AISD DISTRICT WIDE SCHOOL PROGRAMS

INTRODUCTION TO THE REPORT

A. Scope and Purpose of an Investigation of the Quality of Public Education in Austin, Texas.

The purpose of this report is to examine the Austin public school system, as governed today by the Austin Independent School District (AISD), to discern whether it is in compliance with the mandate of Brown v. Board of Education, Topeka, Kansas [1]that “in the field of public education the doctrine of “separate but equal” [2]has no place.

Because of the historic legacy of Brown on this nation’s legal, social and political culture, the examination of the quality of education being provided by AISD is examined herein against the history of the city of Austin, and the history of the state of Texas on issues of public education before and after Brown. The impact of past struggles over the desegregation of Austin’s schools and solutions which grew out of those struggles are part of the analysis of how the racial and ethnic minorities of this city, Blacks and Mexican-Americans, have been treated.

There is a long history of legal battles regarding Austin’s segregationist policies and practice and the city officials’ blatant unwillingness to let them die, even after federal law made it illegal to treat the races unequally. The history of that legal struggle is examined herein to demonstrate the progress and the limits of Austin’s desegregation efforts. This examination of Austin’s own legal battles is addressed against the backdrop of cases from around the country which went to the United States Supreme Court on issues of the breadth of the power of federal judges to provide remedies for formerly segregated schools systems.

This report provides extensive statistical data relating to the education of students in Austin public schools in order to answer the question put forth as the incentive for this research project and report--Is Austin in Compliance with Brown? This question was initially put forth in a learning task designed for a course in Civil Rights Litigation in the Fall of 1997 at the University of Texas School of Law. The report herein is the result of the cooperative research, writing, analysis and organization of data, maps, histories, caselaw, interviews, visits to schools and discussions among a total of fourteen students who originally worked in teams of either two to four members in the Fall of 1997 and the Spring of 1998 and reported their results to the editor of this summary report, Professor Elvia R. Arriola.

The primary purpose of the statistical data is to get a picture of the current problems with compliance which may exist in the AISD. The analysis was done in an effort to determine whether there was a correlation between race or ethnicity of a student and the quality of education he or she receives from AISD. The weight of the evidence indicates that there is a correlation between race or ethnicity and the quality of education an Austin student receives. Specifically, if the student attends a school with a predominantly minority population, the quality of education is substantially worse than that of a student in a predominantly white school.

The AISD has traditionally been segregated. Based on the historical analysis herein, the reporters strongly believe that this historically “progressive” city has managed to perpetuate through functional segregation in its distribution of resources, a separate and unequal school system which affords minorities an education less than that which was provided for whites.

Upon orders from the courts to desegregate, AISD was forced to introduce busing as a remedy to solve the historic racial inequities in education. In determining whether a dual school system existed, courts often found distinct differences between factors such as per pupil spending, total campus budget, teacher/student ratio, the average years of experience of its teaching staff, and the percentage of minority administrators per campus as tangible evidence of an intent to perpetuate a separate and unequal system of education. In addition, the courts have also given great weight to the disparate impact and results that district policies, such as “freedom-of-choice” or “neighborhood school” plans and testing may have upon minority students.

The conclusions about inequality herein do not take into account issues of school finance or per student spending as an added basis from which the claim is made that the quality of education in AISD is different and unequal based on whether a student attends a school which is racially identified as “white” or “non-white.” The data is principally organized around issues of teacher experience, the impact of neighborhood schools, openings and closings of schools and new constructions, and enrichment programs such as magnet schools, gifted and talented, advanced placement and instructional commitment, which in turn have an impact on standardized testing for basic achievement skills.

In 1983, as the result of a long and bitter battle between the federal government and Austin schools officials, Austin was declared unitary under the terms of a consent decree between AISD and the U.S. plaintiffs entered into in 1980. Upon a finding of “unitariness” Austin was no longer compelled to use busing for desegregation/integration purposes because the Austin schools no longer showed any significant “tangible” evidence of racial inequity. “Tangible factors” as described in Brown included buildings, curricula, qualifications, and salaries of teachers, [as well as the] effect itself of segregation on public education.” [3]

The reporters suggest, that beyond “tangible” signs such as percentage of minority administrators, per pupil spending, and total campus budget, separate schools, although similar on their face, are inherently unequal and produce a discriminatory impact upon both minority and non-minority students. This impact is seen in the results on standardized tests and national tests.

Furthermore, the functional re-segregation in Austin’s schools injures the Austin community and perpetuates a second-class citizenry which falls along racial and ethnic lines. The following historical, legal and statistical data shows that AISD is a dual system which provides Black/African-American and Hispanic/Latina-o students a more inferior education than is provided for Anglo-white students, and that this dual system not only harms the original beneficiaries of the Brown decision, racial minority children, but harms white students as well.

B. Summary of Findings

The following Executive Summary highlights the substance of this Report. Readers are cautioned to explore further either in the Layout of the Report or the Detailed Table of Contents of Specific Findings the nature of the complex issues which underlie these fourteen (14) brief summary points. These issues are very complex. Those who wish to be fully informed should review the Report in its entirety. However, as noted below in the Goals, Parameters and Conclusions section, there is a way to short cut through the historical section which may help those readers interested primarily in the current status of AISD’s practices and policies.

1.Executive Summary

i. The policy of “separate but equal” created by the 1896 decision in Plessy v. Ferguson was followed through the Southern United States and the City of Austin’s official policies and practices were no exception to the general rule.

ii. Public Schools were founded in Austin in 1881 and by the time AISD was formed in 1954, the City’s schools were still racially segregated.

iii. Before Brown, Black students were required to attend Anderson High School and Kealing Jr. High, both in East Austin and six (6) designated Black elementary schools. All other students were classified as “white” and attended Austin High School and the white junior high and elementary schools in the city at the time.

iv. Mexican-Americans were not deemed a separate racial group, but were classified as “white.”

v. After Brown, Austin’s segregated school system was in direct violation of the Constitution.

vi. Austin officials feigned compliance with Brown by establishing a
“freedom-of-choice” plan and redrawing attendance zones to mix African-American and Mexican-American students together.

vii. Austin bitterly fought desegregation legally until 1980, when AISD agreed to a consent decree which required it to comply with desegregation orders issued by the Fifth Circuit.

viii. Forty-four years after Brown, Austin is still segregated under standards set by the Supreme Court for determining if a school district is still segregated.

ix. Over 75% of AISD schools can be designated as identifiable by a certain race. Specifically, 70% of Austin’s high schools, 60% of the City’s middle schools and over 80% of elementary schools are racially identifiable. ***

x. Abandonment of the desegregation plan of the 1980s and the return to a “neighborhood school” policy has seen many schools in Austin become resegregated. Data shows how the racial balance of various schools improved and then deteriorated from 1971-1997. ***

xi. Minority groups account for 60% of all students in the district, but 70% of teachers are white and minority teachers are assigned disproportionately to minority schools. ***

xii. AISD assigns less experienced teachers to predominately minority schools. The level of teadcher experience at a school rises with the proportion of white students at the school. ***

xiii. TAAS test scores are lower at predominately minoity schools. White students’ TAAS scores are lower at predominately minority schools and higher at predominately white schools. Minority students’ TAAS scores are higher at predominately white schools and lower at minority schools. ***

xiv. Austin’s schools do not prepare minority and white students equally for college when coomparing SAT/ACT scores of students.

{Findings which should be cause for concern by AISD officials are flagged with a ***}

2. Layout of the Report

In an effort to create an overall view of the quality of education for all children in Austin, the Report includes a chronology of social and legal events relevant to the struggles to desegregate the public schools. This lengthy historical section is divided into several parts which the reporters are convinced form an essential backdrop to understanding the contemporary issues raised in later sections of the Report focusing on the statistical data and conclusions.

Part II places Austin in a national historical context of the impact of the doctrine of “separate but equal” and the early years followig the decision of the Supreme Court in Brown v. Board of Education of Topeka, Kansas.

Part III, examines the conditions of segregated education in Austin, Texas from the period 1839 to 1950, the year in which the litigation in Brown and the companion four schools districts was being initiated.

Part IV looks at Austin during the popularly known “sixties era,” a decade marked by the struggles for civil rights by Blacks in this country, and which was brewing at a microcosmic level in Austin through an investigation by the then empowered Department of Health, Education and Welfare under the 1964 Civil Rights Act to enforce Brown’s mandate of equality in public education.

Part V describes the beginning of the full blown battle to desegregate the Austin schools and focuses on the early plans of the Austin Independent School District to delay as much as possible the integration of the public schools.

