FI'RST -rRIAL I IClll- Iq8~ AND LAAJDATt:D ( 10"'1'2.. l.£AV£S) PLAINTIFF 5 tiNAL At.~I1&."',s, (~ IAND!JTI.FJ) JebJ/es) rl..l'll.lllll~ " I...... "nuu' ..... '''' --- WE WILL DIVIDE OUR TIME, AND RESERVE _ PAGes 4"AN01trOF iTs'sRIEF:uro' AS-THE'OtiTY-CONCEDiis"AT :~~~=~E:HIS COHCLUSIOtl, AND OF COURSE SOME CONTRARY MINUTES FOR REBUTTAL. I WILL DISCUSS BRIEFLY SOME ISSUES OH WHICH THERE KAY BE SOME CONFUSION, OR DISPUTE BElll'EE" THE PARTIES, AND THEN VERY BRIEFLY SUI'II'tARIZE THE APPLlCMlLE LAw UNDER WHICH THIS CASE IS TO !lE ~DED. f'1~.tu.IJl- ~ BUT WHATEVE~ TERMINOL.OGy': IS PLAtED ON THE RESULT OF ~ONSIDERING BLACKS AND neXICA.~-AHERICAHS TOGETHER IN ~UBBOCK -- MHETIIER THEY ARE A CLASS, A SUB-CLASS, A COMBINED GROUP OR NHATEVER, THE FACT REKAINS THAT THEY ARE THERE, THEY SUFFER FROM COHHON FORMS OF ' MR. HALL WILL DISCUSS THE FACTS APPLlCA!lLE TO THE BLACK PLAINTIFFS AND CLASS MEMBERS, 1. \~AND, MR. ARTHUR WILL. DISCUSS ~,. APPLICABLE TO BOTH GROUPS. RULE 23(C) (4) STATES THAT "A CLASS KAY BE CERTAItl FACTS ~~t~~~g ~~T~ ~~:i;6S~~~ ~~ C~~=T S~:;L:~~AD ~i~~~~~~~ ~~D~=TROt1H~n~~R ~~~~~ ~~Ec~~i:~ INITIAL.L.Y, WE WA.'tr TO MENTION THE COURT'S QUESTIONS AND REQUEST FOR BRIEFING ON THE KATTER Of THE CKAHGE FROf' PAPER tZI [I I vmS ~6tt~~~T~ii~ A VIOLATION ON WHICH A COURT HAS EVER GRANTED ANY RELIEF. ~~L~~~~RiOT:~H~~;~Oi~~G90t't§r"i!nf$ BALLOT CHA:IGE ~:C~~tn~~~C~~;:~:T~~TH:"eui~KA~~TeOl~~~~, O~D IT IS THOSE fACTS THAT THE COURT MUST DEAL WIT:', WHATEVER THE RESULTING COMBINATION IS C'-L.LED, ~LAINTIFFS R, GARZA WILL 01 CUSS THE FACTS APPL.ICABLE TO THE REXICAN-AI'1ERICAN AND CLASS MEMBERS, THIS KATTER AROSE DURING I1s. i1:ERCADO'S TESTIMONY, AND WAS A PART OF HER DESCRIPTION OF THE BACKGROUND OF HER CAMPAIGN AND ITS RESULTS. Ir IS NOT A KATTER ABOUT WHICH PLAINTIFFS COMPL.AINED NOR 00 \'lE SEEK ANY RELIEF ~ THIS KATTER; OUR RESPONSE ~~uH' !:~~~:9~i8~::=g::E!iii!T!*~ 1:~:i!~~S~T:O l~E THE CONDUCT Of CLASS ACTION SUITS AND INSURE THAT ALL CLASS MEMtERS, AND SUB-CLASS MEI'\SERS ARE APPROPRIATELY REPRESENTED AND PROTECTED. (~SAID, IN COMPLAINT: -- ':"~ET~~~~ ~:O~C:S~~TAL~,Bi;~::A~~Y~~u~~~~~;~ERt~:~S, t~iB~~~ ~?;;W~~~~~iL?R NON~GLO S, wHO CANNOT BE ELECTED TO THE (PAR. VI, PAGE 3, 1ST MENDED COMPLAI'H» <tWU[ SAID, IN ITS JUNE 2. A.m ON~• •!!I"!"