UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 97-40162
_______________________
United States of America,
Plaintiff-Appellee,
Goodrich Independent School District,
Intervenor Plaintiff-Appellee,
versus
State of Texas, et al.,
Defendants,
Forest Springs Subdivision,
Intervenor Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
October 29, 1998
Before JONES and SMITH, Circuit Judges, and FITZWATER*, District
Judge.
EDITH H. JONES, Circuit Judge:
*
District Judge of the Northern District of Texas, sitting
by designation.
1
This case pits a community’s effort to send 22 children
to the school that will best serve their educational needs1 against
the district court’s interpretation of a 27-year-old statewide
school desegregation decree. At issue is whether the injunctive
decree prohibits a neighborhood subdivision from changing school
districts, even though the move would only alter the racial
composition of the district from which the subdivision is detached
by approximately 2.7 percent.
Because we conclude that the proposed boundary change
does not violate the United States Constitution or the district
court’s desegregation order, properly construed, we REVERSE.
I.
Since 1971, the Texas public education system has been
governed according to a federal court order2 designed to ensure
that “no child will be effectively denied equal opportunity to
educational opportunities on account of race, color or national
origin.” The modified order provides, inter alia, that the state
of Texas, the Texas Education Agency (“TEA”), its officers, agents,
and employees
1
Texas’s annexation and detachment statute exists to allow
residents of a territory some choice in determining their school
district affiliation. See, e.g., Comal Indep. Sch. Dist. v.
Bexar County, No. 066-R6-283 (Comm’r Educ. Jan. 1984).
2
Hereinafter, the 1971 federal court order will be referred
to as “modified order 5281” or simply “modified order.”
2
shall not permit, make arrangements for, approve,
acquiesce in, or give support of any kind to changes in
school district boundary lines -- whether by detachment,
annexation, or consolidation of districts in whole or in
part -- which are designed to, or do in fact, create,
maintain, reinforce, renew, or encourage a dual system
based on race, color, or national origin.
According to the modified order, the board of trustees of any
school district desiring to annex or consolidate with a nearby
district must notify the Texas Commissioner of Education
(“Commissioner”) of its intentions. The Commissioner is required
to investigate “the effects of such a projected change of
boundaries on the desegregation status of all the school districts
concerned.” The Commissioner must then report the results of his
investigation to the appropriate county and local officials,
stating whether the proposed change is in violation of law.
In January 1991, the Forest Springs subdivision, which
lies on the boundary of the Goodrich and Livingston Independent
School districts, sought detachment from Goodrich and annexation to
Livingston. If approved at that time, the detachment would have
removed approximately 380 acres and twenty-two students (twenty of
whom are white) from Goodrich. After notice and public hearing,
the Livingston I.S.D. school board unanimously approved the
proposed annexation. Goodrich, however, disapproved the detachment
request, and the Forest Springs subdivision appealed to the
Commissioner.
Following a hearing on the merits, the Commissioner found
that the proposed detachment and annexation neither violated
3
modified order 5281 nor would impose significant adverse
educational, economic, or social effects on the students in the
affected territories.3 See Forest Springs Subdivision v. Goodrich
Indep. Sch. Dist., No. 240-R6-391 (Comm’r Educ. Sept. 1992). The
Commissioner made pertinent findings of fact and conclusions of
law:
Findings of Fact
. . . .
12. [Forest Springs’s] detachment from Goodrich I.S.D.
will not result in racial imbalance; however, it does
change the majority and minority percentage of [Goodrich
I.S.D.’s] school population, based on average daily
attendance, by more than one percent.
. . . .
14. There is no evidence that the detachment of
Petitioner Forest Springs Subdivision from Respondent
Goodrich I.S.D. is designed to or does in fact, create,
maintain, reinforce, renew, or encourage a dual school
system based on race, color, or national origin.
15. There is no evidence that the annexation of
Petitioner Forest Springs Subdivision from Respondent
Livingston I.S.D. is designed to or does in fact, create,
maintain, reinforce, renew, or encourage a dual school
system based on race, color, or national origin.
