Perez v. Pasadena Independent School District

Revised February 5, 1999

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

Nos. 97-20345 & 97-20489
_____________________

ROSALINDA L PEREZ; DOLORES E GARCIA; MAGGIE RAMIREZ; ZINA
GONZALES; MARIA GONZALES; CELESTINO M PEREZ, JR; JENKY M
DIAZ; DAVID R SEGURA; RUDY N TREVINO; ROBERT MARTINEZ;
YVONNE RUTH; PASADENA CITIZENS FOR EQUITABLE REPRESENTATION,

Plaintiffs-Appellants,

v.

PASADENA INDEPENDENT SCHOOL DISTRICT; CARMEN OROSCO; DENNY
DELAFIELD; VICKIE MORGAN; BOB BLAIR; MARSHALL KENDRICKS;
HARVEY TURNER; JOHN ELAM,

Defendants-Appellees.

_________________________________________________________________

Appeals from the United States District Court
for the Southern District of Texas
_________________________________________________________________
January 29, 1999
Before KING, Chief Judge, and JONES, and SMITH, Circuit Judges.

KING, Chief Judge:

Plaintiffs-appellants, Hispanic residents of the Pasadena

Independent School District and an unincorporated association

consisting of individual plaintiffs-appellants, allege that the

at-large election system used by defendants-appellees, Pasadena

Independent School District and members of its board of trustees,

for choosing school trustees violates Section 2 of the Voting

Rights Act of 1965, 42 U.S.C. § 1973 (1994) (as amended). The
district court found no violation and entered judgment in favor

of defendants-appellees. We affirm.

I. FACTUAL & PROCEDURAL BACKGROUND1

Defendant-appellee Pasadena Independent School District (the

PISD) is a political subdivision of the State of Texas that

covers approximately eighty-five square miles in the southwestern

part of Harris County, Texas. The PISD includes the cities of

Pasadena and South Houston, portions of Houston, and

unincorporated areas. The 1990 census found that approximately

190,000 people live in the PISD and that sixty-two percent of the

total population are Anglo, thirty percent are Hispanic, and four

percent are African-American. During the 1991-1992 school year,

the PISD had approximately 38,671 students attending fifty-one

schools. Forty-nine percent of these students were Anglo, forty-

two percent were Hispanic, and five percent were African-

American.

The PISD is governed by the Pasadena School Board of

Trustees (the Board), which consists of seven members who are

elected at-large by voters residing in the PISD. Two or three

positions are filled each year; each trustee runs for a specific

1
The district court’s thorough and well-reasoned opinion
provides a comprehensive review of the facts and procedural
history. See Perez v. Pasadena Indep. Sch. Dist., 958 F. Supp.
1196, 1202-08 (S.D. Tex. 1997). We therefore summarize only
those facts necessary for the disposition of this appeal.

2
position on the Board and is elected by a plurality of the votes

cast for that position. The individual defendants-appellees were

the elected members of the Board in 1992. Only one member of the

Board is Hispanic.

Plaintiffs-appellants (plaintiffs), Hispanic residents of

the PISD and an unincorporated association consisting of

individual plaintiffs, filed this suit in the United States

District Court for the Southern District of Texas on November 19,

1992, alleging that the PISD’s at-large election system deprives

Hispanics of an equal opportunity to participate in the political

process in violation of Section 2 of the Voting Rights Act of

1965, 42 U.S.C. § 1973 (1994) (as amended),2 and the Fourteenth

2
Section 2 provides in relevant part:

(a) No voting qualification or prerequisite to voting or
standard, practice, or procedure shall be imposed or applied
by any State or political subdivision in a manner which
results in a denial or abridgement of the right of any
citizen of the United States to vote on account of race or
color . . . .

(b) A violation of subsection (a) of this section is
established if, based on the totality of circumstances,
it is shown that the political processes leading to
nomination or election in the State or political
subdivision are not equally open to participation by
members of a class of citizens . . . in that its
members have less opportunity than other members of the
electorate to participate in the political process and
to elect representatives of their choice.

