Jose Cisneros v. Corpus Christi Independent School District

contemporary in accordance with consti Greenberg, Stephen Ral- Charles Jack Corpus guidelines. tutional Cisneros v. III, ston, Nabrit, Norman James M. District, Independent Christi School S.D. City, Chaehkin, the York for New (Cisneros Texas Legal NAACP Defense and Educational II). See Swann v. Charlotte-Mecklen Fund, Inc., amicus curiae. burg Education, 1971, 402 U.S. Board Cal., Francisco, Obledo, Mario San This L.Ed.2d 554. S.Ct. Antonio, Tex., Jr., Idar, Edward San Black, stayed by order was Mr. Justice Legal Defense the Mexican-American sitting Justice, pending con- as Circuit Inc., Fund, amicus cur- and Educational sideration the merits of the Board’s iae. appeal by this Court.2 BROWN, Chief Before JOHN R. . BELL, GEWIN, Judge, WISDOM, desegrega is novel This COLEMAN, large THORNBERRY, GOLD- tion of mexican ease. A number GODBOLD, BERG, AINSWORTH, public children attend american CLARK, MORGAN, SIMPSON, Although DYER, Corpus schools of Christi. INGRAHAM, RONEY, historically are and have been Judges. separated anglos in fact from city, separation this has Judge: DYER, Circuit statutory origin. There had a {/never fore, involving tradi desegregation unlike cases In this class action systems, brought against tional dual In- black-white Christi question dependent Board is whether District and its School Trustees,1 that mexican-american children who court held statutorily seg city’s mandated victims mexican-american and black regation constitutionally impermissi anglo segregated children were is, public ble. it affirm the We hold children in finding mexi result of Board official action children of Christi can-american violation the mandate of Brown Education, 1954, the Con- violation of Board of 347 y/are primarily systems education 1. Defendants are the case policies District, to which Superintendent Board actions and of the Dis- appeal. trict, this we and Members of refer and the President the Board District. of Trustees L.Ed. Texas, the Board Trustees operation charged 2d 15. of free with expli- figures reasons hereinafter The ethnic stitution. For cated, fur- distribution however, disagree ther in 1969-70, we with show that one third of remedy prescribed by high district’s mexican-american require High Moody to be modified. school students attended School, the enrollment of which was Although a tri-eth- are faced with (11% mexican-american and black population, 97% nic school determination black). Another one-third mexi- relatively stu- that the few below black high can-american school students at- segre- system were dents in the school High, tend Miller mexi- gated basically contrary law is uncon- 80% black). (14% can-american and black appeal. tested must, however, this The district court high anglo One-third the district’s the reme- also reconsider King High, school students attend dy regard in ac- black students anglo. enrollment of which is over opinion. 90% cordance anglo high Another 57% Independent Ray students attend either Carroll or encompasses the metro- District high schools, each which is over 75% Corpus Christi, politan Texas. area of anglo. extending crescent-shaped The district high junior schools, approxi- In the length approximately 11 in- miles mately of the mexican-american corner, its northwest its southeast 61% highs junior students attend three four varies in from three to and width are over mexican-american in en- Following of Cor- miles. pus curvatures 90% anglo junior Over rollment. high Bays, Christi and Nueces 50% junior highs students attend east, by north, and on its bounded water anglo are over in enrollment. Of south sides. 90% 24,389 elementary students, ap- level 1969-70, upоn year In the school proximately 10,178 mexiean-americans in this case are which the statistics based,3 (1,250 blacks) and attend blacks elemen- 46,023 in there were scholastics tary in schools which over of the 90% system. public terms of In non-anglo. Approximate- enrollment is distribution, total of the ethnic 47.4% ly 6,561 anglo elementary students at- anglo, school children can-american, mexi- were 47.2% non-anglo in tend schools which the There black. 5.4% is less en- enrollment than 20%. sys- are in schools elementary rollment eleven of the elementary junior tem, schools, schools over 90% highs, highs. and 5 senior In terms of mexican-american, over mexican- 75% grade level, ethnic distribution american in other three over schools, 24,389 elementary students, were 43.4% mexican-american and black 95% anglo, mexican-american, 5.- 50.8% schools, anglo four other over 90% high 11,793 junior black. Of the 7% anglo schools, other and over six 80% students, anglo, mexi- were 48% 46.7% other nine schools.4 can-american, black. Of 5.25% elementary 9,841 alone, high students, At the level 29 of senior 56.4% anglo, mexican-american, the 45 or almost a twо- were full 38.9% thirds, clearly identifiable as con- are black. 4.6% 3. Plaintiff’s Exhibit While we are aware that these enrollment 3-A and the defend process using figures descriptions at ant’s were arrived Exhibit 4 contain anglo Spanish sur- ethnic distribution a school census names, parties upon system. assured teachers within the school are argument figures are substan- trial court these found these exhibits to reflect realistically tially en- accurate reflect substantially the same information. Our patterns rollment numerical and statistical evaluations are 4, repro taken from I, .defendant’s Exhibit 4. See Cisneros I, F.Supp. 599, duced Cisneros n. 12. High approximately in built School was sisting derivation. ethnic of one district, to the the center of the school figure comparisons can same total roughly artery Ayres regard jun- 'southeast of Street made corridor has as high the school which served senior ior and system. boundary. opened It with an enrollment anglo. significant A was 87% Highly enrollment these relevant anglo students then with- number of historic and estab- statistics High Ray Miller drawn from into city. patterns of the residential lished opened in In Carrol was School. traditionally today has There is district, part south central concentra- residential been substantial Ayres again Street, south of and served groups Christi. tion beyond zone that extended an attendance Ayres popula- / and black The mexican-american mexi- heart north into the in a is concentrated the district tion of opened, how- can-american corridor. comprises middle area narrow Ray ever, anglo While aas school. roughly running 78% district, fairly an- at its remained constant 87% northeast, bordered southwest glo figure, Miller now had enrollment Ayres city artery, major by a side south students. mexican-american concentration This residential Street. opened High King School was litigation throughout referred dis- corner of the southernmost the south To “corridor”. the mexican Ayres Street, trict, that was an enrollment boundary, 95% the corridor By anglo (90% 1969-70). time mexican-ameri- number relative High mexican- become Miller had anglos, 71% opposed blacks, as cans and american, and black. 8% part of the drops sharply. The southеrn exclusively as an almost exists district anglo Moody 1968, High In School was area. residential opened in mexican- heart of the the 1938, the district has as- Since before american corridor as a mexiean- 96% signed anglo schools accord- children to black). (11% Its american-black school plan neighborhood school com- ato Ayres boundary was southernmost posed geographic zones. attendance encompassed Street. Its attendance zone descent mexican-american Students of great majority the of the mexican-amer- anglo by always classified as have been corridor, the ican concentration of sequestering Generally, students the school board. of that area north of all at the school at all levels attend school Ayres included in Car- once was the imposi- Thus, the their home. neighborhood nearest the stu- roll attendance zone. Whereas over zones tion had dents that formerly lived the corridor segre- pattern the marked residential Carroll, in the been divided has, inevitably, gation Miller, Rаy schools, their inclusion anglo mexican-american resulted in Moody two- zone locked over substantially separated being children city’s mexican-american thirds of public schools. high high two students into non-anglo high provide city’s residen- schools schools located high public city striking example. first each of which was tial area of the clearly group minority still in exist- in the district identifiable as a school built drawing High, 1928, high Importantly, is Miller built in ence school. boundary It located at lines after of building Moody, new rebuilt corridor, al- in furtherance of north though of the mexican end highest neighborhood concept, its not in the area of mexi- significant numbers of can-american Its attend- concentration. withdrawal of comprised ance all and black zone until 1968 mexican-american Carroll, into Ray, In Miller northern school district. from integra- degree anglo, 1949, Moody, was decreased enrollment 78% Ray 1950, re- their increased tion in mexican-american. In those 22% transporting On identity, 400 students. buses and further fleeted July 13, 1971, moved for the Board into residents of the corridor locked the hоmoge- stay July as racially ethnically order insofar their desegrega high mexiean-american concerned schools. neous 16, 1971, July dis a different tion. On briefly background trace we With stay. granted partial judge trict litigation protracted in this case. by stay an order That was vacated by July 22, 1968, on The suit filed was August 5, 1971, was but this Court parents of black mexican-ameri- by on Au Black Justice reinstated Mr. children, alleging local can appeal gust 19, followed. 1971.5 This operated had authorities finding in a discrimina- schools of a re tory in the un- black students were manner which resulted constitutionally impermissible segregation mexi- sult of of black and lawful argu at was contested state action ean-american students whites. clearly supported 1970, I, supra, ment. Cisneros June stay jure segregation ex- de record. The order found that against August court, court held isted in Christi. The entered plan portion the district that mexiean-americans constituted integration group identifiable, ethnic-minority requiring enti- the immediate guar- plaintiffs case must be tled to Amendment in this the black Fourteenth education, I, equality public Cisneros antee of vacated. See and that both mexican-americans and n. 46. unconstitutionally segregat-

