELL, COLEMAN, MORGAN, AINSWORTH, CLARK and INGRAHAM, Circuit Judges, join, files the following special opinion:

The highest standards of judicial administration demand that pending further action by the Supreme Court of the United States this appeal be held in abeyance without reaching the merits. The wisdom of such a course is demonstrated by the divisions among the members of our court in this case. Of the fourteen judges participating, seven are of the view that at this time our decision should be to make no decision on the merits. The court proceeds to a merits decision, not because a majority approve of that action but on the parliamentary ground that since the proposed decision of not reaching the merits at this time commands the vote of only one half of those participating, consideration of the merits is required. On the merits a majority agree only on the result and a statement of remedy.

With full awareness of our responsibilities as judicial officers of the United States, we have attempted to the best of our abilities to implement Brown v. Board of Education.1 Since 1954 this Circuit has had before it more than 500 appeals in school cases. At no time have we evaded the task.

Our country is sharply divided over aspects of school desegregation, particularly the assignment of pupils to schools and the consequent necessity in some instances of transporting students who otherwise would not be transported. The problem of school segregation is national in scope. The efforts to disestablish segregated schools have had repercussions far beyond the original confines of the problem and into broader issues such as flight from urban areas, the decay of our cities, and the ability of our governmental structures to survive the overall economic consequences.

The validity of the de facto-de jure dichotomy, and its interplay with the necessity of state action, remain unanswered. Until the Supreme Court provides a definitive answer we do not know what we should do about segregation springing from causes other than affirmative state action. Among both judges and commentators there are numerous opinions, and shadings of opinion, as to the meaning of Swann.2

This court has committed itself to giving deference to desegregation plans and proposals emanating from agencies of the executive branch of the government that possess expertise in the field, and we have required district judges and school officials to give similar deference. But we have seen those agencies become divided within themselves, their policies and recommendations changeable and changing from case to case and even in the same case.

In short, in the present state of the law, it is virtually impossible for this court to render decisions in complex student">student assignment cases with confidence in the correctness of what we do. In like manner, in many situations school boards, their attorneys, and district judges are without rudder or compass. Yet the remedies which we judges are asked to provide in difficult pupil assignment cases will have massive impact upon the lives, the families, and the future of millions of people, and tremendous economic and sociological impact upon their communities. Some of those consequences will be wholly irreversible.

Therefore, until the Supreme Court can go to the heart of this grave national issue and give us the guidance essential to the performance of our duties, we should hold in abeyance all those pupil assignment cases which cannot be solved by well recognized tools whose validity is beyond question, such as pairing contiguous schools, majority to minority transfers, and minimal additional transportation of students. Some of the issues presented in this appeal and in numerous other cases pending before us are common to Keyes v. Denver School District No. 1, 445 F.2d 990 (10th Cir., 1971), cert. granted, 404 U.S. 1036, 92 S.Ct. 707, 30 L.Ed.2d 728 (1972), which is on the 1972-73 docket of the Supreme Court, having been carried over from the 1971-72 term, and presumably will be argued in the fall of this year. It is routine procedure for us to await Supreme Court action in such circumstances-each year we do so in numerous cases. The judicious staying of our hand while awaiting further instructions is the same approach taken by this court over a period of months while awaiting the decision of the Supreme Court in Swann. Pending Supreme Court decision on the death penalty, the same approach was taken country-wide by combined executive and judicial action in order that condemned prisoners not be executed. The question in school cases of our powers and duties with respect to student">student assignments is no less deserving of similar handling.

Our view is not the consequence of action either taken or proposed by the executive and legislative branches of our government. Stated simply, as judicial officers we need additional judicial guidance before we undertake measures which will so deeply and so irreversibly affect the fabric of our country and its people and its communities. If the Supreme Court considers it inappropriate to articulate further guiding principles, we can again take up the task and do the best we can with it. It is not flight from duty but rather performance of it to recognize that we need guidance and to say that we will withhold action to see if more certain legal standards become available to us.

We, therefore, dissent from consideration of the merits at this time. Directed as we are to consider the merits, we concur in the special concurring opinion of Judge Bell. As we understand it, that opinion concurs in only the result of reversing and remanding the case to the District Court.

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

This is intended solely as a response to the opinion of Judge Godbold that we should postpone action until (i) the Supreme Court acts in Keyes with the hope that (ii) when it speaks we will be informed on what the law as then declared tells us what we might or must do. Were we to do so we would, in my view, abdicate our function. Although these are inescapably hard words, they are hard by the nature of the action which we must take. They are not hard-they must not be so understood-in the sense that I think my dissenting Brothers are less sensitive to their duties or that they are shirking a hard decision. To the contrary, this Court and each of its members faces up to hard decisions. We have made them. By our judgments today we still do. Indeed, the dissenters perform their sense of obligation by the genuine conviction that we should wait.

But waiting is not the privilege of a Federal Judge. He must act in the face of the day's challenge to constitutional denial. Indeed, the very Court to whom the dissenters look for guidance has in no uncertain words made it plain to this Court-one whose record in school cases exceeds all in volume and, hopefully, history will recognize with comparative quality-that we should get on with our job-job being the street's description of duty.

