Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW SESSIONS, District Judge. This cause having been tried to the Court from December 8 through December 19, 1975, and upon due consideration of the pleadings filed herein, the exhibits introduced at trial, the testimony elicited at trial, and information obtained by the Court in its post-trial inquiry, the Court hereby issues the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1. Defendant, El Paso Independent School District, was created on February 12, 1962, by action of the County Board of School Trustees of El Paso County, Texas, pursuant to and as authorized by Chapter 407, Acts of the 57th Legislature of Texas, and such new entity then succeeded to all of the prior rights, titles, interests, powers, duties and responsibilities theretofore held by and incumbent upon its predecessor, “The Independent School District of the City of El Paso”. (D.Exh.A; testimony, J. M. Whitaker) 2. The Independent School District of the City of El Paso was created on November 14, 1882. (P.Exh. 350E, El Paso Herald, May 12, 1923, p. 6D) 3. Olivius V. Aoy established a private school for the education of Mexican-American students in 1887. (P.Exh. 305, p. 5; P.Exh. 350, p. 47) Until this time there was no school in El Paso for the education of Mexican-American students. (Statement, G. P. Putnam, Supt. School Dist., 1894-1903, P.Exh. 350E, El Paso Herald, May 12, 1923) 4. This school was incorporated by the School District in 1892 and was renamed “The Mexican Preparatory School”. (P.Exh. 305, p. 6) 5. Alamo School was constructed in 1899 as a second Mexican School. (P.Exh. 350, El Paso Evening Post, May 30, 1928, p. 10) Alamo School was built specifically “to relieve the overcrowded conditions at Aoy”. (P.Exh. 350E, El Paso Times, March 22, 1953) The School District at this point in time followed the statutorily-mandated state policy of providing separate facilities for Black students. Douglass School, the first “colored” school, was constructed in 1891. (P.Exh. 350, p. 53) 6. The Superintendent’s Report for the year 1890, The School District Register for the year 1893-1894 and the scholastic census of 1883, compiled by Mr. James A. Ash-ford (P.Exh. 350E, El Paso Herald, May 12, 1923, p. 6D), indicate that the School District categorized its students in order to assure their placement in ethnically identifiable schools. (P.Exh. 184; 348 [1]; 498, Board Minutes, June 6, 1892; 498, Rental Sheet, Board Minutes, 1889-1890; 498, Board Minutes, May 6, 1895, July 25, 1895, June 3, 1895, March 25, 1924, p. 4) 7. Prior to 1922, school officials allowed ethnic and racial considerations to influence decisions with regard to the construction of schools. (P.Exh. 348-15, School Board Minutes, January 3, 1922; P.Exh. 188, Board Minutes, March 25, 1924, where the Board discussed possibilities of relief “in the Mexican Schools”; P.Exh. 188, Board Minutes, June 18, 1929) 8. By 1922 those elementary schools located south of the tracks, i.e., Aoy, Alamo, Beall, Franklin and San Jacinto were known as the Mexican District, while those elementary schools located north of the tracks, i.e., Alta Vista, Bailey, Grandview, Highland Park, Lamar, Morehead, Manhattan, Sunset and Vilas, were known as the American District. (P.Exh. 154, pp. 21, 22) 9. After the construction of El Paso High School in 1916, the School District established junior high schools at Alta Vista and at El Paso High School to serve the predominantly Anglo community. At the same time, a junior high school was established at San Jacinto to serve the predominantly Mexican-American community. (P.Exh. 154, pp. 21, 22; P.Exh. 350, p. 101; P.Exh. 154, pp. 21, 22) 10. The Bowie High School was established in 1927 at the site of the Guillen Elementary School by expanding Guillen’s curriculum to include the higher grades. (P.Exh. 350, p. 105) 11. Austin High School was constructed in 1930. (D.Resp. to P.Interr. 25G) 12. In 1934 El Paso High matriculated students from the following elementary schools, all of which were predominantly Anglo-American: Bailey, Dudley, Lamar, Morehead and Vilas. Austin High School matriculated students from the following schools, all of which were predominantly Anglo-American: Alta Vista, Coldwell, Crockett, Houston and Rusk. Bowie High School matriculated students from the following schools, all of which were predominantly Mexican-American: Alamo, Aoy, Beall, Burleson, Franklin, Lincoln Park, San Jacinto and Zavala. (O. W. Borrett Report, P.Exh. 155, pp. 1-4) 13. As a result of an influx of Mexican Nationals and expanding development of the railroads, the population of El Paso grew from 40,000 in 1910 to 78,000 in 1920. (Testimony, J. Cunningham, Dir., Dept, of Planning and Research, City of El Paso, Texas) 14. The pattern of immigration and growth continued into the 1930’s and the 1940’s and accelerated during World War II. (Testimony, J. Cunningham) 15. The population of the City of El Paso grew from 130,000 in 1950 to 276,000 in 1960 and 325,000 in 1970. This growth resulted from an acceleration of military activities at the White Sands Missile Range and Fort Bliss as well as from the development of clothing manufacturing industries in El Paso. This great increase in population placed an added strain on all public services, including public schools. (Testimony, J. Cunningham) 16. El Paso’s center of population density is presently located north of Interstate Highway 10 and east of Bassett Shopping Center, northeast of south El Paso. (Cross-examination, Dr. Fields by Mr. Sims) 17. By 1970 the Mexican-American population was 187,296, or approximately 56.5% of the total El Paso population of 322,261. (Testimony, Dr. Rabin) 18. Mexican-American citizens and immigrants traditionally settled in south and southeast El Paso, primarily because of these areas’ cultural attachment to Ciudad Juarez, Mexico, and the availability of low cost housing there. However, in recent years there has been a gradual dispersal of the Mexican-American population from the areas of El Paso contiguous to the international border to all geographical areas of the city. The north and northeast sections of the city have felt the impact of this population shift, though they remain predominantly Anglo-American in ethnic composition. (D.Exh.J and P; testimony, J. Cunningham, B. E. Schwarzbach, Sr., C. F. Hart, Jr., J. M. Whitaker, E. Chapa, H. E. Charles, Eduardo Molina; testimony, Dr. Rabin) 19. This natural northward flow of Mexican-American people has caused and will cause a better ethnic balance in almost every school. (D.Exh.J, K, L, M and P; testimony, C. F. Hart, Jr., J. Cunningham, B. E. Schwarzbach, Sr.) 20. Historically and currently, the influx of Mexican immigrants to south and southeast El Paso is a unique phenomenon which has required the Defendant School District to accommodate a disproportionate number of minority students compacted into a relatively small geographic area. (Testimony, J. Cunningham, J. M. Whitaker, E. Chapa) 21. The acts enumerated above in Findings of Fact Nos. 3 through 12, at the time done, caused the ethnic isolation of Anglo-American and Mexican-American students. These acts and policies, proved by convincing evidence, are indicative of past intent on the part of the present Defendant’s predecessor entity to maintain and foster a dual school system. However, the Court finds that the extant level of ethnic isolation within the El Paso Independent School District is, with certain exceptions to be noted below, a result of the population expansion cited in Findings Nos. 13 through 20, and may not be attributed to any intentional act of the Defendant School District. (D.Exh.J, K, L, M and P; testimony, C. F. Hart, Jr., J. M. Whitaker, E. Chapa, H. E. Charles) STUDENT ASSIGNMENT Intentional Acts on the Part of Defendant School District which Caused Ethnic Isolation of Anglo-American and Mexican-American students. 