United States of America, Plaintiff-appellant,dedra Estell Overton et al., Intervenors-appellants, v. Texas Education Agency et al. (austin Independent Schooldistrict), Defendants-appellees, 564 F.2d 162 (5th Cir. 1977)

In accordance with the mandate of the Supreme Court in Austin Independent School District v. United States, 1976, 429 U.S. 990, 97 S. Ct. 517, 50 L. Ed. 2d 603, we have reconsidered the Austin School case, United States v. Texas Education Agency, 5 Cir. 1976, 532 F.2d 380 (Austin II), in light of Washington v. Davis, 1976, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597. We reaffirm our reversal of the district court's judgment.

After restudy of our two earlier decisions and the record, we again hold that the evidence overwhelmingly supports the conclusion that the Austin School Board, Austin Independent School District (AISD), engaged in acts showing a pervasive intent to segregate Mexican-Americans. Dayton Board of Education v. Brinkman, --- U.S. ----, 97 S. Ct. 2766, 53 L. Ed. 2d 851 (1977), however, as we read it, compels the remand of the case for a hearing so that the AISD may submit and the district court approve a tri-ethnic desegregation plan consistent with the decisions of this Court and of the United States Supreme Court.

Seven years after the Attorney General of the United States initiated this tri-ethnic school desegregation suit under the Civil Rights Act of 1964, 42 U.S.C. § 2000c-6, it comes to this Court for the third time, this time on remand from the Supreme Court.

In United States v. Texas Education Agency, 5 Cir. 1972, 467 F.2d 848 (en banc), Austin I, this Court held, with respect to black students, that "the AISD has not dismantled the state-imposed (segregated school) system based on race". The district court had entered an order approving a plan that closed black secondary schools. The students in those schools were assigned to Anglo secondary schools. This plan scattered blacks of secondary school age through the district, but put the entire burden of transportation on blacks. We held, "The AISD has 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' ". 467 F.2d at 870.

With respect to Mexican-American students, we held that the district court was clearly erroneous in finding that the AISD had not practiced segregation against that identifiable ethnic minority. We held that through various actions AISD officials "caused and perpetuated the segregation of Mexican-American students within the (Austin) school system". 467 F.2d at 865-866. We ordered that the school system "be converted to a unitary system on a tri-ethnic, desegregated basis". 467 F.2d at 871. The en banc court of fourteen was unanimous in holding that AISD intentionally discriminated against Mexican-Americans and was divided only as to how desegregation should be accomplished.

On remand, the district court was at a disadvantage in carrying out the mandate in Austin I in view of the decision of a majority of our Court rejecting a motion to clarify the remedy (the vote was nine to five).¹  5 Cir., 470 F.2d 1001. The district court also had to consider the Supreme Court's supervening decision in Keyes v. School District No. 1, Denver, Colorado, 1973, 413 U.S. 189, 93 S. Ct. 2686, 37 L. Ed. 2d 548. The district court reiterated its earlier holding that "the AISD . . . has engaged in discriminatory assignment of black students to promote segregation". The court ordered the black high school and junior high school closed, again throwing the burden of busing only on the blacks. The district court held that its finding of past intentional segregation of blacks constituted a prima facie case of intentional segregation of Mexican-Americans. It concluded, however, that the AISD had rebutted this prima facie case by demonstrating that there was no intentional discrimination against Mexican-American students. Nevertheless, the court included them in the limited desegregation remedy it approved for blacks. That remedy was to desegregate one grade in the black elementary schools the sixth leaving segregation untouched in the district's other grades and schools. Mexican-American children were left in their segregated facilities, except for those who attended the Sixth Grade Center. The district court approved certain worthy bilingual and bicultural programs.

The unique limitation on desegregation to the sixth grade in black schools, which the AISD proposed and was approved by the district court, raises a fair inference that the AISD intended to continue extensive segregation of Mexican-Americans. The AISD suggests that the 1974 Education Amendments,20 U.S.C. § 1701 et seq. (1976 Supp.), somehow support this blanket exclusion. There are two answers to this contention. First, as the AISD in its own brief correctly observes:

"the provisions of this chapter are not intended to modify or diminish the authority of the courts of the United States to enforce fully the fifth and fourteenth amendments to the Constitution of the United States." 20 U.S.C. § 1702(b).