!' ~~i~~R~:~Vi~:~~' AH~D~0~LiH~~T~9s :RIEF. IN OUR THE COURT REQUESTED BOTH SIDES TO COHHCNT WHIL.E THERE IS NO ANTI-SINGLE-SHOT REQUIRE"'fNT IN THIS CASE, THE PLACE SYSTEM A.'tD THE REQUIREPENT FOR RlmOFF ELECTlOtlS HAS MUCH THE SAME EFFECT, IN THAT MINORITIES ARE EFfECTIVELY PREVENTED FROM AMASSING THEIR VOTING STRENGTH BEHIND ANY ONE CANDIDATE, AND STILL HAVE TO VOTE fOR AT-LARGE CA.14DIDATES WITH NO GEOGRAPHIC RESIDENCE REQUIREMENT SO THAT T:iEY CANNOT EVER WIN, AGAI:"IST THE CITY-WIDE WHITE f".AJORITY, IN A~Y CITY COUNCIL ELECTION CONTEST. SIMGLE-SHOT 3. THE CITY DEFENDANTS CONTEND THAT BLACKS AND "'EXICAlh~HERICANS ~~~~Hi=p~Ag~i~, ce~;~lft:rriFt. THIRD. LARGER MINORITY GROUP OR THIRD CLASS OR JUST TWO SEPARATE CLASSES ~:I~T~o~:f:E l~~~~~:E~~TE:~~;A~~~~~~R~:::~~~~, Hls THESE TWO GROUPS CONSTITUTE A LARGEP., SECONDARY CLASS AS TO WHICH SPECIFIC ORDERS WERE NOT DEEMED NECESSARY AT THAT THotE; DEfENDANTS MADE NO COMPLAI'ITS ABOUT THAT FINDIIIG AT THE TIME, AND IT WAS ENTERED OU T"IE BASIS OF STIPULATIONS OF THE PARTIES, ALTHOUGH THAT SPECIFIC POINT WAS NOT STIPUL.ATED TO BY THE PARTIES; MERELY THE FACTS CONCERNING HE TWO GROUPS, ORDER: -~F THE e~4.~tl- Wm !:&1i!r/T8h1EtllliR~F sr~~~ trnt . ~j";R, U M~~T~:C~,~A~=~~~, ":~T Ci~~i~TiS R?~HT WE 00 SUBMIT THAT THE CITY IS NOT ENTITLED NOW TO PRESENT ANY ADDITIONAL EVIDENCE OS THIS QUESTION, SINCE THERE WAS A FULL OPPORTUNITY TO 00 THAT DURI14C, THEIR CASE-IN-CHIEF, AND THEY DID NOT DO SO. 1977 .. HE PRI"tRY CUSSES CONSIST OF THE BLACK POPULATION ITY OF UBBOCK, TEXAS, AND THE I"EX/CAH-MERfCAH OR WE TMINK THE COURT CAN CONSIDER SUCH TESTIMONY, FOR WHATEVER WEIGHT THE COURT KAY GIVE TO IT, AS IN SAYING THAT WE DID NOT PLEAD THIS SPECIFIC FACT OR SEEK RELIEF ON THE BASIS OF IT, I, TIlE EXISTElICE Of A1IY GROUP IN A ClJIftJItlTY IS A QlfSTJlW Of FACT AS TIlE }-JUOGE DISTRICT COURT SAID 1M GIlA\'ES v BARNES 143 F.Supp. AT 727 (WHICH WAS THE DISTRICT COURT DESIGNATION OF THE ~ BfillIE&. 412 U.S. 755 (1973) CASE), AMD I£XICAIHI£RICAIIS MEED nlE PROTECTlO~ OF THE IMTERVENTlO" OF THE FED£RAL COURTS J~ST AS :1UCH AS BLACK CITIZE~S DO, ACCORDIHG TO THAT COURT. IN A... . Y EVENT, THERE CAH'T BE ANY QUESTION IN ANYBODY'S MIND ABOUT NHICH PEOPLE DON'T GET ELECTED TO THE LUBBOCK (ITY CoUHCIL ----- BLACKS DON'T AND ;.