42 U.S.C. § 1973.

3
and Fifteenth Amendments.3 Plaintiffs claimed that Hispanic

participation in the Board elections is limited by the use of

staggered terms without single-shot voting, the large population

of the district, the comparatively small number of polling

places, the absence of minorities as election officials, and

economic disparities between the Anglo and minority communities.

Plaintiffs sought a declaratory judgment finding the existing at-

large election method unlawful and an injunction preventing any

further elections using the at-large method.

The parties presented evidence to the district court from

May 31, 1995 through June 8, 1995. The district court heard

additional argument and evidence of subsequent demographic

changes on February 10, 1997 and entered an opinion and judgment

in favor of defendants-appellees (defendants) on March 13, 1997.

The district court found that to prevail on their claim

under Section 2, plaintiffs must meet the three-part test set

forth in Thornburg v. Gingles, 478 U.S. 30 (1986):

[F]irst, “that [the minority group] is sufficiently large
and geographically compact to constitute a majority in a
single-member district”; second, “that it is politically
cohesive”; and third, “that the white majority votes
sufficiently as a bloc to enable it . . . usually to defeat
the minority’s preferred candidate.”

3
The district court dismissed plaintiffs’ Fourteenth and
Fifteenth Amendment claims after finding insufficient evidence of
intentional discrimination. See Perez, 958 F. Supp. at 1230.
Plaintiffs do not appeal the dismissal of these claims.

4
Growe v. Emison, 507 U.S. 25, 40 (1993) (quoting Gingles, 478

U.S. at 50-51). The district court stated that if plaintiffs

succeed in showing that the Gingles three-part threshold is

reached, plaintiffs must also show that under the “totality of

the circumstances” Hispanics do not possess the same

opportunities to participate in the political process enjoyed by

other voters, considering factors set forth in Zimmer v.

McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), aff’d sub

nom. East Carroll Parish Sch. Bd. v. Marshall, 424 U.S. 636

(1976), and the Senate Report of the Voting Rights Act Amendments

of 1982.4

4
The Zimmer factors are as follows: (1) the extent of any
history of official discrimination in the PISD that touched
Hispanics’ right to register, to vote, or otherwise participate
in the democratic process; (2) the extent to which voting in the
PISD is racially polarized; (3) the extent to which the PISD has
used unusually large election districts, majority vote
requirements, anti-single shot provisions, or other voting
practices that may enhance the opportunity for discrimination;
(4) whether Hispanics have been denied access to a candidate
slating process; (5) the extent to which Hispanics in the PISD
bear the effects of discrimination in areas such as education,
employment, and health, which hinder their ability to participate
effectively in the political process; (6) whether political
campaigns have been characterized by overt or subtle racial
appeals; and (7) the extent to which Hispanics have been elected
to public office in the PISD. See S. REP. NO. 97-417, at 28-29
(1982), reprinted in 1982 U.S.C.C.A.N. 177, 206-07 (citing
Zimmer, 485 F.2d at 1305). Two additional factors that may have
probative value in determining whether there is a violation of
the Voting Rights Act are (1) whether there is a significant lack
of responsiveness on the part of elected officials to the
particularized needs of Hispanics, and (2) whether the policy
underlying the PISD’s use of such a voting practice is tenuous.
See id. at 29; see also Brewer v. Ham, 876 F.2d 448, 451 n.4 (5th
Cir. 1989).

5
 The district court found that plaintiffs failed to establish

the first element of the three-part Gingles test because they did

not show that it is possible to draw one or more districts in the

PISD with a majority Hispanic citizen voting-age population. The

district court considered several proposed plans which would have

seven single-member districts with at least one district

containing a Hispanic voting-age population exceeding fifty

percent. The district court found, and plaintiffs do not

contest, that approximately sixty percent of the Hispanic

population in the PISD are citizens, and therefore a proposed

district must have a Hispanic voting-age population exceeding

62.5 percent for the Hispanic citizen voting-age population to

exceed fifty percent.5

The district court rejected plaintiffs’ argument that they

only need establish that it is possible to create a single-member

district in which the majority of the voting-age population, not

the majority of the citizen voting-age population, is Hispanic.

