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.
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"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).