\eXICAN-AI'1ERICANS DON'T, ~ GET ELECTED, BY WHATEVER TERMINOL.OGY DESCRIBED. WE THINk THE IMPORTANT CONSIDERAT10~ IS THAT THIS RECORU SUPPORTS, AND THIS CouRT SHOULD fiNO. THAT 10TH lUCkS AND ftEXICAH-MERICANS SUFfER FRO" COMON FORMS OF RACiAl DISCRIMINATION AND UNCONSTITUTIONAL DILUTION OF THEIR VOTES IN LUBBOCK'S CITY COUNCIL. ELECTION SYSTEM. --7 DECIDED~ --1 TURNING NOW TO TI:E APPLICABLE LAW UNOER Il1fICH THIS CASE tlI.'ST Ii, BE PLAINTIFFS SUBMIT THAT THE LAW IS CLEAR IN THIS UGH THE APPLICATION OF THE LAW TO THE FACTS OF EACH EXCEPT FOR SOI·( COilFUSIOit 011 ABOUT Il1fERE THE BURDEN OF PROOF RESTS IN A COUPLE OF INSTANCES. c ITI'S WE DON'T THINK THERE IS ANY SUBSTANTIAL APPLICABLE CASES. DISSIPATED EFFECTS OF PAST DISCRIH. ~"r!i",~J ~Il'~I<."',... (,,: 'h ,..,~ t'r ~~!';e'..... I' T;;.,":i .(" . ,T;) (CONTINUED) A. PLAINTIFFS /liST SHOW THAT THE PRESENT SYSTEIl HAS THE EFFECT OF INVIDIOUSLY CANCELING OUT OR NINIRIZING THE VOTlIIG STRENGTH OF THE M1NORlTIES INVOLVED, AHO THAT THE PRESENT SYSIDl PREVE.ns THEIl FIiOI't ENJOYING FULL ACCESS TO THE POLITICAL PROCESSES OF illl'llNATlON A.NJ ELECTION. AREA, ALTHO T AND HIGHLY INDIVIDUAL.IZED HATTER. CASE 15 NECESSARILY A DIFFICUL TIE PART OF TIlE CITY DEFEHDAHTS DISAGREEKENT BETWEEN Tt£ PARTIES O!'t THE ~W;~ ~ 4. I.J \ B. WE RECOGNIZE THAT IEIlELY TO SH!lW THAT THE M1NORlTIES DO NOT HAVE COUilCIL IUlRERS IN PROPORTlO'I TO THEIR iIL'!'IlIERS JrI THE COII'tUNITY IS NOT E!IOUGH; WE HAVE NEVER CONTE:lDED THAT. A,ID DO NOT NOW CONTEND THAT. (l) OF COURSE. IT ISN'T REALLY SO MUCH It. HATTER OF ·PROPORTIONAL" REPRESEH fATION ON THE LUBBOCK CAUSAL RELATIONSHIP BEMER DEPRIVATlOftS • LACK OF ACCESS CITy COUNCil; THERE ARE NOT AltI MINORITy MEMBERS AT ALL. ANO NEVER HAVE BEEN. (2) BtIT WE RECOGNIZE THAT THE HERE ABSENCE OF MEMBERS OF THESE GROUPS FROM THE COUNCIL, STA.'fDING AlONE, DOES NOT ESTABLISH OUR CASE • (3) IT IS, OF COURSE, AN EXTREMELY I~ORTANT AND SIGNIFICANT FACT, THAT THE COURT HUST CONSIDER, BtIT THE CASE DOES NOT STA./fD OR FALL ON THAT ALONE. C. THIS CCI'~T /lIST VIEW THE EVIIJEXE PRESENTED COLLECTIVELY, I~ THE AGGREGATE, IlNIJER THE PARTICULAR INDIVIDUALIZED CIRCUHSTA.NCES OF TIE LUBBOCK, TEXAS, SITUATION, IN ORDER TO DETERHINE IIHETHER THERE IS DILUTION OF THE HIIlORlTIES' VOTE. (1) THE COURTS HAVE TALKED ABOtIT PRI~RY FACTORS __ A. ACCESS OF THE MINORITIES