In response to a modest request delivered safehand by air courier by the Secretary of HEW to the Chief Judge at his home for a 60-day extension of the effective date of a plan for some 20 Mississippi school districts, the Supreme Court summarily reversed this Court. Alexander v. Holmes County Board of Education, 1969, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19.

When we met in November 1969 to hear a dozen school cases en banc, this decision was fresh on our minds. On en banc consideration of those cases and in recognition of the late time in the school year, we again thought that there was a reasonable basis for a postponement of pupil assignment until the next September at the commencement of the next school year. With the ink scarcely dry on our order, we were told again in positive terms to get on with the business-the business we had tried so hard to prosecute since 1957! Carter v. West Feliciana Parish School Board, 1970, 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477. Not a Judge on this Court disparaged either summary reversal. Indeed, the reversals were consistent with everything we had done in the long march from Mansfield.1

These decisions were sharp, peremptory reminders of our duty to decide-not just rubber stamp after getting the word from Mount Olympus.

Now we must heed this call again. A realist knows that we will not get the answers if we wait. With all deference, Swann is proof of that. More important, to delay means that identifiable children-now Mexican-Americans, not primarily Blacks-will leave the last year of their public education without ever experiencing a single year of education free of racial/ethnic discrimination.

We cannot do much for these twelfth graders (or dropouts in the lower echelons), but what we can do we must do. And we must do it now. Talk about waiting for Keyes is to forget the victims of September 1972-June 1973, if not those of September 1973-June 1974 whose plight will then be another rehash of the Supreme Court's Keyes decision begun in the Texas Federal District Court and wending its way to this Court.

Surely, after the 19 years (1954-1973) since Brown there must be a better answer than this.

CLARK, Circuit Judge, with whom COLEMAN, Circuit Judge, joins:

Judge Godbold's reasoning not only persuades me that this court is in error in refusing to stay its hand now, but also compels me to take the view that the novel issues which this case presents should be immediately certified to the Supreme Court of the United States under the authority of 28 U.S.C.A. Sec. 1254 (3).

Judge Thornberry did not participate in the en banc decision in this case

Brown v. Bd. of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 [Brown I]; Brown v. Bd. of Education, 1955, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 [Brown II]

Swann v. Charlotte-Mecklenburg Bd. of Education, 1971, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554

Section 407(a) and (b), 42 U.S.C. Sec. 2000c-6(a) and (b)

The original suit named as defendants seven independent school districts in the Western District of Texas: Austin, Calvert, Ector, Hearne, La Vega, Midland, Temple. The present appeal concerns only Austin

Several interested individuals and groups have sought to intervene since the filing of the original suit. A group of whites sought to intervene to oppose certain aspects of the desegregation plans; a group of blacks sought to intervene to oppose closing of black schools and bussing of black children; the Austin Anti-Bussing League sought to intervene and filed its "Desegregation Plan". The district court denied all motions for intervention. After the district court, on August 24, 1970, denied a motion to intervene filed on behalf of a group of Mexican-American students, the applicants filed a separate suit against AISD. On June 10, 1971, the district court denied a motion by those plaintiffs for consolidation and joint hearing of that suit with the present case

This Court, on August 25, 1971, granted a motion for intervention filed by a group of black and Mexican-American parents. The intervenors alleged that the Government no longer adequately represented their interests in this lawsuit.

The Court found that:

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

(b) The Austin Independent School District has never discriminated against, or attempted to discriminate against, isolate or segregate Mexican-Americans in any form whatsoever, particularly in:

(1) site location of schools;

(2) school construction;

(3) drawing of school attendance zones;

(4) student">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 Mexican American ethnic origin.

That finding was made in spite of the fact that after 1955 the defendants opened four schools not only with all black student">student body, but also with all black faculties assigned to them. One of those schools, the St. John School was built in an area which on all four sides was almost entirely white, Anglo. When the new St. John School opened in 1958, the Board drew its zone line for the school. It was a square. The zone line of the adjoining school was in the form of a closed fist with a thumb sticking up next to the St. John zone. That thumb was an Anglo residential area

During the 1970-71 school year, there were 2100 black high school students, 14 percent of the total high school population in the AISD. Of these 916 (43 percent) attended Anderson, and 619 (29 percent) attended Johnston. Anderson was all-black; Johnston was 32 percent black, 62 percent Mexican-American, and 6 percent white

                          AISD Plan Approved by Court
 CLOSING ANDERSON- KEALING and REDISTRICTING DISTRICTS FOLLOWING 1973 PLAN in
                       1971 with LIMITED TRANSPORTATION
High Schools              Total Projected         Number of    Percentage Negro
                                                    Negroes
Austin                               1185               189                15.9
Crockett                             2794               278                10.0
Johnston                             1686               332                19.7
Lanier                               2854               287                10.1
McCallum                             2451               361                14.7
Reagan                               3065               554                18.0
Travis                               1477               100                 6.8
Junior High                Total Projected  Number of Negroes  Percentage Negro
Allan                                  773                195              25.2
Burnett                               1252                116               9.3
Fulmore                               1086                 62               5.9
Lamar                                 1008                161              14.9
Martin                                 852                127              14.9
Murchison                              947                100              10.6
O'Henry                                770                 39               5.1
Pearce                                1254                163              13.0
Porter                                1419                131               9.2
Webb                                  1052                160              15.2
Defendants Exhibit No. 37