Plaintiffs alternatively urged the district court to accept their

projections that at least two proposed districts would reach a

Hispanic citizen voting-age population exceeding fifty percent as

early as 1995. The district court rejected plaintiffs’

5
The proposed district with the largest Hispanic voting-age
population using 1990 census data had a 58.8 percent Hispanic
population and a 52.9 percent Hispanic voting-age population.

6
projections as unreliable and used 1990 census data in its

analysis.6

Although the district court found that plaintiffs failed to

meet the first Gingles requirement, the court exhaustively

considered the evidence presented, addressed the remaining two

Gingles requirements, and considered the “totality of

circumstances” using the Zimmer factors. The district court

found that Hispanics in the PISD voted cohesively and therefore

that plaintiffs had met the second Gingles requirement. The

district court also found that Anglo voters generally had not

voted for Hispanic candidates in PISD elections, but did not

decide if this was the result of racial polarization meeting the

third Gingles requirement. Finally, the district court evaluated

the totality of the circumstances and found that plaintiffs had

raised valid concerns that Hispanic citizens’ participation in

the Board elections was limited by voting barriers including a

small number of polling places, the absence of minority election

officials, and the operation of a slating committee.

Nonetheless, the court determined that because plaintiffs had not

6
Plaintiffs simply annualized the eighty percent growth
rate of the Hispanic population in the PISD between 1980 and 1990
and applied that rate to the 1990 population data. Plaintiffs do
not appeal the district court’s rejection of this method of
population projection, but argue instead that the district court
should have taken a “more flexible approach” to the first Gingles
factor by considering the total Hispanic population in the PISD,
high Hispanic voter-turnout in Pasadena in 1995, and other “non-
census” data.

7
met the “necessary precondition” of proving that it is possible

to create a single-member district in which the majority of

voting-age citizens is Hispanic, it “must find in favor of the

defendants.” Perez v. Pasadena Indep. Sch. Dist., 958 F. Supp.

1196, 1230 (S.D. Tex. 1997). Plaintiffs appeal.

II. DISCUSSION

Plaintiffs argue that the district court erred as a matter

of law in entering judgment in favor of defendants because it

created a “bright-line” rule that plaintiffs must demonstrate

that a majority of the citizen voting-age population in a

proposed single-member district is Hispanic. Plaintiffs further

contend that the district court erred in finding that the

majority of the citizen voting-age population in the proposed

districts is not Hispanic because plaintiffs demonstrated that

the districts contain a growing Hispanic population and have a

demographic composition similar to that of districts that have

elected Hispanic candidates. Finally, plaintiffs argue that the

district court erroneously taxed them for defendants’ costs.

A. Standard of Review

We review de novo the legal standards a court applies to

determine whether Section 2 has been violated. See Gingles, 478

U.S. at 79. We review the district court’s findings on the

Gingles threshold requirements and its ultimate findings of vote

dilution, however, for clear error. See id.; League of United

Latin Am. Citizens #4552 (LULAC) v. Roscoe Indep. Sch. Dist., 123

8
F.3d 843, 847 (5th Cir. 1997); Overton v. City of Austin, 871

F.2d 529, 532-33 (5th Cir. 1989) (“Reliance upon . . . the

Court’s voter dilution threshold analysis . . . [is] a fact-

bound, intensely local inquiry highly dependent upon the district

court’s conclusions. As such, the clearly erroneous test applies

to the district court’s findings.”). The application of the

clearly-erroneous standard to findings on the Gingles threshold

requirements thus “preserves the benefit of the trial court’s

particular familiarity with the indigenous political reality

without endangering the rule of law.” Gingles, 479 U.S. at 79.

B. Citizenship in the First Gingles Requirement

The Supreme Court has determined that the “right” question

in vote dilution claims under Section 2 is whether “as a result

of the challenged practice or structure plaintiffs do not have an

equal opportunity to participate in the political processes and

to elect candidates of their choice.” Gingles, 478 U.S. at 44

(quoting S. REP. NO. 97-417, at 28 (1982)). As a matter of law,

the use of at-large voting can impede the ability of minority

voters to elect representatives of their choice only if the

plaintiffs demonstrate that the group meets the three Gingles

requirements. See Growe, 507 U.S. at 40; Gingles, 478 U.S. at

50-51; Campos v. City of Houston, 113 F.3d 544, 547 (5th Cir.