Part VI provides an important legal historical context to the local Austin battle which would develop in the courts by examining the relevant Supreme Court juridprudence on school desegregation decided throughout the seventies.

Part VII is a summary of the four-part school desegregation litigation in Austin and includes an examination of the various re-segregation tactics employed by school officials such as “freedom of choice” plans and the packing of minority students into schools following complicated designs of new school attendance zones.

Part VIII brings the chronology into the present by looking at the various agreements which grew out of the Consent Decree of 1980 and the litigation which followed in the 1980s which sought to prove that the AISD was returning to patterns of re-segregation.

Part IX looks at the Austin school system today and describes the various programs which were designed with the purported intent of creating a more integrated system. This section evaluates certain programs for their compliance with the principle of equality and concludes, rather harshly, that certain programs are a blatant example of an unequal distribution of educational resources on the basis of race.

Part X is a short narrative report which is the product of visits to schools by all researchers in the Spring 1998 team, assessing visually and through unofficial contact with teachers and counselors the conditions of two “minority” elementary and high schools.

Part XI provides a set of statistical analyses and conclusions which demonstrate the concepts of “racially identifiable” schools and segregated schooling in Austin which the reporters believe is being maintained despite the changing demographics towards non-segregated housing.

Part XII provides more data in the form of tables which support the belief that Austin has managed to re-create the patterns of racial duality on a substantive level in its public educational resources to the clear detriment of any child, whether white or non-white, who happens to attend school in a school racially identified as a minority school. Part XII also includes a map which graphically shows how an unequal distribution of resources such as teacher experience can be traced to show one example of the dual school system existing within the AISD boundaries, such that schools on the East and West sides of the city of Austin, respectively, portray differential quality and unequal treatment of children attending neighborhood schools.

3. Goals, Parameters, Conclusions

The data in this study is by no means intended to assert that AISD officials are acting unconstitutionally, and that the empirical evidence connected here to a long history of intentional discrimination mandates a remedy, for such authority to rule that there is an injury being effected upon the children of Austin which requires a remedy is the sole domain of the courts.[4] However, the data substantially supports the belief that there are disparities in the distribution of resources in Austin’s public schools, on the basis of race, disparities which cannot be explained as the product of clear educational necessity. As such it is the kind of evidence which, if properly discovered and introduced in a court of law, could aid in producing a legal determination that some aspects of the operations of AISD operate unequally and unfairly and to the disadvantage of Austin’s Black and Mexican-American children.

Readers of this report should understand that the researchers did nothing more than to compile publicly available information, some of it produced by the AISD itself, or by state education offices, and that it was assessed against the backdrop of the law’s mandate that every Texas child is entitled to a public education[5] and that race and ethnicity are not legitimate criteria for public decisionmaking as to how to distribute a very highly valued, essential and competitive aspect of American culture--free public education.[6]

A final word of caution and guidance on the reading of the report. Although the historical context provided in this report is quite lengthy, we firmly believe it is an essential foundation for understanding and pointing out the flaws within the existing educational system and the processes and policies issuing forth from that system. Those who are not interested in this historical context however, may wish to skip to Part V to appreciate when the desegregation battles began, how Austin used various delaying tactics and was chided by federal officials, and read the summary of the Austin litigation at the beginning of Part VII. At this point one may grasp a quicker appreciation for the contemporary issues raised by the information beginning at Part VIII and more fully developed from Parts IX through the end.

Finally, it is a major conclusion of this report that various educational programs administered by AISD officials have a discriminatory impact on the African-American and Latina/o (Hispanic) children of Austin, most of whom live on the East side of the city, ironically situated physically to the east of the large physical barrier of Interstate Highway 35. Because this information is only part of the “total story” of Austin’s educational system the data should be viewed as suggestive and primarily as a resource for advocating closer scrutiny and inquiry into the existing methods of distributing education in this city. Thus readers are encouraged to use the data as a basis for engaging in an inclusive and creative dialogue aimed at assuring the highest quality for all children living in Austin.

I.INTRODUCTION TO THE REPORT

A. Scope and Purpose of an Investigation of the Quality of Public Education in Austin, Texas.

B. Summary of Findings................................................................................................

1.Executive Summary ........................................................................................

2. Layout of the Report- Description of Parts I through XII..................................

3. Goals, Parameters, Conclusions......................................................................

C. Detailed Table of Contents of Specific Findings..................................................

II. PLACING AUSTIN IN A NATIONAL HISTORICAL CONTEXT- PLESSY AND THE EARLY BROWN YEARS.

A. Introduction...............................

1......... The Doctrine of Separate But Equal.......................................................................

2......... Austin’s Compliance with Plessy: Segregated Education.......................................................

3......... De Jure Segregation and Official Housing Discrimination......................................................

4......... Potential Claims of De Facto Residential Segregation as an Explanation for the Segregation in Austin’s Schools

III. SEGREGATED EDUCATION IN AUSTIN, TEXAS : 1839-1950..................................................................

A. Introduction...............................

B. Early Settlement and Schooling ...

1......... African-Americans in the City...............................................................................

2......... Early Negro Settlement....

3......... First “Negro” Schools.....

4......... Early White Schooling....

5......... Education under Plessy’s Separate But Equal Doctrine..............................................

6......... Official Residential Segregation in Austin...............................................................

7......... Mexican-Americans in Austin and their Designation as “Whites”.............................................

8......... De Facto Segregation and Mexican-Americans.........................................................

9......... Early Mexican-American Schools..........................................................................

C. Overall Pre-Brown Patterns of Racially Segregated Education in Austin, Texas: 1950-1964........

1......... The Emerging Struggle to Integrate: Sweatt and Life in Austin...............................................

2......... Social Custom and the Law of Separate But (Un)Equal.............................................

3......... Brown Comes Down.......

4......... Desegregate? Not So Fast

5......... Brown I: Segregated Public Education is Inherently Unequal..................................................

6......... Texas Joins the Movement to Resist Brown............................................................

7......... The State Resists Brown II’s Message to Desegregate “With All Deliberate Speed”.........

8......... First Responses to Brown: Freedom of Choice........................................................

9......... Early Demands by African-Americans for Non-segregated Education in Texas................

10........ The State of Texas Runs the NAACP Into the Ground..............................................

11........ Other Forms of Sabotage of NAACP Power............................................................

12........ AISD is Formed Post Brown-II.............................................................................

13........ Integration Efforts and Officially Induced Residential Segregation: A Collision Course for the Future

14........ The First Optional Transfer and Neighborhood School Policies...............................................

15........ Comforting the White Parents: an Historic AISD Goal..............................................

16........ The Reluctance to Challenge Whites......................................................................

17........ A Lone Early Integrationist: M.H. Bedford............................................................

18........ White Students and Teachers Resist Integration........................................................

19........ Scholastic Achievement by Bedford at McCallum High.............................................

20........ Post-Brown White Flight: The Creation of Westlake Village.................................................

21........ Eanes: From White Common School to Independent School District.......................................

22........ Post-Brown Perpetuation of Segregated Education....................................................

23........ The Cold Numbers Assessed Against Early Claims of “Unitariness”........................................

IV. AUSTIN DURING THE SIXTIES ERA OF CIVIL RIGHTS MOVEMENT.....................................................

A. Introduction: The Mandate to Desegregate “With All Deliberate Speed”................................................

1......... The Texas Education Agency and the Mandate of the Civil Rights Act.....................................

2......... TEA’s Policy of “Local Control”...........................................................................

B. Emergent State-Federal Tensions...

1......... A Complaint from the Office of Civil Rights..........................................................

2......... AISD Negotiations with HEW-Plans 1 and 2...........................................................

3......... Re-Introducing the “Freedom of Choice” Plan..........................................................

4......... NAACP Support for the 1969 Proposal to Close Historically Black Anderson High.......

5......... HEW Rejection of the 1969 Plan...........................................................................

V. THE REAL BATTLE BEGINS IN AUSTIN: 1970-1983...................................................................

A. Introduction: An Overview of the Racial Demographics in 1970-71....................................................

1......... “Freedom of Choice” Plans in Housing: Patterns of Pervasive Segregation Pose Continuing Barriers to Desegregate the Schools

2......... The Push Coming to Shove in AISD: The Transparencies in AISD’s Constructions of “White” and Black Integration

B. Gradual Integration or Diligent Resistance?.........................................................................

1. De Jure v. De Facto Segregation............................................................................

2......... The Discriminatory Impact of Freedom of Choice Plans........................................................

3. Other Subtle Delaying Tactics: New Constructions..................................................

4. Delaying Tactics: Redrawing Attendance Zones........................................................

5. Integration on the Basis of White Interests..............................................................

6......... Forcing the Question of Mexican-American Segregation........................................................