The closing of Anderson and Kealing with the students being assigned to other school zones will require bussing. On the high school level, 23 busses will be needed; the total cost per year including operational costs will be $279,855. On the junior high school level, 17 busses will be needed; the total cost per year will be $207,895. The shift in student">student attendance will also require some adjustments in building capacity. On the high school level, 14 portables must be purchased and 10 moved, for a cost of $174,900; on the junior high school level, 8 portables must be purchased and 4 moved, for a cost of $63,900. The AISD estimates the cost of the senior high school plan at $459,785 and the junior high school plan at $207,855.

HEW projections for enrollment figures under the HEW plan reveal the following statistics:

School Projected Enrollment Grades

High Schools M-A N A Total

Austin 135 146 990 1271 10-12

Crockett 456 182 2194 2832 9-12

Johnston 622 632 987 2240 9-12

Lanier 420 101 2227 2748 9-12

McCallum 252 310 2067 2479 10-12

Reagan 303 729 1388 2420 9-12

Travis 858 43 943 1844 9-12

Junior High Schools

Allan 228 10 281 519 7-8

Anderson 324 867 480 1671 7-9

Burnet 48 32 753 833 7-8

Fulmore 449 23 617 1089 7-8

Lamar 212 267 1059 1538 7-9

O'Henry 156 40 595 791 7-9

Pearce 116 182 901 1199 7-8

Porter 96 17 913 1026 7-8

Martin 547 25 117 689 7-8

Murchison 14 163 615 792 7-8

Webb 195 100 399 694 7-8

During the 1970-71 school year, there were 1570 black junior high school students, 15 percent of the total junior high school population, in the AISD. Of these, 739 (46 percent) attending Kealing, and 527 (33 percent) attended Martin and Allan. Kealing was all-black; Allan was 42 percent black, 54 percent Mexican-American, and 4 percent white; Martin was 11 percent black, 86 percent Mexican-American, and 3 percent white

MILEAGE CHART for 1971 to 1973 PLAN

SCHOOL N S E W

Austin 4.5 .8 2.0 3.0

Crockett 5.3 8.0 5.0 9.0

Johnston 2.3 3.7 0.8 4.0

Lanier 6.5 2.5 2.5 12.5

McCallum 1.8 5.5 1.7 4.0

Reagan 3.0 5.0 4.0 1.0

Travis 2.5 1.7 1.5 2.0

Defendant's Exhibit No. 37

Because the school system has expended a great deal of time and energy in the development of this plan, we feel it is appropriate to include the AISD's own description of the plan as found in the appellee's brief:

The prominent features then of the Davidson plan are: (1) the retention of the basic neighborhood school concept substantially modified; (2) utilization 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 and appreciate the contributions of each ethnic group.

The plan of educational integration envisions the establishment of six teams of "companion schools." These are composed of one virtually all black school, one school predominately of Mexican-American students, and four schools of predominately Anglo enrollment. (See Defendant's Exhibit No. 78.) Within each team there is established a central coordinating committee consisting of the six principals, six teachers (one from each school, one to three instructional coordinators from the central administrations, resource personnel for special areas of concerned parents, and staff specialist. This multicultural committee, since it consists of representatives from minority and majority race students, will be called upon regularly to assess and review these planned educational programs. As a means of providing authentic evaluation from minority groups, one such committee will be established with a special supervisory group consisting of a predominantly number of minority representatives. This will assure continuing evaluation concerning activities for minority students.

The program activities have three basic components:

(1) Planned sequential visits between the schools of different ethnic back-grounds by grade levels and by groups of students;

(2) Programmed visitations to establish learning resource centers with the City. These centers will be established in the areas of 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. In the inter-site visitations, a great 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 intersite visitations of these fourth grade students, this study would culminate with group discussions on an interethnic 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 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 opportunity for understanding and appreciation of both the living 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 dramatic areas of interest and the multi-cultural involvement. These centers provide tremendous opportunities for educational enrichment on a multi-cultural basis.

The district court chose to include Mexican-American students in the elementary school plan despite the finding of no de jure segregation of Mexican-Americans

The court concluded that bussing (1) "reduce[s] attendance and produce[s] higher dropout rates, especially among minority students" (2) "limit[s] the opportunity of all transported students to participate before and after school in extra-curricular activities", (3) "reduces parental participation in school activities", (4) "taxes the capability of health facilities in individual schools to deal with at-school injuries and illnesses", (5) "causes raised anxiety levels in both students and their teachers that constitute psychological barriers to learning progress, and subjects students to traumatic experiences that they are not equipped by age or experience to handle", (6) in "inclement weather may pose problems in sheltering up to twice the school's student">student capacity during the bussing period in the morning and afternoon", (7) "would require transporting many students through a heavy traffic complex", (8) would result in a "non-productive expenditure, since such costs contribute little, if anything, to academic achievement", and (9) creates "other bussing"

