The opinion of the court was delivered by: CURTIN
In December 1976, after the Supreme court vacated and remanded the Austin school case, Austin Independent School District v. United States, 429 U.S. 990, [97 S. Ct. 517, 50 L. Ed. 2d 603] (1976), this court requested each of the parties to this school case to brief the Austin case and Washington v. Davis, 426 U.S. 229, [96 S. Ct. 2040, 48 L. Ed. 2d 597] (1976), the case that prompted the Supreme Court's action in Austin. Following this court's request, the City defendants by motion asked this court to vacate its April 30, 1976 liability decision, Arthur v. Nyquist, 415 F. Supp. 904 (W.D.N.Y.1976), or, in the alternative, to reconsider that decision in light of Washington v. Davis and Austin. The court has agreed to reconsider its decision.
The City defendants contend that Washington v. Davis, the Austin case, and the subsequently decided case of Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, [97 S. Ct. 555, 50 L. Ed. 2d 450] (1977), all of which are post-April 30, 1976 cases, have changed the law this court relied on in its liability decision. The State defendants urge the same argument in their briefs. To determine the impact of these cases requires a close look at each.
In Washington v. Davis, 426 U.S. 229, [96 S. Ct. 2040, 48 L. Ed. 2d 597] (1976), the plaintiffs alleged that a test administered by the District of Columbia's Police Department to prospective police officers was a violation of their fifth amendment due process rights. The plaintiffs, two black men whose applications had been rejected, did not claim that the department intentionally discriminated against them through the use of the test, but merely charged that the test had "a highly discriminatory impact in screening out black applicants." 348 F. Supp. 15, 16 (D.D.C.1972). On appeal, the circuit court reversed the district court and held that the disproportionate racial impact alone was sufficient to sustain plaintiff's claim of a constitutional wrong. [168 U.S. App.D.C. 42] 512 F.2d 956, 960 (1975).
The Supreme Court's decision in Washington, overruling the circuit court, stated explicitly:
[Our] cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact. 426 U.S., at 239, [96 S. Ct., at 2047] (emphasis in original).
During the course of its opinion, the Court noted that school cases have adhered to the principle that "the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose." 426 U.S., at 240, [96 S. Ct., at 2048.] The Court cited with approval its 1973 decision in the Denver school case, Keyes v. School District No. 1, 413 U.S. 189, 205, [93 S. Ct. 2686, 37 L. Ed. 2d 548] (1973), in which the Court had stated that one of the essential elements of de jure segregation is "a current condition of segregation resulting from intentional state action."
When the Supreme Court vacated the circuit court opinion in the Austin case, it remanded the case to the circuit court "for reconsideration in light of Washington v. Davis." 429 U.S. 990, [97 S. Ct. 517, 50 L. Ed. 2d 603] (1976). Some light was shed on the Court's thinking by the separate opinion of Justice Powell, concurred in by Chief Justice Burger and Justice Rehnquist, which stated:
As suggested by this Court's remand premised upon Washington v. Davis, supra, the Court of Appeals may have erred by a readiness to impute to school officials a segregative intent far more pervasive than the evidence justified.
The Austin case has a long history. Filed in 1970, the suit alleged that the Austin Independent School District [AISD] discriminated against both black and Mexican-American students. With respect to the latter, however, the district court found that the Government did not prove intentional discrimination. On appeal, the circuit court, in an en banc decision, 467 F.2d 848 (5th Cir. 1972) [ Austin I], reversed this finding as clearly erroneous. Among other things, the circuit court stated:
The district court may have applied an erroneous legal standard . . . .
It is not necessary to prove discriminatory motive, purpose, or intent as a prerequisite to establishing an equal protection violation when discriminatory effect is present. 467 F.2d, at 864-865, n.25.
The case came back on appeal to the Fifth Circuit after the district court had adopted and put into effect the remedy proposal of the AISD. In the intervening years, the Supreme Court had decided the Keyes case, in which it specifically noted the intent requirement. The circuit court admitted that the "cause and effect"1a test previously applied in Austin I, which obviated any need for finding discriminatory intent, was supervened by Keyes. The court proceeded to find the defendants had intentionally discriminated against the plaintiffs. 532 F.2d 380, 390-392 (5th Cir. 1976) [ Austin II]. However, it apparently is unclear to the Supreme Court, as evidenced by Justice Powell's words, supra, whether the Fifth Circuit made a proper finding of intent. During the course of his opinion, Judge Wisdom noted that Austin is a residentially segregated city, and that the "natural, foreseeable, and inevitable result of the AISD's student assignment policy," 532 F.2d, at 390, which is to assign a student to the school nearest his or her home, is a segregated school system in Austin. The inference of discriminatory intent, said the court, was inescapable. The reason for utilizing the "reasonable and foreseeable consequences" test is that "it is difficult -- and often futile -- to obtain direct evidence of [an] official's intentions." 532 F.2d, at 388.
Justice Stevens, in a concurring opinion in Washington v. Davis, supra, has made the same observation:
Frequently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor. For normally the actor is presumed to have intended the natural consequences of his deeds. This is particularly true in the case of governmental action which is frequently ...