Second, the 1974 amendments do not support the wholesale exclusion of entire grades from a desegregation plan. They merely "find" that "the risks and harms created by excessive transportation are particularly great for children enrolled in the first six grades". 20 U.S.C. § 1702(a) (5) (emphasis added). This legislation does not purport to prohibit desegregation of children at such grade levels, but points out the obvious; as the Supreme Court said in Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 31, 91 S. Ct. 1267, 28 L. Ed. 2d 554, age is one factor in evaluating the "practicalities" of a transportation plan.

In United States v. Texas Education Agency, 5 Cir. 1976, 532 F.2d 380 (Austin II), the district court's finding of de jure discrimination against blacks was not appealed. We again reversed the district court's holding that the AISD had not subjected Mexican-American students to intentional discrimination. We held that the plaintiffs had made out an unrebutted prima facie case of segregation of Mexican-American students. We further held that the Sixth Grade Plan part time desegregation for some was "constitutionally insufficient". We instructed the district court to "draft a comprehensive tri-ethnic desegregation plan" that would "conform to one of the approaches outlined by Dr. Finger in his written submission of August 14, 1972, and in his testimony". 532 F.2d at 399. (Dr. Finger was the court-appointed expert in Swann.) The Finger Plan, submitted by the Mexican-American intervenors, envisioned the conversion of the Austin school system to a 4-4-4 or a 5-3-4 grade structure in which all students "in elementary schools that are over 50 percent minority would be bused to elementary schools that are over 90 percent Anglo", and middle school students "in schools that are over 90 percent Anglo would be bused to schools that are over 50 percent minority". 532 F.2d at 395. High school integration would be accomplished "by selecting, for each high school, feeder schools that would maximize the integration of that high school". Id.

The AISD petitioned for a writ of certiorari. The United States, in its brief on certiorari, had doubts about this Court's rationale in Austin II, but contended that the judgment was correct in holding "that the AISD engaged in pervasive acts of discrimination against Mexican-Americans". The Supreme Court granted certiorari, vacated our decision, and remanded the case to us "for reconsideration in light of Washington v. Davis." We now review our decision in Austin II in light of this mandate.

We note at the outset, our determination that the AISD practiced intentional discrimination against black students is not in issue; the AISD did not appeal the district court's finding to this effect in Austin II. 532 F.2d at 392. Moreover, because Washington v. Davis is concerned with the evidentiary showing necessary to establish an equal protection violation in those situations where there has been no law specifically requiring segregation, that decision is inapplicable "where a statutory dual system has ever existed", Keyes v. School District No. 1, Denver, Colorado, 1973, 413 U.S. 189, 201, 93 S. Ct. 2686, 2694, 37 L. Ed. 2d 548, 559.²  Our concern here, therefore, is with the effect of Washington v. Davis on our holding that the AISD unconstitutionally discriminated against Mexican-American students.

In Washington v. Davis the Supreme Court held that otherwise neutral state action does not violate the fourteenth amendment's equal protection clause "solely" because it has a disproportionate impact on a racial minority. Instead, courts must "adhere to the basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose³ ". 426 U.S. at 240, 96 S. Ct. at 2048. The use of the word "solely" was clarified by Mr. Justice White, organ of the Court. He was careful to point out that a racially disproportionate effect may be an important evidentiary consideration in evaluating whether state action was discriminatorially motivated.

Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another. It is also not infrequently true that the discriminatory impact . . . may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds. . . . Disproportionate impact is not irrelevant, but it is not the sole touchstone of invidious racial discrimination forbidden by the Constitution.

426 U.S. at 242, 96 S. Ct. at 2049.

More recently, in Village of Arlington Heights v. Metropolitan Housing Development Corp., 1977, 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d 450, upholding the constitutionality of a local zoning decision that had a disproportionate effect on blacks, the Supreme Court elaborated upon its holding in Washington v. Davis by detailing evidentiary guidelines under which the discriminatory intent requirement of Washington v. Davis could be satisfied. Mr. Justice Powell, for the Court, carefully noted that Washington v. Davis "does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes". (Emphasis added). 429 U.S. at 97 S. Ct. at 563. In his opinion he stated:

The impact of the official action whether it 'bears more heavily on one race than another,' Washington v. Davis, 426 U.S. at 242 (96 S. Ct. 2040) may provide an important starting point. Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face. . . .

