AUSTIN SCHOOLS PROJECT

 

 

An Investigation

Into the Quality of Education Being Provided, Under the Governance of the Austin Independent School District,

to the African-American and Mexican-American (Hispanic/Latina/o) Children of the City of Austin

 

 

FALL 1998

 

A Project Directed And Edited by

Assistant Professor Elvia R. Arriola

University of Texas School of Law

 

 

­­­­Student Investigators and Writers:

                        Courtney Bowie

                        Jennifer Cavner

                        Tanya Clay

                        Yolanda Cornejo

                        Ernest Cromartie III

                        John Donisi

                        Margo Garana

                        Mary Maldonado

                        Cullen McMorrow

                        Leila Sarmecanic

                        Teasa Scott

                        Stephen Shires

                        John Weikart

 

                       

 

 

 

 

 

 

 

 

Word for Mac 5.1/era/15/99

Austin Rep.doc

 

 



 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I.

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).                      

 

                                                                        ******

 

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]  

 

                        1.         The Federal Court Mediates Between the Parties’ Efforts to Adopt Acceptable Desegregation Plans.  HEW and AISD then filed separate desegregation plans to bring the Austin School system within compliance with the federal desegregation mandate in accordance with the district court order.  The court ordered that if an agreement could not be reached, they were to submit their plans to the Court.  On August 27, 1970, the district court orally ordered the HEW interim plan put into effect immediately.   The Court ordered AISD to cooperate fully with HEW in developing a plan by December 15, 1970.[124] 

 

                        2.         The U.S. Fails to Prove De Jure Discrimination Against Mexican-Americans.  The district court granted four extensions until finally HEW and AISD submitted their separate plans on May 14, 1971.  The district court trial lasted seven days at which time the Court recognized that “Mexican-Americans constituted a separate ethnic group,” but that the Government failed to maintain its burden of proof that AISD had promoted de jure segregation against Mexican-Americans.[125]  The Court then gave the parties until July 16, 1971 to review and revise plans in light of their decision and provided a list of guidelines for them to follow.  On July 19, 1971, the district court rejected HEW’s proposals and adopted a modified version of the AISD plan.  The Government appealed to the Fifth Circuit.[126]

 

                        3.         Fifth Circuit Rejection of the 1971 Plan in Austin I.  The court of appeals for the Fifth Circuit, in an en banc decision, reversed the district court in the Austin I case on August 2, 1972.[127] 

 

                        4.         The Look of Austin in 1972: Words from Austin I:  The court’s decision gives a good picture of the school district as it existed in the early 1970s:

 

There are eighteen schools in East Austin with greater than 90 percent minority enrollment; that is, blacks and Mexican-Americans.  Of these schools, eight are over 95 percent black, four are over 95 percent Mexican-American, and six are over 90 percent black and Mexican-American.  Seventy-seven percent of the city's black students and 59 percent of the Mexican-American students attend these schools....A small black community in the north-central part of the city is served by St. Johns Elementary School which is 94 percent black. South of the Colorado River and west of the interstate highway is a Mexican-American community served by Becker Elementary School which is 68 percent Mexican-American and 7 percent black. Maplewood Elementary School has a 70 percent minority enrollment and serves a small minority community north of East Austin.[128]

 

                        5.         Persistent Efforts to Deny Mexican-American Segregation in Austin I.  One of AISD’s  justifications for not desegregating black students had been because the District considered Mexican-American students to be white.  Therefore, the district claimed that the integration of Mexican and black students sufficiently complied with Brown I.  In previous cases, the State of Texas had consistently argued “that there are only two classes ­-- white and Negro – within the contemplation of the Fourteenth Amendment.”[129]  However, this argument was readily rejected by the Supreme Court and also by the Court of Appeals in Austin I.  In the majority opinion, Judge Wisdom detailed why Mexican-Americans were not to be considered white with respect to the desegregation effort, and were to be included in the desegregation remedy.  AISD was shown to have drawn zone lines that corresponded with the ethnically and racially segregated neighborhoods in Blackshear Residents Organization v. Housing Authority of City of Austin.[130] 

 

            D.        Revealed in Austin I:  Promotion of Segregation of Mexican-Americans. Though the Court agreed that no law ever required that Mexican-American children be segregated, the evidence at trial revealed the existence of obvious segregative actions by the School Board.  

 

            E.        The Segregation Tactics

           

                        1.         Location of  Schools and Attendance Zones.   The Court cited Swann v Charlotte-Mecklenburg Bd. Of Education[131] in its holding that the location of schools significantly influences the patterns of residential development. 

 

                        2.         Closing and Construction of New Schools.  Other actions by the School Board such as the closing and construction of  new schools were also noted as being suggestive of discriminatory intent.  This was shown in Austin by the closing of Canal Street School, and the subsequent opening of Zavala, which shared a dual-overlapping zone with Metz, a predominately white school with significant numbers of Mexican-Americans.  As expected, the Mexican-American students at Metz instead chose to attend Zavala.[132]   The Court found this to be “unadulterated segregation.”[133]    Consequently, the Court placed a presumption of guilt upon AISD forcing them to prove that their actions were not motivated by any discriminatory intent.  In light of Blackshear,  the Court additionally found it to be clearly erroneous that the district court found “at no time during the existence of the AISD has there been de jure segregation against Mexican Americans.”[134]   The Court clarified that the evidence clearly showed that the school authorities “played a significant role in causing or perpetuating unequal educational opportunities for Mexican-Americans, and did so on a system-wide basis.”[135]  

 

                        3.         Actions to Desegregate as Blacks and Inaction with Respect to Mexican-Americans.  Even though AISD instituted some desegregation policies with respect to black students after the Brown decision, there was no corresponding effort to desegregate with respect to Mexican-American students.  Several schools were built between the 1953 and 1967, but their locations and student assignments were such that they perpetuated the separation of Mexican-American students.  Furthermore, several new elementary schools were built to relieve overcrowding in areas outside of East Austin, while temporary classroom buildings were used in predominantly-Mexican-American East Austin.  The result of these actions by AISD was that, although only twenty percent of Austin schoolchildren were Mexican-American, the majority of these students at all levels attended predominantly-Mexican-American schools.[136] 

           

                        4.         “Packing” the Mexican-Americans Schools and Building New White Schools.  In addition to the opening of new predominantly-Mexican-American schools, the court of appeals was also interested in the building of new predominantly-white schools.  As the Court noted that “[o]f 29 schools opened since 1954, 19 had a white enrollment of 90 percent or more. Seven of these were all-white. Of the 29, 21 had no blacks, 10 had no Mexican-Americans, 8 had less than 5 percent Mexican-Americans (some 1, 3 or 4 Mexican-American students).”[137]  Furthermore, Mexican-Americans accounted for less than 3 percent of the district’s teachers.[138] 

           

                        5.         Austin I: Rejecting AISD’S “Freedom of Choice” Defense as to Mexican-American Segregation.  The court found AISD’s defenses to the charges of segregation of Mexican-Americans unconvincing.  In light of the Green case, the court specifically rejected AISD’s argument that under the “freedom-of-choice” plan, Mexican-American students were free to transfer to other schools, emphasizing that “[w]hen freedom of choice fails to ‘work,’ the school board is under a constitutional duty to adopt a workable alternative.”[139] 

 

                        6.         AISD’S Claim that Mexican-Americans Are Isolated Because of Their Special Needs.  The court also rejected AISD’s other defenses, such as the need to give “extra attention and help” to Mexican-American students. The Court rejected AISD’s claim that the special needs of Mexican-Americans required them to be isolated in their neighborhood schools.  The Court found that such segregation prevented Mexican-American students “from sharing in the educational, social, and psychological benefits of an integrated education.”[140]  Hence, the Court found desegregative intent by AISD because of  its perpetuation of the remnants of the state-imposed residential segregation schemes enacted prior to 1970. 

 

                        7.         Austin I: Action and Inaction as Key to Patterns of Intentional Discrimination.   This connection between discriminatory intent and inaction by AISD was crucial to the Court’s finding that AISD was not in compliance with the desegregation mandate of Brown I and II.

            Finally, with regard to Mexican-Americans, Justice Wisdom criticized the district court’s adoption of a desegregation plan that did not include Mexican-Americans:

Despite the district court's declaration that it would consider the effect of any segregation plan upon Mexican-Americans, the plan that was approved intensifies the isolation of this group in Austin's secondary schools. Under the district court's plan, the student body at Johnston High School, which is currently 62 percent Mexican-American, would become 71 percent Mexican- American. The student body at Allan Junior High School, currently 54 percent Mexican-American, would became 72 percent Mexican-American....Only at Martin Junior High School is the pattern reversed. There, additional black students will join the predominately Mexican-American student body, so that the school will become 83 percent Mexican-American rather than 86 percent Mexican-American as it is at present.[141]

 

            F.         The Situation of African-Americans in Austin I: No Real Change.  Moving on to the subject of segregation of African-American students, the court of appeals disagreed with the district court’s conclusion that AISD had only discriminated against black students during the period prior to Brown.  Finding that most black students still attended predominantly-black schools, the court of appeals concluded that “AISD [had] not fulfilled its ‘affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.’”[142]

 

                        1.         Battling Over the Best Desegregation Plans:  AISD Tries to Bus Only Black Children.  Next, the court of appeals addressed the respective desegregation plans of AISD and HEW.  The AISD plan that had been adopted by the district court was unacceptable to the court of appeals for a number of reasons.  In addition to failing to address Mexican-American students, the AISD plan for secondary school desegregation would have placed the entire burden of desegregation on black students by closing two all-black schools and busing the students from those schools to other schools.[143] The AISD plan to desegregate the public schools was based on the concerted opposition to the busing of white school children.[144] 

 

                        2.         The AISD Cluster Plan.  The plan was a cluster program that would close the all-black Anderson High School and Kealing Junior High and reassign them to other school zones.  As a result, approximately 2100 black students would be attending schools outside the East Austin area.  This, in effect, allowed for the substantial busing of primarily blacks and a few Mexican-Americans.[145]    No whites were to be bused according to this plan. The court of appeals concluded that there was no evidence of a nonracial reason for closing the all-black schools.[146]           

                        3.         AISD: Part-Time Desegregation for Elementary Schools.  The AISD desegregation plan for the elementary schools also was criticized by the court of appeals.  AISD had proposed a system under which student attendance zones for elementary schools would not change.  Instead, the schools would be grouped into clusters of six schools, some white, some black, and some Mexican-American.  The students within each cluster would be brought together once a month for certain integrated activities.  While applauding the innovation of the program, the court of appeals nonetheless concluded that the plan did not satisfy constitutional requirements.[147]

 

                        4.         AISD’S  Neighborhood Plan.  Also known as the Davidson Plan, this proposal by AISD allowed for retention of the neighborhood school concept, focusing on the establishing “learning resource centers” within the city.  The students would take part in multi-cultural field trips with other students from their companion schools.  Three of these centers were to be established in Anderson High, Kealing Junior High, and Baker elementary school.  The district court found that the students would be in a desegregated environment about twenty five percent of the school year.  The Government contended that the correct figure was 16 percent while the AISD estimated that the correct amount of time was thirty three percent.  Nevertheless, the Court found that part-time desegregation did not satisfy the desegregation mandates of Brown I and Brown II. [148]

           

                        5.         The HEW Plan: Closings, Clustering of Schools and Reassignment.  The HEW plan also suggested closing Anderson as a senior high school, but it also recommended  that the school be re-opened as a junior high school.  The school zones would be re-drawn to remove the racial identifiability of Johnston High and others so that no high school would have a majority of black or Mexican-American students.  Kealing Junior High School would be closed and students rezoned to other schools.  Busing would be used to distribute students accordingly so that only Anderson and Martin Junior High Schools would continue to have black and/or Mexican-American majorities. The HEW plan included the “clustering” concept as in the AISD plan, but applied it differently.  Students would be clustered on a permanent basis.  The students would be reassigned to schools within the  their cluster and bused to their assigned school.  The Court fund this plan to be “true desegregated clustering or pairing,”[149] as opposed to the AISD plan which the Court considered solely a good idea “for improving the group relationship.”[150]

 

                        6.         The relevant holdings in Austin I:

           

                                    a)         Mexican-Americans are entitled to the benefits of a desegregated education under the Equal Protection clause, just as are blacks and whites.