VI. A NATIONAL LEGAL FRAMEWORK FOR COMPLIANCE WITH BROWN................................................

A. Introduction...............................

B. Cases Explaining How to Comply with Brown II.................................................................

1......... Green: Desegregate “Root and Branch”..................................................................

2......... Swann: The Power of the Federal Courts to Order Busing......................................................

a) Swann: Presumptive Evidence of Intent to Segregate...............................................

b) Swann: Racial Balance and Mixed Populations............................................

3. ....... Keyes: Presumptive Intentional Segregation and the Role of Statistics....................................

VII. THE AUSTIN DESEGREGATION CASES

A. Introduction...............................

B. Austin I-IV: A Brief Procedural Synopsis...........................................................................

1......... Initiation of a Four-Part Litigation.........................................................................

2......... The First Appeal, Remand and Efforts to Re-introduce Freedom of Choice...................

3......... The Second Appeal: Busing is Appropriate to End Intentional Segregation...................

4......... Austin III: AISD Intentionally Discriminates Against Mexican-American......................

5......... Austin IV: First Year of Busing...........................................................................

C. HEW Initiates the Battle in Austin I (1970)........................................................................

1......... The Federal Court Mediates Between the Parties’ Efforts to Adopt Acceptable Desegregation Plans

2......... The U.S. Fails to Prove De Jure Discrimination Against Mexican-Americans................

3......... Fifth Circuit Rejection of the 1971 Plan in Austin I.................................................

4......... The Look of Austin in 1972: Words from Austin I...................................................

5......... Persistent Efforts to Deny Mexican-American Segregation in Austin I..........................

D. Revealed in Austin I: Promotion of Segregation of Mexican-Americans...............................................

E. The Segregation Tactics...............

1......... Location of Schools and Attendance Zones.............................................................

2......... Closing and Construction of New Schools..............................................................

3. ....... Actions to Desegregate as Blacks and Inaction with Respect to Mexican-Americans........

4. ....... “Packing” the Mexican-Americans Schools and Building New White Schools...............

5......... Austin I: Rejecting AISD’S “Freedom of Choice” Defense as to Mexican-American Segregation

6......... AISD’S Claim that Mexican-Americans Are Isolated Because of Their Special Needs......

7......... Austin I: Action and Inaction as Key to Patterns of Intentional Discrimination..............

F. The Situation of African-Americans in Austin I: No Real Change........................................................

1......... Battling Over the Best Desegregation Plans: AISD Tries to Bus Only Black Children...

2......... The AISD Cluster Plan....

3......... AISD: Part-Time Desegregation for Elementary Schools........................................................

4......... AISD’S Neighborhood Plan................................................................................

5......... The HEW Plan: Closings, Clustering of Schools and Reassignment........................................

6......... The relevant holdings in Austin I..........................................................................

G. Austin II.......................................................................................................................

1......... AISD’s Sixth Grade Center Plan...........................................................................

2......... Austin II: AISD’S Proposal for Majority to Minority Transfers...............................................

3. ....... Rejection of the AISD Plans in Austin II................................................................

a) Desegregate at all Levels; Not Just the Sixth Grade...................................................

b) Neighborhood School Plans That Don’t Work.............................................

c) Closings Attributed to the Fear of White Flight...........................................

4......... The HEW Plan (Finger Plan) in Austin II: A Plan for Busing.................................................

5. AISD’s Complaint: Busing Will Produce White Flight............................................

6. Austin’s II’s Relevant Holdings............................................................................

a) The Push..............................................................................................

b) Still No Move Towards Unitariness...........................................................

c) Appealing Austin II: AISD v. United States...............................................

H. Austin III: Revisiting the Question of Mexican-American Segregation................................................

1......... A Fuller Assessment of Discrimination Against Mexican-Americans in Austin III..........

a) Extensive and Persistent Segregation of Mexican-Americans...........................

b) The City’s Facilitation of Mexican-American Segregation..........................................

c) Other Intentional Discrimination in Austin III..............................................

d) A Finding “Intent” to Discriminate Based on Overwhelming Evidence of Discriminatory Impact

e) The Discriminatory Impact: Foreseeable Consequences of Neighborhood School Policies

f) Austin’s Patterns of Discrimination: A Southern Style.................................

g) United States v. Texas: A Refusal to Rehear Austin III.............................................

h) Austin IV..............................................................................................

VIII. AN END TO THE AUSTIN LITIGATION: FROM THE 1980 CONSENT DECREE TO THE PRESENT

A. Introduction: Moving Towards Unitariness.: 1980-83...........................................................

B. School Desegregation and Structural Barriers for Permanent Unitariness...............................................

1......... Factor 1 Housing Discrimination...........................................................................

2......... Factor 2. Municipal Governance of Austin - Election of the City Council.................................

3......... Origins of a Discriminatory System.......................................................................

C. Current Issues as an Outgrowth of the Actions from 1983 to the Present...............................................

1......... Post-1983 Litigation.......

2......... The Promise Not To Change Anything Until 1986...................................................

3......... A Return to Resegregation: Neighborhood Schools, No Busing in Elementary Schools, and Compensatory Funds ...........

4......... Other Legal Challenges....

5......... United States (Overton) v. Texas Education Agency, et al.: Re-segregated Elementary Schools

6......... The Court Throws Out Overton.............................................................................

a) A More Difficult Intent Standard...............................................................

b) Proving “intent” in Austin’s Racially Identifiable Schools.............................

7......... Price v. Austin Independent School District: Protracted Litigation...........................................

8......... Rejection of the Claim that White Community Pressures Affect the School Board’s Action

9......... The Contested Plans (Which Still Exist).................................................................

10........ The Priority Schools Programs (Still in Existence)...................................................

11........ Ruiz’s Testimony re Anti-busing Parents Not Credible..............................................

12........ Pro-AISD Witness Found Credible........................................................................

13........ Unequal Sharing in the Priority Schools Program Not Recognized..........................................

14. ...... A Possibility for Relief Despite Price’s Rulings.......................................................

IX. THE AUSTIN SCHOOL SYSTEM TODAY:

A. Introduction....................................................................

B. AISD District Wide Programs........................................

1. Adopt-A-School.........................................................

a)Composition................................................................

b)Unequal Distribution............................................................... .

2. Career and Technology Education.

a) Stated Goals....................................................................................... b) Specific Goals........................................................................ c) Strategies and Objectives....................................................... Objective 1: Academic Excellence........................................................

Objective 2: Guidance and Counseling................................................. Objective 3: Partnerships................................................................... Objective 4: Curriculum.....................................................................

Objective 5: Professional .................................................................. Development......................................................................................

Objective 6: Evaluation..............................................................

d) Implementation in AISD of Discriminatory Career and Technology Program (CTP)................................................ . .

i) Discretion and Minority Enrollment........................ ii) CTP Emphasis on Working-Class Trades at Minority Schools................................................. .

iii) Virtual Absence of CTPs at White High Schools................... iv) The Supposed Purpose of CTPs..................

v) Troubling (Discriminatory) Speculations.....

vi) CTP Design and the Begging of an Important Question.

3. “Gifted and Talented” or Advanced Placement Programs...............

a) Allotment - §42.156.

i) Under 42.156 (f):

ii) Additional information. iii) G&T students may be served in the regular classroom.

iv) Advanced Placement (AP). b) Unequal Racial Distribution in G&T and AP programs.

i) White Students Just Better?

ii) Teachers’ Discretion as a Factor.

iii) Early Non-tracking into G&T as a Factor.

Table: “Gifted and Talented” Participation by Ethnicity, 1996 and 1997..............

Table: Advanced Placement (AP) Enrollment

for 1996 and 1997..............

Table: Advanced Placement (AP) Exam Results ..............

4. The Return of the Segregative “Freedom of Choice” Plan........

a) Re-institution and Re-segregation.

b) Factors Affecting Potential Transfers.

i) Magnet school program: ii) Curriculum transfer: ................................................ . iii) Sibling transfer: ................................................ .

iv) Tracking transfers: ................................................ . v) Student adjustment transfers: ..........................

c) Lumping of Students Into Minority and Majority Schools.

i) Whites Transferred to White Schools

ii) Segregation Perpetuated Through “Choice” Transfers. iii) Denials of Transfers Don’t Answer the Question. iv) A Strong Conclusion: Freedom of Choice Maintains Racial Identifiability and Segregation........................................

5. Magnet Schools..............................................................................

a) The Expressed Purpose of Magnets: To Promote Integration...........

b) Magnets’ Failure to Promote Integration in Austin........................

6. Minority Students Underrepresented In Magnet Programs.................................

Table: Magnet Programs .........................................................................