. . . .
3
Under Texas law at that time, the Commissioner was
required to
consider the educational interests of the students in
the affected territory and the affected districts and
the social, economic, and educational effects of the
proposed boundary change.
Tex. Educ. Code Ann. § 19.022(i) (West 1991).
4
Conclusions of Law
. . . .
2. The change of boundaries resulting from detachment of
the affected territory from Respondent Goodrich I.S.D.
and the annexation of Forest Springs Subdivision,
Petitioner, to Livingston I.S.D. does not violate
[modified order] 5281.
3. Detachment of the affected territory from Respondent
and annexation of that territory to Livingston I.S.D.
will have no significant adverse educational, economic,
or social effect on the school districts or students
involved.
Id. The Commissioner ordered that Forest Springs be annexed to
Livingston. See id.
Goodrich sought judicial review of the Commissioner’s
decision. A state district court reversed the order and remanded
the cause to the Commissioner to enter a new order denying the
detachment and annexation. But the Austin Court of Appeals
reversed the district court. See Texas Educ. Agency v. Goodrich
Indep. Sch. Dist., 898 S.W.2d 954, 956 (Tex. App.--Austin 1995,
writ denied). The appeals court reasoned that due deference must
be accorded the Commissioner’s judgment. In Texas, an agency’s
determination must be affirmed where it is supported by substantial
evidence. Applying that test, the appeals court concluded that
“[t]he Commissioner’s finding that the proposed boundary change
would not create, maintain, reinforce, renew, or encourage a dual
school system based on race, color or national origin is supported
5
by substantial evidence” and rendered judgment affirming the
Commissioner’s decision. Id. at 959.
After the Texas Supreme Court denied its application for
writ of error, Goodrich filed a Motion to Intervene in Civil Action
5281, complaining now to the federal court that the proposed
boundary change violated the court’s modified order and requesting
an injunction. Livingston I.S.D., its Board of Trustees, and
individual residents of the Forest Springs subdivision who had
signed the original petition for detachment and annexation were
joined as Defendants-Intervenors.
The district court held a hearing on August 22, 1996, in
which evidence was introduced –– including the entire
administrative record of the proceedings before the TEA –– and
testimony of lay and expert witnesses was taken. Participation by
the State of Texas and the United States, the named parties to the
original action, was minimal. Although Goodrich’s motion for
injunctive relief was denied, the district court proceeded to issue
a declaratory judgment, holding:
After careful consideration of the evidence
presented to this court in this proceeding, it
is determined that the proposed detachment
[of] Forest Springs subdivision from Goodrich
and annexation to Livingston Independent
School District would reinforce, renew and
encourage a dual school system based on race
and color, in violation of this court’s order
of July 17, 1971.
6
The residents of Forest Springs filed this timely
appeal.4 They argue that the district court erred in (1) finding
that under principles of issue preclusion the state court
proceedings should not bar Goodrich’s subsequent intervention in
federal court; (2) finding that the proposed detachment and
annexation would reinforce, renew or encourage a dual school
system; and (3) refusing to apply present standards governing
school desegregation law, rather than those set out in the modified
order. Neither the state of Texas nor the TEA has appealed, but
both the United States and Goodrich have filed briefs as appellees.
II.
Before we consider Forest Springs’s issues, the Appellees
contend, we must decide its citizens’ constitutional standing as
intervenors to proceed with this appeal. See Diamond v. Charles,
476 U.S. 54, 68, 106 S. Ct. 1697, 1706 (1986). The Residents must
establish (1) that they have suffered an “injury in fact,” (2)
which is fairly traceable to the challenged action, and (3) which
will be redressed by a favorable decision of this court. See
American Forest & Paper Ass’n v. EPA, 137 F.3d 291, 296 (5th Cir.
1998).