22. The establishment of attendance zones for the following schools had segregative consequences: A. Roberts Elementary School. (Testimony, Dr. Fields; P.Exh. 151H, Map 71, Map Overlay 71C; and D.Exh.Map P) B. Dowell and Schuster Elementary Schools. (D.Exh.Map 71, Overlay 71C; P.Exh. 151H; D.Exh.Map P) C. Travis and Bliss Elementary Schools. (P.Exh.Map 71, Overlay 71C; Testimony, Dr. Fields; D.Exh.Map P) D. Establishment of the western boundary of Fort Bliss as the attendance zone line between Austin High School and Burgess High School. (Testimony, Dr. Fields; P.Exh.Map 71, Overlay 71C, 151H; D.Exh.Map P) 23. The construction of the new Bowie High School in 1973 fostered and continues to foster ethnic isolation of Mexican-Americans. (D.Exh. D, Map P) 24. The construction of Roberts Elementary School in 1961 at 341 Thorne Avenue fostered and continues to foster ethnic isolation of Mexican-Americans. (D.Exh. D, Map P) 25. The transportation of students from Fort Bliss to Logan Elementary School and Burgess High School by means of the following bus routes had segregative consequences: A. Bus route 3, trips 1, 2 and 3, which transported 140 students in 1969-1970 from the Fort Bliss area to Logan School, a predominantly Anglo-American school, while Burnet School, a predominantly Mexican-American school, was .5 mile closer to the area in which the students lived. (Court’s Post Trial Exh. 8) B. Bus route 8, trips 1 and 2, which transported 101 students in 1969-1970 from the predominantly Anglo-American area just west of the Fort Bliss Golf Course and near the Logan School to Burgess High School, a predominantly Anglo-American school, rather than transporting them to Austin High School, a predominantly Mexican-American school, which was 3.4 miles nearer their residences. (C.P.T.Exh. 9) C. Bus route 9, Trip 1, which in 1969— 1970 transported 71 students residing within the bounds of Airport Road, Haan Road, Pershing Road, Forrest Road and Ricker Road to Burgess High School, a predominantly Anglo-American school, when Austin High School, a predominantly Mexican-American school, was 1 mile nearer the residences of those students who lived in the area bounded by the following streets: Jeb Stuart Road, Haan Road, Pershing Road and Forrest Road. D. Bus Route 16, Trip 1, which in 1969-1970 transported to Burgess High School 71 students living in an area on Fort Bliss bounded by the following streets: Airport Road, Ricker Road, Forrest Road, Pershing Road, Pershing Circle, Sheridan Road, Pleasanton Road and Robert E. Lee Road. The distance from the intersection of Pleasanton Road and Robert E. Lee Road to Burgess High School is approximately 3.4 miles, while the distance from that point to Austin High School is approximately 1.5 miles. (C.P.T.Exh. 13) E. Bus route 17, Trip 1, which in 1969-1970 transported 53 students to Burgess High School from the area south of Fred Wilson Road, north of Hayes Avenue, and east of Dyer Street. ■ The distance from the intersection of Sheridan Road and McCullough Road to Burgess High School is approximately 6.1 miles while the distance from that point to Austin High School is approximately 1.9 miles. (C.P.T.Exh. 14) F. Bus route 20, Trip 1, which in 1969-1970 transported 45 students from the area bounded by Sommerville Road, Haggerty Road, W. S. McNair Road, and Marshall Road to Burgess High School. The distance from the intersection of Sommerville Road and Marshall Road to Burgess High School is approximately 5.3 miles, while the distance from that point to Austin High School is approximately 2.2 miles. (C.P.T.Exh. 15) 26. Although bus routes 17 and 20 no longer, transport students residing in the Fort Bliss area to Burgess High School, bus routes 3, 8, 9 and 16, which transport students from the Fort Bliss area to Logan Elementary School and Burgess High School remain the same, with some modification in the specific streets traveled by routes 8, 9 and 16. (C.P.T.Exh. 25, 26, 27, 28) 27. In 1974-1975, 26.828% or 499 students of the 1,860 students comprising the Burgess High School enrollment lived on Fort Bliss. One hundred or approximately 20% of this number were of minority extraction. (C.P.T.Exh. 17A) 28. In 1975-1976, 23.224% or 435 students of the Burgess High School enrollment of 1873 lived on Fort Bliss. Ninety-eight or approximately 23% of this number were of minority extraction. (C.P.T.Exh. 17B) 29. In 1974-1975, 0.963% or 29 of the 3001 students enrolled at Austin High School lived on Fort Bliss. None of this number were members of a minority group. (C.P.T.Exh. 17C) 30. In 1975-1976, 0.798% or 24 of the-3006 students enrolled at Austin High School lived on Fort Bliss. Four or approximately 16% of this number were members of a minority group. (C.P.T.Exh. 17D) Intentional Acts on the Part of Defendant School District Which had Segregative Consequences Causing Ethnic Isolation When Done But Which Have Later Been Remedied by Defendant School District The following acts manifested segregative intent on the part of the El Paso Independent School District, but their effects have either been attenuated by the passage of time or specifically remedied by the Defendant School District: 31. Prior to June 1955, the El Paso Independent School District, as mandated by State law, maintained and operated a segregated school for Negro children only. In June of 1955 the El Paso Independent School District desegregated promptly following the Supreme Court decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 and with regard to Negroes the School District remains and is a desegregated, unitary school system. (D.Exh.N; testimony of all D. witnesses except B. E. Schwarzbach, Sr.) 32. The busing of Mexican-American students from the “flashlight” area of northwest El Paso to Jones School, bus route 1, trip 1, had segregative consequences that were remedied by the closing of Jones Elementary School. (P.Exh. 343, p. 43; C.P.T.Exh. 5, 6; D.Exh.L, Map P) 33. Bus route 7, trip 2, which in 1969-1970 transported 74 students (68 Mexican-Americans) from the Smeltertown area to El Paso High School, a distance of approximately 9.5 miles, while the distance from Smeltertown to Coronado High School by going on Doniphan Drive to Crossroads and then on North Mesa to Coronado High School is approximately 6.84 miles. The Smeltertown area has been abandoned since 1971-1972. (P.Exh. 343, p. 44; distance computed on map attached to C.P.T.Exh. 6) 34. Similarly, bus route 11 which in 1969-1970 transported 121 Mexican-Americans in two trips from the Sunland Park area to El Paso High School, a one-way distance of 13 miles, had segregative consequences. The distance from the Sunland Racetrack area to Coronado High School by traveling on Doniphan to Crossroads and then on North Mesa to Coronado High School is approximately 3.84 miles. (P.Exh. 343, p. 44; distance computed on map attached to C.P.T.Exh. 6) 35. The maintenance of the Jones Elementary School attendance