HEW estimated that high school transportation would cost $342,860 and junior high school transportation $240,320. The AISD disputes the accuracy of these figures

HEW estimated that the cost of the elementary school plan would be $717,900. The AISD estimated that the HEW elementary plan would cost $1,708,000 and that the entire HEW plan would cost $2,910,575. As to the relevance of cost and administrative inconvenience, see Swann v. Charlotte-Mecklenburg Bd. of Education, 1971, 402 U.S. 1, 28, 91 S.Ct. 1267, 28 L.Ed.2d 554; Brewer v. School Bd. of City of Norfolk, 4 Cir. 1972, 456 F.2d 943

The court found:

Moreover, the HEW proposals for secondary schools disregard an additional cost of some $246,200 for portable buildings made necessary by the crowding of some facilities and drastic underutilization of others under the HEW plan. Moreover, the cost comparison of the HEW [elementary school] proposal with that of AISD is startling. Because the AISD can employ during the school day at the elementary level the same buses used to transport secondary students, no additional equipment is required. Consequently, expenditures would be held to $100,000 in operating costs. Defendant's Exhibit 82. In this same exhibit, the AISD estimates that the HEW elementary proposal would cost $1,708,000.-$1,573,000. for transportation, and $135,000. for additional portable rooms. Even the Plaintiff's Exhibit 26, with its understatement of the number of buses required to implement the HEW Recommendations estimates total first year costs of $717,900. This Court finds as a matter of fact that, by either estimate, the cost of this proposal places an unreasonable burden upon the school district.

This Court finds as a matter of fact that their proposal entails all the educational disadvantages of bussing previously discussed

District Court Order.

See Hernandez v. Texas, supra; Alvarado v. El Paso Independent School District, 5 Cir. 1971, 445 F.2d 1011 [No. 71-1555, June 16, 1971; Cisneros v. Corpus Christi Ind. School District, S.D.Tex.1970, 324 F.Supp. 599, appeal docketed, No. 71-2367, 5 Cir., 459 F.2d 13; Tasby v. Estes, N.D.Tex.1971, C.A. No. 3-4211-C, 342 F.Supp. 945, appeal docketed, No. 71-2581; Mendez v. Westminister School District, S.D.Cal.1946, 64 F.Supp. 544, aff'd 161 F.2d 774 (9 Cir. 1947); Delgado v. Bastrop Ind. School District, W.D.Tex.1948, C.A. No. 388 (unreported); Gonzales v. Sheely, D.Ariz.1951, 96 F.Supp. 1004; Romero v. Weakley, 9 Cir. 1955, 226 F.2d 399; Hernandez v. Driscoll Consol. Ind. School District, S.D.Tex.1957, 2 Race Rel.L.R. 329; Ind. School District v. Salvatierra, 33 S.W.2d 790 (Tex.Civ.App.1930), cert. denied 284 U.S. 580, 52 S.Ct. 28, 76 L.Ed. 503 (1931); Clifton v. Puente, 218 S.W.2d 272 (Tex.Civ.App.1948)

See also United States Comm'n on Civil Rights, Mexican-American Education Study, Ethnic Isolation of Mexican-Americans in the Public Schools of the Southwest (April 1971) [Report I]; United States Comm'n on Civil Rights, Mexican-American Educational Series, The Unfinished Education (October 1971) [Report II]; Title IV of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000c et seq.; the U. S. Census of Population.

A summary of the Civil Rights Commission's conclusions is found on page 41 of Report I

The basic finding of this report is that minority students in the Southwest-Mexican-Americans, blacks, American Indians-do not obtain the benefits of public education at a rate equal to that of their Anglo classmates. This is true regardless of the measure of school achievement used.

The Commission has sought to evaluate school achievement by reference to five standard measures; school holding power, reading achievement, grade repetitions, overageness, and participation in extracurricular activities.

Without exception, minority students achieve at a lower rate than Anglos: their school holding power is lower; their reading achievement is poorer; their repetition of grades is more frequent; their overageness is more prevalent; and they participate in extracurricular activities to a lesser degree than their Anglo counterparts.

See Appendix B. The AISD cannot seriously contend that the educational status of Mexican-Americans in Austin is significantly better than the status of Mexican-Americans throughout Texas as revealed in the Commission's reports. As to the segregation of Mexican-Americans in the AISD, see Appendix A. The relationship between racial segregation and educational, psychological, and social harms was established long ago. See Brown v. Bd. of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; Sweatt v. Painter, 1950, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114; McLaurin v. Oklahoma State Regents, 1950, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149; Fiss, Racial Imbalance in the Public Schools: The Constitutional Concepts, 78 Harv.L.Rev. 564 (1965); The Effects of Segregation and the Consequences of Desegregation: A Social Science Statement, 37 Minn.L.Rev. 427 (1953). We see no reason to believe that ethnic segregation is any less detrimental than racial segregation. See K. Clark, Prejudice and Your Child (2d ed. 1963.) See also Coleman et al, Survey on Equality of Educational Opportunity (1966); Report I and Report II, supra, footnote 19

Significantly, as the maps introduced into evidence demonstrate, the AISD drew zone lines which corresponded with ethnically and racially segregated neighborhoods. These neighborhoods were ethnically and racially isolated, not entirely because of personal choice or population growth but also because of state action in the location of public housing. In Blackshear Residents Organization v. Housing Authority of City of Austin, W.D.Tex.1971, 347 F.Supp. 1138 (W.D.Tex.1971), the district judge made the following findings:

These obviously segregated patterns of occupancy and site location in the Austin public housing system were brought about in large measure through the conscious design of the Housing Authority and with the knowing approval of HUD and its predecessor agency, the Public Housing Administration.