           

                                    b)        It is not necessary to prove discriminatory intent as a prerequisite to establishing an equal protection violation when discriminatory effect is present. 

           

                                    c)         When school authorities’ actions or inaction contribute to the segregation of students in education due to existing residential patterns, the authorities deny the students equal protection. 

           

                                    d)        A desegregation plan comprised of placing Mexican-Americans and blacks in the same schools is not true desegregation (does not qualify the school system for unitary status) when the school system is composed of whites, blacks and Mexican-Americans. 

 

                                    e)         Busing is considered a permissible tool in the achievement of a unitary school system, but the School Board must not place this burden of desegregation on one or more minority groups.[151] 

           

Based on these rulings, the court reversed and remanded the case to the district court, with instructions for that court to come up with a new desegregation order.  By this time, minority groups had intervened as plaintiffs in the lawsuit.  The district court was also required to look at the Supreme Court decision in the case of Keyes v. School District No. 1, Denver, Colorado[152] which had 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.  This placed the burden of proof on the defendant School Board to prove lack of intent.  Similarly, Keyes held that a showing of past de jure discrimination coupled with present de facto discrimination creates a presumption in the plaintiff’s favor.[153]

           

            G.        Austin II

 

                        1.         AISD’s Sixth Grade Center Plan.  Once again, the court of Appeals rejected the AISD plan adopted by district court Judge Roberts.  However, in this instance, AISD and HEW plans submitted to the Court had changed.  The HEW plan was based upon the “Finger Plan” adopted in Swann v Mecklenburg,[154]  and the AISD plan was more properly termed the “Sixth Grade Center Plan.” This plan was similar to the plan previously submitted by AISD in Austin I,  except that it focused only on sixth grade students versus grades one through five, as in the “Davidson plan.”  AISD described the plan as follows:

 

(t)he Sixth Grade Center Plan essentially establishes six elementary schools in different geographic parts of the School District as centers for all sixth-grade students in the School District.  Those buildings which are not serving as elementary schools and would become the sixth-grade centers would be emptied of all students K through 5 so the building would be available for the Sixth Grade Center.  Students in those schools would be assigned to the nearest available elementary school.  The plan would also set up sixth grades at two of the junior high schools in Austin.  Of the six Sixth Grade Centers, two would have White populations of over 80 percent; the sixth grade populations at the two junior high schools would be about 97 percent minority. 

 

                        2.         Austin II: AISD’S Proposal for Majority to Minority Transfers.  The AISD plan would also establish majority-to-minority transfer provisions for black and Mexican-American students and would develop a bilingual educational program.  Changes would be made to the boundary lines and an advisory committee would be created to propose programs for minority students in Austin. 

 

                        3.         Rejection of the AISD Plans in Austin II.   The Court rejected AISD’s plan because it circumvented its “affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial (and ethnic) discrimination would be eliminated root and branch.”[155]  

 

                                    a)         Desegregate at all Levels; Not Just the Sixth Grade. The Court emphasized that AISD’s constitutional obligation  to desegregate and establish a unitary system was not confined to the sixth grade. 

 

                                    b)        Neighborhood School Plans That Don’t Work.  AISD’s plan reinstituted the neighborhood school plan that was specifically rejected in Austin I.   

 

                                    c)         Closings Attributed to the Fear of White Flight.  In addition, the court of appeals re-affirmed its prior holdings in Austin I.  AISD once again proposed the closing of Anderson High and Kealing Junior High, but the Court rejected this proposal citing its ruling in Austin I.  The primary reason for the school closings was attributable to the fear of white flight, and the Court found this to be an unacceptable justification for closing the schools.  The Court reiterated that the burdens of desegregation must be distributed as fairly as possible, and closing two all-black schools would not accomplish desegregation in the fairest possible manner.[156] 

 

                        4.         The HEW Plan (Finger Plan) in Austin II: A Plan for Busing.  The Mexican-American intervenors in this case submitted a plan prepared by Dr. John A. Finger, Jr., the same professor used in the Swann desegregation case in North Carolina.  This plan would convert the school system into a 4-4-4 grade structure that would be used to determine the busing schedules of the students.  In effect, students in grades K-4 in East Austin would be bused to schools in West Austin, students in grades 5-8 in West Austin would be bused to East Austin.  The high schools would be integrated by selecting feeder schools for the respective high schools.  Those elementary and junior high schools between 50 and 90 percent white would be considered “naturally desegregated” and would remain unchanged under this plan.

 

                        5.         AISD’s  Complaint: Busing Will Produce White Flight.  Under the Finger Plan an  estimated thirty-two percent of students would be permanently bused versus the part-time desegregation plan proposed by AISD.[157]   AISD complained that the “Finger Plan” would produce highly congested traffic and substantially increase the financial burden of busing and the inevitability of “white flight.”[158]   AISD claimed that whites would flee the Austin public school system in order to attend private schools and other schools in surrounding school district and that the “Finger Plan” was an ineffective desegregation method.[159]  Nevertheless, the Court found this claim to be purely speculative and determined that the effectiveness of the “Finger Plan” clearly outweighed that of the “Sixth Grade Center Plan.”[160]

           

                        6.         Austin’s II’s Relevant Holdings

 

                                    a)         The Push.   The Court ruled that the overall goal of a desegregation plan was one that promised realistically to work immediately.[161]  AISD was given the affirmative duty to implement a desegregation plan to evenly distribute the benefits of integration to all students during their entire school careers.  Confining desegregation to the sixth grade was not considered enough by the Court despite AISD’s claims that busing detrimentally effected students under the age of 10.[162]  The Court found this claim to be unsupported by the facts.  Furthermore, the economic claims put forth by AISD were not considered to be a justification for denying the students of their constitutional rights.[163]  

           

                                    b)        Still No Move Towards Unitariness.   Ultimately, the Court for the second time found AISD’s desegregation plan to be constitutionally insufficient and reversed the judgment of the district court.  It further noted that the desegregation plan adopted by the district in 1973 after Austin I was to be continued only until a proper remedy was found.  They did not adopt the Finger plan, but ordered that the district court move “expeditiously on remand to provide Austin minority student with … [a unitary] … system.”[164]  The Court also affirmed the district court order that AISD continue in its efforts to actively recruit Mexican-American teachers and maintain its bilingual-bicultural education program.  

 

                                    c)         Appealing Austin II:  AISD v. United States.  AISD appealed the Fifth Circuit ruling to the Supreme Court, where the Fifth Circuit’s ruling was vacated and remanded in light of the recent holding in Washington v. Davis.[165]  The Court held that the remedy advocated by the Fifth Circuit appeared to exceed the constitutional violation.  Additionally, the Court ruled that “large-scale busing is permissible only where the evidence supports a finding that the extent of integration sought to be achieved by busing would have existed had the school authorities fulfilled their constitutional obligations in the past.  Such a standard is remedial rather than punitive, and would rarely result in the widespread busing of elementary-age children.”[166] The court recognized that the “principal cause of racial and ethnic imbalance in urban public schools across the country…is the imbalance in residential patterns.” Thus, they questioned the Court of Appeals’ remedy as possibly excessive as a response to official state acts or omissions.[167] 

 

            H.        Austin III:   Revisiting the Question of Mexican-American Segregation.  On remand from the Supreme Court, the United States, for the third time, alleged that AISD had adopted a segregative policy with respect Mexican-Americans.  In the majority opinion Judge Wisdom clarified the court’s prior ruling in Austin II with respect to Washington v. Davis, a case which stood for the principle that a racially neutral state action does not violate the fourteenth amendment solely because it causes a disproportionate harm to a racial minority.  Instead, the disproportionate effect on a minority group is only one consideration to be weighed by a court in determining whether there is a discriminatory purpose.

 

                        1.         A Fuller Assessment of Discrimination Against Mexican-Americans in Austin III.  On remand, the court of appeals reaffirmed its position, despite the requirements of Washington v. Davis.[168]  The court found that AISD had operated an unconstitutionally segregated school system with respect to Mexican-Americans by use of its neighborhood school policy.  In order to make it clear that it was deciding the case in conformity with the requirements of the Washington decision, Judge Wisdom set out the specific findings upon which the finding of a constitutional violation was based.

 

                                    a)         Extensive and Persistent Segregation of Mexican-Americans.  First, the court of appeals addressed the extensive segregation of Mexican-American children that still remained.  In the elementary schools, for example:

 

58 percent (17,692) are White, 17 percent (5,122) are black, and 25 percent (7,461) are Mexican-American.  Over 46 percent of the Mexican-American elementary school children attend elementary schools that have minority enrollments ranging from 91 to 100 percent; and 55 percent of the White elementary school children attend schools that are over four-fifths White.  Of the school district's 61 elementary schools, only 23 have enrollments that are not over 80 percent White or 80 percent minority.[169]

 

                                    b)        The City’s Facilitation of Mexican-American Segregation:  Next, to help establish the intent required by Washington, the court looked at the history of official actions by AISD that had contributed to the segregated school system.  The long list of official actions included:

 

                                                i)          the establishment of all-Mexican-American schools as early as 1916;

 

                                                ii)         the maintenance of segregated schools through the use of dual overlapping attendance zones;

 

                                                iii)        gerrymandering of school zones; and

 

                                                iv)        the decision to build new schools for the purpose of serving only Mexican-Americans.

 

                                    c)         Other Intentional Discrimination in Austin III.   Third, the court of appeals discussed specific post-1954 actions by AISD that demonstrated intentional racial discrimination.  In doing so, the court repeated the evidence from its 1972 decision regarding the building of new schools and assignment of teachers.  The court also emphasized, in response to a plan to desegregate only the sixth grade of elementary education, that such a partial desegregation, like the earlier plan for the monthly integrated activities of clustered schools, was unacceptable.

           

                                    d)        A Finding “Intent” to Discriminate Based on Overwhelming Evidence of Discriminatory Impact.  The Court found Washington v. Davis to be inapplicable because that case was concerned with the evidentiary showing of segregative intent in a system where no state laws required segregation, whereas, in Austin, there were specific state laws requiring residential segregation, and a dual system of education obviously existed.[170]  Because of the ambiguous holding in Keyes as to whether discriminatory intent was to be determined under a subjective or objective standard, the Court interjected its own interpretation of Keyes.[171]   Citing support from four other circuits, the Court read “the natural and foreseeable consequences” test into the requirements outlined in Washington v. Davis.[172]    Hence, the Court allowed the inference of discriminatory intent from the overwhelming discriminatory impact on the part of state actors as shown by the evidence.