zone as part of the Él Paso High School zone, even though many of the students in the Jones School zone lived closer to Coronado High School than to El Paso High School, had segregative consequences. This situation was remedied by the closing of Jones Elementary School in July 1971. The students who had attended Jones Elementary School were sent to Lincoln School and Morehead School, both predominantly Anglo-American schools. (P.Exh. 343, p. 37; C.P.T.Exh. 3, 5; D.Exh. L; Map P) 36. The establishment in 1963 of the Mesita Elementary School zone as an open zone between El Paso High School and Coronado High School in conjunction with the construction of Coronado High School and the liberal transfer policy fostered thereby allowed El Paso High School to become predominantly Mexican-American and Coronado High School predominantly Anglo-American. This segregative act by the Defendant School Board was remedied in 1971, however, when the Mesita zone became part of the El Paso High School zone. (P.Exh. 343, p. 37; D.Exh.Map P; D.Exh. L) 37. The establishment of open zones between Burgess High School and Austin High School and between Burgess High School and Jefferson High School served to draw Anglo-American students to Burgess High School from those other two high schools. This particular segregative act was remedied in 1971 by the elimination of open zones and the establishment of fixed school attendance zones. (D.Exh. L) 38. The closing of Courchesne Elementary School in February or May of 1961 was an intentional act of segregation if the displaced students were sent to Jones School. However, the action then taken is of no present consequence because Jones School is now closed. All students at Jones were sent to Lincoln Elementary-Intermediate School, a predominantly Anglo-American school. (C.P.T.Exh. 3, 5; D.Exh.Map P; testimony, J. Cunningham, D. F. Hart and J. M. Whitaker) 39. The policy of issuing report cards written only in English was abolished in 1975-1976. All report cards issued by the Defendant School District, with the exception of high school report cards, are now written in both English and Spanish. The Defendant School District utilizes numerous other bilingual communications. (D.Exh.A, H-S-l through H-S-34, 1-1 through 1-32, V-l through V-4; D.Exh. AAA-1 through AAA-3; testimony, H. Polk, K. Allen Johnson) 40. The maintenance of separate athletic districts by the Defendant School District was abolished effective September, 1976. (D.Exh.O, 0-1; testimony, J. M. Whitaker, C. F. Hart, Jr.) 41. Although Defendants at one time permitted “freedom of choice” to attend the school of a student’s or parents’ choosing, the Defendants no longer pursue such a policy and students are required to attend a neighborhood school nearest their respective homes, except in a few isolated instances where permission to attend other schools has been granted based on medical, psychiatric or other extraordinary circumstances. Defendants adopted a school assignment plan for high school students in December of 1970, and for elementary school students in January of 1971. Each of said plans is a zone plan presenting the neighborhood school concept; the attendance zone lines were drawn to encompass residential areas surrounding the various schools in an effort to place the students nearest their homes, consistent with the capacities of various school buildings, natural barriers, major thoroughfares and the like. (D.Exh.J, K, L, M, P) Acts on the Part of Defendant School District Which Did Not Have Segregative Consequences The following acts may not be viewed as manifestations of segregative intent on the part of the El Paso Independent School District: 42. The addition to Wainwright Elementary School in 1956 and the construction of Canyon Hills Intermediate School in 1972 were not intentionally segregative acts on the part of the Defendant School District. These schools are within the cluster denominated by Dr. Fields as Canyon Hills Intermediate School, Park Elementary School and Wainwright Elementary School. Canyon Hills Intermediate School was 27% Mexican-American in 1975. Park Elementary School, opened in 1961, was 18.32% Mexican-American in 1975. Wainwright Elementary School was 70% Mexican-American in 1975. Park Elementary School and Wainwright Elementary School are separated by the proposed north-south freeway and the differences in the percentage of Mexican-American students attending each of the three schools is not an indication that the schools were placed or constructed in such a manner as to have the effect of intentionally isolating Anglo-American and Mexican-American students. (Testimony, C. Hart, Jr., P.Exh. 151H, D.Exh.Map P) 43. The construction of Burnet Elementary School in 1953,. the construction of an addition to Burnet Elementary School in 1965, and the construction of Logan Heights Elementary School in 1960 were not intentionally segregative acts on the part of the Defendant School District. The two schools are approximately 1.75 miles apart and are separated by Dyer Street and the proposed north-south freeway, both natural barriers. Burnet was 76.05% Spanishsurnamed in 1975, while Logan Heights was 7.14% Spanish-surnamed. (Testimony, C. F. Hart, Jr., P.Exh. 151H; D.Exh.Map P, Court’s Trial Exh.Map 1) 44. The construction of the additions to Coldwell Elementary-Intermediate School in 1964, to Hillside Elementary School in 1964, and to Hawkins Elementary School in 1965 were not intentionally segregative acts on the part of the Defendant School District. Hillside Elementary School, containing 78% Spanish-surnamed students in 1975, Hawkins Elementary School, containing 97% Spanish-surnamed students’ in 1975, Coldwell Intermediate-Elementary School, containing 84% Spanish-surnamed students in 1975, and Milam Elementary School, containing 8% Spanish-surnamed students in 1975, are all within the cluster of Coldwell Elementary-Intermediate School. The four schools are separated from one another by Interstate 10 and the proposed north-south freeway, and the construction of additions thereto did not manifest segregative design on the part of the Defendant School District. (Testimony, C. Hart, P.Exh. 151H; P.Exh.Map 71, Map Overlay 71C; D.Exh.Map P) 45. No segregative consequences resulted from the 1970 additions to Henderson Intermediate School in southeast El Paso and Ross Intermediate School located just south of Fort Bliss. Ross Intermediate School, 38.27% Mexican-American in 1975, and Henderson Intermediate School, 86.44% Mexican-American, are 2 to 2.5 miles apart and are separated by Montana Street and Interstate 10. (P.Exh. 151H; P.Exh.Map 71, Overlay 71C; D.Exh.Map P; testimony, C. Hart, Jr.) 46. The closings of Lincoln Elementary School in 1969, Franklin Elementary School in 1972 and San Jacinto Elementary School in 1973 were not intentionally segregative acts on the part of the Defendant School District. Lincoln Elementary School was closed to accommodate State Highway construction, and Franklin Elementary School and San Jacinto Elementary School were closed due to high renovation costs. As these schools had predominantly Mexican-American populations when they closed, the transfer of the displaced students to other predominantly Mexican-American schools did not serve to isolate Anglo-American and Mexican-American students any more than before the closing of the schools. The concentration of Mexican-American students