TO THE POLITICAL PROCESS, FOR EXAl'lPU, SLATING OF CANDIDATES; B. RtSPONSIVENESS OF GOVERNING BODY TO THE PARTICULARIZED NEEDS OF THE "'IHORITIES; DISCRIHINATORY INTENT -- INNOCENT BEGINNI:IGS C. GRAVITY OF ANY STATE POLICY BEHIND T!olE AT-LARGE SYSTEM OF ElECTIOHS; O. PRESENT EFfECT OF PAS-!zSCRI""HATIOH ON THE "'IHORITIES APILITY Td:ARTlClPATE IN THE EUCTORAL PROC!:SS. (2) ~~T~~ ""ME-~;:)R:~~~R~; :~;LARGE PRESE~CE OR RULE; AND, (D) WHETHER ELfCTIOII, MJoRny OR PLURALITY; (C) ABSENCE OF MTI~SIHGlE-SHOT CMDIDATU MUST RESIDE IN DISTRICTS INVOLVED, OR IN lUI-DISTRICTS. ~ KIRJ(SEY, CIRCUI1STANTIAL EVIDENCE THAT THE DISTRICT COURT !lIST SPECIFiCAlLY COIISIDER BOTH SEPARATELY A.~D I~ THE AGGREGATE" (585 f.2D AT 712>' (j) 1978>' MD II I;) 1..1..t:.II1( 1""'1 II I~ .. ",uvr vr N ........." ...... , .. , BUT NOT NECESSARILY EVERY SINGLE ONE, OF THESE FACTORS, ESTABLISHES THE FACT OF DILUTIOH. 585 f2D 708 (5TH CIR. ~'tJ THE fIfTH CIRCUIT WUT O!l TO SAY, I~ toJ!IlEIL THAT THESE "CRITERIA" fRl);i THE ZlJI£Il CASE A.~D THE IU.BKS.EY CASE (WE HAVE LISTED THE 11 KIRKSEY ELEMENTS AT PP. 4-5 POST-TRIAL BRIEF FD' THE COU'T) "••• ARE DIRECTIONS THAT TELL THE TRIAL CDURT WH.\T TYPE OF CIRCUI1STA.mAL EVIDENCE CAN IW(E DUT A DILUnO:I CASE." (585 f.2D AT 712>' <2l "TIlE CDURT I'oUST ADDRESS EACH SUBISSUE, If RELEVANT TO THE PARTICULAR CASE AT HAND, AND DETERIIINE WHETHER THE EVIDENCE UNDER THE CRITERlfl WEIGHS mfAVDR Of OR AGAINST A fl'IDIIIG Of DILUTION. THE COURT IS NEXT TO VIEW THE FINDI~GS UNDER THE CRITERIA AS AWHOLE, I.E. 'IN THE AGGREGATE,' ZIMR, q85 F.20 AT 1305, GIVI~G DUE REGARD TO THE SII;'~IFICA.~CE A~D STRENGTH OF THE F1HDING UNDER EACH SUBISSUE, TO DETERIIINE IF THE ULTlIiATE IIIFERElICE OF DILUTION IS PERIIISSIBLE, AND, IF SO, WHETHER THE EVlDE:lCE PREPO!lDEkATES IN ITS fAVOR." (585 f.2D AT 712>' 5. PROOF Of AN AGGREGATE Of THESE fACTORS ESTABLISHES AN INfERElICE Of DISCRI"INATORY ImNT, AS THE FIfTH CIRCUIT SAIO IN IDEII.L. SlIlS. 571 f .2D 209, AT 217. (1) (CITY BRIEF, PAGE IS THUS NOT ~ECESSARY TO PROVE THAT THE LUBBOCK WITH RACIALLY DISCRIMINATORY INTENT; TO THE CONTRARY, AS THE FIFTH CIRCUIT SAID IN THE (2) CITY SAYS~ PAGE 38 ITS BRIEF, THAT WE "ADMIT" THAT THE PRESENT PLAN WAS ORI"IN."LLY ADOPTED WITHOUT ANY DISCRI"INATORY INTENT. IN EVIDENCE, CAli AND aun (2) As NE