blacks were thrust main turn to the We now ed in the Chris- Although arose appeal. Brown of this ti, a result action of official state context of defendant Board. law, or historical termed “classical often Gomperts July 2, 1971, jure segregation,” II, In Cisneros see court- de designed assignment Chase, 1971, 92 S. student (Douglas, upon parts promulgated, L.Ed.2d based various Ct. beyond today plans Justice), think clear submitted the District Health, peradventure of unlaw Department the Education that contour the of beyond segregation statuto The court directed that ful extends Welfare. segregation the implemented rily include the the com mandated to be policies authorities school of the fall 1972 term. of mencement school actions and protection equal plan, essence, required pair deny The in the to students elementary ethnical levels, separating them in two a of schools of laws the high public complete ly racially See in revision school attend sсhools. of 17, reassignment 1, Aaron, 1958, zones, Cooper 78 ance of v. further 5, specific groups 1401, cas and cited children 3 L.Ed.2d 19 of S.Ct. 1, throughout Den es; Keyes No. to aid in dis District v. 990, mantling group ver, Colo., F.2d 1971, of identifiable 10 445 Cir. 999, granted, 1972, 404 The district found that No. schools. cert. 728; busing required be 30 L.Ed.2d extensive would 92 S.Ct. U.S. Pontiac, implement 6 plan, of new as it contem District Davis v. School denied, plated approxi cert. 443 F.2d Cir. mately 15,000 L. 30 children at ini Milliken, 186; Bradley ranging E.D. tial estimated cost Ed.2d 582; $1,400,000 $1,700,000. Mich.1971, Johnson The School N.D.Cal.1971, Francisco, F. only then had a total of nine District San previously supra. August 23, 1971, his See note On students coextensive judge granted stay stu- for mexiean-american who had entered partial stay, stay July granted a of the dents. regard order of Cisneros II black public Corpus Christi ration in the schools, ac- are “state Supp. actions 1315. Such an- that nevertheless maintains purposes Fourteenth tion” for segregation type exists de facto other here, arguing 'Amendment, dual and result separation this less systems somehow cannot be poli- actions board they from a a result of school do not flow because odious statutory geo- housing patterns, imprimatur rather cies but source. graphic fluctuations, and other social continu- visible. is no less the state prevalent economic factors segregation re- and city. Moreover, ing attempt cast urges, im- if even as de facto action from such sults beyond action, rectify to Board could be traced power balance of the pro- constitutional it scription not fall within longer does consider- entitled to serious a has not acted because it ation. purpose. discriminatory motive or anodyne Thus, dichoto- discard reject type seg- this of con- jure must also my We facto and de de classical meaningless facto and support use of de regation. tinued can find no We attempt jure to es- de nomenclature to should be the view applied the Constitution sepa- kind and racial antithetically of ethnic tablish children public ration schools mexican-ameri- south, north or to remedy. powerless to courts are anglos, simply federal vis-a-vis because cans confusing аttempts and unnec- their Such adventitious circumstance essary. locality. in Brown is the The decision origin happenstance of or legal frame- clear embodiment of proven Time has soundness impor- the resolution of these expressed work for in dissent view Jefferson facto II, which, focusing upon dic- issues. de tant I,6 ta in said: segregation prohibits Jefferson Brown Cleveland, action. Negro that is a of state result children making simply requires Angeles, Boston, two Chicago, New Los sup- distinct factual determinations York, nation or other area finding segregation. port de unlawful opinion under which the classifies op- First, equal a denial of educational segregation, little receive facto would exist, portunity de- must found to assertion comfort from the segregation. or ethnic make-up fined as racial racial their Secondly, must be their constitutional does not violate rights result of state action. into born because were society, same de the exact facto while quantity of need not define We system in make-up racial of the school sеgre- severity of the action state states vio- and border 17 Southern necessary gation sustain constitu- rights their lates the determi- These factual tional violation. counterparts, their blood or even a case with on nations are better dealt they brothers, into were born because only by real need find a case basis. We every- society. jure children a All de significant relationship, in terms of and protected where in the nation are effect, action between state cause and Constitution, treatment which and opportuni- of educational and ty denial rights in constitutional violates their ethnic and the racial occasioned country, violates one area of the also separation public school students. of rights in another such constitutional finding of the affirm We area. by the school action that district court II at 397. Jefferson has, of cause here in terms severely effect, in a however, conceding Board, resulted the ex- The Corpus We system in Christi. sepa- school istence racial and ethnic of severe 1967, I), County (Jefferson en banc aff’d 6. Board Jefferson United States v. II). (Jefferson Education, 1966, F.2d 385 F.2d 836 5 Cir. nothing Discriminatory ing Negro need find more. and Mexican-American purpose, disparate motive while in teachers these ratios finding segrega- segregated schools, failing reinforce a of effective further tion, ingredients necessary employ are not a sufficient Ne- number of gro in the field of violations and Mexican-American school public teachers, education. therefore failing provide We hold a ma- segregation jority-to-minority rule, were, that racial ethnic transfer Corpus regardless that exists explanations in Christi school of all and re- system facto, gardless expressions good is unconstitutional —not de of all in- jure, tentions, not de but to, unconstitutional. did, calculated main- promote tain and school dual limine, note se- that is no there challenge rious Id. 324 617-620. Each finding that findings clearly mexican-americans supported by these Christi school are an in our view use record.<^But identifiable, ethnic-minority neighborhood enti- plan class school the di- equal guarantee protection ‍​​​‌‌​‌‌‌​‌​‌‌​​​‌‌​​‌‌‌‌‌‌​‌​‌‌​​​‌​​‌‌‌‌‌‌​‌​‌‍tled to the segregation rect and effective cause of the Fourteenth Amendment. Hernandez citj£> 1954, Texas, 475, 477-478, U.S. Here, rigid Board, superim- 667, Hirabay- 98 L.Ed. 866. See position neighborhood plan of a States, 1943, ashi v. United upon pattern of marked res- historic 1774; 63 S.Ct. Yick L.Ed. segregation idential that existed Cor- Hopkins, Wo pus equated the ho- Christi residential 6 S.Ct. 30 L.Ed. The Board mogeny homogeny to ethnic and racial however, contend, segregation does public producing system, inev- of mexican-american children in segregation. itable That there was an is not a result of Board action. absence of state action in creat- involved holding explicit Cisneros ing city’s patterns residential I, affirm, which we was that ac significance. imposed Board policies Board, had, tions and neighborhood initio, plan, upon ab effect, terms of their actual either creat pattern a clear and established resi- seg ed or maintained racial an ob- dential in the face of regation schools of and inevitable vious result. Christi. Court found claim We have considered the Board’s dministrative decision [A] neighborhood drawing the school board in bound ethnically racially neu- established aries, locating building new impartially tral adminis- criteria renovating new schools and old schools beyond tered, and is therefore not predominantly Negro and Mexi contention, pale. This treatment parts town, providing can anglos mexican-americans same subjective, elastic and trans flexible non-segregated respect- patina lends fer resulted in some An analyzed, system is, ability when glo being children allowed to avoid pristine appears. not as The Su- ghetto, schools, by or “corridor” buss plain preme made Swann students, by providing some one optional or more transfer zones which being Anglos assignment acceptable