 

                                    e)         The Discriminatory Impact:  Foreseeable Consequences of Neighborhood School Policies.  The Court reasoned that discriminatory intent could be inferred from the fact that the School Board’s acts had foreseeable discriminatory consequences.[173]   So, though the court re-confirmed the fact that they are governed by Keyes, it disallowed AISD to absolve itself from conforming with its obligation to desegregate simply because of the neutral superficiality of its proposed neighborhood plans.[174]  In fact, the Court noted that policies like the neighborhood school plan could be “an instrument of discrimination itself” when used in concert with other obvious tools of discrimination.[175] 

 

                                    f)         Austin’s Patterns of Discrimination:  A Southern Style.  The  holdings in Austin III were entirely consistent with the Supreme Court’s decision in Green v. County School Board, which held that school choice plans, similar to Austin’s minority transfer provisions, perpetuated a dual school system.  The court held that these plans could be part of a desegregation plan, although not the entire plan.[176]  In conclusion, the Court held that AISD had an affirmative duty to counteract the vestiges of its dual school system, and that since it had not done so,[177] AISD had “intentionally discriminated against Mexican-American students, adding to racial and ethnic separation.”[178]

           

                                    g)         United States v. Texas:  A Refusal to Rehear Austin III.   Disappointed by the Fifth Circuit’s rejection of their plan for the third time, AISD requested a motion for rehearing on the Court’s ruling.  The Court re-affirmed its holding in Austin III,  and denied the petition for rehearing en banc.  The court reiterated that AISD’s actions must be evaluated in the context of the totality of the treatment of minorities as spelled out in Austin I and II, and that AISD’s neighborhood school plan was evidence suggestive of the Board’s segregative intent. 

 

                                    h)        Austin IV. In Austin IV Judge Roberts would eventually order busing in 1979 to desegregate the schools and open the doors to social conflict among Austin’s citizens[179] putting pressure on the AISD to comply in some way with Brown.    

 

 

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

 

            A.        Introduction:  Moving Towards Unitariness.: 1980-83.  In 1980, after ten years of litigation and twenty-six years after the ruling in Brown I, AISD finally agreed to a consent decree which required it to comply with the desegregation orders of the Fifth Circuit. The consent decree provided that the school district, after three years of being under the jurisdiction of the federal courts,  would be declared unitary and the case would be dismissed in 1983.  The district court was to maintain its jurisdiction for these three years, after which, if no one objected, AISD was to be declared a unitary system.  The plan went into effect at the beginning of the 1980-1981 school year.  Through the use of extensive cross-city busing, schools at all levels were finally integrated, ten years after the suit was originally brought.  Each predominantly-minority elementary school in East Austin was paired with a predominantly-white school.  One school in each pair became the desegregated school for grades 1-3 while the other school was desegregated for grades 4-6.  Secondary schools were also integrated through the use of bussing.

 

            B.        School Desegregation and Structural Barriers for Permanent Unitariness.   While the school system was declared unitary in 1983, there have been many factors that have contributed to the segregation of black and Mexican-Americans throughout the city of Austin.  These factors, which include housing, municipal governance, and later school board actions, continue to aggravate the problem of segregation and have made some of the remedies less effective or not effective at all.

 

                        1.         Factor 1 Housing Discrimination.  This factors has been interwoven in the discussion above.  It is important to remember that the city set intentional patterns of residential segregation beginning in 1928 and maintained those patterns through racially segregated housing projects.  School desegregation efforts have always been hampered by the existing patterns and the AISD’s willingness to ignore the historical patterns and instead to claim that its decisions for closing school, building new school, relocating students, and so on, is derived totally from “neutral” or de facto residential segregation.

 

                        2.         Factor 2. Municipal Governance of Austin - Election of the City Council.  The local government is elected in such a way as to limit the participation of  Blacks and Mexican Americans.  “Austin has a council-manager form of government.  The present plan has a six-person council and one mayor, all of whom are elected at large.  Each candidate must choose one of the six places (or mayor) and win the seat by a majority of votes.”[180]  This at-large electoral procedure was instituted in 1909, and in 1953 was amended to include a majority requirement.  City Council members are elected each odd-numbered year to serve two-year terms.[181]   While the court in Overton v. City of Austin admitted that “some courts have treated an at-large requirement as a virtually unconstitutional requirement per se,” it refused to find that the city adopted the procedure with the intention of diluting the minority vote.  

 

                        3.         Origins of a Discriminatory System.  The plaintiffs presented evidence that the majority vote requirement passed after African-Americans, who had just returned from World War II, organized behind and almost elected an African-American to the city council.  The court did not find the plaintiffs’ evidence convincing, even though it noted that some believe that the majority requirement “requires a run-off election between the two candidates with most votes if no candidate receives a majority in the first election....The run-off allows white voters who scattered their votes among various white candidates in the first election to consolidate their votes in the second to defeat a minority candidate who received a plurality of the vote in the Host election.”[182]  Incidentally, the Austin Independent School District Board is elected at large, by place, like the Austin City Council, and has seven members.  Although the plaintiffs did not succeed in their suit claiming that the electoral procedure in Austin unfairly diluted the voting strength of minority voters, the suit raised the fact that Austin’s political system is entrenched and does not adequately represent its minority residents.

           

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

 

                        1.         Post-1983 Litigation.  Following the 1983 court finding that the system was declared unitary, the most notable legal battles over the Austin public schools and their treatment of minority students were the Overton v. TEA and the Price v. AISD cases.  Both cases are essentially an extension of the same claim - that the actions of the school board following the withdrawal of the federal courts in 1983 resulted in the resegregation of many of the Austin schools in a way that violated the consent decree and the rights of the minority students in the district.

 

                        2.         The Promise Not To Change Anything Until 1986.  The desegregation program remained virtually unchanged for seven years. In 1983, the district court declared that AISD was a “unitary” district, meaning that the previous state of segregation had been eliminated root and branch.  The parties to the consent decree stipulated that AISD could not modify the desegregation plan until early 1986, or until the new Kealing Junior High was completed, whichever came later.  Kealing opened in late 1986, leaving AISD free to modify the desegregation plan.

 

                        3.         A Return to Resegregation: Neighborhood Schools, No Busing in Elementary Schools, and Compensatory Funds.  AISD took advantage of the expiration of the desegregation order almost immediately.  For the 1987-1988 school year, the pairing of elementary schools was eliminated and replaced by a neighborhood school policy.  There was no longer to be extensive busing at the elementary level.  Instead, schools with large minority populations received compensatory education funds and personnel in an attempt to remedy the past inequality of these predominantly minority schools.  In 1995, AISD decided that the “priority schools” program had not worked effectively, and created a new program under which all schools, regardless of racial composition, could compete for the additional funds.[183] 

           

                        4.         Other Legal Challenges.  Many notable cases nationwide lead up to the solutions adopted in Austin, the problems that remained, and the decisions rendered in Overton and Price.  Furthermore, another case that affected Austin schools had been filed in 1981 by the United States (with the Mexican American Legal Defense Fund and L.U.L.A.C.) for enforcement of the federal court’s prior order and for supplemental relief, including a comprehensive bilingual education program, to replace the existing, inadequate program which was deemed a violation of the Equal Protection Clause or Title VI.  United States v. Texas did not address segregation specifically; however, it did address the inequality between the education provided for white students and for Mexican-American students in the state of Texas as a whole.   The district court opinion required that the defendants (State of Texas) provide bilingual instruction to all Mexican-American children of limited English proficiency in Texas public schools.[184]

 

                        5.         United States (Overton) v. Texas Education Agency, et al.: Re-segregated Elementary Schools.  In 1987, plaintiff-intervenor Overton attempted to reopen the U.S. v. Texas case, which had been initiated in 1970, and was eventually resolved through the Consent Decree in 1980.  In 1983, the parties agreed to a motion to dismiss, and the district was declared unitary.  The Overton  case was brought in response to an action of the school board in 1987, which adopted a resolution creating elementary neighborhood schools with boundary changes that resulted in sixteen elementary schools with predominantly minority enrollment.[185]

 

                        6.         The Court Throws Out Overton.   Because the original 1970 case had resulted in a Consent Decree and a voluntary dismissal without prejudice in 1983, the TEA’s motion to dismiss was granted.  The said the only way plaintiffs might get relief was for them to file a new suit.  But because the law had changed since the 1970 case, there would be a major hurdle in proving unequal treatment in the public schools.

           

                                    a)         A More Difficult Intent Standard.  Brown v. Board of Education  had focused on the inherent inequality in the separation of children of different races in the public schools.  Brown also promoted the integration of America’s public schools.  Subsequent cases, including Brown II, mandated that school systems eliminate the vestiges of past racism, and take affirmative steps to remedy actions that created disparate impact on minority students.[186]  However, the Supreme Court in the cases of Washington v. Davis[187] and Village of Arlington Heights v. Metropolitan Housing Development Corporation[188] ruled that in order for a court to provide a remedy for a state actor’s discrimination or the disproportionate impact of state action of minorities, there had to be a showing of intent to discriminate on the part of the state actor. 

 

                                    b)        Proving “intent” in Austin’s Racially Identifiable Schools.  While the court in Overton recognized that a strong showing of disproportionate impact would often lead to proof of discriminatory intent, the burden of proof on the plaintiff is now substantially greater.[189]  For instance, in Austin, there are several schools that are racially identifiable, which would be a “prima facie case of violation of substantive constitutional rights under the Equal Protection Clause” under the holding of Swann.[190]  However, given that there are several factors that contribute to this situation, and the intent of the school board is often impossible to prove, making a constitutional claim is nearly impossible in light of Washington and Arlington Heights.  The U.S. Court of Appeals for the Fifth Circuit concluded in 1987 in the Overton case that “having once implemented a racially neutral attendance pattern in order to remedy the perceived constitutional violations on the part of the defendants, the District Court had fully performed its function of providing the appropriate remedy for previous racially discriminatory attendance patterns.”[191]

 

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

Two weeks after the district court’s ruling in Overton, the Price case was filed on the premise that the school board’s student assignment plan and educational excellence plan resegregated the students as a result of discriminatory intent to do so.  This case would go on for years.  The Board’s plan began affecting the district in the 1987-88 school year, only four short years after the district had been declared unitary, and seven years after positive procedures were put in place to facilitate integration.  The student assignment plan ended busing for elementary school students and assigned them to their “neighborhood school”.  Given the obvious effects of past housing discrimination in Austin, which resulted in a city that is still quite segregated (with the majority of Mexican-Americans and Blacks living in East Austin), the student assignment plan resulted in several racially identifiable elementary schools.  However, the plaintiffs in this case had to prove that the school board adopted this plan with the intention of discriminating against minority students. 