that existed in these three schools was not the result of any intentional act done by the Defendant School District. (Finding No. 21; testimony, J. Cunningham, C. F. Hart, Jr., and J. M. Whitaker) 47. No segregative consequences attached to the closing of Sunset School in 1925. At that time the area around Sunset was 8% to 15% Mexican-American in ethnic composition. (C.P.T.Exh. 5; P.Exh.Map 38) 48. The closing of Bailey School in 1945 did not have segregative consequences. The residential areas around Bailey were 6% to 35% Mexican-American at the time it was closed. (P.Exh.Map 69; P.Exh.Map Overlay 69A, 69B; C.P.T.Exh. 5) 49. The closing in 1948 of Dudley School, located in an area of 0% to 15% Mexican-American population, did not contribute to isolation of Mexican-American and Anglo-American school children. (P.Exh.Map 69, C.P.T.Exh. 5) 50. The site selection and construction of the following schools was in response to the growth of El Paso’s population and does not reflect segregative design on the part of the Defendant School District: Burgess High School, opened in 1955; H. E. Charles Elementary School, opened in 1975; Carlos Rivera Elementary School, opened in 1975; and L. B. Johnson Elementary School, also opened in 1975. (Testimony, J. Cunningham, H. L. Schieman; deposition, H. E. Charles) 51. The construction of satellite schools or cottages at Cooley and Clardy Schools was not a segregative act. (Testimony, J. M. Whitaker; cross-examination, Dr. Fields, by Atty. Sims) 52. The use of portable classrooms at Jefferson High School was not an intentionally segregative act. (Dep. H. E. Charles; testimony, H. Polk; testimony, Carlos Vela) 53. The construction of the following schools evidences no segregative design by the Defendant School District: Burgess High School, constructed in 1955; Bassett Elementary School, constructed in 1957; Crosby Elementary School, constructed in 1958; Stanton Elementary School, constructed in 1959; Irvin High School, opened in 1959; Andress High School, constructed in 1961; Coronado High School, constructed in 1962; and McArthur Elementary School, constructed in 1965. (Testimony, J. Cunningham, H. L. Schieman; P.Exh.Map 69, 69A, 69B, 70, 71, Overlays 71A, 71B, 151H; testimony, H. Polk, refuting Dr. Field’s “under-utilization” theory) 54. Dr. Field’s theory of classroom “under-utilization” is invalid as applied to the Defendant School District. (Testimony, H. G. Polk; See text of Opinion, Footnote 6, for detailed explanation of the under-utilization theory) 55. The following bus routes utilized by the El Paso Independent School District did not have segregative consequences (as so alleged by Plaintiffs): A. Bus route 1, Trip 2 and 3, in 1969-1970. The distance from Courchesne School to old White School is approximately 2.5 miles and the distance from Courchesne School to Jones School, the destination of the bus trip, is 2.0 miles. (C.P.T.Exh. 7) B. Bus route 9, Trip 2, which in 1969-1970 transported students from the Aero Vista area just north of the El Paso International Airport to Burgess High School. The distance from the intersection of Luke Road and Fred Wilson Road to Burgess High School is approximately 5 miles while the distance from that point to Austin High School is approximately 5.52 miles. (C.P.T.Exh. 11) C. Bus route 20, Trip 2, which in 1969-1970 carried students residing in the Aero Vista area just east of Luke Road and south of Fred Wilson Road to Burgess High School. The appropriate point for measuring the distance from this area to Burgess and Austin High Schools is the intersection of Luke Road and Fred Wilson Road. The results are the same as in Finding 55B. (C.P.T.Exh. 11) 56. The Defendant School District, contrary to Plaintiffs’ allegations, had no viable input into siting decisions for streets, highways and public and private housing in El Paso. Information regarding location of such projects was unavailable to the Defendant School District until construction plans were finalized. (Testimony J. Cunningham, H. L. Schieman and J. M. Whitaker. The location of housing developments is initially approved by the El Paso City Subdivision Control Committee whose members, various local government agencies, discuss the effect of proposed developments on their agencies and determine whether or not a proposal must be altered or changed. Upon approval by the committee, the recommendations and the subdivision map must be approved by the City Planning Commission whose members are appointed by the Mayor and City Council. Mr. Jonathan Cunningham, Director of El Paso Department of Planning and Research, stated that the EPISD is regularly invited to attend these meetings, but that it has no influence on the location of subdivisions in El Paso. Mr. Schieman also testified that the Defendant School District has no ability to change the location of a subdivision in the city. See also deposition, H. E. Charles) PERSONNEL PRACTICES 57. On August 15, 1972, (D.Exh. F-19), the Defendant School District and HEW entered into an agreed plan to remedy deficiencies found by HEW in the following areas: Special Education, Teacher Reassignment and Recruitment of Minority Faculty and Administrators, and Curriculum, with emphasis on the bilingual-bicultural program of the Defendant School District. The Defendant School District has faithfully and diligently pursued, and is pursuing, the implementation of its agreement with HEW in the aforementioned areas, resulting in a finding by the U.S. Commission on Civil Rights that the Defendant School District is in compliance with Title VI of the Civil Rights Act. (D.Exh.G, pp. 65, 78; testimony, J. M. Whitaker, K. Allen Johnson) 58. Following the HEW agreement in 1972 (D.Exh. F-19), the Defendant School District decided on the figure of 34% as the Singleton Tolerance Maximum Percentage of Spanish-surnamed teachers to be assigned to any one individual campus for the academic year 1972-1973. Transfers of Anglo and Mexican-American teachers were made to effect this goal. (Testimony, Dr. Fields, P.Exh. 479-G; testimony, E. Russell) 59. In the 1972 HEW agreement the Defendant School District established a goal of attaining a racially balanced teaching staff by September 1977. The Defendant School District announced a desire to hire 160 minority teachers annually over the five-year period commencing September 1972, allowing a variance of 5% to 10%. (D.Exh. F-19, p. 28) 60. The Defendant School District has intensified its hiring of minority teachers. (D.Exh. W-l; testimony, Elmer Russell) 61. The attrition of Mexican-American faculty and professional staff due to leaves of absence, resignation, retirement and death has contributed to, but is not entirely responsible for, the Defendant School District’s inability to meet its hiring goal as mandated by the 1972 HEW agreement and Davis v. Board of School Commissioners of Mobile County, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971). (Testimony, Elmer Russell) 62. The Defendant School District stated its intention in the 1972 plan to recruit bilingual teachers from universities in Arizona and California. (D.Exh. F-19, p. 28). No evidence was presented at trial that it had done so. 63. In the 1972 Agreement with HEW, the Defendant School District committed itself to the “development of a long-range plan which will offer an equal opportunity to all qualified staff for advancement into all levels of the school system.” (D.Exh. F-19, p. 31) 64. Of the 306 promotional positions available during the 1975-1976 school year, 108 or 32% were held by members of minority groups. (D.Exh. W-2) 65. During the school year 1974-1975, minority group members held 29% of the available jobs as assistant principals-teaching. Minority group members held 14% of the available jobs as “other” classroom teachers, 11% of the jobs as librarians and audio-visual staff, and no minority group members held psychological services positions. (P.Exh. 151R, EEO-5 Form for 1974- 1975). These percentages do not fall within the acceptable Singleton Tolerance Range. 