resulted in to avoid able is not [a]n Negro schools, simply appears neu- Mexican-American because it to be allowing plans fail to or . such Mexican-Americans tral . . Anglo Negroes option going continuing of of counteract effects resulting segregation spending extraordinarily past from school large money discriminatory sums оf resulted location school sites of intensifying segre perpetuating in order a or distortion of school size gated, assign- system, ra- dual artificial school or maintain an achieve

150 City separation. Emporia, 451, 1972, When school authori- of

cial 407 92 U.S. present 2196, 51, a a district court with 33 ties S.Ct. L.Ed.2d game board,” city ac- Court held that the “loaded affirmative could not create altering separate the form remedial a new tion in of school from that proper surrounding county attendance zones ef where “its nondiscriminatory truly impede process” as- fect would be to achieve signments. dismantling the court-ordered dual a 2207, system, id. 92 at find S.Ct. 402 91 28, S.Ct. U.S. at previous that under its decisions argues that The Board nevertheless County 1968, Board, Green v. 391 School segregation unlawful constitution- 1689, 716, 430, U.S. 88 S.Ct. 20 L.Ed.2d al sense cannot exist the absence Commissioners, and Monroe Board of v. by the Board intention- actions that are 1968, 1700, 450, L. 391 U.S. 88 S.Ct. 20 ally designed segregation, to achieve 733, Ed.2d action board must discriminatory purpose that such a judged “according it whether hinders absent here. iterates that the ab- deseg рrocess or furthers the of school motive, sence of malevolent facto de Citing regation.” 92 Id. at 2202. S.Ct. dejure segregation and not exists. approval our in Lee and decisions admittedly Stout, supra, rejected there no catholici While ty purpose” adopted by viewpoint “dominant Circuits on test action, case, question fo of intentional this Fourth Circuit decision state cusing tempered prohibition “upon rather the effect—not Court has never create, purpose or motivation —of a school board actions determining segregation maintain, board’s action in whether or foster discriminatory dismantling permissible requirement intent is a method of underpinning of our de dual . . . ‘domi- [T]his be shown. The Court, purpose’ test,” unlaw said the cisions is determination of the nant upon precedent ful effect of action the exist in our decisions.” state “finds no systems. unitary ence of Lee v. Id. at 2203. County Educ., 5 Macon Board Cir. Importantly, op- dissent voiced 752; 746, 1971, 448 F.2d Stout v. United discarding position purpose States, 403, 1971, 404, 5 448 Cir. F.2d motivation, objected only but citing Aaron, Cooper supra; v. Bush v. majority’s factual determination Board, Orleans Parish School E.D.La. city creating action of the its own 1960, F.Supp. 861, 190 aff’d sub nom. impede prog- school district would City 1961, Bush, of New Orleans 212, 366 v. desegregation. ress of 239; 1091, U.S. 81 6 L.Ed.2d S.Ct. emphasize the School cases serve to 1971, Texas, United States E.D.Texas v. regard- principle, of this correctness F.Supp. 235, II, 330 Part aff’d as modi motive, less the children that suffer fied, Texas, 1971, United States 5 v. Cir. segregation depri- suffer the same 441; City Wright 447 F.2d v. see opportunity vation of educational 1969, Brighton, Ala., 441 F.2d 5 Cir. suggest Brown one would condemns. No 447, denied, Academy cert. v. Hoover validity that depends upon of a law Wright, 915, 228, 92 S.Ct. legislators’ motives 190; L.Ed.2d Hall St. Helena Parish v. enacting it, that such a law is uncon- Board, 801, School F.2d Cir. only stitutional when can be ascribed cert. denied, 396 U.S. S.Ct. Why then the distinc- racial animus. 180; Henry 24 L.Ed.2d Clarks types board ac- tion between of school District, Municipal dale 5 Cir. produce segregation? tion that “[T]he denied, 682, 687, 409 F.2d cert. factor malevolent motivation far- L.Ed.2d 242. core ther from invidiousness principle This explicit has become the law condemns racial discrimination Wright produced.” of land. Council are the odious effects than

151 Segregation: Goodman, Montgomery County Facto School De Board of Educa- Analy Empirical tion, 1969, 225, 1670, A Constitutional 395 89 S.Ct. (1972).7 sis, 275, 263, 291 60 Calif.L.Rev. 23 L.Ed.2d in which the Court held goal, that as a the ratio to of white black Next attention to we direct our substantially teachers be same in reassignment hiring mexi each school as ratio of white black The can-american teachers. throughout system. teachers This faculty adminis held that faculty desegregation method has system trative staff of were more Swann, been endorsed Court in su- segregated than the and used pra, 19-20, 1267, 402 U.S. at 91 28 S.Ct. finding of an this as further evidence L.Ed.2d 554. segregated unlawfully assign judge found, Board black The was directed to trial further The through agree, and we and mexiean-american teachers that" the Board had dis per against ratio out on the same criminated mexican-americans centages by failing they comprise employ total mexiean-american 8 population. system, This teacher and staff teachers in the and ordered that finding clearly supported immediately employ it movе more.9 necessary sys record the court’s In order is order for the dual nature of the bring compliance realistically dismantled, tem the Board into to be facul ty Singleton Municipal Separate composition truly v. Jackson must more reflect District, 1970, 419 School 5 F.2d Cir. ratio mexiean-american (en 1211, banc); population Board 1218 Ellis to the v. total scholastic Orange County, Public Instruction The district. Board therefore require 1970, 423 F.2d efforts, The must continue ac Cir. 203. assignments percentage knowledge ment of fac substantial, toward ulty presaged