7. Distortion in Official Reports on Magnet Enrollment to TEA for Kealing.....

8. Similar Distortions at Johnston and LBJ High Schools.......................................

9. Teachers in Magnet Schools Admit “School within a School” Phenomenon.

10. Irrational Explanations for Minority Attrition in Magnet Programs.................

11. Unequal Resource Distribution Also Evident in Magnet Schools....................... 12. Magnet schools have failed their mission and perpetuate a dual system of education...............................................................................

13. A Possible Remedy for the Dual System Perpetuated by the Magnet Schools.

X. ANALYSES OF TWO INDIVIDUAL SCHOOLS

A. Introduction........................................

B. O’Henry Middle School (Hispanic Minority School) .......................................

C. Reagan High School (A Racially Identifiable African-American School) ........

XI. STATISTICAL ANALYSES AND CONCLUSIONS.......................................

A. Introduction........................................

1. The Concept of “Racial Identifiability.” .......................................

2. The 15% Determinant........................................

B. Blatant Racial Identifiability of Austin’s Schools........................................

1. Only three (3) out of ten (10) Integrated High Schools...................... 2. The Black High Schools........................................

3. The Hispanic High School........................................

4. Combined Minority Population Schools........................................

5. Nine Out of Fifteen Racially Identifiable (“Packed”) Middle Schools......

6. Two Black Middle Schools.......................................

7. Four Hispanic Middle Schools........................................

8. Extremely Segregated Elementary Schools........................................

9. Overall Racial Identifiability of the School District.....................................

10. Residential Segregation Patterns Dropping, but School Segregation the Same or Increasing...............................................................................

XII. THE RETURN TO RESEGREGATION IN EDUCATION IN AUSTIN.

A. Introduction...............................

B. The Return to Resegregation After the Desegregation Plan of the 1980s.

Tables A1:

Reagan High 1971-1997

Table A2

Campbell Elementary 1971-1997

Table A3:

Ortega Elementary 1971-1997

Table A4:

Andrews Elementary 1971-1997

1. The Disproportionate Assignment of Minority Teachers to Minority Schools

2. Most AISD Teachers are White and Most AISD Students are African-American and Hispanic.

3. Teacher assignment policies Reinforce the Racially Identifiable Status of AISD’s Schools.

a) The Overrepresentation of Whites in Facullty-Student Ratio at Anderson High.

b) The Overrepresentation of African-Americans in Faculty-Student Ratio at LBJ High School and an Overrepresentation of White Teaches Among the Total LBJ Faculty.

c) The High Hispanic Representation of Teachers at Travis High School.

4. Midle Schools Demonsrate Similar Patterns of Racial Identifiability.

5. Extreme Patterns of Racial Identifiability at Elementary Schools.

a) The “Packing” of African-American Teachers at Minority-Identified Elementary Schools.

b) The Packing of Hispanic Teachers at Hispanic-Identified Elementary Schools.

c) The District-wide Overrepresentation of White Teachers.

6. AISD Assigns Less-Experienced Teachers to Predominantly Minority schools

a) Overall Teacher Experience at Minority Schools.

b) The “Packing’ of Teachers With Very Low Classroom Experience at Minority Schools.

c) The Whiter the School the Greater the Level of Teacher Experience: Tables B1 to B5.

i) Division of the Data in the Tables.

ii) Discriminatory Impact Illustrated in Tables on Teacher Experience.

Table B1

Teacher Experience: Schools Less Than 20% White

Table B2

Teacher Experience: Schools 20% To 40% white

Table B3:

Teacher Experience: Schools 40% To 60% White

Table B4

Teacher Experience: Schools 60% To 80% White

Table B5

Teacher Experience: Schools Over 80% White

d) The “Packing” of Inexperienced Teachers at Minority Elementary Schools: A Graphic Portrayal of Duality.

Figure C

Map Of AISD Attendance Zones And Teacher Experience

e) The Data Sugests that AISD has Created Separate, Racially Identifiable Schools Which are also Unequal and Which Offend Brown’s Principle of Equality.

C. The Discriminatory Impact of Resegregation in Tesas Scores at Predominantly

a) Teacher-Student Demographic Disparities Show Glaring Inequality When Combined with Performance Data.

ii) TAAS as a Measure of Inequality Because of its Commonality.

b) TAAS and minority-Majority Elementary Schools.

i) Harris - A Minority School.

ii) Bryker Woods - White Majority School.

iii) Similar Results for Economically Disadvantaged Students.

iv) Equally Disturbing Special Education Patterns.

c) TAAS and the District-Wide Performance.

Figure D

Correlation of TAAS Passing Rate and Minority Populations in Elementary Schools

Figure E1

TAAS Passing Rate: Schools Less Than 20% White

Figure E2

TAAS Passing Rate: Schools 20 % To 40% WhiteFigure E3

Figure E3

TAAS Passing Rate: schools 40% to 60% White

Figure E4

TAAS Passing Rate: schools 60% to 80% White

Figure E5

TAAS Passing Rate: Schools over 80% White

d) Disparities in TAAS: A Result of Inherently Unequal Schools.Rather than Cultural Traits.

i) Minorities Harmed by Unequal Schools.

ii) White Students Also Hurt by Unequal Schools.

Figure F

Correlation of TAAS Passing Rate of White Students and Minority Population in Elementary Schools

e) TAAS and High School Student Performance

i) Gross Intra-Group disparities at Minority Schools.

ii) All Students Do Better on TAAS at Whiter Schools.

D. Austin’s Unequal Preparation of Students for College.

1. Gross Disparities in SAT/ACT by Austin’s Minority Students.

2. Race is a Factor in Criterion Scores for SAT/ACT.

3. Average Scores on SAT/ACT as an Indicator of AISD Inequalities.

4. TAAS/TAPS as a Measure of College Preparedness and AISD Failure.

E. Austin’s Schools Have Lower Graduation Rates for Minority Students.

See Raw Data

Table:AISDStudents

Table:AISDTeachers

Advanced Placement (AP) Enrollment for 1996 and 1997

Advanced Placement (AP) Exam Results for 1995 and 1996

“Gifted and Talented” Participation by Ethnicity, 1996 and 1997

XIII. OTHER APPENDICES AND BIBLIOGRAPHY OF HISTORICAL DOCUMENTS, REPORTS AND ARTICLES

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

SPECIFIC FINDINGS AND CONCLUSIONS OF LAW AND FACT

II. PLACING AUSTIN IN A NATIONAL HISTORICAL CONTEXT- PLESSY AND THE EARLY BROWN YEARS.

A. Introduction:

1. The Doctrine of Separate But Equal. The United States Supreme Court made clear in the 1896 case of Plessy v. Ferguson[7] that public school schemes of racial segregation were legal under the U.S. Constitution, as long as the services provided were substantially equal. This “separate but equal” policy was followed in education throughout the southern United States, and Austin was no exception. Public schools were founded in Austin in 1881, and by the time the Austin Independent School District (AISD) was founded in 1954, the year the Supreme Court overruled Plessy in Brown v. Board of Education, Austin’s schools were still racially segregated.

2. Austin’s Compliance with Plessy: Segregated Education. The AISD was the successor to the Austin Public Schools, which had been established in 1881 as a part of the City of Austin.[8] At the time of the district's creation, both the Texas Constitution and state law required separate schools for “white and colored children.” Black students were required to attend Anderson High School and Kealing Junior High, both in East Austin, and six designated black elementary schools. All other students were classified as “white” and attended Austin High School and the “white” elementary and junior high schools. Mexican-Americans, who comprised a significant minority group in Austin, were not classified as a separate racial group for education purposes, but were included in the “white” group. In the early 1950s, there existed one white high school, Stephen F. Austin High, four white junior highs, and numerous white neighborhood elementary schools.[9] There were eight African-American schools, including the old Anderson High School and Kealing Junior High, both located in African-American neighborhoods of East Austin.[10]

3. De Jure Segregation and Official Housing Discrimination. Racial and ethnic housing patterns became firmly established in the pre-Brown era and were the result of both social pressures and explicit governmental policy, not simply the result of “neutral” demographic forces. In addition to de jure segregation of schools, Austin actively supported and maintained a pattern of residential segregation.[11] In United States v. Texas Education Agency et al.,[12] the Fifth Circuit exposed Austin’s hidden, yet official, discrimination against Mexican-Americans and African-Americans. It cited the findings of the District Judge in Blackshear Residents’ Organization v. Housing Authority, stating that “from 1938 to 1967 it was the official policy of the Housing Authority [of the City of Austin] to segregate Whites, Negroes, and Mexican-Americans into different public housing projects.”[13]

4. Potential Claims of De Facto Residential Segregation as an Explanation for the Segregation in Austin’s Schools. In determining whether present-day racial segregation in schools is the result of “natural” housing patterns or unlawful segregation, one must keep in mind that what may seem “natural” segregation in the 1990s is inextricably linked to the intentional and unlawful residential segregation set in place in the city of Austin by official policy in the 1920s and perpetuated past the point of Brown’s prohibition against legalized segregation. The de jure residential segregation that existed in Austin[14] thus urges one to question any claims that present-day residential segregation is all the result of natural demographic changes.[15] In Austin’s case such claims should invoke strong doubts.