66. During the 1975-1976 school year, minority group members held 27% of available jobs as assistant principals-teaching, 30.6% of jobs as other classroom teachers, and 19.8% of available jobs as librarians and audio-visual staff. No minority group members held jobs in psychological services capacities. (C.P.T.Exh. 20, Elementary-Secondary Staff Information, EEO-5, May 19, 1976) These percentages do not fall within the acceptable Singleton Tolerance Range. 67. During the 1974-1975 school year, minority group members held 20% of the available jobs as officials, administrators and managers, 29% of the available jobs as consultants and supervisors of education, and 29% of other available professional staff positions. (P.Exh. 151R, EEO-5 Survey of El Paso Independent School District for 1974-1975) 68. During the 1975-1976 school year, minority group members held 30.9% of available jobs as officials, administrators and managers, 29.8% of available jobs as consultants and supervisors of education, and 27.3% of other available professional staff positions. (C.P.T.Exh. 20, Elementary-Secondary Staff Information, EEO-5, May 19, 1976) 69. In 1975-1976 minority group members held 51.4% of the available jobs as elementary school principals. (C.P.T.Exh. 21, Roster of Schools and Principals for 1975- 1976) This percentage is 52.7 for the year 1976-1977. (C.P.T.Exh. 22, Roster of Principals and Assistant Principals for 1976-1977) 70. In 1975-1976 minority group members held 28.6% of the available jobs as elementary assistant principals. (C.P.T. Exh. 21, supra) This percentage in 1976-1977 is 33.3%. (C.P.T.Exh. 22, supra) 71. In 1975-1976 minority group members held 20% of the available jobs as elementary-intermediate school principals. (C.P.T.Exh. 21) This percentage is 40% in 1976-1977. (C.P.T.Exh. 22) 72. In 1975-1976 minority group members held 36.4% of available positions as elementary-intermediate school assistant principals. (C.P.T. 21) This percentage is 22.2% in 1976-1977. (C.P.T. 22) 73. In 1975-1976 minority group members held 25% of available jobs as intermediate school principals. (C.P.T.Exh. 21) This percentage is also 25% for the school year 1976-1977. (C.P.T.Exh. 22) 74. In 1975-1976 minority group members held 33.3% of available jobs as intermediate school assistant principals. (C.P.T. 21) This percentage is 25% for the school year 1976-1977. (C.P.T.Exh. 22) 75. For both the years 1975-1976 and 1976-1977 minority group members held 33.3% of the available positions as junior high school principals and assistant principals. (C.P.T.Exh. 21, 22) 76. For both 1975-1976 and 1976-1977 minority group members held 37.5% of the available positions as high school principals. (C.P.T.Exh. 21, 22) 77. For the school year 1975-1976 minority group members held 33.3% of the available positions as high school assistant principals. (C.P.T.Exh. 21) This percentage for the year 1976-1977 is 38.5% (C.P.T. Exh. 22) . 78. Minority group members presently hold 34.5% of available teacher positions within the Defendant School District. (C.P. T.Exh. 1, Ethnic Distribution of Teachers Assigned to Schools, Oct. 2, 1976; testimony, Elmer Russell) 79. Under the standard articulated in Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211, 1217-1218 (5th Cir. 1970), minority group members should comprise 32% to 36% of the faculty of each school of the Defendant School District. The Defendant School District is not in compliance with this Singleton range as applied to individual schools within the district. 80. The majority of the individual schools and faculties within the Defendant School District are either under-represented by both Spanish-surnamed students and Spanish-surnamed teachers, or overrepresented by both Spanish-surnamed students and Spanish-surnamed teachers. (C.P.T. Exh. 1, Ethnic Distribution of Teachers Assigned to Schools, Oct. 10, 1975; P.Exh. 505-1, 505-2, 505C, 505F) 81. As of October 2, 1975, 22 schools in the Defendant School System had minority teacher percentages that fell below the Singleton tolerance standard. There were 13 school faculties within the tolerance range and the faculties of 27 schools exceeded the Singleton Tolerance Range. (C.P.T.Exh. 1, Ethnic Distribution of Teachers Assigned to Schools, Oct. 2, 1975) 82. Of the 22 schools whose faculty ratios fell below the Singleton Tolerance Range, 68% or 15 were predominantly Anglo-American schools. Eighty-five percent or 23 of the 27 schools whose faculty ratios exceeded the Singleton tolerance were predominantly Mexican-American Schools. (C.P.T.Exh. 1, Ethnic Distribution of Teachers Assigned to Schools, Oct. 10, 1975) 83. As of October 2, 1975, the faculty of Bowie High School, 38% Mexican-American, exceeded the Singleton tolerance. Bowie is a predominantly Mexican-American school. The faculty of Jefferson High School, 36% minority, fell within the Singleton tolerance range. Jefferson High School is also a predominantly Mexican-American school. The other two predominantly Mexican-American high schools fell below the Singleton range: Austin High School, 21%; and El Paso High School, 21%. As of October 2, 1975, the faculty ratios of all four predominantly Anglo-American high schools fell below the Singleton tolerance: Andress High School, 23%; Burgess High School, 24%; Coronado High School, 22%; and Irvin High School, 25%. (C.P.T.Exh. 1, Ethnic Distribution of Teachers Assigned to Schools, Oct. 2, 1975) 84. From 1968 to 1975 the rate at which Spanish-surnamed teachers were assigned to predominantly Mexican-American schools remained relatively constant, even though there was an increase in the percentage of Spanish-surnamed teachers hired during those years. (P.Exh. 505-3, 505-4) 85. A bilingual program is operational in 45 elementary schools within the Defendant School District. Twenty-eight or 62% are predominantly Mexican-American schools, while 17 or 38% are predominantly Anglo-American schools. There are 431 teachers assigned to the bilingual program in these schools, of whom 215 or approximately 50% are of Mexican-American extraction, while 199 or 44% are Anglo-American. Six percent of the teachers are of another minority group. (C.P.T.Exh. 2, Bilingual Ethnic Breakdown of Teachers Assigned to Bilingual Program, prepared by Beth Garcia of the EPISD Personnel Dept., May 13, 1976) CURRICULA AND OTHER MATTERS 86. The curricula provided by the Defendant School District includes 600 academic subjects and approximately 300 vocational subjects at the high school level. The courses span all branches of academic ability and subject matter diversity. (D.Exh. Q-l through Q-17, a sampling of courses offered at the high school level relating to ethnic minorities) 87. A technical center, recently opened, houses all of the Defendant School District’s vocational programs. The