1997) (“Failure to establish any one of these threshold

requirements is fatal.”).

9
 The first Gingles threshold requires that plaintiffs

demonstrate that Hispanics in the PISD are “sufficiently large

and geographically compact to constitute a majority in a single-

member district.” Gingles, 478 U.S. at 50. Plaintiffs argue

that they have met this requirement because they proposed

districts containing an Hispanic voting-age population exceeding

fifty percent. We have unequivocally held, however, that courts

“must consider the citizen voting-age population of the group

challenging the electoral practice when determining whether the

minority group is sufficiently large and geographically compact

to constitute a majority.” Campos, 113 F.3d at 548 (emphasis

added). As we reasoned in Campos, such a result is required by

the plain language of Section 2. See id.; see also Barnett v.

City of Chicago, 141 F.3d 699, 704 (7th Cir.) (“We think that

citizen voting-age population is the basis for determining

equality of voting power that best comports with the policy of

[Section 2].”), cert. denied, 118 S. Ct. 2372 (1998). The

district court therefore correctly required that plaintiffs

demonstrate that Hispanics would represent a majority of voting-

age citizens in a proposed district.

C. Relevant Evidence in the First Gingles Requirement

Plaintiffs argue that courts should be “more flexible” in

evaluating the first Gingles requirement and that it is possible

to show that minorities have the ability to elect candidates of

their choice even if they comprise less than a majority of voting

10
age citizens in a given district. In making this argument,

plaintiffs rely on our decision in Westwego Citizens for Better

Government v. City of Westwego, 906 F.2d 1042, 1046 (5th Cir.

1990) (per curiam), in which we recognized that “[m]inority

voting-age population data, minority voter registration data and

evidence of success by minority preferred candidates is relevant

to the first Gingles factor.” Plaintiffs assert that the

district court erred in finding that Hispanics would not have the

ability to elect a preferred candidate in the proposed districts

because Hispanics represent a growing percentage of the total

population and Hispanic candidates have succeeded in similar

districts.

As we held in Westwego, however, evidence relating to

elections in similar districts and the total population in a

proposed district is relevant only in determining whether a

majority of the voting-age population in the proposed district is

Hispanic. See id. at 1045-47. “The appropriate method of

establishing the first Gingles factor is a ‘matter of fact’ which

the plaintiff must prove, but there is no ‘uniform method.’” Id.

at 1046-47 (quoting Brewer, 876 F.2d at 452). While such

evidence may inform the analysis as to whether a minority group

comprises a majority of the voting-age citizens in a proposed

district and therefore reaches the threshold requirement,

evidence that the group may succeed in electing preferred

11
candidates cannot remedy its failure to meet the Gingles

threshold.

The district court considered plaintiffs’ evidence regarding

elections in similar districts and the projected growth of the

Hispanic population, but the court found plaintiffs’ projections

unreliable. Furthermore, the court noted that the percentage of

Hispanics voting in the PISD and in elections in similar

districts has remained essentially unchanged since 1990 and that

the rate of growth in Hispanic voter registration has increased

at a slower rate than plaintiffs’ Hispanic citizen growth

projections. Faced with what it described as a “Hobson’s choice

between two unsatisfactory alternatives,” the district court

properly weighed the evidence and adopted the 1990 census data as

the most reliable, and we find no clear error in its decision.

Perez, 958 F. Supp. at 1212-13. We therefore affirm the district

court’s entry of judgment for defendants on the Section 2 claim.

D. Costs

Following the entry of judgment in its favor, defendants

filed a bill of costs with the district court on March 25, 1997.

Defendants requested $162,745.17 in costs, including fees for

court reporting, witnesses, expert witnesses, mediation, copies,

and other related expenses under 28 U.S.C. § 1920 (1994).7 The

7
28 U.S.C. § 1920 provides in relevant part:

A judge or clerk of any court of the United States may tax
as costs the following:

12
district court entered an order on May 8, 1997 awarding

$13,925.43 as costs for court reporting fees for depositions and

for the cost of copying defendants’ trial notebook, and

plaintiffs timely appeal.