The historical background of the decision is (another) evidentiary source, particularly if it reveals a series of official actions taken for invidious purposes. . . . The specific sequence of events leading up the challenged decision also may shed some light on the decisionmaker's purposes. . . . Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. Substantive departures too may be relevant, particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached.

429 U.S. at 266-67, 97 S. Ct. at 564.

In Austin II, as will be discussed more fully, we referred to the neighborhood assignment system as neutral on its face, but observed that all of the evidence showed that the AISD resorted to that system only when it would produce the maximum feasible separation of Anglos from Mexican-Americans. When it did not, the AISD resorted to gerrymandering, dual-overlapping zones, discriminatory school siting and capacity decision (tailoring the design, location, and size of a school to fit only a racial or ethnic group), and other discriminatory devices. The package demonstrated a pervasive intent to discriminate against Mexican-Americans.

The principle that plaintiffs challenging official action as racially or ethnically discriminatory must show the existence of a purpose or intent to discriminate was foreshadowed in Keyes v. School District No. 1, Denver, Colorado, 1973, 413 U.S. 189, 93 S. Ct. 2686, 37 L. Ed. 2d 548, three years before our decision in Austin II. In writing Austin II we were conscious of the Court's statement in Keyes, "We emphasize that the differentiating factor between de jure segregation and so-called de facto segregation . . . is purpose or intent to segregate." (Emphasis in original.) 413 U.S. at 208, 93 S. Ct. at 2697. The essential element of de jure segregation is "a current condition of segregation resulting from intentional state action". 413 U.S. at 205, 93 S. Ct. at 2696. The Court in Keyes, however, did not explicate whether the discriminatory intent necessary to make out an equal protection violation in school desegregation cases was to be determined (a) under a subjective standard, which would require a court to determine whether the official decisionmakers harbored a subjective desire to segregate or discriminate⁴  or (b) under an objective standard, by which the official decisionmakers would be held to have intended the reasonably foreseeable consequences of their decisions.⁵ 

We understand the difficulties inherent in employing a subjective intent test to determine whether school board authorities practiced impermissible de jure segregation against minority students.⁶  In Austin II, therefore, we adopted an objective test for ascertaining discriminatory intent and "incorporat(ed) in school segregation law the ordinary rule of tort law that a person intends the natural and foreseeable consequences of his actions". 532 F.2d at 388.⁷  In reading the "natural and foreseeable consequences" test into the necessary requirement of segregative intent (Washington v. Davis), this Circuit stands not alone, but in company with four other circuits. Hart v. Community School Board of Education, New York School District # 21, 2 Cir. 1975, 512 F.2d 37, 50-51 (a well articulated decision); Morgan v. Kerrigan, 1 Cir. 1974, 509 F.2d 580, 588, affirming Morgan v. Hennigan, D. Mass. 1974, 379 F. Supp. 410, 478, cert. denied, 1975, 421 U.S. 963, 95 S. Ct. 1950, 44 L. Ed. 2d 449; Oliver v. Michigan State Board of Education, 6 Cir. 1974, 508 F.2d 178, 181-182, cert. denied, 1974, 421 U.S. 963, 95 S. Ct. 1950, 44 L. Ed. 2d 449; Bradley v. Milliken, 6th Cir. 1973, 484 F.2d 215, 222, aff'd in relevant part, 1974, 418 U.S. 717, 738 n. 18, 94 S. Ct. 3112, 41 L. Ed. 2d 1069, 1087 n. 18 (adopting district court's reliance on "natural and predictable effect" school board policies). Cf. United States v. Board of School Commissioners of Indianapolis, Ind., 7 Cir. 1973, 474 F.2d 81, 84-85, cert. denied, 1973, 413 U.S. 920, 93 S. Ct. 3066, 37 L. Ed. 2d 1041.