 

                        8.         Rejection of the Claim that White Community Pressures Affect the School Board’s Action.  Despite the testimony for plaintiffs from a school board member, Abel Ruiz, who testified that the school board buckled under the pressure of the white community’s demand that their children not be bused to achieve integration, the court found for AISD.  One of the provisions of the plan that the board used to justify the existence of racially identifiable schools that also served a large number of low-income students, was that these schools would have “additional resources to provide an enriched learning environment.”[192]

 

                        9.         The Contested Plans (Which Still Exist).  The new plans developed in the mid-eighties had retained AISD’s majority-minority transfer policy, which is still in place.  The policy allows students in a predominately minority or majority school to transfer to a school with the opposite demographic proportions.  However, the source of most of the conflict in the Price case resulted from the “Plan for Educational Excellence,” also referred to as the “Priority Schools Program,” which provides additional resources and personnel to sixteen elementary schools that had predominantly minority enrollment after the 1987 boundary changes.[193]

 

                        10.       The Priority Schools Programs (Still in Existence).  A description of the plan was submitted by the school district.  The Program is built on ten points which include:

           

                                    i)          exceptional administration and teachers,

 

                                    ii)         instruction based upon the effective school approach,

 

                                    iii)        full day pre-kindergarten for four-year olds,

 

                                    iv)        a reduced pupil-teacher ratio,

 

                                    v)         greater number of support staff to assist teachers,

 

                                    vi)        training the staff to use innovative and research based teaching techniques,

 

                                    vii)       multi-cultural education to safeguard against the isolation of minority students,

 

                                    viii)      emphasis on fostering strong parental and community involvement in each Priority School,

 

                                    ix)        well-maintained buildings and grounds, and

 

                                    x)         an accountability component designed to keep the public and AISD staff informed as well as to monitor and evaluate the Program periodically.[194]

 

                        11.       Ruiz’s Testimony re Anti-busing Parents Not Credible.  District Judge Nowlin of the United States District Court for the Western District of in Austin, totally disregarded the testimony of Board Member Abel Ruiz, as well as his assertion that the plans resulted from anti-busing parents and school board members who opposed integration.  It appears that the judge decided that the witness was not credible, thus finding that the plaintiffs had failed to meet their burden of proving discriminatory intent.

 

                        12.       Pro-AISD Witness Found Credible.  With respect to the priority schools program, however, the judge found that the defendant’s witnesses were credible.  A black Austin woman, Ms. Hart, testified that she favored a neighborhood elementary school program because she felt that busing, and the burden of integration was unfairly placed on minority students in East Austin.  Further, she testified that she had succeeded in life despite attending segregated schools in Austin, and the judge remarked that her testimony was “open, sincere, and credible.”  It is unclear what criteria, other than the judge’s personal motives, could have prompted this response to a witness who testified that segregation had not hindered her progress.

 

                        13.       Unequal Sharing in the Priority Schools Program Not Recognized.  The court admitted that four AISD elementary schools with large minority population were not included and did not benefit from the Priority Schools Program.  This is a clear indicator that the supposed remedy for racially isolated schools was not equitably enforced. 

 

                        14.  A Possibility for Relief Despite Price’s Rulings.  Despite  Judge Nowlin’s subtle hostility to the plaintiffs in the school desegregation cases, at the end of his 1990 opinion in the Price case, he opens the door for relief for minority students who are not being equally educated in Austin. He wrote:

 

Protection of those advances in integration already made in AISD requires constant vigilance and review as well as public support.  Segregation because of race or ethnicity in public education through either polite inaction or conscious intent cannot be tolerated.  Should local authorities with purpose fail in those tasks already begun in AISD, on appropriate presentation this Court will not hesitate to act.[195] (emphasis added)

 

This statement is curious in light of the fact that the judge had clear evidence of racial segregation in the Austin schools, and yet nevertheless found that the plan’s adoption “emanated from pressures and needs unrelated to any discriminatory motive.”[196]   If “those tasks already begun” include the infusion of additional resources to racially isolated schools, there may be grounds for a new suit that could prevail on the merits.[197]  As was the case in Price, the largest hurdle would be proving intent to a judge who seems unwilling to believe that the school board acted with discriminatory intent, in spite of the testimony of a school board member.  The case was appealed to the Fifth Circuit Court of Appeals in 1991.  The decision was affirmed.

 

 

IX.      THE AUSTIN SCHOOL SYSTEM TODAY:

 

            A.        Introduction.  Currently, the Austin Independent School District has a student enrollment which is 41% White, 41% Mexican-American, and 18% African-American.[198]  The school district has done little following AISD’s victory in the Price case to address the resegregation of many of the schools.  The remedies in place include magnet schools, all of which are located in East Austin and are designed to draw a student population from the entire city to the superior educational opportunities afforded there. Both the science and arts academies at the junior high school level are located at Kealing Junior High School.  The high school liberal arts academy is located at Johnston High School, and the science academy is located at LBJ.  Enrollment in the program is contingent on an exam and within the premises of the schools, regular classes are taught to students that reside near the schools.  In effect, two schools are operating within one building, which does not promote diversity in the way intended by using magnet schools as a desegregation tool. The problems with the magnet schools will be discussed in greater depth later in the report.

 

Although the results of Overton and Price provide little hope of judicial intervention in the current process of resegregation which is occurring in AISD, the 5th Circuit’s decisions in those two cases must be considered in light of the current climate of hostility toward minorities and immigrants which has been exhibited by the anti-affirmative action Hopwood decision, as well as by the California Propositions 187 and 209.  While this current racist backlash is highly disturbing, one can hope that the political tide will turn and that a more courageous 5th Circuit would take into account the true spirit of Brown and its progeny, and realize that we must not condone AISD’s segregated and unequal system of education, which is not even legally acceptable under the antiquated Plessy doctrine of “separate but equal.”  The data supporting this claim follows in the remaining sections which describe the programs in existence in AISD and their distribution among predominately white and minority schools, all to the disadvantage of the African-American and Latina/o population of Austin, Texas.

 

            B.        AISD District Wide Programs.

 

                        1.         Adopt-A-School.  The Austin Adopt-a-School program is a partnership between AISD and the Greater Austin Chamber of Commerce which encourages business and community involvement to enhance the quality of education.  Through the program, businesses become “matched” with the school or schools of their choice and provide volunteer services, in kind contributions and cash donations to their adopted school or program. 

 

                        a)         Composition.  The Austin Adopt-A-School Program is comprised of approximately 2,059 community partnerships.[199]  This has resulted in over $4.8 million in resources to the 129 schools in the AISD for the year.[200]

 

                        b)        Unequal Distribution.  Austin’s Adopt-A-School program perpetuates the unequal distribution of academic and technological resources to public schools.  Because the Adopt-A-School Program depends upon the partnership of community businesses, and the initiative of parents and school faculty and staff to formulate partnerships, this program begs the question,  

 

If the benefit of the Adopt-a-school program depends upon the ability of parents to develop partnerships and the willingness of businesses to choose their desired school, and if a school is populated primarily with those students whose parents are not traditionally involved in the business community, does this program simply serve to perpetuate the existing economic disadvantages within the school’s surrounding area?

 

One method of testing this hypothesis is by comparing the businesses that adopt predominately minority schools against those that adopt predominately majority schools.  AISD appears not to publish such data for each school.   

 

                        2.         Career and Technology Education.  Under the Texas Education Code §29.182, Career and Technology Education is required in the Austin schools to prepare students for further education and eventual employment.  This plan is based on the premise that “a rigorous academic foundation contributes to success in school and in life,” and that all students should have an equal opportunity to succeed.  Career and Technology education is seen as a method of enhancing students’ academic preparation by enabling them to apply academic principles to a variety of community and career situations. 

 

                                    a)         Stated Goals.  The State Plan for Career and Technology is based on two goals established by the 74th Texas Legislature in TEC §29.181:

 

1)         managing the dual roles of family member and wage earner; and

 

2)         gaining entry-level employment in a high-skill, high-wage job or continuing the student’s education at the post-secondary level.

 

                                    b)        Specific Goals.  The specific goals for Career and Technology are as follows:

           

                                                1)         Each public school student shall master the basic skills and knowledge necessary for managing the dual roles of family member and wage earner. (TEC §29.181(1))

 

                                                2)         Each public school student shall master the basic skills and knowledge necessary for gaining entry-level employment in a high-skill, high-wage job or continuing the student’s education at the post-secondary level. (TEC §29.181(2)) 

 

                                    c)         Strategies and Objectives.  In order to implement these goals, the Legislature established some possible strategies and objectives.  These are general strategies that each school has liberty to implement accordingly:

 

                                                Objective 1: Academic excellence.  Provide additional opportunities for all students to develop and demonstrate the knowledge and skills necessary to read, write, compute, problem solve think critically, apply technology, and communicate across all subject areas, through a Career and Technology education program.

 

                                                Objective 2:  Guidance and Counseling.  Provide a quality guidance and counseling program for all students in pre-kindergarten through Grade 12.

 

                                                Objective 3:  Partnerships. Plan, develop, and implement partnerships that support efforts to help students develop the basic knowledge and skills necessary for managing the dual roles of family member and wage earner, gaining entry-level employment, and continuing the student’s education or training at the post-secondary level.

 

                                                Objective 4:  Curriculum.  Provide all students with opportunities to participate in an academically rigorous curriculum that enables them to achieve their potential and participate fully in the economic and educational opportunities of Texas and the nation.

 

                                                Objective 5:  Professional Development.  Plan, develop, and implement professional development opportunities for all teachers, administrators, counselors, and other education partners that enable participants to provide a quality education for all students.

 

                                                Objective 6:  Evaluation.  Evaluate Career and Technology education programs in terms of (a) the program’s effectiveness in enabling each public school student to master the basic skills and knowledge necessary for managing dual roles; (b) the program’s effectiveness in enabling each public school student to master the basic skills and knowledge necessary for gaining entry-level employment or continuing the student’s education; and c) if the district receives supplemental federal funding for Career and Technology education, whether the program meets requirements for receiving supplemental federal funding. 

 

                                    d)        Implementation in AISD Discriminatory Impact of Career and Technology Program (CTP).  The CTPs vary according to the schools and the minority student enrollment. The Career and Technology programs appear to offer all students an avenue to increase their knowledge in specialized areas, thus increasing their ability to enter college and obtain jobs in the future.  However, analysis of the objective of the state mandated Career and Technology  programs reveals that the schools maintain wide discretion in creating programs for the “benefit” of their students.   This discretion manifests itself in the wide variety of programs offered at the area high schools.

 

                                                i)          Discretion and Minority Enrollment.  Interestingly enough, the type of programs offered at the schools also varies depending on the number of minority students in attendance at the high school.  By  comparing the type of programs offered at the predominately white schools with those offered at the predominately black and Hispanic schools respectively, this difference becomes apparent. 

 

                                                ii)         CTP Emphasis on Working-Class Trades at Minority Schools.  While there may be a number of reasons why certain schools offer certain programs and others do not, this becomes suspect when courses like “Cosmetology,” “Automotive Front End & Suspension,” and Automotive Brakes and Wheel Alignment” are being offered at primarily at the minority schools in the school system.[201]  A heavy loading of such courses in the curriculum suggests an effort to track students into stereotyped jobs for racial minorities when they leave school (e.g., hairdressers, mechanics). 