III. SEGREGATED EDUCATION IN AUSTIN, TEXAS : 1839-1950.

A. Introduction. The current issues raised by this report as to the quality of education within AISD for African-American and Latina/o-Hispanic children is best understood against the broader social history of racial segregation in this southern City. Austin, the capitol city of Texas, is often perceived as a bastion of liberal thinking. However, one need only scratch the surface of Austin’s history to uncover a city where legal and social segregation have existed in typical Southern fashion. A counternarrative of reluctance to comply with federal law emerges in an historical survey of the actions and inactions of the governmental entities responsible for complying with the mandate of Brown to end legalized segregation.

This section tracks the developments in educational policy from the Reconstruction era, through the period popularly known as “Jim Crow,” when most of the South was organized along the principles of the doctrine of “separate but equal,”[16] and up through the nearly twenty years following the decision of the Supreme Court in Brown. It is a story which reminds one of the reasons why so much time has passed and so little appears to have been achieved towards fulfillment of the promise of equality articulated in Brown--that separation of the races in public education is inherently unequal.

B. Early Settlement and Schooling

1. African-Americans in the City. Founded with only two log cabins in 1839, Austin was typical of the South as a community whose citizens once owned slaves. Mahala Murchison, a ten year old mulatto girl was the first slave to appear in Austin. Her family moved to the area in July, 1839, four months after Austin was founded. By the mid 1860s, shortly after President Lincoln signed the Emancipation Proclamation, the newly freedmen would begin building settlements in the Austin area.[17]

2. Early Negro Settlement. Masontown was the first early Negro settlement in Austin.[18] The boundaries included 6th Street on the north, 3rd Street on the south, Waller Street on the west and Chicon Street on the east.[19] The settlement was established in 1867.[20] Established in 1869, the Wheatsville Community was located in the northern part of Austin.[21] Its boundaries were Rio Grande Street on the east, Shoalcreek on the west, 24th Street on south and 26th Street on the south.[22] Clarksville, one of the oldest existing communities in Austin is located in West Austin, between Waterston and Tenth Streets with West Lynn as the eastern boundary and MoPac (Loop 1) as the western boundary.[23] This community was established by freedmen during post-civil war times. The earliest known African-American settler, Charles Clark, bought two acres of land on Tenth Street to build a home.[24]

3. First “Negro” Schools. The first free public schools in the city were for “Negro” children. Located at San Marcos and East Eleventh Streets, the Robertson Hill School was the first school for Negro children.[25] The school was organized some time between 1881 and 1884.[26] The high school department was added in 1889.[27] The first principal was H.T. Kealing.[28] He was succeeded by E.L. Blackshear.[29] The third principal was L.C. Anderson, who assumed the leadership role in 1896.[30]

4. Early White Schooling. Until the late 1800’s members of Austin’s white population sent their children to a number of publicly subsidized private schools. White public schools were founded in Austin in 1881.[31] By 1883, there were twenty public schools for white students and six public schools for Negro students.[32]

5. Education under Plessy’s Separate But Equal Doctrine. The policy of “separate but equal” created by the 1896 case of Plessy v. Ferguson[33] was followed throughout the southern United States, and Austin was no exception. The public schools built for Negro students during the “separate but equal” years included Clarksville School (1896), Brackenridge School (1901), The West Austin School (1900), Olive Elementary School (1913), Anderson High (1907), Gregorytown School (1894).[34] Anderson High School for “negro” students was opened in 1907, and the African-American community which had been living throughout the city of Austin, began moving to East Austin so that their children could attend the high school.[35]

6. Official Residential Segregation in Austin. The city took legislative action to segregate African-Americans into the eastern section of the city in 1928, with the adoption of the “official Austin city plan” which had as its purpose “to encourage the settlement of Negroes in East Austin”[36]. Prior to that time, African-Americans were scattered throughout the city.[37]

7. Mexican-Americans in Austin and their Designation as “Whites.” Mexican-Americans were not segregated by law, however they experienced de facto segregation throughout the state and the city. Ironically, the Treaty of Guadalupe Hidalgo, which followed the battle of San Jacinto and marked the end of the Mexican American War, provided that Mexicans residing in the territory cede one-third of Mexico which became the United States were to be given all of the civil rights afforded to white Americans.[38] As a result, there was no official legislation which outwardly discriminated against Mexican Americans in Austin.

8. De Facto Segregation and Mexican-Americans. However, there is evidence that as early as 1916, West Avenue School had a completely Mexican-American enrollment and it shared a dual-overlapping zone with Pease, an all-white school.[39] Furthermore, in 1924, Canal Street School was opened to accommodate Mexican-American students attending three other schools, which were the only schools in the district with more than twenty Mexican-American students. [40]

9. Early Mexican-American Schools. In 1934, West Avenue and Canal Street enrolled 45 percent of the district’s Mexican-American students; Bickler [elementary schools] had about 25% and Metz about 15%. After the passage of a bond issue, Zavala school opened. The site for the new school was three blocks from the Mexican-American Canal Street school which was then closed. Zavala shared a dual-overlapping zone with Metz, one of two predominately white schools with significant numbers of Mexican-American students. In the fashion of unadulterated segregation, Mexican-Americans were expected to and did attend Zavala; whites attended Metz.[41]

C. Overall Pre-Brown Patterns of Racially Segregated Education in Austin, Texas: 1950-1964.

1. The Emerging Struggle to Integrate: Sweatt and Life in Austin. During the Pre-Brown era, the city of Austin struggled with the segregation issue, at times finding it difficult to justify the practice in the face of glaring inequalities. The segregation question reared its head in the 1950’s quite often. One particular instance was reported in the Austin American Statesman in 1950, the same year the United States Supreme Court held that the University of Texas held in Sweatt v. Painter,[42] that the law school’s trying to build a separate law school for African-Americans violated Heman Sweatt’s rights under the Fourteenth Amendment equal protection clause.[43] A baseball game between Austin High School and Bergstrom Airforce teams was canceled because the deed to the public school system contained a racially restrictive covenant stipulating that no blacks were to participate in any type of sport on the field. Attempts were made to get the city to allow the teams to play on the one playing field in Austin designated for African-Americans. The city denied the request stating that “it is only to be used by Negro athletes”.[44]

2. Social Custom and the Law of Separate But (Un)Equal:. Prior to Brown I in 1954, there were fifty-seven public schools in Austin. These schools ultimately joined to form the Austin Independent School District (AISD). “White” and African-American students were segregated by law. African-American students were required to attend Anderson High School and Kealing Junior High, both in East Austin, and six designated African-American elementary schools.[45]

3. Brown Comes Down. In 1954, the Supreme Court announced its historic opinion in Brown I.[46] Only then would legal segregation like that in Austin was challenged. Specifically addressing the legality of segregated school systems such as Austin’s, the Court decided that the Equal Protection Clause of the Fourteenth Amendment proscribed such systems. Chief Justice Warren, delivering the opinion of the Court, explained that schools segregated by race “are inherently unequal.”[47] Black children forced to attend separate schools, Warren noted, develop “a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”[48]

4. Desegregate? Not So Fast. Brown I made it clear that Austin’s segregated schools were in direct violation of the Constitution. However, there was a general feeling among state authorities that Texas schools should remain segregated. For example, State Attorney General John Ben Shepperd denied that Brown I applied to Texas and asserted that segregation would remain the law in Texas until the Supreme Court specifically passed judgment on Texas statutes.[49] During the early 1950’s the State worked to preserve these segregation policies by warning Texas School Districts that they would face a “distinct possibility of jeopardizing State education aid if they prematurely integrate”.[50]

5. Brown I: Segregated Public Education is Inherently Unequal. Brown I made it impossible to ignore the call for integration. The Supreme Court had announced that schools segregated by race “are inherently unequal”[51]. African-American children forced to attend separate schools, Chief Justice Warren noted, develop “ a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”[52] The case made it clear that Austin’s segregated schools were in direct violation of the Constitution.