HAVE SAID IN OUR BRIEFS. NOT AL.L. OF IT IS IDENTICAL TO THE FACTORS PREVIOUSLY LISTED IN THE CASES, BUT IT IS ALL SUBSTANTIALLY THE SAHE KIND OF EVIDENCE, AND IS PLAIHL' THE KIND OF CIRCUI1STA.mAL EVIDE~CE THAT THE COURT MUST CO~ISIDER, BOTH SEPARATELY AND IN THE WE lllJ/'T AIIlIT ORIGINAL PLAN INHOCElITLY fORIIILATED to DIRECT THE COURT, AND US, SPECIFICALLY, TO THE EYIDEMeE THEY THINK THIS COURT CANNOT CONSIDER~ SO THAT WE WILL KAVE SOMETHING A LlnLE MORE DEFINITt THAN fACTORS." A.~D "CERTAIn OF THESE AlLEGED THE AUTHORITY fOR THEIR POSITlO!l ON THIS. NOT AT ALL; WHAT WE SAID WAS THAT IT WAS NOT NECESSARY fOR THE CITY TO HAVE HAD ANY SUCH 'NTOO, SI~CE RACIAL DISCRIMINATlO'I WAS SO TOTAL AT THE TIlt:, A.HD TK~T IN A.~Y EVEn, WE DO NOT HAVE TO SHOW IT If IT IS HOW BEING IiAINTAIfIED fOR THAT PURPOSE (POST-TRIAL BRIEF OF PLAINTIFFS, p.24) AGGREGATE IN DECIDING WHETHER DILUTION EXISTS HERE. (3> WE CALL UPOH THE CITY DEFENDANTS, IN THEIR ARGUMENT, THEIR PRESENT ASSERTION OF CASE, fORlWLATED PLAN THAT PERPETUATES PAST INTENTIONAL DISCRIMINATION IS UNCO~STlTUTlOML. • • • APLAfl NEUTRAL AT ITS INCEPTION IiAY NEVERTHELESS BECIJIE UNCONSTlTUTIIllIAL WHEN IT IS IiAI~TAIHED fOR THE PURPOSE Of DEVALUATING THE VOTES Of BLACKS .••• If THE AGGREGATE OF THE EVIDENCE UNDER THE Z!lIEB CRITERIA INDICATES DILUTlOIl, THEN THE l~fERENCE ARISES THAT THE PLAN IS BEI~G IiAIUAINED WITH REQUISITE INTENT. " INfERmE OF INTENT ARISES IIIE~ OILUTION ESTABLISHED 12) (}) WE THINK ALL OF THE EVIDENCE I'lE HAVE PRESENTED AND :~I~~N~~EE~~~R~yH~~~~~~~7D Bm.DEli 571 f.2D AT 21<6, "IU.BKS.EY HELD THAT AN INNOCENTLY E. NOW, THE CITY SAYS THAT "CERTAI'1 OF THESE ALLEGED fACTORS" "ARE REALLY NO fACTORS TO BE CONSIDERED, AND CERTAINLY A1ID CLEARLY DO NOT ClX'E WITHIN THE IiATTERS WHICH CAN BE RELATED TO ThE K.l..RKSEI STA.ltDARDS- IT CITY COUNCIL ELECTION PLAN WAS ORIGINALLY ESTABLISHED (3) THERE IS NO EVIDENCE ON THE INTENTION IN THE MINDS OF THE PEOPLE WHO fORllULATED THIS PLA~. BUT IT DOES HOT IiATTER, If IT IS NOW BEING MAINTAINED IN ORDER TO DILUTE A.~D DEVALUE TilE VOTES Of MINORITlES. ---7 6. CITY IS CONFUSED, APPARENTLY, ON THo NUNlJtn ur rKout unc< ---7 A PAST HISTORY OF SWEEPI~G AllD PERVASIVE DISCRI"INATlO~ HAS BEEN ESTABLISHED. (cm BRIEF, P. 11l. A. WE~ OF CO!JRSE, KAVE THE BURDEN Of KAICI"G THE INITIAL. SHOWING OF SWEEPING AND PERVASIVE RACIAL. DISCRII'IINATION B. 7. THE CITY @PPARE~TLY CONFUSED ON WHETHER THE !'ERE PASSAGE OF TIlt: IlAXES A "PAST HISTORY" OF RACIAL DISCRI"INATION A "REJlJTE HISTORY" WH.