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Appellate Panel Upholds Unitary Status for Fort Worth

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A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit has affirmed a federal district judge's 1989 finding that the Fort Worth Independent School District is desegregated in virtually all its aspects.

In its Oct. 24 ruling, the New Orleans-based appellate court stated that the Constitution places no obligation on the Texas school system to counter the effects of a "white slight" to its desegregation program.

"[S]chool officials who have taken effective action [to desegregate] have no affirmative 14th Amendment duty to respond to the private actions of those who vote with their feet," the appellate court said.

The court noted that in his ruling last year, U.S. District Judge Eldon B. Mahon found that the Fort Worth system was "unitary in every respect, except for the existence of a homogeneous student population." The judge attributed that racial imbalance to segregated housing patterns, the appeals court said.

Such demographic trends, the appeals court said, "are not the result of the [school] district's efforts to foster segregation."

Rather, it held, the imbalances "are reactions to that plan--to the extent that they are not reactions to other social and economic factors."

The district, it continued, "is not now required to take further steps to counter the effects of what may amount to a 'white slight' to its plan."

The appellate panel said that further balancing efforts are not demanded under the Constitution "when the school district has made intensive efforts to eliminate one-race schools and further measures would be both impractical and detrimental to education."

The Fort Worth branch of the National Association for the Advancement of Colored People had challenged the district court's decision.

The appellate opinion, written by Judge Jacques L. Wiener Jr., supported the lower court's finding that the district could be declared legally desegregated in part even though some aspects of its educational program may "contain deficiencies that are not serious."

The appeals court based that aspect of its decision on a ruling earlier this year by the U.S. Court of Appeals for the 10th Circuit in the Denver school-desegregation case. That court held that federal judges may declare school systems "unitary in certain aspects, even though other aspects remain non-unitary."

The U.S. Supreme Court has been asked to review the ruling in the Denver case as well as similar decisions involving schools in Topeka, Kan., and DeKalb County, Ga. Last month the High Court heard arguments in a third related suit involving the Oklahoma City public schools.

Although Judge Mahon found that the Fort Worth schools were unitary, he did not end court supervision over the district. Following a Fifth Circuit precedent, the judge retained jurisdiction over the case for three years and promised to give the district's critics a chance at the end of that period to show why the case should not be dismissed.

"Obviously we're pleased that Judge Mahon's decision was upheld," Don R. Roberts, Fort Worth's school superintendent, said last week.

Nevertheless, Mr. Roberts said, "it's not really an earth-shaking event," because the court will continue to monitor the system, which will continue its desegregation activities.

For example, the superintendent said, "we have a goal of improving our staff--the goal of hiring minorities. It's not a quota, it's a goal."

In another recent development in a school-desegregation dispute, the Seattle school board voted 4 to 3 on Oct. 31 to revise once again its rules governing the racial composition of the district's schools.

According to Michael W. Hoge, a lawyer for the Seattle district, the new rules limit overall minority enrollment in each school to no greater than 76 percent; prohibit a single minority group from composing more than half of a school's enrollment; and prohibit whites from composing more than 70 percent of a school's enrollment.

Fifty-six percent of the district's students are members of minorities, Mr. Hoge said.

On Sept. 5, the board adopted a plan that would have permitted schools to have enrollments composed entirely of minority students. Several advocacy groups threatened to challenge that plan in court.

Federal officials warned the district that as a result of the move the district was in danger of losing about $3 million in federal aid for magnet-school programs. In addition, the state withheld from the system up to $10 million in aid for capital improvements.

In mid-September the board responded to those developments by voting to postpone implementation of the new plan until the 1991-92 school year, thus freeing up the federal magnet-school aid, Mr. Hoge said.

Previous guidelines were reinstated, allowing no more than 50 percent of a school's enrollment to be composed from a single minority group and limiting each school's enrollment to no more that 70 percent minority or 65 percent white.

With the adoption of the Oct. 31 plan "we expect that the threat of imminent litigation has receded," Mr. Hoge said. The state capital-improvement aid should become available as well, he added.

"We don't have any formal notification yet that those funds are unfrozen, but we hope to get that shortly," he said.

In Missouri, U.S. District Judge Russell G. Clark on Oct. 29 ordered that money be returned to Kansas City taxpayers who had formally protested a property-tax increase that he had mandated earlier to help finance the city's school-desegregation efforts.

In April 1990, the U.S. Supreme Court ruled that Judge Clark could not impose the tax unilaterally. It added, however, that he could require the Kansas City district to raise the tax.

In ordering the refund, the judge limited repayment to those who formally protested the 1987 increase.

Allen R. Snyder, a lawyer for the school district, said the judge noted that approximately 9,000 taxpayers had paid some $10.69 million under protest for 1987. The funds have been held in escrow.

Some taxpayers contend that all citizens who paid the tax should get a refund, noted Arthur Benson 2nd, a lawyer representing black students in the city's desegregation case. As of Nov. 6, no appeals had been filed, he said.

Mr. Snyder added that the judge found that tax increases for 1988 and 1989 were permissible, and directed that the $23 million they raised should not be returned.

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