achievement, goal, was the decision of ratio of aof in United States v. fac- mexiean-american to total teachers City Wright segregated proof 7. v. to the decision as a re- Prior wer-e supra, Circuit, Emporia, the Tenth have of intentional state action. We sult Denver, Keyes 1, racially No. District the view that no doubt 1004-1005, Colo., 1971, 990, ethnically 445 F.2d is a Cir. state action motivated 71-507, granted, 1972, necessary prerequisite rt. No. establish- ce U.S. rejected 30 L.Ed.2d in the violation ment of constitutional position in Lee Stout our overrulеd field education is regard remaining purpose Wright. and motivation the decision Keyes simply in school cases. The district court one factual issue relating Keyes desegregation inapposite ordered the several to causation which Denver, judioe. the core area of sub Petitioner’s to the case See population historically pre Keyes Certiorari, of which was Dis- Brief for v. School dominantly hispano, docketed, supra, appeal black and on the No. trict No. ground 71-507, were these schools October 1971. fact, producing an inferior educational discrimina- The determination that no contrary opportunity tory purpose to the mandate of need makes un- be shown determined, necessary Brown. whether the lower court for us to consider discriminatory intentionally however, segregation, unlike record reveals the schools of the Park Hill area Board action. desegregated, of Denver which it ordered F.Supp. primarily I, n. at 8. Cisneros resulted from causes other than action, although school board sоme Board 56 at 619-620. operated policies unintentionally had I, F.Supp. degree and n. 9. Cisneros exacerbate imbalance. 1,909 Keyes 1, Denver, out of 57 at 620. School District No. anglo, system, Colo., D.Colo.1970, in the were teachers 80% mexiean-american, black. Tenth refused enforce 3% 17% During year, desegregate enrollment student the order to schools, finding core area these anglo, dep- that a 47.2% 47.4% mexiean-american, black. rivation did not exist absence of 5.4% ulty approaches non-transportation ratio of mexi- to can-american students total stu- basis to the extent ordered the dis- population. ‍​​​‌‌​‌‌‌​‌​‌‌​​​‌‌​​‌‌‌‌‌‌​‌​‌‌​​​‌​​‌‌‌‌‌‌​‌​‌‍trict In United court. dent States Agency, 5 Texas Education Cir. remand, On the district court di- is 71-2508], banc) (en [No. 467 F.2d 848 desegregate system rected to however, today pointed out, decided, we following on the basis: board, not, need “[i]fte (1) prerogative It is the employment course, lower its standards. duty having those local officials showing good A faith to find effort charge Independ- of the Christi qualified sufficient Mexican-Ameriean ent School District to im- formulate аnd ratio, equitable teachers to achieve an plement assignment plans. student will rebut of discrimina- inference (2) assign- a student tion.” Id. at Where ment is found unconstitu- to be briefly position turn now We tional, here, because of the existence States, the United the invited intervenor segregation imposed which has been argues Essentially, in this case. it against statute or official act segrega- are confronted de facto group and an blacks identifiable ethnic “maybe something tion more than (here the students), mexican-ameriean it isolated discrimination.” The interve- duty is the of the school officials nor this with traditional dual- contrasts implement forthwith such formulate segregation system ism where the is assignment plan remedy student as will wide quired, because that is what law re- the discrimination which has been found remedy thus to be had to exist. Where one race contin- schools here, suggested, it wide. But is exist, ue to school authorities must show remedy only applied should be that such result of not segregated by areas which have become present past or their discrimination on Bоard action. part. Swann, 402 U.S. approach Such is untenable here 1267, 28 L.Ed.2d 554. holding view of our that over two-thirds (3) In the event school officials public' of the school students in responsibility abdicate this remedy or fail Christi are the victims unconstitu- forthwith, the discrimination segregation. tional ethnic and racial empowered to and There established here an overwhelm- proceed remedy should forthwith to ing pattern of unlawful discrimination. has infected the entire school (4) Usually rural, city system-wide To select other than a rem- some edy ignore population school diffused, assignment system-wide districts where would be to dis- neigh- on a crimination strict and make to a conversion unitary system borhood basis has impossible. been sufficient See Green v. County Board, supra. eliminate signments. majori- discrimination student as- School A ty Court, Judge apparent will Chief John R. Judges not suffice in the Gewin, Brown Inde- Wisdom, pendent District, although may Thornberry, Goldberg, Simpson In- suffice to some schools. ex- graham, opin- To the concur in this Judges suffice, Bell, Ainsworth, Morgan tent that ion. does Roney proceed employ will оther meth- concur the result. desegregation. ods of REMEDY (5) clustering pairing or remedy We realignment turn now the fashioned as- signment zones, We court. conclude that relocation of approach may portable different achieve school rooms will methods con- be involving eliminating segregated stitutional result without Pair- schools. conversion clustering of from a or should of schools pairing proximity. The er than from their in close clustering homes to the school assignment. proximity event, in close In such the time schools realignment zones will and the of school consumed travel the time must include neighborhood necessary merely expansion result in an reach neighborhood community point con- school or other school embarkation. or problems cept. as Such