6. Texas Joins the Movement to Resist Brown. Allan Shivers was Governor of Texas when the United States Supreme court ruled against mandated racial segregation in education in Brown. Shivers took the position that Texas schools would take years to comply with the order to integrate the schools.[53] Shivers used his segregationist views much like other Southern political leaders, as a campaign tool to win more support for the already powerful Democratic party in Texas.[54]

7. The State Resists Brown II’s Message to Desegregate “With All Deliberate Speed.” In 1955, the Supreme Court delivered a second opinion in Brown , known as Brown II[55]. In this case, the Court ordered that desegregation of schools must be effectuated “with all deliberate speed”[56]. In response, Shivers appointed a biracial, ultra-conservative committee (Committee on Segregation in the Public Schools) to study the problems that Texas faced from the decisions of Brown I and Brown II.[57] While they were reportedly supposed to be dealing with how to effectuate desegregation, their actual duties assigned by the Governor, were to work toward legal measures to circumvent the Court’s ruling and to prepare a plan to be presented to the state legislature and the State Board of Education.[58]

8. First Responses to Brown: Freedom of Choice. In 1955, after Brown II, the AISD Board attempted to bring the Austin schools into compliance by instituting a “freedom of choice” plan. The plan was first instituted at the highest grade levels and was in effect at all grade levels by 1963. Under the plan, Black students were given the option of attending the schools, which they would have attended under the old pre-1954 segregated system, or to enroll instead in another predominantly “white” school. White students were given similar options.[59]

9. Early Demands by African-Americans for Non-segregated Education in Texas. School desegregation would devolve as a slow process with the help of state officials. In 1956, when a violent confrontation between black and white citizens was brewing in Mansfield, Texas (Tarrant County, near Fort Worth), the Governor ordered that African-American students who tried to enter the all-white Mansfield High School were charged with inciting violence from the mob that had gathered there, and ordered that they be transferred out of the district. Shivers claimed that his decision was based on maintaining the public peace in the State, and he stated that this action was not inconsistent with Brown I or Brown II. The end result of this action was the busing of the African-Americans from Manfield to the all-black schools in Fort Worth despite a ruling asserting their civil right to attend Mansfield High School if they elected to do so.[60]

10. The State of Texas Runs the NAACP Into the Ground. Texas, as a state, took several steps to ensure that segregation should remain the custom and practice in education for as long as possible. For instance, the NAACP was blamed for the racial tensions in Texas by trying to help students integrate Mansfield High School. Propaganda about the organization claimed that it was a communist organization, and in September of 1956, the State of Texas (Attorney General Shepherd) brought suit against the NAACP, which at that point had over 100 branches in the state.[61] The charges were that the NAACP as a corporation based in New York was foreign to the state and operating without a permit. It thus was charged with consistently violating the barratry (anti-solicitation) laws, soliciting business and plaintiffs in school integration cases which brought “racial prejudice, picketing, riots, etc.” upon the citizens of Texas; profited from its business in the state and was required to pay taxes as a corporate entity; and practiced law illegally and outside the bounds of a corporation within Texas.[62] The judge granted a temporary injunction against the NAACP in Texas, which restrained the organization from activities within the state, including collection of contributions and filing lawsuits. For several years, the organization was unable to openly operate in the state of Texas. [63]

11. Other Forms of Sabotage of NAACP Power. Other state action, carried out in 1957 by Shivers’ successor, Governor Price Daniel, included legislation banning members of the NAACP from state employment, suppressed state funds from integrated school districts, subsidized private segregated schools with state funds, and prevented local school boards from integrating their schools unless the registered voters of the district approved the move in an election.[64] The state took an active role in maintaining the status quo. Not surprisingly, integration was painfully slow in Austin, as in the rest of the state. In 1954, there were eight black AISD schools, including Anderson High School and Kealing Junior High School in East Austin. In August of 1955, Governor Shivers’ committee said Texas schools would lose state funding if they integrated.[65]

12. AISD is Formed Post Brown-II. In 1955 Austin Independent School District (AISD), the newly created successor to the Austin Public Schools[66], adopted a resolution to integrate the school district beginning with senior high schools. The first stage of the plan allowed African-American students to attend the schools closest to their homes. This meant that African-American students could attend white schools if they happened to live outside traditionally African-American neighborhoods.

13. Integration Efforts and Officially Induced Residential Segregation: A Collision Course for the Future. Although integration efforts were begun by AISD post-Brown, the city had made special efforts to keep African-Americans from moving out of the east Austin area for years. For example, bank loans were not available to African-Americans who tried to buy homes west of what is now Interstate 35 in the 1930’s[67]. The “white” schools African-American students could choose to transfer to tended to be predominately Mexican-American schools.

14. The First Optional Transfer and Neighborhood School Policies.

African-American students, who were at least sophomores, living inside the Anderson High school zone could apply for transfer to the predominately “white” school of their choice. All of the African-American students were given the choice to stay at Anderson. White students were given similar options. This decision by the board followed three “guidelines”:

to integrate with least concern or fear to any parent or student; to integrate with as near equal choice to any student or district as possible with no compulsion; to equalize as near as possible the distribution of affected students.[68]

It is not clear why the there was a tenth grade restriction placed on the students. Ninth grade students also attended the Austin high schools. During the period from 1958 - 63 the school board allowed black students in all grades to attend the school nearest to their home.[69]

15. Comforting the White Parents: an Historic AISD Goal.

The language of the earliest transfer and neighborhood school policies manifested an intent of the city officials to alleviate the fears of the parents by assuring them that no student would have to attend school with students of a different race. Austin’s “freedom-of-choice” plan allowed white social pressure to take the place of school board policy in keeping African-American students in their traditional schools.

16. The Reluctance to Challenge Whites. Rather than face probable hostility from the white population and perhaps ostracism within their own community, most African-American students chose to stay at Anderson High. As a result, only thirteen (13) African-American students enrolled at Austin, Travis and McCallum high schools in 1955[70]. By 1959, only forty out of 5,512 African-American students attended white high schools.[71]

17. A Lone Early Integrationist: M.H. Bedford.

Margie Hendricks Bedford was the only African-American student brave enough to attend McCallum High School once the “freedom-of -choice” plan was implemented. The then 15-year-old sophomore was the oldest of eight children. Her father was a truck-driver, with a 6th-grade education and her mother was a cook at a neighborhood cafe who had attended school through the eighth grade. Although her parents did not have the opportunity to complete their education, they realized the importance of school and emphasized the value of education to their children. When asked why she chose to transfer, Mrs. Bedford stated that she “considered it to be an opportunity to finish her last two years of public schooling at McCallum High.

18. White Students and Teachers Resist Integration. According to Mrs. Bedford, most of the students at McCallum High accepted her without much problems. The “females” were very supportive as were a majority of the males. Some of the students saw her as a threat, and she received one “hate” letter, but her father acted quickly by turning the letter over to the FBI. The author was arrested and this marked the end of such threats. She only encountered a few bigoted teachers who refused to grade her work, and once she reported the actions of the teachers to the Dean of Girls, she was removed from those classrooms.

19. Scholastic Achievement by Bedford at McCallum High. By the time Mrs. Bedford was joined by her sister Helen Hendricks Coles and a handful of others the next year, many of the problems Mrs. Bedford faced had disappeared. Mrs. Bedford did more than keep up with her classmates, she was on the honor roll each semester she attended McCallum. Her SAT and ACT scores were in the top 1% of the school’s scores. In addition, she participated in intramural sports including track, softball, volleyball and badminton. Mrs. Bedford also enjoyed a social life, in that she was befriended by a classmate whose father happened to be the richest man in Austin during that time. Once the classmate befriended Mrs. Bedford, most of her classmates accepted and welcomed her into their circle of friends. Although Mrs. Bedford’s experience was positive, Austin’s struggle for integration had only just begun.

20. Post-Brown White Flight: The Creation of Westlake Village. As AISD began integrating its schools, members of the community began moving to communities just outside of the city limits. The West Lake area was a rural community during the early part of this century, but during the late forties and the early fifties, many of Austin’s professionals began to move into the area. By 1953, the Village of Lakewood was formed.[72]

21. Eanes: From White Common School to Independent School District. Like most schools during that time, the community surrounding Eanes Elementary School was considered a common school district that sent its middle and high school children to the Austin school district. In 1958, an election was held to change the status of the school from a common school district to independent.[73] The new school district chose to continue busing its middle and high school students to the Austin system.[74] In 1967, Austin informed the Eanes Independent School District that it could no longer continue to accept the junior and senior high students. The Austin Board explained that their schools were full and space was needed for Austin students. Eanes was given the choice of either giving up its independent status and joining AISD or building its own facilities.[75] If Eanes had combined with AISD, it would have been forced to integrate its school. However, if the school chose to remain independent, it would only be required to integrate students within its district, and during that time only White families resided in that school district. The Westlake community chose to build its own schools.[76]

22. Post-Brown Perpetuation of Segregated Education. Although AISD had implemented the “freedom-of-choice” plan, the district opened four schools with entirely black enrollment and black faculty.[77] By 1959, the district only had forty (40) African-American students who attended white high schools, when the district was composed of 23,365 white students, 7,375 Mexican-American students, and 5,512 African-American students. There was no substantial improvement until 1970, when the U.S. Attorney sued the State, through the Texas Education Agency, and the Austin Independent School District for failing to comply with the mandate of Brown I.