 

                                                iii)        Virtual Absence of CTPs at White High Schools. Another noticeable difference between the minority schools versus the majority schools is the simple proliferation of Career and Technology courses in the former.  Anderson, Austin, and McCallum High Schools have a relatively low amount of courses offered through this program as compared to the minority schools of Reagan, Travis, and Crockett.  The exception to this is Bowie High School, which offers courses more similar to the minority schools than the majority schools.  This, however, may be a result of the location of Bowie.  Considering the fact that Bowie is located in South Austin, where a large number of low-income housing is also situated, it may be that class may also be a contributing factor to the type of courses offered at the school.  Thus the lower a perceived student’s economic situation, the greater the likelihood s/he will be tracked into blue-collar work versus white-collar work.  CTPs may function more as a tracking program for low-income and minority students, rather than as an enhancement mechanism.

           

                                                iv)        The Supposed Purpose of CTPs.  The CTPs aim to educate students so they may obtain entry level positions in “high wage, high skilled” areas upon their graduation.[202]  This goal seems commendable in itself.  However, a troubling fact is the focus upon these entry level positions based upon the students’ identification of their interests in middle school.  A counselor at O’Henry Middle school stated that students are asked to identify what areas they wish to pursue upon graduation.[203]  This suggests that the students are being placed on “career tracks” at the appropriate high school.

 

                                                v)         Troubling (Discriminatory) Speculations.  The assertion that CTPs match career interests expressed upon leaving middle school (!) might not seem problematic.  But, consider these questions, “What if the student is unable to identify his/her interests yet, who chooses the student’s career track, the teacher?”  “Which students are encouraged by their counselors or teachers to go into such high tech courses such as “Computer Graphics” and which ones are encouraged to pursue courses like “Hospitality Services?”  How does this “tracking” of students affect their self-confidence and educational expectations if they are initially placed into courses like “Intro to Automotive Service Careers?” 

 

                                                vi)        CTP Design and the Begging of an Important Question.   All of these questions beg the general question,

 

Is the Career and Technology Program really a method to enhance student’s skills while still encouraging them to attend post-secondary school, or does is really serve to diminish students’ desire to attend post-secondary school (4-year and 2-year institutions) by re-focusing them into menial positions not requiring any post-secondary education.? 

 

The answer to these questions would require more information such as the graduation rate and placement of the CTP students which is not available to us at this time.  But, it is our hope that these questions inspire further analysis of the Career and Technology program and its usefulness to minority students versus majority students.

 

                        3.         “Gifted and Talented” or Advanced Placement Programs.  The State plan for the “Gifted and Talented” program is described as follows:  Under §29.121; a ““Gifted and Talented” student” is defined as a child or youth “who performs at or shows the potential for performing at a remarkably high level of accomplishment when compared to others of the same age, experience, or environment and who:  (1) exhibits high performance capability in an intellectual, creative, or artistic area; (2) possesses an unusual capacity for leadership; or; (3) excels in a specific academic field.[204]

 

Each school must adopt a process for identifying and serving “Gifted and Talented” students in the district and shall establish a program for those students in each grade level.[205]  However, the State Board of Education is supposed to develop and update a  state plan for education of “Gifted and Talented”  (G&T) students to guide districts in establishing and improving programs.

           

                                    a)         Allotment - §42.156.  For each identified student, the district is entitled to an annual allotment equal to the district’s  adjusted basic allotment as determined under §42.102 or 42.103, as applicable, multiplied by .12 for each school year or a greater amount provided by appropriation.[206]  Not more than 5% of a district’s students in average daily attendance are eligible for funding under this section.[207] 

 

                                                i)          Under 42.156 (f):  The State Board of Education may use up to $500,000 of the funds allocated under this section for programs such as MATHCOUNTS, Future Problem Solving, Odyssey of the Mind, and Academic Decathlon, as long as these funds are used to train personnel and provide program services.  To be eligible for funding under this subsection, a program must be determined by the Board to provide services that are effective and consistent with the state plan for “Gifted and Talented” education.[208]

 

                                                ii)         Additional information.  Schools are not required to reassess students once identified as “Gifted and Talented”  (G &T).   Hence, students in AISD once identified, remain in the program unless they option out.  

           

                                                iii)        G&T students may be served in the regular classroom.  If so, the regular classroom teacher must have the 30 hours of professional development as delineated in 19 TAC §89.2(1) and an annual update of six hours of professional development in gifted education.[209] 

 

                                                iv)        Advanced Placement (AP).  AP classes may be used to serve the needs of G&T students.  If this option is used, the AP teachers still should have the 30 hours of training in gifted education.  

           

                                    b)        Unequal Racial Distribution in G&T and AP programs.  The “Gifted and Talented” Program creates a dual system based upon racial classifications. Minority students comprise 62.2%  of the total student population within the Austin Independent School District.[210]  With this information in mind, the obvious question is “Why are there so many ‘“Gifted and Talented”’ students in majority white schools, than in the majority minority schools?  From the information provided by AISD, the numbers show that the percentage of “G&T” students diminishes as the minority population in the school increases. 

 

                                                i)          White Students Just Better?  Out of 4455 “G&T” students within AISD only 1274 or 28.6% are minority students despite the fact that the majority of students in the school district are of color.[211]   To some, this might indicate that white students are more “gifted” than minority students, but this does not comport with history.  On the other hand, these statistics call into question the selection process of the school and teachers’ potential abuse of discretion when identifying those “G&T” students.  When only 13% of African-American students graduate in the ““Gifted and Talented”” program while 26% of white students graduate in the program, this selection process must be examined to determine why minority African-American students are not being retained in the program while their white and even Hispanic counterparts are graduating at higher rates of participation. 

                                                ii)         Teachers’ Discretion as a Factor.  One important factor to be considered is the amount of discretion afforded teachers and administrators in the selection of students for the “Gifted and Talented” program. Enrollment in this program relies upon the school personnel’s discretion.[212]  Hence, at least unconscious racial prejudices may control the type of students selected for the program.  This appears to be evidenced by the gross ethnic disparities in these programs.  

 

The fact that students can be selected for the ““Gifted and Talented”” program in elementary school requires some examination as well.   Because the school is allowed to develop its own process of identification and enrichment program for the students, teacher, administrative, and institutional biases can be cultivated early in the educational system against minority students.  The psychological effect of this type of alienation by teachers should not be taken lightly.  Moreover, after being identified as a “G&T” student, the student is provided with special treatment throughout the rest of their secondary school career.[213]  They are not required to take a test to maintain their status.[214] 

                       

                                                iii)        Early Non-tracking into G&T as a Factor.  Once again, the early psychological effects of those not “tracked” into the “G&T” program is an important factor in assessing the achievement levels of minority and majority students.  Considering the fact that the majority of  “G&T” students at all of the schools in AISD, notwithstanding the schools’ ethnic percentages, are white,[215] and the factor that the minority students probably recognize this lack of representation, one should not wonder why so few minority students continue to enter and graduate in the program.  With these  questions in mind, further research and analysis should be done to explain the ethnic disparities in the AISD “Gifted and Talented” program.

 

                        4.         The Return of the Segregative Freedom of Choice Plan.  Although repeatedly seen as discriminatory in the past, AISD, returned to the Freedom of Choice Plan and it is in use today.  The Freedom of Choice Plan is AISD’s method of allowing students the freedom to attend the school of their choice if they are dissatisfied with their neighborhood school.   Students are not bused to the extent that they were during the 1980’s when mandatory busing for integration purposes was still in effect; however, according to the district lines, students may still have a long commute to their respective schools.  This is the same type of plan that AISD tried to implement on the elementary and middle school level as a remedy to the “segregation” problems during the early 1970’s and 1980’s.[216]  Yet, because of the plethora of elementary schools and their locations, this in effect, was simply a neighborhood school plan that allowed for continued segregation of minority and majority students.  

 

                                    a)         Re-institution and Re-segregation.             As a result of the 1986 declaration by the District Court that AISD was now a “unitary” school system, this plan was re-instituted on all levels.[217]  The result is blatantly problematic on the elementary school level as we notice that 75% of the elementary schools are distinctive minority schools.[218]  The middle schools and high schools are not as obvious, but still noticeably majority and minority schools.

 

                                    b)        Factors Affecting Potential Transfers.  AISD controls the influx of students into the school through the transfer program by considering the factors listed below:

 

                                                i)          Magnet school program:  Transfers to the Science Academy at LBJ High School, the Johnston High School Liberal Arts Academy, the Kealing Junior High School Science and Mathematics Magnet, and the elementary schools assigned to Kealing Junior High and Martin Junior High. 

 

                                                ii)         Curriculum transfer:  Transfers to a particular school when a student’s desired program of study is not offered at the student’s school of residence. 

           

                                                iii)        Sibling transfer:  Transfers requested when the siblings of students who will be attending a school at the same time desire to attend the same school.

 

                                                iv)        Tracking transfers:  Transfers requested by the students who have already transferred to another school, and who wish to transfer with their pears to the next level.

           

                                                v)         Student adjustment transfers:  Transfers determined by the administration to be in the benefit of the education of the student.[219]

 

Despite these listed reasons, a student does not have to have a particular reason for requesting a transfer to another school, although those seeking a tracking or sibling transfer receive priority.[220]  As long as the transfer does not interrupt the ethnic balance and space is available, transfers are granted on a first come, first serve basis.[221]  Yet, if the student is granted the transfer, AISD will not provide for his/her transportation to the new school.  This places severe limitations on the ability of some students to transfer to particular schools depending on their economic and family situations.

           

                                    c)         Lumping of Students Into Minority and Majority Schools. Nonetheless, despite the ability of AISD to control for the number of students granted transfers, AISD is still apparently lumping minority and majority students into their respective minority and majority schools.[222]   The commitment to maintaining ethnic balance is theoretical at best.  For example, at the high school level, the predominately Hispanic school of Travis has the highest number of Hispanic students granted transfers into the school than any other high school (68.7%).[223]  The next closest school is Crockett, which coincidentally is the high school with the third largest concentration of Hispanic students (45%).[224]  Moreover, Reagan which is a predominately Black school also has the highest number of Black students granted transfers into their school (59.6%).[225]  The next closest school is Lanier which is also the high school with the third largest concentration of Black students.[226]  In this particular case, it is noteworthy that actually, LBJ has the highest concentration of Black students (50%) versus Reagan’s (48.8 %)[227]; however, only 19% of the students granted transfers were Black.[228]  This may be a result of the Magnet program offered at LBJ, which is predominately white.[229]

 

                                                i)          Whites Transferred to White Schools On the other hand, the majority schools such as Anderson and Bowie similarly have high numbers of White students granted transfers into their school.[230]  (Anderson, had 57.8% while Bowie had 60%[231]).  Both McCallum and Austin also had high numbers with 52.3% and 48.2% respectively.[232]

 

                                                ii)         Segregation Perpetuated Through “Choice” Transfers.  What this suggests is that AISD is simply perpetuating the segregation of minority and majority students through its transfer program.  Though they are able to control for various factors, the numbers indicate that little is being done to balance the gross ethnic disparities in the high schools.  Admittedly, the percentage of majority and minority students denied admittance into to their respective majority and minority schools is high; 62% for Anderson, and 91% for Travis, but this is out of a total of 29 students denied admission to Anderson and 49 to Travis.[233]

 

                                                iii)        Denials of Transfers Don’t Answer the Question.  Clearly, the percentage of white and Hispanic students denied admission speaks little to the percentage of those granted admission.  Thus, as previously shown, those students granted transfers significantly depends upon their ethnicity and whether their ethnic group is already a majority within the school.  If they are, then the numbers show that more than likely, they will be admitted into the school, contributing to the disproportionate ethnic balances within the school.  