EPISD is accredited by the Southern Association of Colleges and Schools, which recognized in 1972 that the EPISD high school curricula was the most comprehensive in the State of Texas. (Testimony, K. Allen Johnson) 88. The same publication of course offerings is sent to every school within the school system. A minimum enrollment of approximately 20 students is generally required before a course can be offered. If a particular course is requested by the requisite number of students, a teacher will be supplied, even if that teacher teaches less than half a day. The only constraint on a course offering is the lack of a particular facility. (Id.) 89. In 1972, the Defendant School District decentralized its staff development and instructional support personnel into three administrative cadres within the school district. Each area is headed by an associate superintendent and each staff consists of a specialized group of instructional support personnel. These people can respond quickly to problems within their respective geographical areas. Staff development programs in the EPISD are an ongoing process, with between 25 and 40 teachers utilizing the staff development center three days a week (during the 1974-1975 school year). Curriculum development takes place prior to staff development and the district strives for a one-year lead time between the training of teachers and the initiation of a new curriculum. (Testimony, K. Allen Johnson) 90. The Defendant School District has instituted, implemented and carried forward a bilingual (Spanish-English) program so that children who may be linguistically disadvantaged in the English language will have equal educational opportunity with all other students. (D.Exh. F-l to F-57, G, H, H-G-l to H-G-16, H-I-l to H-I-37, HS-l to H-S-34, H-P-l, 1-1 to 1-32, Q-l to Q-17, R-l to R-5, S, T-l to T-13, U-l to U-5, and V-l to V-4; testimony, K. Allen Johnson, Hibbard Polk, Vera Zlabovsky, Dr. Marguerite Smith Davis) 91. The bilingual program is now operational in 45 schools: kindergarten through third grade in 15 schools; kindergarten through second grade in 15 schools; and kindergarten through first grade in 15 schools. One additional grade will be' added to the program each year. Funds to administer the bilingual program come from the Texas Education Agency and the School District’s own budget. Students are grouped according to their dominant language and taught by teams of bilingual and monolingual teachers in such a manner that each student receives subject matter instruction in his own language. The Defendant School District has utilized available federal funds for training programs to increase the number of bilingual teachers. The teachers train for the program one year prior to their participation in it. Approximately 100 monolingual English-speaking teachers have participated in 100 “contact hours” of Spanish language training. Other teachers have continued into the second 100 hours and others are in their third 100-hour series of instruction. The Defendant School District utilizes federal funds from the Emergency Education Act for staff development to train more bilingual teachers. (D.Exh. F-l to F — 57; D.Exh. G, at 18, 64, 65, 71, 74, 78, 79, 81, 83; D.Exh. H; D.Exh. H-G-l to H-G-16; D.Exh. H-I-l to H-I-87; D.Exh. H-S-l to H-S-34, D.Exh. H-P-l; D.Exh. 1-1 to I-32; D.Exh. Q-l to Q-17; D.Exh. R-l to R-5; D.Exh. S; D.Exh. T-l to T-13; D.Exh. U-l to U-5; D.Exh. V-l to V-4, testimony, K. Allen Johnson, Hibbard Polk, Vera Zlabovsky and Dr. Marguerite Smith Davis, K. Allen Johnson) 92. The Defendant School District has developed its own experts and consultants in individualized instruction. These experts support the teaching staff and have received state and national recognition and have conducted lectures, seminars, and workshops within the State of Texas and nationwide. (Testimony, K. Allen Johnson) 93. Since 1972 the Defendant School District has instituted outstanding cultural and educational programs and practices that especially benefit Mexican-American and other minority ethnic groups, and is regularly augmenting such programs. These programs have served as models throughout the United States and have received international recognition. (D.Exh. F-l to F-57, G, H, H-G-l to H-G-16, H-I-l to H-I-37, H-S-l to H-S-34, H-P-1, 1-1 to 1-32, Q-l to Q-17, R-l to R-5, S, T-l to T-13, U-l to U-5 and V-l to V-4, Testimony, K. Allen Johnson) 94. The Defendant School District has, for a number of years, operated a variety of federally supported educational programs, the majority of which programs benefit Mexican-American students. (D.Exh. HG-l through H-G-16; D.Exh. B, Federally-supported Programs in El Paso Public Schools as of December 5,1975; Testimony, K. Allen Johnson, J. M. Whitaker) 95. Since August 15, 1972, the Defendant School District has not assigned Mexican-American students to classes for the mentally retarded in disproportionate numbers by reason of language deficiency alone. (D.Exh. A, H-S-3, A-S-25, X, F — 19; testimony, Dr. Joseph Ptasnik; see Appendix I for a full description of the School District’s “Plan A”, the program for students with special learning problems) 96. The achievement test scores of some predominantly non-English speaking students are lower than those of predominantly English speaking students. This is due partially to the verbal orientation of standardized testing techniques, and is not an indication of discriminatory intent on the part of the Defendant School System. (Testimony, Bill Sybert; Cross-Examination, K. Allen Johnson, by Atty. Avila) 97. The Defendant School District participates in a number of federally-funded programs that benefit Mexican-American students. The School District received $2,599,663 in 1975, authorized under Title I of the Elementary and Secondary Education Act of 1965. These funds were spent to provide instructional and supportive services to educationally deprived children in schools with the greatest concentration of children from low income families. The ■21 schools that received Title I funds are situated in various parts of the city: Schuster in the northeast; Roberts in the northwest; Clardy and Cooley in the southeast; and other schools in the central area of the city. Nine different programs are offered in these schools. (Testimony, K. Allen Johnson; D. Trial Exh. B, Federally Supported Programs operational in El Paso Public Schools, Dec. 5, 1975.) 