In neither Washington v. Davis nor Arlington Heights did the Supreme Court directly confront the issue of what type of official intent subjective or objective a plaintiff must show to present a prima facie case of impermissible racial or ethnic discrimination or segregation under the fourteenth amendment's equal protection clause. Washington v. Davis and Arlington Heights did establish that the disproportionate racial impact of the neutral application of a long-standing neutral policy, by itself, will rarely constitute a constitutional violation. Those decisions thus partly answered in the affirmative, one of the questions left open in Keyes "whether a neighborhood school policy of itself will justify racial or ethnic concentrations, in the absence of a finding that school authorities have committed acts constituting de jure segregation".⁸  We are well aware that some official actions on which a plaintiff hinges an allegation of unconstitutional discrimination have historically been motivated by racially and ethnically neutral bona fide concerns, such as the desire to have children attend the school closest to their home, and no showing is made that those concerns were actually subordinate to, or a subterfuge for, unconstitutional discrimination. In those circumstances, that a discriminatory result was the natural and foreseeable consequence of the actions is insufficient to infuse the challenged acts with the type of discriminatory intent required by Washington v. Davis and Arlington Heights. Nevertheless, we emphasize that we do not read Washington v. Davis and Arlington Heights as banishing from the law of racial and ethnic discrimination the venerable common law tort principle that a person intends the natural and foreseeable consequences of his actions. When the official actions challenged as discriminatory include acts and decisions that do not have a firm basis in well accepted and historically sound non-discriminatory social policy, discriminatory intent may be inferred from the fact that those acts had foreseeable discriminatory consequences. As a practical matter, in school desegregation cases we can envision few official actions, other than the decision to use a neighborhood school policy for student assignment, that would not be subject to the "natural foreseeable consequences" rule.⁹  The presumption is especially probative in assessing the official intent behind such affirmative school board decisions as those concerning school locations, the construction and renovation of schools, the closing of schools, the drawing of student attendance zones, and the assignment of faculty and staff.¹⁰ 

There is language in our Austin II opinion that an official discriminatory intent adequate to support a finding of de jure segregation could be inferred solely from the school board's use of a neighborhood school policy for student assignment.¹¹  To the extent that Austin II can be so read, it is inconsistent with Washington v. Davis and Arlington Heights. The Supreme Court recognized this ambiguity in vacating our decision and remanding the case to us.

In Austin II, however, we analyzed the cause and effect test used in Austin I, which was the same test applied in our earlier decision in Cisneros v. Corpus Christi Independent School District, 5 Cir. 1972, 467 F.2d 142 (en banc), cert. denied, 1973, 413 U.S. 920, 93 S. Ct. 3053, 37 L. Ed. 2d 1041. In light of Keyes, we expressly rejected the argument of the Mexican-American intervenors that Keyes did not establish that segregative intent is a necessary element of unconstitutional school segregation. We held, quoting from Morales v. Shannon, 5 Cir. 1975, 516 F.2d 411, 412-13, cert. denied, 1975, 423 U.S. 1034, 96 S. Ct. 566, 46 L. Ed. 2d 408, that "(W)ith respect to the first issue, segregatory intent, we are governed by Keyes . . . which supervenes our holding in Cisneros . . . to the extent that Keyes requires as a prerequisite to a decree to desegregate a de facto system, . . . proof of segregatory intent as a part of state action". Austin II, 532 F.2d 380, 387. But it was apparent to us in both Austin I and Austin II that the AISD historically had used neighborhood schools to accentuate and to perpetuate segregation of blacks and Mexican-Americans, and that it was attempting now to absolve itself of responsibility for increasing segregation by taking shelter in a supposed neutral policy of assigning students to neighborhood schools. As the United States argued, "When (a neighborhood school) policy has been used in concert with obvious tools of discrimination, it may come to partake of a discriminatory quality and to be an instrument of discrimination itself." Brief for the United States, p. 9.

Our finding of discriminatory intent in Austin II was not predicated "solely" on the AISD's use of a neighborhood student assignment policy. We thought that we had made this clear in concluding:

As articulated in Austin I, the case before us presents not only the use of a neighborhood assignment policy in a residentially segregated school district, but also the taking of an extensive series of actions dating back to the early twentieth century that had the natural, foreseeable, and avoidable result of creating and maintaining an ethnically segregated school system.