 

                                                iv)        A Strong Conclusion:  Freedom of Choice Maintains Racial Identifiability and Segregation.  AISD claims that is wants to provide its students with the freedom to choose their own schools, but at what cost?   AISD claims to consider factors such as ethnic concentration which is true, but this appears to simply maintain the gross ethnic disparities instead of alleviating them.  Hence, the Freedom of Choice Plan, theoretically provides an alternative for students if they are dissatisfied with their neighborhood school, but realistically, the numbers suggest that this program is simply a method of continuing the segregation of students based upon race.

 

                        5.         Magnet Schools

 

                                    a)         The Expressed Purpose of Magnets: To Promote Integration. AISD originally created magnet schools as tools to promote integration.  The District continues to maintain three magnet schools: the Liberal Arts Academy at Johnston High School, the Science Academy at LBJ High School, and the magnet program at Kealing Junior High. The Kealing magnet school program (grades 7-8) provides for acceleration and extension in magnet science and math, and magnet English through hands-on curriculum, higher-level thinking activities created by students, and specialized in-depth study of a student chosen area.  Magnet electives include Flight, Computer Video, Animal Studies, Navigating the Internet, Shakespeare, and Sister Cities. 

 

                                    b)        Magnets’ Failure to Promote Integration in Austin.  Far from promoting integration, magnet schools in Austin appear to perpetuate a dual system of education based on race.  Much like G&T the process of selection, based on subjective and discretionary decisions by teachers, may account for the low enrollment by minority students.  Students are chosen for entering the 7th grade class through an application process that includes standardized grades, teacher recommendations, a student essay, and examples of a student's work.  Students are selected by the magnet school personnel who have substantial discretion in deciding which students to accept. 

 

                        6.  Minority Students Underrepresented In Magnet Programs.  The data strongly suggests that African-American and Hispanic students are not benefiting from the magnet program to the extent that white students are.  Although Kealing Middle School is located in the old Anderson High School, a traditionally African-American school in an African American part of East Austin, 468 of the 662 magnet students are classified as either white or “other.”   The combined number of Hispanic and African American magnet students, 198, is lower than the number of White magnet students, 399.  The magnet student population at Kealing does not reflect the ethnic makeup of the AISD Middle School student population.  The chart below shows the discrepancy between the AISD student population and the population of the magnet middle school:

 

 

 

Student Ethnicity

 

Kealing Magnet Program by #

 

Kealing  Magnet Program by %

AISD Middle School Population by %

African American

105

16.33%

?

Hispanic

92

14.30%

?

White

319

62.05%

?

 

                        7.         Distortion in Official Reports on Magnet Enrollment to TEA for Kealing.  The enrollment numbers reported to the Texas Education Agency (TEA) Academic Indicator Evaluation System (AEIS) obscure the degree of minority enrollment in the magnet school and the general student population of Kealing.  The enrollment figures of Kealing as 29.3% African-American, 24.5% Hispanic,  disguise the fact that 1/3 of the minority students are not in the magnet program, and cannot take magnet classes.  These students come from Kealing's feeder schools which are primarily minority.  Superficially, Kealing appears to be ethnically integrated, but it is not.  Two schools exist at Kealing-a mostly white magnet school, and a "regular" school of minority students.  Crossover between the magnet and non-magnet students occurs only in non-academic courses such as Physical Education (PE), and in non-magnet academic courses for magnet students who do not want to take a specific magnet class. 

 

                        8.         Similar Distortions at Johnston and LBJ High Schools.  The statistics on minority enrollment in the magnet program at Johnston High illustrate a similarly bleak picture for minority students.  In 1997-1998, the magnet program at Johnston was 68.19% white, 16.62% Hispanic, and 13.47% African American.  Although we were not able to get the statistics for minority enrollment in the magnet program at LBJ High School, we were told that the percentages are similar to those at Kealing and Johnston.  Since the LBJ and Johnston magnets both recruit mainly from the magnet program at Kealing, it naturally follows that the racial composition of the high school magnet programs would mirror the racial composition at Kealing. 

 

                        9.         Teachers in Magnet Schools Admit “School within a School” Phenomenon.  Like the magnet program at Kealing, the magnet programs at both LBJ High School (Math & Science Academy) and  Johnston High School (Liberal Arts Academy) do not benefit minority students and white students equally.  The Directors of Magnet Programming at both LBJ and Johnston admitted that their schools suffer from the “school within a school” phenomenon. Although these magnet directors claim to have made efforts to actively recruit minority students for the magnet programs, the directors concede that there is very high attrition on the part of the minority students in these programs. 

 

                        10.       Irrational Explanations for Minority Attrition in Magnet Programs. A question is raised as to why minority students are not successfully being encouraged to stay in the magnet programs.  When asked to explain this high attrition rate, one magnet school administrator hypothesized that minority students were probably dropping out of the magnet program because they were dropping out of school altogether.  It seems very unlikely that a student motivated enough to take magnet classes would then turn around and completely drop out of school.  In fact, the administrator’s speculation to this effect suggests that the administration is out of touch with the reality minority students face in magnet programs.  And even worse, this speculation betrays an underlying racist assumption that even highly motivated minority students are likely not to care about school.

 

                        11.       Unequal Resource Distribution Also Evident in Magnet Schools.  Not only do the magnet programs create racially segregated schools within schools, but the resources within the schools are also unequally distributed.  For example, in hiring “master teachers” for the magnet programs, the hiring committee goes to great lengths to recruit highly qualified teachers for the magnet classes. At Johnston High, for instance, three out of eleven teachers in the magnet program have a Ph.D. and many more have Master’s degrees.  These teachers teach almost entirely magnet classes, although some will occasionally teach a “regular” class so as to avoid the perception that the magnet program is a “parasite” on the host school. 

 

                        12.       Magnet schools have failed their mission and perpetuate a dual system of education.  Magnet schools were created for a variety of reasons, including offering a challenging advanced program for AISD's most promising students, providing a positive voluntary method of integration schools, and encouraging white and middle class families to stay with AISD by providing programs comparable to an academic private school. The magnet programs have failed to fulfill these missions.   Although the magnet programs offer a challenging, advanced, and interesting curriculum, the enrollment numbers by ethnicity do not support a conclusion that students of different ethnic groups are being served equally.   In fact, very few of the most promising African American and Hispanic students are being served.  The magnet schools are not integrated, but are rather schools that are each comprised of two schools that, when combined for statistical counting, present the facade of being integrated.  Finally, the magnet programs, which served only approximately 1,300 students in 1995-1996, are not wide-scale enough to make a significant impact on the 70,000 students in AISD.  For more information regarding the magnet programs, please see Appendices E and F.

 

                        13.       A Possible Remedy for the Dual System Perpetuated by the Magnet Schools.  The biggest impediment to integration at the magnet schools is the degree of discretion allowed in selecting students to the programs.  Since the expressed aim of magnet schools was to promote integration, this goal should be taken into account when students are selected to enter magnet programs, and as students progress through the programs.


 

X.        ANALYSES OF TWO INDIVIDUAL SCHOOLS

 

            A.        Introduction.  As Part of the investigation for this report, one set of researchers made trips to the buildings of specific schools.  The purpose of these visits were to get an overall impression of the quality of the schools, the programs provided, the racial distribution of students and teachers and the functioning of any relevant programs identified.  The following narrative is based on a visit of two racially identifiable “minority” schools.

 

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

 

O’Henry Middle School is located west of Mopac in a predominately Hispanic neighborhood.  My first impression of this school was not favorable.  The school facility is old and fairly run down.  The grounds were not kept nor was the sign indicating what school this was (which added to my difficulty in finding the school).  The students attending O’Henry are bused primarily from East Austin in the Allen and Gavotte elementary school neighborhoods.  The White and Hispanic student comprise about 87% of the student population (47% and 40% respectively), while African-American students make up the rest.  The counselor I met with seemed genuinely concerned about the welfare of the students.  He told me how the counselors at O’Henry follow their students from the 6th grade until they graduate.  As I toured the school, I noticed students in the hallway lying on the floor doing some sort of drawings while others were just hanging out in the hallway talking.  I was able to briefly observe their computer lab which consisted of approximately 15-20 computers.  They all seemed to be fairly up to date.  However, I was told that only a few of the classrooms at O’Henry actually have computers in their classrooms which the students can use on a regular basis.  Thus, 20 computers for  approximately 930 students is not nearly sufficient.  Mr. Freeman conceded that the school was below the standards for computer technology availability. 

 

O’Henry has 10 portables to accommodate is student population.  When I asked about the reason for so many portables, I was told that O’Henry was simply not built to accommodate so many students.  O’Henry is currently undergoing renovation which will alleviate some of the overpopulation of students, however, some portables will still remain.  The school appeared to have a well stocked library facility and even a student run garden.  However, considering the location of the middle school with respect to the neighborhoods where most of the students live, I am skeptical about the parent involvement at the school.  Mr. Freeman said that letters are sent to all of the parents regarding the Magnet school program and meetings are held in the beginning of the year to inform the parents of the “Gifted and Talented” program.   But, the mere difficulty in being actively involved in the school because of its location, can inhibit many of the parents from encouraging the advanced education of their children.

 

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

 

The “Honors” program at Reagan was described as a recognition of status which participating students enjoy from the time they are inducted until graduation.  Teachers see them as students with special needs that require accommodation.  Once a student has been identified as an Honors Student, he or she is always considered above average, without regards to future success in the classroom.  He or she is assisted if academic problems arise in a particular class.  He or she also enjoys the privilege of first choice in  the AP and Honors courses.  Once in the program, it is very rare that a student is dismissed.

 

When asked whether other students were given the option of participating in the AP programs, the counselor referred to those students who would take that option as “over-achievers”.

 

Students are given the option during middle school of taking the standard high school courses, or enrolling into alternative technological vocational programs.  Alternative programs include courses such as hospitality management, auto mechanics, and computer programming.  What is disturbing about the vocational program is that those offered at Reagan are not a reflection of what is being offered at other schools.  It appears to be left to the discretion of the independent schools as to what programs are offered, and what level of technology is taught to the student.

 

I had an opportunity to visit a few classes in the technical program.  I entered the classroom only to discover students socializing over a sultry R&B song blaring over the radio.  The teacher was no where to be found.  I waited five minutes before he appeared.  When he did return, it was evident that the current state of his class was normal.   At one point during our conversation, the teacher stopped to remind one of his male students, who happened to be whispering into the ear of his female classmate, that they were to be talking about schoolwork.  The student quickly replied that he was “helping” the girl, and continued to whisper.

 

He was quick to inform me that Reagan had more money than most schools in the district, but then could not explain why the computers in the lab were so outdated.  When I asked if the school had newer equipment, he then guided me into the adjoining lab that held four new computers.  He said they were rarely used.  I realize I was observing a standard typing course, however, the computers the students were using were from the early to mid eighties.