may thereby minimized. arise will be fashioning transportation segregat- eliminating Another method of plans the school board and district court in trans- ed schools with little increase must avoid discrimination invidious assign- portation restructure the origin is to or national the basis of race being already trans- ment of students through imposition the burden ported. desegregation of the on one or both minority groups. Lee Macon Coun v. utilizing (6) If after Education, supra, ty F. 448 Board of procedures above, proscribed outlined County 753-754; 2d Mims v. Duval at exist, still the court 1330, Board, 1971, F.2d 5 Cir. 447 clustering pairing or must consider the 1331-1332. non-contiguous schools in Swann, 28, 91 zones. 402 at S.Ct. U.S. (7) clear made As 1267, pairing 28 L.Ed.2d 554. No such requirement Swann, clustering non-contiguous or degree “any particular of racial bal may required zones until the be court mixing a matter or .” as . . ance every possible has exhausted rem- other right would substantive edy which would increased not involve disapproved. 24, S. at 91 402 U.S. be transportation. student Whenever the as balance racial Ct. at 1280. Such pair power court must exercise its pairing clus or result or cluster schools located in non-con- tering rezoning is con of schools tiguous zones, it must minimize student stitutionally inter permitted “an transportation requirements in such Swann, 402 im corrective measure.” pair as is devised to or cluster schools 1267, L.Ed.2d 28 at 91 S.Ct. U.S. non-contiguous located in zones. 554.10 length possi- of trаvel An amelioration of time overall any plan for students under tend be ac- must be will ble discrimination light age mandatory complished by considered in of the the use of children, prob minority provision majority and the risk health and transfer impingement 36-37, Swann, supra, able 91 on the educational at 402 U.S. process. Swann, heretofore 30-31, 91 L.Ed.2d at S.Ct. S.Ct. 28 L.Ed.2d The ma court. Such ordered assessing guarantee terial probable provision consideration in races both will right effect on health the edu to attend schools an unfettered process opposite particular cational race or as to each with members of required group, child will be the and with time for trans identifiable portation distinguished transportation provided. The from dis tri- plans, tance. Under some to constitute children will directed transported neighborhood be from their in the school ethnic committee majority to assignment school to the school rath- the use to foster Wright making 770; sys- 10. In certain that 448 F.2d 5 Cir. unitary tem is Alachua Instruction the discrimina- of Public Board eliminated, County, Florida, F.2d tion has been we have re- 5 Cir. quired specified reports Swann, 1397; see filed years on the three and that L.Ed.2d the case not be giving intervention dismissed thereafter without of federal notice termination plaintiff. Youngblood cases. Board of Pub- Bay County, Florida, lic Instruction majority volumes, minority A transfer.11 stumbles Thornberry, Bell, Judges Cole- Court, over falters issues which have decided Morgan, geo- every Ainsworth, man, Godbold, and laid rest almost graphical Roney Ingraham area of this circuit. real- Clark, concur To necessary opinion. ize this fact it is not to cite part of the cases; legion. have dealt We part, part, modified Affirmed major systems practically all and remanded. many throughout the six minor ones jurisdic- over we exercise states Judge, GEWIN, with whom posi- tion. decisions have dealt These Judge, BROWN, and Chief JOHN R. WISDOM, tive and often stern fashion with SIMPSON, and GOLDBERG systems Savannah, Atlanta, school of concurring Judges, join, Jacksonville, Miami, Jackson, Birming- dissenting part: and ham, Mobile, Montgomery, Jefferson today approves district This court Houston, Parish, nu- Fort and Worth findings affirms of fact and court’s others. merous applicable But law. statemеnt of the following instances most we were opinion and not stated in for reasons mandates from the record, certainly apparent from not unequivocal terms which directed us in majority this court concludes promises to write a “that realisti- decree remedy] approach [as “a different realistically cally work, promises result with- achieve a opinions now.” Our have relat- work involving out the conversion desegregation and ed to all facets of non-transportation school from a transporta- integration including extent to the to a basis pair- faculty integration, tion, and staff I believe ordered court.” clustering, activi- non-curricular modification-by-deletion today’s construction, ties, sale of ignores remedy both the district court’s hiring faculty ratios, property, procedure fol- facts as found firing protests and teachers, racial and many long year during ef- lowed court’s a timid not been others. We have remedy. I therefore fort to fashion dealing these inactive court the “modification” dissent from disagreed problems. I At havе times remedy. ordered my expressed dis- views in have and sents, original panel a member As should the court but is bound appeal argued and as which heard this majority long de- list of be bound painstakingly one examined who has we have rendered. cisions fully Judge below, I concur with record changing justification for There no description Dyer’s graphic detailed guidelines have the rules operation Christi problem just because the hammered out approval of schools and the prohib- presented in this case relates segrega- finding of school board against a sub- racial discrimination ited Judge particularly I endorse tion. Mexican-Americans stantial number Dyer’s explicit distinc- abandonment I students. number of black and small rights of tions in the constitutional the idea embrace not and will never can the source or school children based have that the children in segregation. purpose state fostered rights chil- than the or lesser different years deseg- Atlanta, Birmingham, After of tortuous school Jackson, dren in regation litigation Houston, reflected Orleans, in this court Jacksonville New opinions numerous just hundreds of Mexican-Ameri- are because 2,095 11. The record in stu- Ellis v. Board of Public of black transfers there were Orange Florida, minority County, Instruction dents under Court, pending 15,747 provision No. out a total transfer term, discloses that in the 1970-71 students black Moreover, throughout I continue to assert district, cans. ratio the school but applied must be the Constitution that no school should without a sub- equal the na- in all force areas stantial number of from students mi- North, South, nority East and West. groups, and no school tion — should be without a substantial number rhetorical criticism of Aside Anglo students. The court found that utterly “bussing” majority opinion Christi where the Mexican- any fails demonstrate defect American and black students remedy almost fashioned the district population, one-half the student attend- key any guidance or to offer on the sub- ance school of less than (1) questions: much de- how stantive 20% Anglo or of less than required?; (2) how 20% Mexican-American and black students bussing pre- much is too much? (combined) would be insubstantial. point “remedy” procedure seven scribed majority opinion object does to this essentially directs the district technique and I find fault with a steps. retrace its “substantiality” balance of as a consti- court ordered tutionally permitted ‘interim corrective acceptable board to submit (Point 7). measure’. (Point #2')1 and the then held enigmatic Finally in hearings its decree sought that of and assistance bussing be minimized if after ex- private litigants public agencies even to hausting possibilities other plan (Point #3). devise a of own remain, perfectly schools the court opinion majority recognize, As the point obscure on the which domi- will 46,000 over two-thirds of proceedings nate the to follow below. are the students Christi Supreme I believe the de- Court has victims of unconstitutional ethnic and respect lineated the segregation. standard with to majority racial also transportation rigid of students. Davis v. imposition finds of a neighborhood Board of of Mo- School Commissioners plan upon his- County, bile pattern seg- 91 S.Ct. toric of marked residential (1971) reject- regation 28 L.Ed.2d the Court produced Christi this desegregation plan prepared ed segregation. ab- is therefore treating because was based on surd to believe that of strict use county neighborhood assignment (Point the western section of #4) or pairing isolation from the eastern section. expand of close schools to neighborhood court stated: community (Point concept #5) significantly will al- plan, Like the District Court’s segregation. existing leviate the Appeals’ plan Court of was based treating the western section isola- Even brief examination the dis tion opinion July from the eastern. There were trict re geographic zones, unified pos veals that the court did exhaust pur- realignment, sibilities of zone and the for poses desegregation. pairing clustering The reduc- in close schools all-Negro proximity. tion in the number The court had benefit of through pairing, Supreme rezon- opinion achieved Court’s Swann ing, grade adjusting Charlotte-Mecklenburg structures Board Edu cation, within the eastern section. L. (1971) specific Ed.2d 554 and made in quiry bussing (Point as to effects of may A district court and should con- #6). sider the use of all available tech- judge niques including restructuring