23. The Cold Numbers Assessed Against Early Claims of “Unitariness.” Although the numbers patently indicated that full integration had not been achieved, AISD maintained that it was in compliance with Brown I. Even the Austin League of Women Voters reported in their 1960 School Survey that “all senior and junior high schools are now completely integrated.”[78] In 1964, Lyndon Baines Johnson, former Texas Governor, pushed Congress to finally enact the a Civil Rights Act embracing the principle of equality articulated in Brown I and extending equal rights in employment, education, public education and housing to all citizens. In that same year the African-American teachers were assigned to non-black schools - one at Johnston High and two at Allan Junior High. However, this did not mean the schools were integrated, for while Allan and Johnston were non-black, they were predominantly Mexican-American. But much more was to be done before Austin would have a court agreeing that it had achieved unitariness.

IV. AUSTIN DURING THE SIXTIES ERA OF CIVIL RIGHTS MOVEMENT.

A. Introduction: The Mandate to Desegregate “With All Deliberate Speed.” With the passage of the 1964 Civil Rights Act, federal funds were provided to force the desegregation of public schools “with all deliberate speed” per the mandate of Brown II. Title VI of the Act outlined those guidelines by which all schools in receipt of federal funds were required to adhere.

1. The Texas Education Agency and the Mandate of the Civil Rights Act. Created in 1949, the Texas Education Agency (TEA), the TEA’s initial duties were similar to most state education departments—handling the accreditation of local school districts, offering professional development to districts, and conducting planning and evaluations. Despite the Civil Rights Act of 1964, the TEA remained aloof from desegregation activities.

2. TEA’s Policy of “Local Control.” The State Board felt that the local school districts should maintain the role of facilitating desegregation and at least one member of the State Board felt that redistributing authority interfered with parental freedom to send their children to the school of their choice.

B. Emergent State-Federal Tensions

1. A Complaint from the Office of Civil Rights. In 1968, Jerold Ward, Chief of the Dallas Education Branch of the Office of Civil Rights, sent the Austin Independent School District (AISD) a letter outlining the district’s failure to eliminate the dual system structure. The letter focused on the traditionally Black schools to show the District’s failure to effectively desegregate the school system. It pointed to the ineffectiveness of the optional transfer program and the “freedom of choice” plan instituted by the School Board, emphasized the inequality of the educational programs offered at the predominantly White high schools and those at the predominantly Black schools, condemned the steering of Black student teachers to exclusively Black schools, and noted that the constructions plans for new elementary schools only served to perpetuate the existing segregation.

2. AISD Negotiations with HEW-Plans 1 and 2. After receiving notice of this complaint, the AISD began negotiations with the Department of Health, Education, and Welfare (HEW). The first AISD proposals dealt only with the senior and junior high schools. It would close traditionally Black Anderson High School and St. John’s and change the attendance zones for its students. Anderson would open as a junior high school, Kealing would service grades five and six, Baker would become a junior high, and Winn would be demolished. The second plan would change the boundaries of Anderson High, with Winn and Maplewood Elementary feeding into Reagan or Austin High. HEW indicated that it would have accepted either of these decisions by the Board. However, the School Board rejected both plans at a meeting on January 10, 1969, and submitted its own plan five days later.

3. Re-Introducing the “Freedom of Choice” Plan. HEW rejected the “freedom of choice” plan. Senator John Tower and Representative Jake Pickle of Austin supported the Board’s plan, promising to help convince HEW that this was the best option for Austin. The community at large also voiced support for the Board plan. The Board maintained that the residential patterns, and not the actions of the School District, caused the continuing patterns of racial segregation in the schools. The Austin School trustees even submitted a seven page letter justifying the Board’s desegregation plan in reply to HEW’s criticisms.

4. NAACP Support for the 1969 Proposal to Close Historically Black Anderson High. The School Board developed another plan in June, 1969, which proposed the closing of Anderson, Kealing, and St. John’s. The local chapter of the National Association for the Advancement of Colored People (NAACP), led by Volma Overton, supported this new plan, saying “we feel that [the Austin school board’s plan] is superior to any others presented. We are taking the position of the Austin School Board.”[79] Overton clarified the NAACP’s support, noting that “the only integration plan that would be fair to all races would be one that provides for transporting students in both directions.”[80] However, because of protests over the closing of Anderson High, this plan was dropped, and the Board reverted to its January policy.

5. HEW Rejection of the 1969 Plan. Once again, this plan was rejected by HEW. In January of 1969, the Board, faced with removal of federal funds as a consequence of its noncompliance, met with HEW to discuss the desegregation efforts of AISD. Little was resolved during this meeting, and the Federal Office of Civil Rights filed suit in August of 1970 against AISD for alleged failure to comply with desegregation guidelines. Roy Butler, the Austin School Board President, stated that he had expected the suit, but that the Board would continue to support its “freedom of choice” plan.[81]

V. THE REAL BATTLE BEGINS IN AUSTIN: 1970-1983

A. Introduction: An Overview of the Racial Demographics in 1970-71. During the 1970-71 school year, there were 8 high schools, 11 junior high schools, and 55 elementary schools in Austin. At that time, 65% of the student population was white, 20% was Mexican-American, and 15% was African-American.[82] These racial demographics were set against a history of pervasive housing discrimination and policies of intentional segregation of the races which were brought to light in the case of Blackshear Residents Organization v. Housing Authority of the City of Austin.[83] In Blackshear, the plaintiffs proved that the city (specifically, the Housing Authority) began segregating the ethnic groups by building the first three projects, Chalmers Courts for Anglos, Rosewood for Negroes, and Santa Rita Courts for Mexican-Americans on sites that fit the racial character of the housing project.[84]

1. “Freedom of Choice” Plans in Housing: Patterns of Pervasive Segregation Pose Continuing Barriers to Desegregate the Schools. Even though the Board of Commissioners of the Housing Authority adopted a “freedom of choice plan” in 1967, the prior 28 years of segregation resulted in an entrenched separation of the ethnic groups that still existed in 1971. The court found that the intentional segregation mandated that the city be enjoined from assigning eligible applicants for public housing in a “manner at variance with the guidelines published by the United States Department of Housing and Urban Development”..., and that the proposed site for new projects in East Austin was unacceptable.[85] The acknowledged housing discrimination opened the door for the challenges to the neighborhood schools assignment plan adopted by the AISD during the same era.

2. The Push Coming to Shove in AISD: The Transparencies in AISD’s Constructions of “White” and Black Integration. It was becoming increasingly apparent that AISD would have to comply with the mandate to desegregate. From the mid 1950s until the late 1960s, AISD had made only nominal progress as it experimented with “freedom of choice” plans, the building of new schools, and the re-drawing of attendance zones. Under the “freedom of choice” plans integration was never genuine. Most white students did not choose to attend formerly all-black schools. Furthermore, the “white” schools which black students were given the option of attending tended to be predominantly Mexican-American schools. Although AISD appeared to make some progress toward integration of Black students and “white students,” the city’s schools continued to be largely segregated on the basis of race, with most schools clearly identifiable as either a white school or a minority school (meaning a school which is primarily black and/or Mexican-American).

B. Gradual Integration or Diligent Resistance?

A positive view of AISD's actions after the mandate of Brown IIwould suggest that AISD was successful in easing a gradual transition into integration, in such a way as to avoid great conflict and violence.