 

The next classroom I visited was much more behaved.  Music was playing in the background as the students worked on the computer, but it was much tamer than the music heard in the previous room.  The students all seemed to be quietly working through their lesson.  The teacher in this class was very willing to answer questions and give an inside perspective of the school. According to this teacher, her students were very bright, and capable of doing much more than provided in the lesson plans.  As a result, the teacher had obtained a college course-book and was teaching the students how to create web-sites.

 

It was disturbing to learn that this teacher had been encouraged by administration to pass students who attended class regardless of whether they learned the coursework.  It was enough for them to show up and stay for class.

 

The final class I attempted to observe was the auto mechanics course.  The teacher was out for the day.  The substitute teacher had no access into the shop and had been forced to use an adjoining classroom.  When I walked into the room, the television was on and only one student sat in the class.  Word had gotten out that the shop teacher was out so only three people had shown up.  One student had an excuse pass out of class, and one student chose to leave shortly after the period started, without a pass.  It was really discouraging to see students mingling on Cameron Road as I drove away from the school.

 

 

XI.      STATISTICAL ANALYSES AND CONCLUSIONS

 

            A.        Introduction.  More than 75% of Austin’s public schools are racially identifiable   The Supreme Court, in Swann, explicitly discussed the role of statistics for assessing the character of racial proportions of a student body in particular schools.  The Court stated that schools which are “substantially disproportionate in their racial composition” raise a strong presumption of discriminatory intent.[234] 

 

                        1.         The Concept of “Racial Identifiability.” Swann  supported the use of the concept of racially identifiable schools to determine whether a district is in compliance with the prohibition in Brown. dual, that is, racially divided education.  A key factor in determining whether a school is racially identifiable, of course, is determining whether its population is in racial balanced with surrounding demographics. 

 

                        2.         The 15% Determinant.  Over the years, courts have accepted different standards in school desegregation litigation for the identification of racially identifiable schools.  In this study, we have defined racially identifiable schools as any school in which the proportion of a racial is greater than or less than that group’s representation in the district as a whole by more than a 15% difference.[235]

           

            B.        Blatant Racial Identifiability of Austin’s Schools.  An examination of the racial composition of Austin’s schools reveals that of the ninety-one (91) academic schools operated by AISD, under the standards set forth by the  Supreme Court in Swann  and Keyes, sixty-nine (69) are racially identifiable schools.[236]  In other words, over 75% of AISD schools can be designated as identifiable by a proportion of students of a particular race at least 15% above the proportion of that race in the district as a whole.  These racially identifiable schools are pervasive throughout the AISD system, at all levels of education.

 

                        1.         Only three (3) out of ten (10) Integrated High Schools.  Of the ten high schools operated by AISD, seven are racially identifiable.  Four of AISD's high schools are identifiable as white schools (Anderson, Austin, Bowie, and McCallum).  White students make up 37.7% of the all students in AISD.[237]  In these identifiably white schools, however, white students far outnumber African-American and Hispanic students combined, and in two, there are nearly twice as many white students as all other students combined.  All four of these high schools are located west of I-35.  Anderson High has the largest percentage of white students, 67.5%, which is more than six times the percentage of African-American students (9.7%) and more than three times the percentage of Hispanic students (18.8%).  At Bowie high (66.5% white), there are over ten white students for every one African-American student (6.1% African-American).

                       

                        2.         The Black High Schools. Two of AISD's high schools are identifiable as African-American -- LBJ and Reagan.  In these schools, African-American students nearly outnum­­ber white and Hispanic students combined, far outpacing the proportion of African-Americans district-wide.  LBJ High School has 50.4% African-American students and Reagan has 48.8%, compared to a district-wide 18% African-American population.[238] 

 

                        3.         The Hispanic High School. One AISD high school is identifiably Hispanic—Travis High School.  Hispanic students make up 41.7% of the district-wide population,[239] but are disproportionately represented at Travis.  At Travis, Hispanics compose 68.7% of the population, more than twice the African-American (10.0%) and white (19.0%) students combined (29.0%).  Travis High School is located slightly to the west of I-35, and primarily draws students from East and South Austin.

 

                        4.         Combined Minority Population Schools. Furthermore, the combined minority population is disproportionately large at several high schools.  Reagan High School has a student body consisting of 89.7% minority students.  Travis and Johnston also have minority representation over 80%, despite the fact that minority students only make up 62.2% of students district-wide.[240]

 

                        5.         Nine Out of Fifteen Racially Identifiable (“Packed”) Middle Schools.  Nine (60.0%) of the fifteen middle schools operated by the AISD are racially identifiable.  Eight of these schools have more than 50% of either white, Hispanic, or African-American students, seven have more than 60%, and two have more than 70% of one race.  Three AISD secondary schools are identifiable as white (Bailey, Covington, and Murchison).  One of these schools, Bailey, is close to 72% white, despite the district-wide percentage of 37.7% white.  All three of these schools are located west of I-35.  The middle schools also have a very wide discrepancy in the percentage of white students, with Bailey 71.5% white, and Perch 3.9% white, a 67.6% spread. 

 

                        6.         Two Black Middle Schools.  There are two middle schools identifiable as African-American (Dobie and Pearce) and both are located in East Austin.  Pearce, at  57.2%, has a proportion of African-American students over three times the district-wide proportion of 18.0%.  These schools also have a very high proportion of students of all minority groups combined.  Minorities combined make up over 96% of the students at Pearce, and over 87% of the students at Dobie. 

 

                        7.         Four Hispanic Middle Schools.  Four more middle schools are easily identifiable as Hispanic schools (Fulmore, Martin, Mendez, and Webb).  All four have more than 65% Hispanic student populations, while Hispanic students make up 41.7% of the AISD school-age population as a whole.  Of these four schools, three have fewer than 20% white students.  As in the case of the African-American middle schools, therefore, it is clear that these schools have very large numbers of minority students “packed” together in the same schools, while other schools remain predominantly white.  In all, five (33.3%) of Austin’s middle schools have more than 80% minority students.

 

                        8.         Extremely Segregated Elementary Schools.  The most segregated of AISD schools by far are the elementary schools, educating young Austin residents during their most formative years.  Fifty-three, or more than 80%, of AISD's sixty-six elementary schools are racially identifiable.  In a school district with a 62.2% proportion of minority students, seventeen (over 25%) of the elementary schools are over 95% minority in population (Allison, 96.5%; Allan, 98.5; Blackshear, 98.6%; Brooke, 97.57%; Campbell 987.5%; Govalle, 98.8%; Harris, 96.8%;  Jordan, 98.3%; Metz, 98.4%; Norman, 97.1%; Oak Springs, 97.9%; Ortega, 97.5%; Pecan Springs, 95.4%; Sanchez, 97.0%; Sims, 98.0%; Winn, 96.1%, and Zavala, 99.1%).  Fifty-six (over 84%) of the AISD elementary schools are over 50% white, Hispanic, or African-American, forty-one (over 62%) have over 60% of one race, twenty-eight are over 70%, twelve are over 80%, and three are over 90% one race.  The Hispanic schools are the most identifiable.  Three schools (Brooke, Metz, and Sanchez) are over 95% Hispanic.  Twenty-four (24) elementary schools are identifiable as Hispanic, eleven (11) as African-American, and eighteen (18) as white.

           

                        9.         Overall Racial Identifiability of the School District.  The total number of racially identifiable schools is 69 out of 91 schools, over 75% of all schools in the AISD.  This number is astounding, especially in light of the new residential patterns that exist in Austin.[241]   Since 1970, the total level of residential segregation has fallen for both African-Americans and Hispanics.[242]   The population in Austin has grown from 132,459 in 1950 to 251,808 in 1970 to 465,622 in 1990, the time of the last census.[243]  From 1970 to 1990 the African-American population increased from 32,270 to 60,998, the Hispanic population increased from 43,899  in 1970 to 121,689  in 1990 and the white population increased from 219,347 in 1970 to 343,720 in 1990.[244]  As of April 1, 1995 the ethnic population breakdown in Austin was as follows: whites (57.1%), Blacks (11.5%), and Hispanics (27.3%). 

 

                        10.       Residential Segregation Patterns Dropping, but School Segregation the Same or Increasing.  According to a demographic study conducted by the City of Austin after the 1990 census, ethnic segregation has decreased substantially since 1970.[245]  Using an “Index of Similarity,” which measures segregation (on scale from 0 of 100, with higher numbers indicating greater segregation), the City found that African-American segregation had fallen from 72% in 1970 to 44.6% in 1990.[246]  Hispanic segregation has fallen from 42.2% in 1970 to 32.6% in 1990.[247]   This significant change in residential demographics would lead one to expect a change in school demographics as well.  This is simply not the case.  Since 1970, the number of racially identifiable schools has not fallen in accordance with the new residential model.

 

XII.   THE RETURN TO RESEGREGATION IN EDUCATION IN AUSTIN.

 

            A.        Introduction.  For a very brief period in its educational history since the Supreme Court decided Brown v. Board of Education  Austin was in compliance with the Supreme Court mandate that there be no officially sanctioned racial segregation in public education.  This short period of integration was achieved only after bitter battles were fought in the courts, in the media and in the streets.  As quickly as desegregation came it went.  AISD official policy manifests an unarticulated but firm intentio to move on integrating, to facilitate the location of schools and attendance zones so as to perpetuate intentionally designed patterns of residential segregation which originated in the period of Jim Crowisn, and to return as quickly as possible to concepts and policies, such as “neighborhood schools,” which create the semblance of compliance with the law.  This is a harsh suggested conclusion.  The data below substantiates the claim.

 

            B.        The Return to Resegregation After the Desegregation Plan of the 1980s.  The years following the abandonment of the desegregation plan of the 1980s and the return to a neighborhood school policy have seen a resegregation of many schools in Austin. Schools that had achieved a reasonable level of integration once again became identifiable as “minority schools” or “white schools.”  Tables A1-A4 below illustrate how the racial balance of a sampling of schools improved, and then deteriorated again, in the years between 1971 and 1997. [248]

 

Tables A1:

Reagan High 1971-1997

 

 

Year

African American

 

Hispanic

 

White

1971

11%

2%

87%

1987

33%

17%

50%

1997

49%

39%

10%

 

Table A2

Campbell Elementary 1971-1997

 

 

Year

African American

 

Hispanic

 

White

1971

95%

5%

0%

1987

41%

21%

38%

1997

58%

39%

3%

 

 

Table A3:

Ortega Elementary 1971-1997

 

 

Year

African American

 

Hispanic

 

White

1971

59%

38%

3%

1987

24%

38%

38%

1997

22%

75%

2%

 

 

Table A4:

Andrews Elementary 1971-1997

 

 

Year

African American

 

Hispanic

 

White

1971

1%

4%

95%

1987

56%

25%

19%

1997

43%

50%

7%

 

 

            1.  The Disproportionate Assignment of Minority Teachers to Minority Schools

           

            The challenge to the school district in the area of teacher assignment is to have a representative number of minority teachers throughout the district while assigning  them to individual schools in a uniform matter.  AISD's efforts fall short of these goals.

 

            2.  Most AISD Teachers are White and Most AISD Students are African-American and Hispanic.  The ethnic proportion of the district-wide teachers is not in line with that of the students.  The district wide percentage of white teachers (69.9%) is disproportionately high in comparison to the percentage of white students (37.7%).[249]  While the percentage of Hispanic students is 41.7%, the proportion of Hispanic teachers (20.2%) has remained at a much lower level.[250]   Similarly, the percentage of African-American teachers (9.0%) is half that of African-American students (18.0%).[251]  Thus, despite the fact that minority groups together account for more than 60% of all students in the district, nearly 70% of all teachers are white.