532 F.2d 392. Austin is not just a case of a school board's inaction or failure to reduce segregation because of the force of residential patterns unrelated to official board action. Here the school authorities produced more racial and ethnic separation in the schools than in the residential patterns of the district as a whole.¹²  Nevertheless, to dispel any doubt that may remain, we again set forth the findings that compel our conclusion that the AISD intentionally discriminated against Mexican-American students, adding to racial and ethnic separation.

A. The segregation of Mexican-Americans in the AISD schools.

We observed in Austin II that "(t)he statistics paint a clear picture of the extensive segregation that still exists in the Austin schools". 532 F.2d at 390.¹³  Although Arlington Heights cautioned that "(a)bsent a pattern as stark as that in Gomillion (v. Lightfoot, 1960, 364 U.S. 339, 81 S. Ct. 125, 5 L. Ed. 2d 110) or Yick Wo (v. Hopkins, 1886, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220), impact alone is not determinative, and the Court must look to other evidence¹⁴  ", the Court stated that "(t)he impact of the official action . . . may provide an important starting point¹⁵  ", in analyzing whether a discriminatory intent existed.

The AISD's report to the district court for the period ending January 15, 1977, indicates that the "clear picture of . . . extensive segregation" we discerned in Austin II has not faded. Of the 58,664 students attending all of Austin's schools, 60 percent (35,342) are Anglo, 16 percent (9,378) are black, and 24 percent (13,933) are Mexican-American. Almost 40 percent of the AISD's Mexican-American students attend schools that have a minority enrollment of greater than 90 percent. On the high school level, 65.2 percent of the district's 17,973 students are Anglo, 14.4 percent (2,584) are black, and 20.4 percent (3,668) are Mexican-American. While 54 percent of the Mexican-American high school students attend schools that are greater than 58 percent minority, nearly two-thirds of the Anglo high school students attend schools that are greater than 78 percent Anglo. Mexican-American students fare no better in the junior high schools. Forty-seven percent of them attend either Allan Jr. High or Martin Jr. High, which are 99 percent minority and 97 minority respectively. Of the AISD's 30,275 elementary school students, 58 percent (17,692) are Anglo, 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 Anglo elementary school children attend schools that are over four-fifths Anglo. Of the school district's 61 elementary schools, only 23 have enrollments that are not over 80 percent Anglo or 80 percent minority.

Admittedly, the AISD's neighborhood school policy played no small part in creating and maintaining this pattern of Mexican-American segregation in the Austin schools. This is not a case, however, in which "the 'neighborhood school concept' has . . . been maintained free of manipulation". Keyes v. School District No. 1, Denver, Colorado, 1973, 413 U.S. 189, 212, 93 S. Ct. 2686, 2699, 37 L. Ed. 2d 548. Instead, an examination of school board decisions on such matters as the construction and abandonment of schools, the selection of school sites, the assignment of faculty and staff, and the drawing of student attendance zones confirms the existence of the segregative intent that

the statistics imply. B. The historical background of

official actions taken for segregative purposes.

Pre-Brown,¹⁶  the AISD established "Mexican" schools, just as it established "black" schools. The AISD now says that Mexicans are whites and, of course, they usually are. But the Mexican schools had all Mexican-American enrollments; few Mexican-Americans were assigned to Anglo schools. The AISD maintained the segregated identity of the schools through the use of dual-overlapping attendance zones, student assignment policies, teacher assignment policies, school site selection, and gerrymandering. The evidence clearly showed the school board's intent to segregate Mexican-American students.¹⁷  In dual-overlapping zones Anglos attended Anglo schools; Mexican-Americans attended Mexican schools. The AISD built new schools deep inside Mexican-American neighborhoods, with a capacity keyed to serving only the Mexican-Americans. We recount those actions as they were set forth in Austin I.

Evidence at trial . . . reveals the existence of an all-Mexican-American school, West Avenue, as early as 1916. West Avenue shared a dual-overlapping zone with Pease, an all-white school. Whites within the zone went to Pease, and Mexican-Americans attended West Avenue. West Avenue continued to operate as a Mexican-American school until it was closed in 1947. Canal (Comal) Street School was opened in 1924. School Board minutes reflect that the school was built to accommodate Mexican-American students attending three other schools. These three schools were the only schools in the district with more than twenty Mexican-Americans.