The district notеd that he had of at- contiguous attempt made no meet certain tendance zones and both headings opinion majority 1. These refer to numbers under the Section entitled “Rem edy.” (en banc) noncontiguous [No. attendance zones. I 2508] would de 71 — Swann, 22-31, S.Ct., supra, at fer See decision on the merits this case 1279-1283, guid L.Ed.2d at until 570-575. we shall have received the any desegregation Supreme ought measure ance of the Court which is its effectiveness. come with the decision of the Denver case, now on calendar of the Su On the before us, record it is clear preme Court. Appeals felt Court con- I, therefore, deciding strained to treat eastern dissent metropolitan in isolation ‍​​​‌‌​‌‌‌​‌​‌‌​​​‌‌​​‌‌‌‌‌‌​‌​‌‌​​​‌​​‌‌‌‌‌‌​‌​‌‍Mobile at this time. case system, the rest of however, Seeing, the case never- inadequate consideration was decided, theless is to be I wish brief- given possible use bus trans- ly express separate some views of and, portation split zoning. For these my own. done with This is considerable reasons, judgment we reverse the reluctance when the because Appeals parts the Court of as to the my speaks Denver case dealing assignment, with student legal- turn observations out to be development remand the case ly incorrect or useless. promises of a decree “that realistical- say compelled I am I am un- ly work, promises realistical- legal proposition, agree, able as a ly to work now.” Country is a United States 402 U.S. at 91 S.Ct. at 1291- composed “many within a na- nations 1292, 28 L.Ed.2d 580-581. rea- Without of Mexican tion”. We have Americans authority opinion son or extraction, extraction, of Irish of Polish abandons the of Davis mandate and nu- extractions, extraction, many other Supreme merous other Court decisions. and we have Americans who are either remedy I realize that the as ordered so, poor is or Even an American rich. presents the district court serious American, prefix an or without suffix— financial and administrative difficulties. Rayburn (on as an- Mr. said Sam once very It is a substantial matter to direct subject). other bussing the of one-third of the district’s The idea there are that mexican-amer- students. But I do not find it at all hy- icans, afro-americans, any other or surprising remedy might such a that be phenated americans, either leads to divi- required in a where over two- among people political sions or to segregat- thirds of the students attend “power plays”, person is both. If a or remedy ed schools. The ordered is the American, should “end that it” consequence of the district court’s con- ought he “E remember Pluribus to precisely sideration of those factors Unum”. priorities court which this now decrees. ancestry Americans of Mexican are I would affirm order with to leave Therefore, members of the race. white to amend the court order ancestry if children Mexican are practicalities as the of the situation re- being required attend a to school which quire in hardships order to avoid undue by comparison faculty, or is deficient or on burdens Board. curriculum, plant, then mandatorily re- school board be should COLEMAN, Judge (concur- quired right to the deficiencies correct ring dissenting part): they where This should be done exist. not because the children are of Mexican Given the on the deсision merits as ancestry all children but because majority opinion, outlined in the I con- these are entitled to United States procedures cur in the discussed with ref- equal protection the law. appropriate remedy. erence to the highly As in artificial United States Texas This would avoid the Educa- expedient re- Agency, Cir., 1972, necessarily tion 467 F.2d unstable spend quiring children a pairing substantial of schools and alterations portion days zones, of their scope on buses and in of attendance are within the strange powers. localities. of the court’s remedial Swann Charlotte-Mecklenburg, Education, In Brown v. Board of 91 S.Ct. 28 L.Ed.2d 554. But at at 98 L.Ed. majority factor is that critical (1954), said: today itself enter- makes clear it separate “Td them [black children] Thus, my tains no doubt. such dissent age qual- from others of similar compelled as much confusion solely their ifications because race majority what has done dis- as generates feeling inferiority as agreement remedy. I fail with its community to their status in the why majority understand would affect their hearts and minds agree requirements the substantive way unlikеly undone.” ever Dyer’s Judge opinion, set forth in fine The same inevitable effect when and then remand to every day children are reminded findings remedy of fact based they community live in a in- such already that have been made. feriority by those in considered au- [so majority The student concludes that thority] they must be bussed out assignment initially pre- plans are education, it for an but condemned rogative the school board. So to remain it at all other times. Such held, so have held district court integral parts children will not become ma- Yet the on a of occasions. number communities to which are majority jority admits The remands. lasting, real, remedy The bussed. the bur- must bear school board improve housing, would be proof maintain den of if wishes living schools, and the conditions where unconstitutionally to be found government live. the children segregated. found. district court So equally as able to do ma- Yet remands. mass, daily upheavals via corfduct jority concludes bus. desegregate proceed if the board must My sympathies with children who found district court fails to do so. of educationаl are faced the lack Corpus failed Christi that board opportunity. I not cure would claim desegregate any de- substantive by problem application a pro- then gree, and the district court harmful, doubtful, if not “band-aid” very remedy. A a ceeded to fashion value. requested judge that district able plan comparative Judge, GOLDBERG, school board submit Circuit integrating The board BROWN, Judge, its schools. R. Chief whom JOHN sug- WISDOM, SIMPSON, constructive refused to offer GEWIN concurring gestions v. Cor- Judges, join, Cisneros whatsoever. Dist., dissenting pus S.D.Tex. part: Christi Ind. School is astound- 1377. It syllable every I word and concur ing then that board would the school Judge Dyer’s superlative opinion of «of delay implementing urge that court captioned until the section excellence when the order court district Discerning “Remedy” is reached. any con- to advance itself failed board court, error in the decree of the district is suggestion own. of its structive qualification or I affirm would without majority astounding that more even equivocation. the board’s condones this court argues remedy The Board that majority remands. Yet behavior. ex- is sо fashioned court district pairing, clus- majority endorses I entertain cessive that it is erroneous. zones, realignments tering, of school the methods no doubt that whatsoever precedents under must plan indeed it adopted in its court district Supreme Court. g., desegregate this court