98. The programs utilized by the Defendant School District Under Title I of the Elementary and Secondary Education Act of 1965 are as follows: a. Upgrowth Program [UP], Supplementary reading in English classes for students in Grades 1-3. Fifty-three teachers serve in the program. b. Intensive Language Development [ILD], Classes in oral English for non-English speaking students or students of limited English-speaking ability in Grades 1-8. Thirty-nine teachers serve in the program. c. Remedial Reading Laboratories [RRL], Supplementary Reading in English classes for students in Grades 4-8. Forty-six teachers serve in the program. d. Tutorial 'Mathematics [TM], Supplementary classes in mathematics for students in Grades 4-8. Twenty-two teachers serve in the program. e. Language arts, typing, strengthening of spelling, vocabulary and the language arts skills while learning the mechanics of typing. f. Counseling help for children, teachers and parents on a group or one-to-one basis. Sixteen counselors serve in the program. g. Nurses, providing health services to all Title I children and the provision of medical assistance to those children whose families cannot afford treatment. Five nurses serve in the program. h. Home-school-community agents, parents within a school attendance area who provide an open line of communication between the school and community. Five home-school-community agents serve in the program. i. Field studies, the strengthening of language skills by broadening each child’s experiences through opportunities to visit sites of interest and historical value in the El Paso area. One field studies manager and 5 teacher-aides serve in the program. (D. Trial Exh. B, Dr. Hibbard Polk testified that some 240 teachers in classrooms are involved in Title I Programs.) FACILITIES 99. Historically, the El Paso School System intentionally maintained inferior facilities for Mexican-American students. This discriminatory policy, abandoned in 1961, was in part effected in the following particulars: A. The limited funding of Mexican schools. (D.Exh. A-5, “Old-time Principal Taught 150, Gave Medicine, Aided Poor”, by G. P. Putnam). B. Poor building maintenance. (P.Exh. 188-B, Board of Education entry, Aug. 31, 1910). C. Overcrowded school building facilities. (P.Exh. 154, A Survey of City Schools of El Paso, Texas, by Paul W. Horne, 1922, pp. 20-21) D. Maintaining overcrowded conditions in the Mexican-American schools. (P.Exh. 305, p. 30; P.Exh. 155, The Borrett Report, Nov. 19, 1934; Testimony, Eduardo Rodriguez) E. Maintaining inadequate playground and sports facilities. (Testimony, Mr. Moreno) F. Maintaining poor lighting conditions in the Mexican-American schools. (P.Exh. 188B, School Board entry, Aug. 29, 1950) G. Permitting significant physical deterioration of plant facilities at predominantly Mexican-American Schools. (P.Exh. 305, Historical Sketches of Aoy School by Bertha Archer Schaer, p. 20; P.Exh. 348-2, Report A. V. Benner, Engineer, dated Jan. 19, 1960; Testimony, Mrs. Josefina Sanchez) H. Constructing the Newman Elementary School in a predominantly Anglo-American area instead of correcting the deteriorating conditions set forth in the Benner Report, supra. (P.Exh. 153-C, dated Feb. 16, 1960; D.Exh. B-2, The Independent School District of the City of El Paso, Texas, Estimated Budget for 1960-1961 Fiscal year, p. 6, No. 8; D.Exh. B-3, The Independent School District of the City of El Paso, Texas, Estimated Budget for the 1961-1962 Fiscal Year, p. 1, indicating the carryover from the prior year, 1960-1961) 100. Since 1955 the Defendant. School District has spent in excess of $29,000,000 for construction, renovation, and additions to the approximately 35 schools that are predominantly Mexican-American in student composition. (D.Exh. D). During the same period in excess of $26,000,000 has been expended on the 24 predominantly Anglo-American schools within the District. (Id.) 101. The Defendant School District has spent $229,597.55 on maintenance of 20 predominantly Mexican-American school facilities from 1968 through July 30, 1975. (D.Exh.C) 102. The fact that an older building has been renovated and modernized to meet the physical requirements of educational programs is not an indication of discriminatory intent on the part of the Defendant School District. (Testimony, H. L. Schieman) 103. The fact that a building is new or relatively new does not mean that it necessarily contains better teaching facilities than a renovated building. (Testimony, H. L. Schieman) 104. Since 1961-1962 the Defendant School District has neither constructed new facilities nor renovated existing ones in a discriminatory manner with the exception hereinafter noted. 105. Presently, the assembly areas and administrative areas of all the schools in the El Paso Independent School District are at least partially air conditioned: eight predominantly Anglo-American schools are completely air conditioned, while only 3 predominantly Mexican-American schools are completely air conditioned. (Testimony, H. L. Schieman) This is an indication of discriminatory intent on the part of the Defendant School District toward Mexican-American students. 106. The fact that a strong correlation exists between the greater age of a school and the larger percentage of Spanish-surnamed students enrolled in that school is not an indication of intent on the part of the Defendant to maintain a dual school system. (E.Exh.C, D; testimony, H. L. Schieman) 107. The comparison of student density and the percentage of Spanish-surnamed students, as set forth in the years 1969-1970 and 1974-1975 (P.Exh. 511A-D) is not relevant to the issue of equal educational opportunity. 108. The four predominantly Mexican-American high schools were not consistently more crowded than the four predominantly Anglo-American high schools during 1969-1975, as alleged in P. Exh. 512. (Testimony, Hibbard Polk, refuting the “under-utilization theory” of Dr. Fields; testimony, Carlos Vela, Hibbard Polk, concerning use of portable classroom buildings by Defendant School District; cross-examination, Dr. Fields, by Atty. Sims, concerning removal of portable classroom buildings from Jefferson High School) CONCLUSIONS OF LAW 1. The Court has jurisdiction to hear this action under the Fourteenth Amendment to the United States Constitution, 28 U.S.C. § 1343(3) and (4), and 42 U.S.C. § 1981, § 1983, § 1988, and § 2000d. 2. This action is properly maintained as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure as the specific requirements of Rule 23(a), Rule 23(b)(1)(B), and Rule 23(b)(2) have been met. Keyes v. School District No. 1, 413 U.S. 189, 197, 93 S.Ct. 2686, 37 L.Ed.2d 548, 556 (1973); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954); U. S. v. Texas Education Agency, 467 F.2d 848 (5th Cir. 1972) (en banc); Cisneros v. Corpus Christi Independent School District, 467 F.2d 142 (5th Cir. 1972) (en banc); and Alvarado v. El Paso Independent School District, 445 F.2d 1011 (5th Cir. 1971). 3. The constitutional violations detailed infra, in Conclusions of Law 4 through 10, constitute a prima facie case tending to show intentional discrimination against Mexican-American students in a significant portion of the El Paso Independent School District. A. The gerrymandering of the attendance zones of Roberts Elementary School, Dowell and Schuster Elementary Schools, and Travis and Bliss Elementary Schools, by the Defendant School District had segregative consequences. Additionally, the Defendant School District’s use of the west boundary line of Fort Bliss as the attendance zone line between Austin High School and Burgess High School had the effect of isolating Anglo-American and Mexican-American students. 5. The construction of the new Bowie High School and the Roberts Elementary School at their present sites had segregative consequences. Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); U. S. v. Texas Education Agency, 532 F.2d 380 (5th Cir. 1976). 6. The transportation of students on bus routes 3, 8, 9, 16, 17 and 20 had segregative consequences. 7. The disparity between the number of predominantly Anglo-American schools and the number of predominantly Mexican-American schools that are completely air conditioned manifests segregative intent on the part of the Defendant School District. 