\TEVER THAT IS. A. AT PAGE 24 OF THEIR BRIEF, TtfE OEFENO....·rtTS ASSERT THAT IN THE PAST. AND WE T!tI~K WE HAVE DOftE THAT 1"1 ABI.I!(OAHCE KIRKSEY IN THIS CASE. (WILSON lIE 00 ~DT HAVE TO SHOW THAT THE EFFECTS OF P.\ST DISCRI~INATlO'I ARE CONTlilUING TODAY, OR THAT THEY HAVE NOT BEEN DISSIPATED. iltlCE WE HAVE SHOWN THAT, AND THIS COURT'S DECISION IN T~E AHARILlO CASE v. VAHUE) STAHD FOR THE PROPOSITION THAT "THERE IS A POINT IN TIME WHEN PAST INCIDENCES OR EXAMPLES OF RACIAL DISCRIMINATION BECOME MOOT. A TIME WHEN A PAST HISTORY BECOMES A REMOTE HI STORY." C. IT IS THEN THE DEFENDANTS' BURDEN TO CM FORWARD WITH WHAT THE FIFTH CIRCUIT CALlED "SUBSTIl.NTIAL EVIDENCE" IN THE KIRKSEY CASE, TO PROVE THAT THE EFFECTS OF PAST D1SCRI"INATION HAVE BEEN DISSIPATED (554 F.20 AT 144-145>' Il.NG HI KlJlKill, THE FIFTH CIRCUIT NOTED SP£CIFICALLY THAT THE DEFEN~ANTS THERE "DID NOT COI'£ FOR'tlARD WITH SU!lSTMTlAL EVIDEllCE" TO SHOW SCCH EFFECTS HAD BEEN DISSIPATED. B. IT WAS FOR I1AKl~G EXACTLY THAT MISTAK~AI'oIJNG OTHER~ THAT CAUSED THE FIFTH CIRCUIT TO REVERSE THE DISTRICT COURT III KIRKSEY. THE CITY'S QUOTED LANGUAGE FROfIl KIRKSEY COMES FROM THAT PART OF THE DECISION WHERE THE FIFTH CIRCUI"AS QUOTING FROM TKE DISTRICT CoURT'S ERRONEOUS LANGUAG.p. THAT 554 F.20 AT POI~T, 144-145. C. THE I10ST THAT THE FIFTH CIRCUIT SAID ott THE POINT. AFTER D. O!IE OF THE REASONS THE DISTRICT COURT WAS REVERSED IN KlJlKill WAS THAT IT II'I'ROPERLY PLACED THAT BURDEN DN THE REJECTING THE DISTRICT COURT'S APPROACH AND THE QUOTED LANGUAGE. WAS THAT "IN OTHER CIRCUMSTANCES" THE PASSAGE OF PLAINTIFFS. TIME MIGHT Eo FURTHER, THE PLAINTIFFS 00 NOT HAVE TD SHOW A.,Y CAUSAL RELATIONSHIP BEMEN ECO'WllIC EDlJCATlOIIAL. Eit'lDYl'ENT A.ND L1V1H6 CDltDITIIlIS DEPRIVATlO'tS. AND LACK OF ACCESS TO THE POLITICAL PROCESS. THE FIFTH CIRCUIT SAID. IN KI.RKSE.'L THAT THE DISTRict COUAT ERRCmEOUSlY I~SED SUCH A BCRDEN 0:1 PLAINTIFFS --- THE LAW IS THAT INEllUAlITY OF ACCESS IS AN ImRENCE THAT ARISES WHEN SUCH DEPRIVATlD'IS HAVE BEEN SHOIm; THERE IS NO REllUlREl'fNT FDR PL\I~TlFFS TD PROVE A CAUSAL