Plaintiffs argue that the district court erred in awarding

defendants expenses for duplicating their trial notebook because

defendants failed to provide receipts or obtain authorization

from the district court for its exhibits. See Zapata Gulf Marine

Corp. v. Puerto Rico Maritime Shipping Auth., 133 F.R.D. 481, 484

(E.D. La. 1990) (disallowing “essentially undocumented” claim for

copies of papers). Plaintiffs also argue that the district court

erred in awarding deposition costs because the depositions

included questions on an issue that plaintiffs did not challenge

and the depositions were not significantly used at trial.

Finally, plaintiffs assert that the award of costs will

discourage future civil rights lawsuits.8

. . .
(2) Fees of the court reporter for all or any part
of the stenographic transcript necessarily
obtained for use in the case;
. . .
(4) Fees for exemplification and copies of papers
necessarily obtained for use in the case.

Id. Under Federal Rule of Civil Procedure 54(d)(1), “[e]xcept
when express provision therefor is made either in a statute of
the United States or in these rules, costs other than attorneys’
fees shall be allowed as of course to the prevailing party unless
the court otherwise directs.”
8
Plaintiffs also argue that the depositions were redundant
and that the award was inequitable because plaintiffs lost on

13
 We review the district court’s award of costs to a

prevailing party for abuse of discretion. See LULAC, 123 F.3d at

848-49; Allen v. United States Steel Corp., 665 F.2d 689, 697

(5th Cir. Unit B 1982) (“The district court has great latitude in

determining whether an award of deposition costs is warranted.”).

Factual findings made by the district court are reviewed for

clear error. See Cypress-Fairbanks Indep. Sch. Dist. v. Michael

F., 118 F.3d 245, 256 (5th Cir. 1997), cert. denied, 118 S. Ct.

690 (1998).

We have reviewed the record and we find no abuse of

discretion in the district court’s award of costs. The district

court found that defendants listed the trial exhibits in the

pretrial order and provided the court a copy of their trial

notebooks. See Louisiana Power & Light Co. v. Kellstrom, 50 F.3d

319, 335 (5th Cir. 1995) (requiring pretrial approval of exhibits

for costs to be taxed). Furthermore, plaintiffs neither

challenge the necessity of the copies nor provide any support for

their assertion that the district court abused its discretion by

failing to require that defendants produce receipts. See Duke v.

Uniroyal, Inc., 743 F. Supp. 1218, 1227 (E.D.N.C. 1990) (“It is

not necessary or desirable for federal courts to review receipts

for every five dollar expenditure. Judges, being former

only one issue and the public has benefitted from subsequent
changes in PISD elections. Plaintiffs did not raise these
arguments before the district court, however, and we will not
consider them in this appeal.

14
practicing attorneys, are quite capable of determining the

reasonableness of expenses incurred during litigation.”), aff’d

in relevant part, 928 F.2d 1413 (4th Cir. 1991); cf. Zapata, 133

F.R.D. at 484 (finding Zapata’s claim “essentially undocumented”

because Zapata provided no information about what was copied, how

the copies were used, or whether the copies were necessary).

Similarly, we are unconvinced by plaintiffs’ argument that

the depositions were investigatory and infrequently used at trial

and that therefore the award of costs was an abuse of discretion.

See Allen, 665 F.2d at 697 (finding no abuse of discretion where

deposition fees were awarded for depositions that were not used

at trial). Although plaintiffs highlight several places in the

trial record where they state that they did not challenge whether

the PISD is responsive to the Hispanic population, there is no

indication, nor do they argue, that they conceded the issue prior

to the subject depositions. Finally, we find no support for

plaintiffs’ assertion that the award of costs is an abuse of

discretion because it may inhibit future civil rights lawsuits.

See LULAC, 123 F.3d at 848-49 (affirming award of costs against

plaintiff in Section 2 case); cf. Cypress-Fairbanks, 118 F.3d at

256-57 (finding no abuse of discretion in awarding school

district costs in Individuals with Disabilities Education Act

suit, although such an award may have a “chilling effect” on

future plaintiffs). We therefore affirm the district court’s

order granting defendants $13,925.43 in costs.

15
 III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment and cost

order of the district court.

16