8. The School District’s failure to hire additional Mexican-American faculty and teaching staff as agreed in the 1975 HEW Agreement and as mandated by Davis v. Board of School Commissioners of Mobile County, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971), is an intentionally segregative act. 9. The failure of the Defendant School District to promote Mexican-American personnel to upper level administrative and management positions evidences segregative design on the part of the Defendant School District. 10. The failure of the Defendant School District to assign Anglo-American teachers to predominantly Mexican-American schools and Mexican-American teachers to predominantly Anglo-American schools can only be viewed as an intentional segregative act. Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir. 1970). 11. With the exception of those specific areas listed supra, in Conclusions of Law 4 through 10, the racial imbalance that exists in other schools of the Defendant School District is not the result of any intentional act of the Defendant School District. Rather, that level of ethnic isolation presently existing within the El Paso Independent School District is the result of the unique geographic and demographic characteristics of the El Paso area. 12. As to all other allegations, Plaintiffs have failed to sustain their burden of proof that the Defendant School District has and is maintaining a dual school system in violation of the Plaintiffs’ rights to equal educational opportunity as guaranteed by the Fourteenth Amendment to the United States 'Constitution. MEMORANDUM OPINION AND ORDER This class action was initiated in 1970 by fourteen plaintiffs, as parents, on behalf of themselves and their children, and all other children and parents in the El Paso Independent School District, alleging that Defendants, acting under color of law, operate and maintain a dual and racially segregated school system in violation of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1981, § 1983 and § 1988. The suit was dismissed on jurisdictional grounds by the United States District Court on March 8, 1971, Alvarado v. El Paso Independent School District, 326 F.Supp. 674 (W.D.Tex.1971). The case was reversed and remanded with directions on June 6, 1971, by the United States Court of Appeals for the Fifth Circuit. Alvarado v. EPISD, 445 F.2d 1011 (5th Cir. 1971) (reh. denied), July 14, 1971). By order of this Court, this case was set for trial on August 18, 1975, but was then continued to December 8, 1975, for non-jury trial on the merits. This suit is properly maintained as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure as the specific requisites of Rule 23(a), Rule 23(b)(1)(B), and Rule 23(b)(2) have been met. Keyes v. School District No. 1, 413 U.S. 189, 197, 93 S.Ct. 2686, 37 L.Ed.2d 548, 556 (1973); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954); U. S. v. Texas Education Agency, 467 F.2d 848 (5th Cir. 1972) (en banc); and Alvarado v. El Paso Indepen dent School District, 445 F.2d 1011 (5th Cir. 1971). Jurisdiction lies under the Fourteenth Amendment to the United States Constitution, 28 U.S.C. § 1343(3) and (4), 42 U.S.C. § 1981, § 1983, § 1988 and § 2000d. Concurrent with the filing of this opinion, the Court has this day filed its Findings of Fact and Conclusions of Law and a remedial Order. Extensive references to the Findings of Fact will be made throughout this opinion. The parties have agreed that the issues herein are as follows: (a) Whether, by means of a variety of acts and/or omissions, including the use of discriminatory zoning lines, discriminatory feeder patterns, the operation of optional zones, racially inspired construction site selection, the use of portable classrooms, the use of liberal transfer policies and discriminatory transfer policies, the El Paso Independent School District has created and maintained a dual school system for Anglo-Americans and Mexican-Americans and other minorities; (b) Whether, through a variety of acts and/or omissions, including discriminatory treatment of Mexican-American teachers at Mexican-American schools, historical policies against the hiring of Chicano teachers, discriminatory teacher assignment, discriminatory teacher advancement and discriminatory teacher transfers, the El Paso Independent School District has created and maintained racially identifiable schools and has deprived Mexican-American children of positive role models and in so doing the above has furthered the creation of a dual school system for Mexican-American and Anglo-American students; (c) Whether the El Paso Independent School District has historically maintained a different and inferior curriculum at predominantly Mexican-American schools and for Mexican-American students, resulting in the creation and maintenance of identifiable, inferior minority schools and classes, and contributing to the creation and maintenance of a dual school system for Mexican-American and Anglo-American students; (d) Whether the El Paso Independent School District has historically provided inferior facilities at predominantly Mexican-American schools, thereby creating and maintaining identifiable, inferior minority schools contributing to the creation and maintenance of a dual school system for Mexican-American and Anglo-American students; (e) Whether the El Paso Independent School District has historically assigned Mexican-American students to classes for the mentally retarded in disproportionate numbers and as a result has effectively denied equal educational opportunity to Mexican-American students; (f) Whether, through a variety of acts and/or omissions in the areas of public zoning and highway placement, ! racial and exclusionary restrictive covenants, segregatory family reloca-' tions, and segregatory public housing construction site selection, the El Paso Independent School District has either directly participated in segregatory decisions resulting in segregated housing in El Paso or has, through the drawing of school atténdaucé^zójles^and: scnoofeonstrucíitíííT'maximized rSsídiñBaTse^'égation and has thereby created and maintained a dual school system for Mexican-Americans and Anglo-Americans; (g) Whether the El Paso Independent School District has historically maintained separate athletic districts for Mexican-American students and Anglo-American students, thereby creating and maintaining identifiable Mexican-American schools, and as a result has contributed to the creation and maintenance of a dual school system for Mexican-American and Anglo-American students; (h) Whether Mexican-American students in segregated Mexican-American schools have lower achievement test scores and are more likely to drop out of school, be retained, suspended or expelled than are Anglo-American students as a result of the creation and maintenance of a dual school system by Defendants; (i) Whether the El Paso Independent School District has historically failed to utilize bilingual communications with the parents of Mexican-American students and has thereby denied equal educational opportunity to Mexican-American students. PHYSICAL SETTING As of the 1973-1974 school year, the El Paso Independent School District consisted of 35 elementary schools, 12 elementary-intermediate schools, 3 intermediate schools, 1 junior high school and 8 high schools, serving approximately 62,000 students. The School District is split by a mountain into a “U” shape and is bordered by the Ysleta Independent School District to the s