and system, e. withstanding especially Board of Edu- “remedy See Brown v. the fact that the Bessemer, Alabama, may 5 Cir. administratively cation of be awkward, inconvenient, F.2d and even bizarre realigned paired, clustered, may impose in some situations and bur majority some; remands. The Yet dens on zones. all but awkwardness and majority transportation concludes that inconvenience cannot be avoided in the required period as a last resort be adjust interim when remedial Corpus being eliminate ments are made to eliminate the transportation If is re- systems.” Christi schools. dual school Swann v. Char quired, majority intones, then the lotte-Mecklenburg, 402 U.S. at 91 S. busing. order must Ct. at 28 L.Ed.2d at 573. Bus of fact transportation, district court as a matter nothing found is If more. transportation be re- possible integrate some would is the schools quired Yet the ma- Christi. рurchase Christi without the jority single remands. bus, clearly then that preferable. question But the critical single finding short, every of fact integration transportation. not necessary support that jority’s the ma- reasoning has al- imperative, substantive then, “It is Na- ready majority re- made. Yet the judicial been tion’s be able deal majority remedy mands. The efficiently concept with the basic engrafted reasoning of the busing. has onto the judiciary not, If does pro- district court and of this court will desegregation may the future of be changes duce no endangered. substantive whatsoever . . . Whatever original decree—ex- trial court’s judiciary’s original the wisdom of the delay. fcept a hint Without so much as desegregation, involvement it would findings by judge tragic trial equality be for the forces erroneous, regard remedy to the were frustrated, victory to be after in so consigns majority cavalierly the plaintiffs many bloody merely battles, because litigation to another round of the courts could not to the rise task and the school children of presented them.” to another educa- rоund 49 Texas L.Rev. at 910. ,tion. busing I doubt that extent of right “There ais constitutional that might necessary under the be desegregation must vindicated be original fully plan has been ex- right possessed by the stu- —a plored by or the school district, par- dents not unlikely I think it board. negotiations. If ties involved in the far less may less cost right a grated inte- to attend required than that which has exists, actually there density been estimated. Because of the way ensuring must it be of Mexican-American and black children away is not bartered in a trade-off Christi, in the “corridor” area of goals for other in- or lost because of approximately which is in the center of competence or inadvertence.” district, there well be Comment, “Busing, Swann v. Charlotte- rearrang- a number of alternatives in Deseg Mecklenburg, and the Future ing boundaries reduce that would regation Circuit,” in the Fifth 49 Tex Fur- number of thermore, during to children be bused. (1971). as L.Rev. 907 appeal a is- this bond alleges The board approved that will sustain it sue in which $5.9 has been any providing building, a financial burden in million vating, allocated for reno- is necessary implementation rebuilding buses for schools. and various assignment plan. student not A number of alternatives do In require transportation Swann the Court that bus now available found are ac- was a and All of this normal careful site selections. cepted policy. implementation tool say Not- educational not to preme should be wanted to let roots and of the district court’s Court foliate, placed postponed while oth- it in limbo branches discrimination unitary finally leading its to a would have so decreed. orders er avenues Until clarion, every system explored. The school are I use effort to de are will any chance, spoil system permits the district unconsti board had its findings, should now tutional made its and both discrimination Desegregation descriptive Cor- se be pus whatever concluded. long facto, jure, system over- mantics-—de state de Christi school fact, Supreme due, In plan approved dis- action. and the put promptly in- reversed this court’s deci trict court should be one Swann, companion sions suggest ease I that with some to effect. But Commissioners, Davis v. Board of School сould innovation eliminated U.S. S.Ct. L. have been and now can be response Ed.2d To me consequences this that are without dire only vindicated the efforts that conjured up the school board. maximizing court has made toward integration ‍​​​‌‌​‌‌‌​‌​‌‌​​​‌‌​​‌‌‌‌‌‌​‌​‌‌​​​‌​​‌‌‌‌‌‌​‌​‌‍and ascendants Swann and its lineal systems, of the school but command us be sensitive forefathers rigorous indicated that even more action proximity to the to the trial court’s Yet our the ma called for. problems. to the trial This reference jority remands. per- particularly court’s localization is himself, judge suasive the trial when hour, is not the this is not the This here, ac- concludes that some drastic place day, not the Christi is" and Comment, required. tion is See “School striving flag for in their for courts to Theory Desegregation after A Swann: quality educa for Responsibility,” 39 U. Government integrated tion, I am education. for (1972). Chi.L.Rev. are not that the Board’s resources aware court finds If the district unlimited. Admittedly performed trial hearing plenary full find after major purge surgery needed in order to ings of fact conclusions law dis- prejudice ethnic carry out is unable board surgery has hereto- crimination. Such plans, this court that court or the may, then therapeutic fore ne- been confirmed aas course, adjust order accord its" again cessity. I would not incise rely necessity ingly. must of Our court incision, apply a as the Band-Aid judg large informed extent on the to a “remedy.” done has majority’s court, the of the district ment permit aus- remand would even notwithstanding. my today actions picate antiseptic. jejune and mild necessary however, judgment, also ghetto “Ayres clearly line marked days say clearly of “with all designat- Corpus Christi, Street” in gone, gone speed” deliberate point, has as the division plan should The district court forever. infected the First aid whole obliga now, implemented for “[t]he finger sup- a toe and then to a finds" every tois" termi tion of port diagnosis Court’s systems once dual school nate ending prognosis segregation in unitary only operate hereafter now and do not schools “root and I branch.” County, Holmes Alexander v. schools.” countermanding read order Swann as a 24 L.Ed. patch up district and re- majоrity’s “reme so-called 19. 2d turn it to action with a terminal case not abdication dy” case this counterpart Mexican-American regression. is a past efforts. our “Project Comment, Jim Crowism. See protection means of the laws” “Equal Report: Segregation of Chica- DeJure protec equivocal protection, equal Schools,” nos in Texas Harv.Civ.Lib. —Civ.Rights If tion. the Su- L.Rev. 307. Judge, AINSWORTH, with Circuit RONEY, Circuit BELL whom result, and in the