In 1934, West Avenue and Canal (Comal) Street enrolled 45 percent of the district's Mexican-American students; Bickler had about 25 percent and Metz about 15 percent. After the passage of a bond issue Zavala school opened. The site for the new school was three blocks from the Mexican-American Canal (Comal) 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. Mexican-Americans were expected to and did attend Zavala; whites attended Metz. This is unadulterated segregation. West Avenue and Zavala, predominately Mexican-American, were the only schools in the district which shared zones with other schools. By 1940, West Avenue and Zavala enrolled 56 percent of the AISD's Mexican-American students. Also at the time Zavala was built in 1935, Bickler, the other predominately white school with a significant number of Mexican-American students, was discontinued as an elementary school, and Bickler students were sent to other schools. It is unclear as to where these students went, although some were reassigned to Winn, Palm, and Metz (Zavala). In 1939, a committee from Winn complained of the assignment of Mexican-American students from Bickler to Winn. Soon thereafter, some of these students were reassigned to Bickler.

467 F.2d at 866-867 (footnote omitted). C. The post-Brown

sequence of events indicating intentional racial

discrimination.

Post-Brown decisions by the AISD pertaining to school construction and abandonment and teacher assignment further evince the existence of a segregative intent on the part of the school board. "In ascertaining the existence of legally imposed school segregation, the existence of a pattern of school construction and abandonment is . . . a factor of great weight." Swann v. Charlotte-Mecklenburg Board of Education, 1971, 402 U.S. 1, 21, 91 S. Ct. 1267, 1278, 28 L. Ed. 2d 554, 569. See Keyes v. School District No. 1, Denver, Colorado, 1973, 413 U.S. 189, 201-202, 93 S. Ct. 2686, 37 L. Ed. 2d 548.

In Austin I we observed the following discriminatory pattern which infected both elementary and secondary public schools:

In 1953, O'Henry Junior High School opened in the western section of Austin. At that time the zone line for Allan Junior High School, a predominately Mexican-American facility, was moved so that many whites were zoned out of Allan and into O'Henry. In 1956, Allan Junior High burned down. The new Allan Junior High School was built on the same site as the old school and opened in 1957 with 75 percent Mexican-American enrollment. In addition, the Allan Zone line was moved so that fewer whites were included in the new zone.

In 1960, the new Johnston High School was opened in East Austin (the predominately Mexican-American section of Austin). The suggestion for a central location for this facility was rejected, and the school was built deep in a Mexican-American area. It opened with a 78 percent Mexican-American enrollment. In 1967, University Junior High School was closed because the University of Texas reclaimed the property where the school was located. Martin Junior High School was built in the heart of the Mexican-American community. Again, centrally-located sites for the new facility were considered and rejected. Martin opened with 77 percent Mexican-American enrollment. White students who had formerly attended University Junior High School were zoned to predominately-white junior high schools rather than to Martin.

The elementary school zone lines have remained static in East Austin during the years following Brown. As a result, the schools have become increasingly overcrowded as the school population increased. Several new elementary schools have been built to relieve overcrowded conditions in areas outside of East Austin. In the seven predominately-Mexican-American schools in East Austin portable classrooms have been supplied, instead.

467 F.2d at 867 (footnote omitted).¹⁸ 

The AISD further demonstrated its intent to segregate Mexican-Americans by assigning the district's small number of Mexican-American teachers and other professional staff to schools with predominately Mexican-American student enrollments. In Swann, the Supreme Court cautioned that, "(i)ndependent of student assignment, where it is possible to identify a 'white school' or a 'Negro school' simply by reference to the racial composition of teachers and staff . . . a prima facie case of violation of substantive constitutional rights under the Equal Protection Clause is shown". 402 U.S. at 18, 91 S. Ct. at 1277.¹⁹ 

We found in Austin I that, in 1971, "(s)ixty-five percent of the Mexican-American high school teachers, 36 percent of the Mexican-American junior high school teachers, and 77 percent of the Mexican-American elementary teachers (were) assigned to predominately Mexican-American schools". 467 F.2d at 868. Although no Austin school had a majority of Mexican-American faculty members, and these figures would not, by themselves, suffice to prove the AISD's intent to discriminate, they constitute another stroke in an evidentiary picture that all too clearly shows the school board's intent to discriminate against Mexican-Americans.