 

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

            The  assignment of these teachers reinforces the racially identifiable status of AISD's schools; where minority students are most numerous, so are minority teachers, resulting in a system segregated with respect to students as well as teachers.             

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

            The high school with the highest percentage of white students in the district is Anderson (67.5%), ironically once the black high school in Austin.    Anderson has the highest percentage of white teachers (86.7%). Anderson also has the lowest percentage of African-American teachers of any high school in the district; students at Anderson are likely to never take a class from the school’s two African-American teachers.   

            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.

 

            At the other end of the spectrum, the highest percentage of African-American teachers is at LBJ, which has the highest percentage of African-American students (50.4%).  Even at LBJ, however, nearly two out of every three teachers are white. 

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

            Travis High School, which is the only racially identifiable Hispanic school, with 68.7% Hispanic students. 

 

4.  Midle Schools Demonsrate Similar Patterns of Racial Identifiability.

 

            This pattern exists in the middle schools as well.  Overall, the higher percentage of minority teachers are in racially identifiable minority schools, and these schools are primarily located in East Austin.  For example, Pearce Junior High has the highest percentage of African-American students (57.2%) and has by far the highest percentage of African-American teachers (40.4%).  In fact, Pearce is the only middle school in the AISD in which white teachers (48.2%) are not the majority; in no other middle school do the minority teachers combined reach the percentage of white teachers.

 

5.  Extreme Patterns of Racial Identifiability at Elementary Schools.

 

The elementary schools are the most egregious.  For example, Hill Elementary is overwhelmingly an identifiably white school.  More than four out of every five students at Hill are white.  Similarly, 97.8% of teachers at Hill Elementary are white.  In fact, Hill has exactly one minority teacher, an African-American.  Furthermore, elementary students at Barton Hills, Cunningham, Highland Park, Kocurek, Dawson, Gullett, Metz, Ortega, St. Elmo, and Zilker are likely to leave elementary school never having seen an African-American in the important role of teacher, as there is not one single African-American teaching at these schools. 

           

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

 

            At schools that are identifiable as African-American based on the makeup of the student body, however, there are much larger numbers of African-American teachers.  Of the identifiably African-American schools, all but two (Pease and Graham) have more African-American teachers than the district average.  At ten of the fifteen identifiably African-American schools in the AISD, the proportion of African-American teachers is more than twice the district-wide average of 9.0%  Thus, African-American teachers within the district are "packed" into minority schools. 

 

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

 

            Similarly, in almost every identifiably Hispanic school, the percentage of Hispanic teachers is significantly above the district wide average of 20.2%, and often more than twice the average.   Hispanic teachers are steered towards Hispanic schools. 

 

            c) The District-wide Overrepresentation of White Teachers. 

 

In every racially identifiable white school, the percentage of white teachers is above the district wide average of close to 69.9%.  Thus in identifiably white elementary schools, the vast majority of teachers are white.  Some, such as Hill and Bryker Woods, have an even more homogeneous teacher population, with more than 90% white teachers.

 

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

           

            a)  Overall Teacher Experience at Minority Schools.

 

An analysis of the levels of experience of teachers assigned to racially identifiable minority schools is as disturbing as the racial segregation of teachers.  District-wide, the racial composition of the student body is a good predictor of the level of experience of the faculty of a particular elementary school.  In identifiably white elementary schools, 22.6% of teachers have between zero and five years of classroom experience.  In stark contrast, the number of teachers with minimal classroom experience jumps to 39.7% in identifiably Hispanic schools, and climbs even higher still to 45.8% of teachers in the identifiably African-American schools.

           

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

 

Furthermore, many of the predominantly-minority schools have an even higher rate of teachers with relatively few years of classroom experience than these averages may suggest.  For example, 61.2%  of the teachers at Harris Elementary (96.8% minority students) have five or fewer years of classroom experience.  Similarly, 66.4%  of the teachers at Jordan Elementary (with 98.3% minority students) have five or fewer years of classroom experience.  Compare this with predominantly-white schools such as Bryker Woods (78.4% white) and Casis (79.5% white).  Only 4.4% of the teachers at Bryker Woods and 7.2% of the teachers at Casis have between zero and five years of classroom experience.

           

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

 

District-wide, the level of teacher experience at a particular school rises with the proportion of white students at the school.  Figures B1-B5 show this trend. 

 

                        i) Division of the Data in the Tables.

 

The tables divide the elementary schools into five groups, with the first group comprising schools with less than twenty percent (<20%) white students and the last group consisting of schools with eighty percent (>80%) or more white students. 

 

                        ii) Discriminatory Impact Illustrated in Tablew on Teacher Experience.  

The tables illustrate the striking differences in teacher experience between the different groups.  While teachers in the first (predominantly-minority) group have on the average 9.6 years of experience, the teachers in the fifth (predominantly-white) group have an average of 14.0 years experience.[252]

 


Table B1

Teacher Experience: Schools Less Than 20% White

 

 

 

 

School

 

%

White

Students

Average

Teacher

Experience

(Years)

Zavala

0.9

9.9

Govalle

1.2

9.2

Blackshear

1.4

8.4

Allan

1.5

10.2

Metz

1.6

11.8

Jordan

1.7

6.7

Sims

2.0

9.5

Oak Springs

2.1

6.9

Ortega

2.4

6.8

Brooke

2.5

12.1

Campbell

2.5

8.2

Norman

2.8

5.9

Sanchez

3.0

12.2

Harris

3.2

7.4

Allison

3.5

13.9

Winn

4.0

11.3

Pecan Springs

4.2

9.5

Houston

6.1

6.0

Andrews

6.7

10.1

Blanton

7.7

7.9

Brown

8.1

9.0

Widen

9.1

9.2

Becker

9.3

12.8

Ridgetop

13.0

12.8

Dawson

13.5

10.4

Linder

13.5

10.0

Woolridge

17.4

12.7

Walnut Creek

18.1

9.7

Average

 

9.6


Table B2

Teacher Experience: Schools 20% To 40% white

 

 

 

 

School

 

%

White

Students

Average

Teacher

Experience

(Years.)

Galindo

20.2

13.7

Barrington

20.4

11.9

Langford

20.6

9.9

Maplewood

22.5

14.4

Reilly

24.9

11.4

Wooten

24.9

11.3

Palm

25.1

9.3

Pleasant Hill

25.2

9.6

Graham

25.3

11.3

St. Elmo

25.3

15.2

Cook

32.0

11.8

Travis Heights

34.6

12.4

Odom

35.9

12.8

Pease

36.5

10.0

Mathews

38.2

14.6

Average

 

11.9


Table B3:

Teacher Experience: Schools 40% To 60% White

 

 

 

 

School

 

%

White

Students

Average

Teacher

Experience

(Years.)

Joslin

41.6

15.3

Williams

49.4

12.4

Sunset Valley

49.6

12.7

Pillow

51.5

13.0

Zilker

52.3

12.2

Cunningham

57.7

13.5

Brentwood

58.6

11.5

Boone

59.6

10.5

Average

 

12.5

 

 

Table B4

Teacher Experience: Schools 60% To 80% White

 

 

 

 

School

 

%

White

Students

Average

Teacher

Experience

(Years.)

Kocurek

60.1

13.2

Summitt

72.7

15.8

Patton

76.6

14.5

Menchaca

77.8

11.0

Lee

78.2

12.3

Bryker Woods

78.4

14.5

Kiker

79.4

10.3

Casis

79.5

16.6

Barton Hills

79.7

11.0

Average

 

13.2

 

 

 


Table B5

Teacher Experience: Schools Over 80% White

 

 

 

 

 

School

 

%

White

Students

Average

Teacher

Experience

(Years.)

Davis

80.5

14.7

Doss

80.5

15.0

Oak Hill

82.7

15.7

Gullett

84.8

13.9

Hill

85.2

12.3

Highland Park

89.7

12.5

Average

 

14.0

 

           

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

 

The elementary schools with the most inexperienced teachers are all in predominantly-minority areas in the Eastern parts of Austin.  Figure C below depicts the location of the nineteen elementary schools in which the teachers have, on the average, less than ten years (<10yrs.) of experience.  Without exception, these schools are in predominantly-minority neighborhoods in the eastern part of the city.  Most are East of I-35 and all but three have a minority student population over 80%. 


Figure C

Map Of AISD Attendance Zones And Teacher Experience

{INSERT COLOR MAP}

           

The school district has not only created separate, racially identifiable schools, but has made them unequal as well. 

 

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

 

The district's intentional placement of so many inexperienced teachers in minority schools has compromised the quality of education for the students in those schools, white and minority alike.  In achieving integration, the goal should not only be to promote ethnic diversity, but also to ensure that all children receive the same benefits and opportunities, regardless of race.[253]  Predominantly-minority schools should not be the training ground for the district's inexperienced teachers, while the white students benefit from the enhanced knowledge and skill of experienced teachers.

 

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

           

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

 

In addition to the disparities in student and teacher demographic data in AISD, another area in which inequality can be clearly seen is in performance on standardized tests.  In an effort to simplify the data, we have chosen to depict the educational inequity that exists through an analysis of TAAS scores. 

 

            i) The TAAS Measure.  

The TAAS test is the “criterion-referenced test measur[ing] student achievement in reading and mathematics at grades 3–8 and 10, writing at grades 4, 8, and 10, and science and social studies in grade 8.”[254] 

 

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

 

TAAS scores and other standardized test are an especially apt measure of campus equality or inequality because the tests are common to all schools and all students are required to take the them before completing high school.[255]  If the educational quality of each school were the same, there should be little or no variance between the TAAS results from one school to another regardless of  the ethnic composition of the campus.

 

            b) TAAS and minority-Majority Elementary Schools.

 

I                       i) Harris - A Minority School.

 In 1997 at Harris Elementary, a 96.8% minority campus, students scored significantly lower than their counterparts at Bryker Woods Elementary, a 78.4% white campus.  At Harris, only 57.0% of African-Americans and 44.8% of Hispanics passed the reading section of the TAAS test; 53.8% of African-Americans and 64.7% of Hispanics passed the math component of TAAS; and only 42.6% of African-Americans and 36.2% of Hispanics passed all sections of the TAAS. 

 

                        ii) Bryker Woods - White Majority School.

 

At Bryker Woods, on the other hand, 97.3% of whites, 100% of Hispanics, and 83.3% of African-Americans passed the reading component of the TAAS test; 91.8% of whites, 83.3% of Hispanics, and 83.3% of African-Americans passed the math section of the TAAS test; and 91.9% of whites, 83.3% of Hispanics, and 83.3% of African-Americans passed all sections of the TAAS test.   Not surprisingly, the state considers Bryker Woods Elementary to be an “exemplary” school whereas Harris Elementary is considered only to be “acceptable.”

 

                        iii) Similar Results for Economically Disadvantaged Students.

 

 

These differences are also present among students who are classified as “economically disadvantaged” and “special education.”  At Harris Elementary, 50.3% and 55.0% of “economically disadvantaged” students passed the TAAS test