RELATIONSHIP. (554 F.20 AT 145>' F. SIGNIFlCA~TLY. IN THE ~CASE. CITED BY DEFENDAHTS, COft'ENTED: -THE YIRTUAllY UNIVERSAL RACIAl. DISCRINIIlATiOIt BOTH PRIVATE Il.'D 6O'/(IIlI'ENTAI.. lIHlCH PREVIDlJSLY EXISTED WITHIN OUR JURISDICTIIlI IS. OF COURSE. UNlIIfSTlOI£D." "NO AREA WITHIN OUR CIRCUIT CA., CLAIN TO HAVE BEEN FREE OF DISCRI"IIIATlIlI IN THE RECENT PAST." THE FIFTH CIRCUIT JlwIux, 559 F.20 AT 1270. _\ --- "MIGHT BE OF SUFFICIENT DURATION TO PERMIT AN INFERENCE THAT WHAT WAS TRUE IN THE PAST IS NO LONGER TRUE." (554 F.20 AT 144>' D. AIIIl lIE DO !lOT U!lDERSTIl.~D THIS ClIl'RT'S RULING IN THE Al'ARILLO CASE TO HAVE BEEN IIASED III lilY SUCH ERROR AS THAT; INSTEAD. WH.AT YOUR HONOR SAID IN TIlE IIIl SOH y VAHl'E CASE WAS THAT THERE lIAS AFFIRMATIVE EVIDENCE OF CHAilGE PRESENTED BY THE CITY DEFENDANTS TIERE. NOT I£RE PASSAGE DF TI!'E ALDNE. TO CORRECT WH.AT HAD BEEN DONE 1M THE PAST. S~ CIlIFUSED ON IfflETIIER THE WJRT CA~ CONSIDER FACTS AlID CIRCIIlSTAHCES IN THIS CASE OTHER THAN OFFICIAL ACTS OF TIE CITY OF UJ8BOCI(. OF COURSE THE COURT CA.~ CO~SIDER SUCH THINGS. A. THAT'S WHAT THE FIFTH CIRCUIT AND THE SUPREME COURT ARE 8. FlilAI.lY. TIE CITY TALKING ABOUT WHEN THEY MENTION "SWEEPING AND PERVASIVE" DISCRIMINATION. AND A PAST HISTORY OF DISCRIMINATION. 8. (CONTINUED) G. LEVELS, IN THE PRIVATE SECTOR, IN CITY GOVERNMENT, IN COUNTY I CIR. I CO~ISIDER SEGREGATION AND DISCRIMINATION IN LUBBOCK. THAT IS WHY YOU CAN, AND WE SUBMIT, twn CONSIDER THE JAIL CASE AND THE SCHOOL CASE, IN LUBBOCK, AS INSTANCES WHERE FEDERAL COURT LITIGATION HAS BEEN REQUIRED TO 9. + END THE PRACTICE OR EFFECTS OF RACIAL SEGREGATION AND JUDGMENT OF REVERSAL VACATED & REMANDED BY ~ 96 S.CT. 1721 (1976>. J. SO IT IS PIllPER FOR THIS COURT TO CIllSl9ER.w. ASPECTS OF RACIAl SE6REGATlO!l Arm DISCRIMINATION IN LUBBOCK. AND THE STEPS THAT HAVE BEU TmN IN THIS COURT TO CORRECT AND END IT. jr--,Y-1/iOJ -------------------------------------------•••-••••-.-- W~lL-f~1'TT.l:b DISCRIMINATION. THAT UIUX CASE, AT PAGE 5 OF THEIR BRIEF, FOR THE PROPOSITION THftT THOSE LAWSUITS CANNOT BE CONSIDERED BECAUSE THE ClTY WAS NOT A PARTY TO THEM, OW DOESN'T STAND FOR THAT. (2) 463-464). I. ADJUDICATED CASES OF RACIAL DISCRIMINATION WERE CONSIDERED BY THE COURT~ INTHE CASE OF: GRAVES V BARNES el!l. 378 F.Supp. ~O. ~Q (W.D. TEX. 197Q>. STATE OF TEXAS THAT HELPED ACCOMPLISH RIGID RACIAL (1) 1975), SUPRENE COURT. _U.S. THE PRIOR STATUTES AND CONSTITUTIONAL PROViSIONS IN THE F. DEFENDANTS CITE THE F.SuPP. AT OF Yf! YfRTQN y DRIGGERS 370 F.SuPP. 6¥~.D. ALA. 197ql. AND KENDRICKS V WAIIlER 527 F.2D qq. If (lTH C,R. 1975). GRAVES V BARNES Oil. 37B F.Supp. ~O. 650. 