Beginning in the late 1930's and early 1940's the Housing Authority began segregating the three ethnic groups by building the first three projects, Chalmers Courts for Anglos, Rosewood for Negroes and Santa Rita Courts for Mexican-Americans, in accordance with an official Austin city plan adopted in 1928, that had as its purpose to encourage the settlement of Negroes in "East Austin" and pursuant to a City Planning Commission Resolution approving the Housing Authority's request to locate these "three racial housing projects" on sites the Planning Commission found to be fitting to their racial character. This City plan was still in effect during the 1950's when Meadowbrook, Booker T. Washington Terrace and Santa Rita Addition were built. Then in the 1960's the Housing Authority built two projects for the elderly, Lakeside for Anglos and Rosewood Addition for Negroes, intending at the time to segregate the tenants by race. The evidence shows and this Court finds that from 1938 to 1967, it was the official policy of the Housing Authority to segregate Anglos, Negroes and Mexican-Americans into different public housing projects. On October 27, 1967, the Board of Commissioners of the Housing Authority finally adopted a resolution abandoning the prior system of segregation and adopted a "freedom of choice" plan. During the prior 28 years, however, public housing in Austin was designed, named, located for and occupied by particular racial or ethnic groups. The result has been that the various projects have historically been identified as Anglo, Negro and Mexican-American, and while a substantial number of Mexican-Americans have lately been admitted to formerly all Anglo projects, the basic racial or ethnic identification remains. (Emphasis supplied).

Whether or not the residential isolation of whites, blacks, and Mexican-Americans in Austin is, as the finding of the district court would seem to indicate, the result of state action, the acts of the school authorities in taking official action, including assigning students, choosing sites for schools, constructing and renovating schools, and drawing zone lines, on the basis of these segregated housing patterns were violative of the fourteenth amendment. When the segregated housing patterns are the result of "state action", we are faced with double discrimination.

See United States v. School Dist. 151, 7 Cir. 1968, 404 F.2d 1125, modified, 432 F.2d 1147 (1970); cert. denied 402 U.S. 943, 91 S.Ct. 1610, 29 L.Ed.2d 111 (1971); Spangler v. Pasadena City Bd. of Educ., C.D.Cal.1970, 311 F.Supp. 501, intervention denied, 9 Cir. 1970, 427 F.2d 1352; Kelley v. Brown, Civ.No. LV-1146 (D.Nev., Dec. 2, 1970); Davis v. School Dist., E.D.Mich. 1970, 309 F.Supp. 734, aff'd, 6 Cir. 1971, 443 F.2d 573, cert. denied, 404 U.S. 913, 92 S.Ct. 233, 30 L.Ed.2d 186 (1971); Crawford v. Bd. of Educ., Civ. No. 822854 (Sup.Ct. L.A. County, Feb. 11, 1970); Johnson v. San Francisco Unified School Dist., N.D.Cal.1971, 339 F.Supp. 1315; Soria v. Oxnard School Dist., C.D.Cal.1971, 328 F.Supp. 155; United States v. Bd. of School Comm'rs, S.D.Ind.1971, 332 F.Supp. 655; Bradley v. Milliken, E.D.Mich.1971, 338 F.Supp. 582; Taylor v. Bd. of Educ., 2 Cir. 1961, 294 F.2d 36, cert. denied, 368 U.S. 940, 82 S.Ct. 382, 7 L.Ed.2d 339 (1961); Blocker v. Bd. of Educ., E.D.N.Y.1964, 226 F.Supp. 208; Branche v. Bd. of Educ., E.D.N.Y.1962, 204 F.Supp. 150; Clemons v. Bd. of Educ., 6 Cir. 1956, 228 F.2d 853, cert. denied, 350 U.S. 1006, 76 S.Ct. 651, 100 L.Ed. 868 (1956). "[T]he segregation of school children because of their race has been contrary to the law of Ohio for almost seventy years. The Hillsboro Board of Education created the gerrymandered school districts after the Supreme Court had announced its first opinion in the segregation cases. The Board's action was, therefore, not only entirely unsupported by any color of state law, but in knowing violation of the Constitution of the United States. The Board's subjective purpose was no doubt, and understandably, to reflect the 'spirit of the community' and avoid 'racial problems', as testified by the Superintendent of Schools. But the law of Ohio and the Constitution of the United States simply left no room for the Board's action, whatever motives the Board may have had." 228 F.2d at 859 (concurring opinion of Stewart, J. as Circuit Judge) (emphasis added.) See Fiss, the Charlotte-Mecklenburg Case-Its Significance for Northern School Desegregation, 38 U.Chi.L.Rev. 697 (1971); Dimond, School Segregation in the North; there is But One Constitution, 7 Harv.Civ.R.-Civ.Lib.L.Rev. 1 (1971); Comment, Bussing, Swann v. Charlotte-Mecklenburg, and the Future of Desegregation in the Fifth Circuit, 49 Tex.L.Rev. 884 (1971); Fiss, Racial Imbalance in the Public Schools: The Constitutional Concepts, 78 Harv.L.Rev.564 (1965)