Judges, join, concurs Court remedy the District of this provide on remand is directed

case. Judge, whom GODBOLD, Circuit CLARK, MORGAN,

COLEMAN, following Judges, join, files

special opinion. special out set reasons For Judge in United Godbold

opinion Education Texas v. America States Cir., al., Agency, et No. date, would we this decided F.2d abeyance pending appeal in this hold Court further action States, dissent and we the United time. the merits consideration eight vote as we Directed merits,

judges to consider to seven opin- only concur “Remedy.” Judge Dyer headed ion Judge, BROWN, Chief JOHN R. GEWIN, WISDOM, THORNBER-

whom GOLDBERG, and SIMP- DYER

RY, Judges, join:

SON, Circuit reiterate Judge I dissent To Godbold’s States United

my response in 71 - Agency. Education Texas America America,

UNITED STATES Appellee, LOMBARDOZZI,Appellant.

Carmine

No. Docket 72-1250. Appeals,

United States Second Circuit. July 17,

Argued 1972. 27, 1972. Sept.

Decided Denied Jan.

Certiorari See 93 S.Ct. 907. LaRossa, City James M. New York (Gerald Shargel, ‍​​​‌‌​‌‌‌​‌​‌‌​​​‌‌​​‌‌‌‌‌‌​‌​‌‌​​​‌​​‌‌‌‌‌‌​‌​‌‍City, L. York New brief), appellant.

Case Details

Case Name: Jose Cisneros v. Corpus Christi Independent School District

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 2, 1972

Citation: 467 F.2d 142

Docket Number: 71-2397

Court Abbreviation: 5th Cir.