The plans adopted in 1955 and in the 1960's for the desegregation of black schools primarily allowed black students to transfer to Mexican-American schools but not to Anglo schools. Mexican-Americans were invariably assigned to black schools but not to Anglo schools. Ironically, the AISD argues that this policy was benign; it was to allow Mexican-Americans to be with their Spanish-speaking friends and their neighbors. But the teachers, by law, were forbidden to speak Spanish; instruction was only in English!

We find that the evidence demonstrates that the segregation of Austin's Mexican-American students was pervasive and intentional. We find it unnecessary, therefore, to determine whether absent this evidence the plaintiffs could nevertheless have made out a prima facie case of ethnic discrimination by relying on one or both of the presumptions announced by the Supreme Court in Keyes.²⁰  See Austin II, 532 F.2d at 390-391 n.14.

We have concluded for the third time, that the AISD intentionally discriminated against Mexican-Americans; that the district court applied an erroneous legal standard in assuming that there could not be discriminatory intent when the actions were prompted by what was thought at the time to have been a benign motive; that the district court's finding as to intent was erroneous. Our reconsideration of the case in light of Washington v. Davis complies with the mandate of the Supreme Court.

The Supreme Court's recent decision in Dayton Board of Education v. Brinkman, --- U.S. ----, 97 S. Ct. 2766, 53 L. Ed. 851 (1977) requires us again to remand the case to the district court for a hearing. In Dayton, the Court specifically addressed the question of "the proper allocation of functions between the district courts and the courts of appeals within the federal system"²¹ , and instructed that once a constitutional violation is found in a school desegregation case,

the District Court in the first instance, subject to review by the Court of Appeals, must determine how much incremental segregative effect these violations had on the racial distribution of the . . . school population as presently constituted, when that distribution is compared to what it would have been in the absence of such constitutional violations. The remedy must be designed to redress that difference, and only if there has been a systemwide impact may there be a systemwide remedy. (Emphasis added.)

--- U.S. at ----, 97 S. Ct. at 2775.

Assessing the incremental segregative impact of a school board's discriminatory actions and policies is not an easy task. The district court, on remand, must take into account that

(p)eople gravitate toward school facilities, just as schools are located in response to the needs of people. The location of schools may thus influence the patterns of residential development of a metropolitan area and have important impact on composition of inner-city neighborhoods.

Swann v. Charlotte-Mecklenburg Board of Education, 1971, 402 U.S. 1, 20-21, 91 S. Ct. 1267, 1278, 28 L. Ed. 2d 554. The burden of demonstrating that the residential concentration of minorities in East Austin is unrelated to the AISD's segregative school policies is to be shouldered by the school board. See Keyes v. School District No. 1, Denver, Colorado, 1973, 413 U.S. at 211 n.17, 93 S. Ct. 2686.

"( T)he burden of state officials is that set forth in Swann to take the necessary steps 'to eliminate from the public schools all vestiges of state-imposed segregation'. 402 U.S. at 15." Milliken v. Bradley, --- U.S. ----, 97 S. Ct. 2749, 2762, 53 L. Ed. 2d 745 (1977). The remedy, of course, must be tailored to fit the nature of the violation.²²  If the district court finds that the incremental segregative effects of the AISD's intentional actions discriminating against Mexican-Americans have a systemwide impact on the racial distribution of the Austin school population, then the scope of the remedy must also be systemwide. In assessing the extent of the impact, the district court should keep in mind the Supreme Court's statement in Keyes that "racially inspired school board actions have an impact beyond the particular schools that are the subjects of those actions."²³  413 U.S. at 203, 93 S. Ct. at 2695. The partial desegregation of a single grade has no basis in logic or in equity as a remedy suited and sufficient to rectify the constitutional deprivations inflicted by segregating school children. It is an affront to Brown, Green v. New Kent, Alexander v. Holmes, Swann, and Keyes,²⁴  to say nothing of this Court's long and consistent record of affording minorities an opportunity to enter the mainstream of American life by affording them an equal opportunity with whites for an education.

The district court should give the hearing on remedy a high docket priority. All parties should be free to introduce such additional testimony and other evidence as the district court may consider appropriate. All remedial measures currently in effect shall remain in effect pending the district court's decision on remedy.