See footnote 6

The district court may have applied an erroneous legal standard. The standard which the court applied to Mexican-Americans is unclear, as to blacks the court's most explicit statement of the standard that it was applying is found in its "Memorandum Opinion and Order" of June 28, 1971

The government has made no showing that in the period from 1955 to the present the AISD has intentionally perpetuated segregation of Blacks; the record instead indicates that during this period the school administration's official acts have not been motivated by any discriminatory purpose.

This standard, with its reliance on motivation, is incorrect. See Brown v. Bd. of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; Brown v. Bd. of Education, 1955, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083; Griffin v. County School Board of Prince Edwards County, 1964, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256. See also Palmer v. Thompson, 1971, 403 U.S. 217, 225, 91 S.Ct. 1940, 1945, 29 L.Ed.2d 438, 445.

It is not necessary to prove discriminatory motive, purpose, or intent as a prerequisite to establishing an equal protection violation when discriminatory effect is present. See Palmer v. Thompson, 1971, 403 U.S. 217, 225, 91 S.Ct. 1940, 1945, 29 L.Ed.2d 438, 445; Griffin v. County School Board of Prince Edwards County, 1964, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256; Gomillion v. Lightfoot, 1960, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110; NAACP v. Button, 1963, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405; Brown v. Bd. of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; Brown v. Bd. of Education, 1955, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083; Henry v. Clarksdale Municipal Separate School District, 5 Cir. 1969, 409 F.2d 682; Hobson v. Hansen, D.D.C.1967, 269 F.Supp. 401, aff'd sub nom. Smuck v. Hobson, 1969, 132 U.S.App.D.C. 372, 408 F.2d 175; United States v. Jefferson County Board, 5 Cir. 1966, 372 F.2d 836, adopted en banc 380 F.2d 385 (5 Cir.) cert. denied 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103 (1967); Bush v. Orleans Parish School Board, E.D.La.1960, 190 F.Supp. 861, aff'd 366 U.S. 212, 81 S.Ct. 1091, 6 L.Ed.2d 239 (1961).

This is not to say that proof of motive, purpose or intent may not reinforce a finding of racial discrimination or serve as a basis for such a finding. See Hall v. St. Helena Parish, E.D.La.1961, 197 F.Supp. 649, aff'd 368 U.S. 515, 82 S.Ct. 529, 7 L.Ed.2d 521 (1965); Davis v. Schnell, S.D.Ala.1949, 81 F.Supp. 872, aff'd 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093; Poindexter v. La. Financial Assistance Commission, E.D.La.1967, 275 F.Supp. 833, aff'd 389 U.S. 571, 88 S.Ct. 693, 19 L.Ed.2d 780 (1968); Hobson v. Hansen, D.D.C.1967, 269 F.Supp. 401, aff'd sub nom. Smuck v. Hobson, 1969, 132 U.S.App.D.C. 372, 408 F.2d 175; Johnson v. Branch, 4 Cir. 1966, 364 F.2d 177; Chambers v. Hendersonville City Bd. of Educ., 4 Cir. 1966, 364 F.2d 189; Downs v. Bd. of Education, 10 Cir. 1964, 336 F.2d 988; Taylor v. Bd. of Education, 2 Cir. 1961, 294 F.2d 36; Brest, Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motivation, 1971 S.Ct.Rev. 95 (1971); Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205 (1970); Note, Legislative Purpose and Federal Constitutional Adjudication, 83 Harv.L.Rev. 1887 (1970); Comment, The Constitutionality of Sex Separation in School Desegregation Plans, 37 U.Chi.L.Rev. 296 (1970).

See Swann v. Charlotte-Mecklenburg Bd. of Education, 1971, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554

The construction of new schools and the closing of old ones are two of the most important functions of local school authorities and also two of the most complex. They must decide questions of location and capacity in light of population growth, finances, land values, site availability, through an almost endless list of factors to be considered. The result of this will be a decision which, when combined with one technique or another of student">student assignment, will determine the racial composition of the student">student body in each school in the system. Over the long run, the consequences of the choices will be far reaching. People gravitate toward school facilities, just as schools are located in response to the needs of people. The location of schools may thus influence the patterns of residential development of a metropolitan area and have important impact on composition of inner-city neighborhoods. In the past, choices in this respect have been used as a potent weapon for creating or maintaining a state-segregated school system. In addition to the classic pattern of building schools specifically intended for Negro or white students, school authorities have sometimes, since Brown, closed schools which appeared likely to become racially mixed through changes in neighborhood residential patterns. This was sometimes accompanied by building new schools in the areas of white suburban expansion farthest from Negro population centers in order to maintain the separation of the races with a minimum departure from the formal principles of "neighborhood zoning." Such a policy does more than simply influence the short-run composition of the student">student body of a new school. It may well promote segregated residential patterns which, when combined with "neighborhood zoning," further lock the school system into the mold of separation of the races. Upon a proper showing a district court may consider this in fashioning a remedy. In ascertaining the existence of legally imposed school segregation, the existence of a pattern of school construction and abandonment is thus a factor of great weight. In devising remedies where legally imposed segregation has been established, it is the responsibility of local authorities and district courts to see to it that future school construction and abandonment are not used and do not serve to perpetuate or reestablish the dual system