1. De Jure v. De Facto Segregation. A more critical view, however, suggests that the school board consistently made decisions that would facilitate a continuance of “de facto” segregation as “de jure” segregation was being eliminated. For example, AISD allowed students to attend the schools closest to their homes, which meant that African-American students could attend white schools if they happened to live outside traditionally African-American neighborhoods. However, all African-American students were given the choice to stay at Anderson (the traditional African-American high school). [86]

2. The Discriminatory Impact of Freedom of Choice Plans. The adherence to “freedom of choice” plans allowed white social pressure to take the place of school board policy in keeping African-American students in their traditional school.[87] Rather than face probable hostility from the white population and perhaps ostracism within their own community, most African-American students had stayed at Anderson. [88]

3. Other Subtle Delaying Tactics: New Constructions. The building of new schools and the resulting redrawing of attendance zones are often evidence of subtle policy decisions on the part of the school board and other officials. Although integration gradually increased from the late fifties through the sixties,[89] such progress was often circumscribed in Austin by behind-the-scenes choices with far- reaching effects. For example, Johnston High School (1960), Allan Junior High (1957), and Martin Junior High (1967) were opened in predominantly Hispanic neighborhoods.[90]

4. Delaying Tactics: Redrawing Attendance Zones. The new zones were drawn in such a way that these schools became predominantly Hispanic.[91] Hispanic students who previously attended predominantly white Austin High were rezoned to Johnston, which was 74% Hispanic the day it opened, while the percentage of white students at Austin High jumped to 92%.[92] A similar effect happened with the opening of the predominantly Hispanic junior highs.[93] It appears that even though the desegregation plans for all grades had gone into effect by 1963, there was still a great deal of segregation at the end of the 1960s.[94]

5. Integration on the Basis of White Interests. Integration during the late fifties and the sixties meant integrating on the terms of white interests. White students were never asked to attend African-American schools,[95] and often integration consisted merely of redrawing attendance zones to mix African-American students and Mexican-American students together.[96]

6. Forcing the Question of Mexican-American Segregation. AISD historically maintained and post-Brown stood by the position that Mexican-Americans were not a race deserving of protection under the fourteenth amendment. In 1972 the case of United States v. Texas Education Agency addressed the notion of Mexican-Americans as a distinct race.[97] In plans formulated by AISD in the post-Brown II period, minority students often bore the burden of desegregation. District Court Judge Robert's 1971 desegregation order consisted of the closing of two African-American schools, Anderson High and Kealing Junior High, meaning that busing would be imposed only on African-American students. The AISD Board of Trustees approved of the plan,[98] but the Fifth Circuit found this highly inappropriate.[99]

VI. A NATIONAL LEGAL FRAMEWORK FOR COMPLIANCE WITH BROWN:

A. Introduction. During the sixties and seventies the United States Supreme Court decided a number of crucial cases involving desegregation efforts post-Brown. In a trio of cases the Court set forth the standards school districts had to meet in order to comply with Brown II. Austin was not the only city to have utilized a “freedom-of-choice” plan in response to the Supreme Court’s call for desegregation. Another such plan in Virginia was challenged in the case of Green v. County School Board of New Kent County, Virginia[100] and in 1968, the Supreme Court announced its decision in the case.

B. Cases Explaining How to Comply with Brown II

1. Green: Desegregate “Root and Branch.” The Green case involved a school district in Virginia where there had been two schools, one black and the other white. After the school district’s federal funding was challenged, the district adopted a “freedom-of-choice” plan under which students were given the option of attending either school. The school district argued that they were in compliance with the Brown decisions. The Supreme Court disagreed.[101] Justice Brennan argued that because under the “freedom-of-choice” plan racial discrimination had not been “eliminated root and branch” the school district was “required to fashion a new plan and fashion steps which promise realistically to convert promptly to a system without a ‘white’ school and a ‘Negro’ school, but just schools.”[102] This language indicated that the holding would apply to a system like Austin’s, in which most schools were still clearly racially identifiable.

2. Swann: The Power of the Federal Courts to Order Busing,

In Swann v. Charlotte-Mecklenburg Board of Education,[103] the Supreme Court held that the courts should have a great deal of latitude in shaping remedies for intentional segregation of schools. Every school need not reflect the composition of the district as a whole, the Court stated, but remedies such as massive busing programs will sometimes be necessary to eliminate all vestiges of state-imposed segregation.

a) Swann: Presumptive Evidence of Intent to Segregate. The Swann Court found that awareness of the racial composition of the whole school system is likely to be a useful starting point in shaping a remedy to correct past constitutional violations.[104] Schools all or predominately of one race in a district of mixed population will require close scrutiny to determine that school assignments are not part of state-enforced segregation.[105] 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.[106]

b) Swann: Racial Balance and Mixed Populations. The school district has the burden of showing that such school assignments are genuinely nondiscriminatory, the burden being to satisfy the court that their racial composition is not the result of present or past discriminatory action on their part.[107] The Court embraced the use of a fixed mathematical racial balance reflecting the pupil constituency of the system as being within the Court's equitable remedial discretion.[108] In other words, school districts can set goals where the racial breakdown of each school roughly matches the racial breakdown of all the district's students, or of the general city population.

3. Keyes: Presumptive Intentional Segregation and the Role of Statistics. Keyes held that the packing of minority teachers at minority schools was evidence of unlawful segregation.[109]. The Keyes Court held that a finding of intentional segregation by a school board with respect to one geographic portion of a school district creates a presumption of intent with respect to any other portion of the district in which there is de facto segregation. [110] The burden of proof then shifts to the defendant school’s board to prove that there is no intent.[111] Similarly, a showing of past de jure discrimination coupled with present de facto discrimination creates a presumption in the plaintiff’s favor.[112] The Supreme Court in Swann gave the clearest interpretation of the use of statistics in school desegregation cases. Swann embraced the use of racially identifiable schools to determine if a district is not in compliance with Brown I.

VII. THE AUSTIN DESEGREGATION CASES.

A. Introduction. While in the late fifties and the early sixties the nation as a whole was confronting the challenge put forth in Brown I - that legally enforced segregation of the races violates the Constitutional principle of equality, Austin managed to delay any full confrontation in the courts until the late sixties, after the HEW’s investigation. The litigation would swallow up nearly a whole decade of time, during which virtually no advances were made towards true integration in the Austin public schools. Appeals and remands produced numerous efforts and “Plans to Desegregate” between the complaining parties, the United States and the Austin School Board, most of which on the Board’s part conformed to earlier versions of the “freedom of choice” or “neighborhood schools” concepts which tended to favor white interests and promised a discriminatory impact on African and Mexican-American children.

Because the protracted litigation is fairly complex, a short synopsis is initially provided followed by a lengthier analysis of the various stages of the litigation that began in earnest in 1970.

B. Austin I-IV: A Brief Procedural Synopsis:

1. Initiation of a Four-Part Litigation. In 1970, in an effort to force the desegregation of the public schools in Austin, HEW filed suit in the Western District of Texas against AISD in 1970.[113] Judge Jack Roberts issued an order rejecting the recommendations of HEW and instead adopted a modified plan proposed by the school district.[114]

2. The First Appeal, Remand and Efforts to Re-introduce Freedom of Choice. The Government appealed to the Court of Appeals and Judge Wisdom held that “the dual system was required to be eliminated at once and that the system had to operate only as unitary nondiscriminatory school system.” [115] Furthermore, Mexican-American students were to be included in the benefits of the desegregation efforts.[116] Hence, the case was reversed and remanded to the district court where Judge Roberts once again adopted the “freedom of choice” desegregation plan submitted by the district.[117]

3. The Second Appeal: Busing is Appropriate to End Intentional Segregation. On appeal to the Court of Appeals, Judge Wisdom held that “a person intends the natural and foreseeable consequences of his action [and that this] is applicable in determining segregative intent on part of school officials.” [118] Furthermore, busing was determined to be an appropriate method of effectuating desegregation. This case went to the United States Supreme Court where it was vacated and remanded for reconsideration in light of Washington v. Davis.[119]

4. Austin III: AISD Intentionally Discriminates Against Mexican-American. On remand to the Court of Appeals, Judge Wisdom held that “the evidence demonstrated that discriminatory impact of the school board action on Mexican-American students was intentional,” thereby re-affirming their ruling in Austin II. Nonetheless, AISD filed a petition for rehearing.[120] In Austin III, Judge Wisdom affirmed their prior ruling and denied the petition for rehearing.[121]

5. Austin IV: First Year of Busing. In Austin IV (1979), Judge Roberts finally ordered extensive cross-town busing in response to the inadequate remedies applied by AISD.

(END OF BRIEF SYNOPSIS OF AUSTIN I-III).

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C. AUSTIN I - HEW Initiates the Battle (1970)

On August 7, 1970, after a series of failed attempts throughout the sixties to come up with workable desegregation plans, [122] the United States through the Department of Health, Education and Welfare (HEW) , filed suit under the authority of the Civil Rights Act of 1964. The original complaint charged that the AISD “(1) has traditionally operated and continues to operate a dual school system based on race” (i.e. segregated schools for blacks and whites) and, moreover, (2) is “discriminating against Mexican-American students,” by assigning them to schools “that are identifiable as Mexican-American schools and schools that are attended almost exclusively by Mexican-American and Negro students.”[123]