6sq. 655 (W.D. TEX. 197q>. AND lIALLACE V HOUSE 377 F.Supp. 1192. 1199 (W.D. LA. 197Q>. AFFD & REV. IN PART. 515 F.2D 619 (5TH C. THAT'S WHY THE FIFTH CIRCUIT COULD SAY, AS IT DID IN E. (456 H. RACIALLY IMBALANCED SCHOOLS WERE CONSIDERlhlJ,FE CASES GOVERNMENT, IN STATE GOVERNHENT. D. THAT IS WHY YOUR HONOR CAN, AND WE THINK, twn CASE CONSIDERED JUST SUCH FACTORS, BOTH THAT EXISTED IN ~ROE, LOUISIANA INSTEAD, DISCRIMINATION PERMEATES ALL OF A SOCIETY, AT ALL IN THE RECENT PAST." (559 F.2D AT 1270>. AUSBEB.BY THE OPEN, FLAGRANT, UNSOPHISTICATED RACIAL DISCRIMINATION ISOLATED VACUUMS, FROM ONE GOVERNI"ENTAL ENTITY TO T~E NEXT. THE IIEIlIlRIX CASE. "THE VIRTUALLY L'ltIVERSAL RACIAL DISCRIMINATlOII BOTH PRIVATE AND GOVERNI£NTAL. WIIICH PREVIOUSLY EXISTED WITHIN OUR JURISDICTlOrl IS. OF COURSE. UNOUESTlOllED." AND "NO AREA WITHIN OUR CIRCUIT CAH CLAIM TO HAVE BEEN FREE OF DISCRIMINATIIJI THE PRIVATE, SOCIAL, GOVERNMENTAL, WHATEVER, IN TALKING ABOUT B. RACIAL DiSCRIMINATION AN!) SEGREGATION DO NOT EXIST IN WHAT THE IIEIlIlRIX CASE SAID WAS THAT SUCH SUITS CANNOT BE CIllS lDERED ON THE MARRQII ISSUE OF "GOVERNIENTAL SERVICES" AS A PART OF THE RESPONSIVENESS ISSIJE -- IIEIlIlRIX ~ SAY THAT SUCH CASES CAItf«)T BE COIISIIlERED AT ALL. \IE wm THEM CIllISIIlERED FOR lIHAT THEY TELL ABOUT THE EXTENT. A!ID THE PERVASIVENESS• .;JID THE CURRENT. REC£NT. STILL-EXISTING ATIlTUIlE OF RACIAL DISCRIIIINATION IN LUBBOCX. TEXAS. $J",~,e-. AllERT EINSTEIN, SPEAKING ABOUT OPPOSITION ,MCI"tBFtf blstAfeTT 0 HIS SCIENTIFIC THINKING IN THE FIELD OF PHYSICS. A~C n ,c I/fn Of'WNTED: '1 TNI> Til'#(. < ~ ~~';,;;_,:rr:~ "-,,,1}. !pur. "ff<'"'' ." r. cr. 2.j,~ .1.417 C#JJ~'/I. ... .J'ItPI'IJ~ +12 v.I. {'II (/f?1) (f ,.S " ("/'1 ,fr 'tJl,-~",L. tJllf. ''''FF,) I "AlTHOUG/l FOR THE I'IJIENT THE THEORY HAS MANY OPPONENTS THE FOLLOWING FACT COHSOLES 1£: THE GENERAL THINKlIlG CAPACITY OF ITS SUPPORTERS ENTIRELY ECLIPSES THAT OF ITS OPPONENTS." (So, ALSO, IN JONES v. LUBBOCK).