Swann v. Charlotte-Mecklenburg Bd. of Education, 1971, 402 U.S. 1, 20-21, 91 S.Ct. 1267, 1278, 28 L.Ed.2d 554; see United States v. Montgomery County, 1969, 395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263; United States v. Bd. of Public Instruction, 5 Cir. 1968, 395 F.2d 66; Lee v. Macon County Bd. of Education, M.D.Ala., 267 F.Supp. 458, aff'd Wallace v. United States, 389 U.S. 215, 88 S.Ct. 415, 19 L.Ed.2d 422 (1967).

See Swann v. Charlotte-Mecklenburg Bd. of Education, 1971, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554; Goss v. Bd. of Education, 1963, 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632; Monroe v. Bd. of School Comm'n, 1968, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733; Henry v. Clarksdale Municipal Separate School District, 5 Cir. 1969, 409 F.2d 682; United States v. Jefferson County Bd. of Education, 5 Cir. 1966, 372 F.2d 836, aff'd en banc, 5 Cir. 1966, 380 F.2d 385, cert. denied 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103 (1967)

See Brown v. Bd. of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; Brown v. Bd. of Education, 1955, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083; Green v. County School Bd., 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716; Swann v. Charlotte-Mecklenburg Bd. of Education, 1971, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554

See United States v. Montgomery County Bd. of Education, 1969, 395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263; Swann v. Charlotte-Mecklenburg Bd. of Education, 1971, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554; Davis v. Bd. of School Comm'rs, 1971, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577; Rogers v. Paul, 1965, 382 U.S. 198, 86 S.Ct. 358, 15 L.Ed.2d 265; Bradley v. School Bd., City of Richmond, Va., 1965, 382 U.S. 103, 86 S.Ct. 224, 15 L.Ed.2d 187; Green v. County School Bd., 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716; United States v. Jefferson County Bd. of Education, 5 Cir. 1966, 372 F.2d 836, aff'd en banc, 5 Cir. 1967, 380 F.2d 385, cert. denied sub nom. Caddo Parish School Bd. v. United States, 1967, 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103; United States v. Bd. of Education of City of Bessemer, 5 Cir. 1968, 396 F.2d 44

The pre-Brown record reveals little evidence as to the segregation of Mexican-American school students. Because of the extremely high dropout rate among Mexican-American students, very few continued their formal education through high school

The 39 predominately white elementary schools outside of East Austin have a total of 44 portable classrooms; the seven Mexican-American schools in East Austin have a total of 24 portables

The plan adopted by the district court not only operates to the detriment of Mexican-Americans in theory but also in practice. Under the plan the student">student body of Johnston, currently 62 percent Mexican-American, would become 71 percent Mexican-American. Similarly, at Allan Junior High School the 54 percent Mexican-American student">student body would become 72 percent Mexican-American. The plan, on the other hand, provides that no secondary school will have a student">student body more than 25 percent black

The district court said that it would "consider the effect upon [Mexican-Americans] . . . of any plan submitted by the parties." This is not sufficient. The Mexican-American students must be specifically included in the plan and its operation. The district court apparently chose to include Mexican-American students in the elementary school plan despite the finding of no "de jure segregation" of Mexican-Americans

See Tex.Const. art. 7, Section 7 (1873); Texas Laws 1905, Ch. 124 at 263; Texas Laws 1957, Ch. 283, Secs. 1 and 3 at 671

Although we agree with the district court that the AISD has not fully dismantled its dual system based on race and, therefore, agree that the plaintiffs are entitled to relief, we disagree with the court's conclusions as to the absence of post-Brown, discrimination. We hold that the AISD has, in its choice of school site locations, construction and renovation of schools, drawing of attendance zones, student">student assignment and transfer policies, and faculty and staff assignments, caused and perpetuated the segregation of black students within the school system

The district court found that "the AISD has adequately desegregated faculty and staff." With the exceptions noted above as to Mexican-American teachers, we agree

Conversion may not be accomplished merely by putting Mexican-American and blacks in the same school

See Bivins v. Bibb County, 5 Cir. 1970, 424 F.2d 97; United States v. Bd. of Education of Baldwin County, 5 Cir. 1970, 423 F.2d 1013; Hilson v. Ouzts, 5 Cir. 1970, 421 F.2d 632; Hightower v. West, 5 Cir. 1970, 430 F.2d 552; United States v. Bd. of Education of Webster County, 5 Cir. 1970, 431 F.2d 59; Banks v. Claiborne Parish, 5 Cir. 1970, 425 F.2d 1040

Bus transportation has been an integral part of the public education system for years, and was perhaps the single most important factor in the transition from the one-room schoolhouse to the consolidated school. Eighteen million of the Nation's school">public school children, approximately 39%, were transported to their schools by bus in 1969-1970 in all parts of the country

Swann v. Charlotte-Mecklenburg, supra, 402 U.S. at 29, 91 S.Ct. 1267, 1282, 28 L.Ed.2d 554. See also Brewer v. School Bd. of City of Norfolk, 4 Cir., 1972, 456 F.2d 943.

This figure constitutes 17.2 percent of the Mexican-American students in the United States, and 3.2 percent of all the students in the United States

This figure constitutes 20.1 percent of all the students in Texas

As to classroom teachers, the Commission reports:

A very small portion of the classroom teaching staff is Mexican American. Of approximately 325,000 teachers in the public schools of the Southwest, fewer than 12,000 [or 4 percent] are Mexican-American. [Of 105,000 teachers in Texas, 5,000, or approximately 5 percent are Mexican-American] . . .

In all States Mexican-Americans comprise substantially less of the teaching staff than they do of the student">student population. [In Texas, 5 percent of the teachers are Mexican-American, while 20 percent of the students are Mexican-American] . . .

In Texas there are three times as many Anglo students as Mexican-American students. However, the ratio of Anglo to Mexican-American teachers is 17 to 1. . . .

The pupil-teacher ratio within ethnic groups, that is, the number of pupils of each ethnic and racial group to each teacher of the same group, also graphically demonstrates the extent to which Mexican-Americans are under-represented among classroom teachers. In the Southwest as a whole, there are 120 Mexican-American pupils for every Mexican-American teacher. Among blacks the pupil-teacher ratio is 39 to 1, and among Anglos it is 20 to 1. [In Texas the Mexican-American ratio is 98 to 1] . . .

Mexican-American teachers are severely restricted in their school assignments. More than one-half [55 percent] of all Mexican-American teachers in the Southwest teach in predominately Mexican-American schools. (See Table 13.) One-third are in schools that are nearly all Mexican-American. Furthermore, even in schools that are predominately Mexican-American, teachers of this ethnic background make up less than onethird of the total teaching staff. The low representation of Mexican-American teachers even in predominately Mexican-American schools, where they are concentrated, underscores the paucity of Mexican-Americans employed as classroom teachers in the Southwest.

Proportionately more Mexican-American teachers in Texas are in predominately Mexican-American schools than in any other State in the Southwest. Furthermore, only in Texas does the proportion of teachers in predominately Mexican-American schools substantially exceed that of pupils similarly situated. More than 80 percent of the approximately 5,000 Mexican-American teachers compared to two-thirds of the students are in predominately Mexican-American schools. More than 60 percent of the teachers and 40 percent of the students are in schools that are nearly all Mexican-American.

Report I, pp. 41-45

A basic measure of a school system's effectiveness is its ability to hold its students until they have completed the full course of study. In one sense, this is the single most important measure, for if a student">student has left school permanently, all efforts to enrich the quality of education are valueless to him

Report II, p. 8.

This approach of identification is implicit in the decision of this court in Dandridge v. Jefferson Parish School Board, 5 Cir., 1972, 456 F.2d 552. See language on p. 554 with respect to resegregated schools and shifting population trends, and the failure of the school board to show that the one race schools in question were non-discriminatory. It is present in the result approved in Pate v. Dade County School Board, 5 Cir., 1971, 447 F.2d 150, cert. den. sub nom. Love v. Dade County School Board, 1972, 405 U.S. 1064, 92 S.Ct. 1493, 31 L.Ed.2d 794 (245,242 students in 218 schools; 69 all white schools, 15 predominantly black schools). The identification approach is an obvious necessity, given the Swann limitation on federal judicial power. Id. 402 U.S. at 15-16, 91 S.Ct. 1267, 28 L.Ed.2d 554

In making certain that the school system is unitary and that the discrimination has been eliminated, we have required that specified reports be filed for three years and that the case not be dismissed thereafter without giving notice to plaintiff. Youngblood v. Board of Public Instruction of Bay County, Florida, 5 Cir., 1971, 448 F.2d 770; Wright v. Board of Public Instruction of Alachua County, Florida, 5 Cir., 1971, 445 F.2d 1397. See Swann, 402 U.S. at 31-32, 91 S.Ct. 1267, 28 L.Ed.2d 554 on the termination of federal court intervention in school cases

The record in Ellis v. Board of Public Instruction of Orange County, Florida, No. 71-2696, now pending in this court, discloses that in the 1970-71 school term there were 2,095 transfers of black students under the majority to minority transfer provision out of a total of 15,747 black students in the system

Brown v. Bd. of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) [Brown I]; Brown v. Bd. of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) [Brown II]

Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971)

Jackson v. Rawden, 5 Cir., 1956, 235 F.2d 93, cert. denied, 352 U.S. 925, 77 S.Ct. 221, 1 L.Ed.2d 160; United States v. Flagler County School District, 5 Cir., 1972, 457 F.2d 1402