Because the Residents’ claims so easily fulfill “the
irreducible constitutional minimum of standing,” Lujan v. Defenders
4
Hereinafter, we will refer to the appellant as either the
residents of Forest Springs or simply the Residents.
7
of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136 (1992), it is
a shame that the government resorts to specious arguments to deny
standing. Following a favorable ruling from the state appellate
courts, the Forest Springs subdivision won the right to be detached
from Goodrich and become part of Livingston I.S.D. For the
Residents of Forest Springs this victory entitled parents to send
their children to a public school system many felt had “better
educational and extracurricular opportunities.” Texas Educ.
Agency, 898 S.W.2d at 959. The decision also allowed these
citizens to support Livingston I.S.D. with their tax dollars and to
participate as members of the local community. When Goodrich
intervened in federal court and secured a favorable declaratory
judgment overturning the annexation, all that was lost.
The Appellees contend, however, that because neither the
state nor the TEA has appealed, the Residents alone lack standing.
Appellees cite Diamond in support of their position, but their
reliance is misplaced. Diamond was a pediatrician engaged in
private practice in Illinois. After the federal court of appeals
declared an Illinois abortion law unconstitutional and the State’s
attorney general elected not to defend the law any further, Diamond
appealed to the Supreme Court. The Court held that Diamond was
unable to satisfy the constitutional requirements of standing
because private parties have no judicially cognizable interest in
the prosecution or nonprosecution of state laws. The Court
8
reasoned that a private citizen cannot compel a state to apply its
laws with a particular degree of vigor, nor must the state enact a
statute in accord with his wishes. See Diamond, 476 U.S. at 65,
106 S. Ct. at 1705. As the Court concluded, “[b]ecause the State
alone is entitled to create a legal code, only the State has the
kind of ‘direct stake’ . . . in defending the standards embodied in
that code.” Id. at 65, 106 S. Ct. at 1705.
Unlike the appellant in Diamond, the residents of Forest
Springs do not pursue this appeal in order to compel the state to
enforce its laws, and they are not trying to defend the
constitutionality of a legislative judgment in the absence of a
state representative. Instead, the Residents are defending a
private right they gained in state court to annex their subdivision
to and send their children to school in Livingston I.S.D. These
Residents are not merely “concerned bystanders” invoking the
exercise of judicial power “simply as a ‘vehicle for the
vindication of value interests,’” id. at 62, 106 S. Ct. at 1703
(quoting United States v. SCRAP, 412 U.S. 669, 687, 92 S. Ct. 2405,
2416 (1973)). They are concerned parents with a direct stake in
the quality of education they are able to secure for their children
and, hence, in the outcome of this appeal.
Moreover, a favorable decision from this court would
directly redress the harm alleged in this case. The Commissioner’s
order required that Forest Springs be annexed to Livingston I.S.D.
9
An order of the Commissioner remains in effect until it is modified
or set aside by the courts. See Temple Indep. Sch. Dist. v.
Proctor, 97 S.W.2d 1047, 1052 (Tex. Civ. App.--Austin 1936, writ
ref’d). A favorable ruling from this court would remove the last
obstacle preventing Forest Springs’s detachment from Goodrich and
annexation to Livingston. Although a new date for the annexation
would be required, state law provides that an appealed decision of
the Commissioner becomes effective on a date set by the district
court in Travis County. See Tex. Educ. Code Ann. § 13.005(c) (West
1996). Neither the state of Texas nor the Commissioner is required
to take any action to effectuate the Commissioner’s earlier order.
As a result, the redressability prong as well as the other
standards in the Constitution’s Article III standing requirement is
satisfied.
III.
The Residents argue first that the district court erred
in refusing to apply preclusive effect to the final state court
judgment, which affirmed the Commissioner’s finding that the
proposed detachment and annexation would not violate Modified Order
5281.
Common-law doctrines of issue and claim preclusion
ordinarily shield final judicial determinations of administrative
bodies, whether under the aegis of federal or state government.
See Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107-
10
08, 111 S. Ct. 2166, 2169 (1991). Federal courts must give a State
agency’s decision “the same preclusive effect to which it would be
entitled in the State’s courts.” University of Tennessee v.
Elliott, 478 U.S. 788, 799, 106 S. Ct. 3220, 3226 (1986).
Under Texas law, a party seeking to invoke issue
preclusion must establish: (1) the facts sought to be litigated in
the second action were fully and fairly litigated in the prior
action; (2) those facts were essential to the judgment in the first
action; and (3) the parties were cast as adversaries in the first
action. See Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818
(Tex. 1984). Judgments and decisions of state administrative
agencies are entitled to preclusive effect where the administrative
agency has acted in adjudicatory, judicial or quasi-judicial
capacity. See Railroad Comm’n v. Phillips, 364 S.W.2d 408, 411
(Tex. Civ. App.--Austin 1963, no writ); see also Muckelroy v.
Richardson Indep. Sch. Dist., 884 S.W.2d 825, 830 (Tex. App.--
Dallas 1994, writ denied).
In this case, the first two requirements for issue
preclusion clearly apply. The parties’ dispute was litigated to
the hilt in state administrative and judicial proceedings,
including the issue whether the proposed boundary change violated
“[modified order] 5281 or result[ed] in significant adverse
educational, economic or social effects, or whether the boundary
changes [were] in the educational interests of the students.”
11
Forest Springs Subdivision v. Goodrich Indep. Sch. Dist., No. 240-
R6-391 (Comm’r Educ. Sept. 1992).
The appellees urge, and the district court erroneously
held, that issue preclusion is inapplicable because the state
courts did not rule definitively on whether the proposed boundary
change complied with modified order 5281. Technically, as
appellees observe, the only issue before the state courts was
whether the Commissioner’s findings were supported by substantial
evidence.5 But this is all that issue preclusion requires in the
administrative context. A state court reviewing the decision of an
administrative agency need not proceed as though it were writing on
tabula rasa. See Kremer v. Chemical Constr. Corp., 456 U.S. 461,
481 n.21, 102 S. Ct. 1883, 1897 n.21 (1982).
5
The Texas Court of Appeals framed the issue in this
manner:
Although the parties have defined their dispute in
terms of violation of the federal order, this Court
does not sit to interpret and collaterally enforce a federal
order. Instead, . . . we review for substantial evidence
questions committed to the agency’s discretion and challenged by
the parties on appeal. By stipulation the parties agreed that
the creation, maintenance, reinforcement, renewal, or
encouragement of a dual school system in violation of the federal
order was the only educational effect of sufficient gravity to
preclude Forest Springs’ annexation to Livingston. Therefore,
the issue before us is whether the Commissioner’s decision to
allow the annexation of Forest Springs to Livingston I.S.D. is
supported by substantial evidence that such boundary change would
not create, maintain, reinforce, renew, or encourage a dual
school system based on race, color, or national origin.
Texas Educ. Agency, 898 S.W.2d at 956-57 (citations omitted).
12
The district court also rejected issue preclusion arising
from the state proceedings with a puzzling statement that
if the parties had sought to relitigate in state court
the issues that had been decided by the modified order,
this court could have been moved to enjoin the state
court proceedings in order to ‘protect or effectuate’ its
judgment. 22 U.S.C. § 2283.
This statement may be correct, but it is quite beside the point.
The parties never sought to relitigate issues in state court that
had been decided by the modified order. On the contrary, the
administrative proceeding before the Commissioner followed the
express directive of the modified order, which required the
Commissioner to investigate and issue findings concerning how any
proposed school boundary change affects the schools’ desegregation
status and whether it comports with “the law,” presumably including
modified order 5281. If there is a procedural anomaly in this
approach, it was created by the modified order and not by the
Commissioner or the parties.
But while the state administrative proceedings would
generate issue preclusion among their participants, Forest Springs
and Goodrich, this cannot occur as to the United States, which was
not a party to the state proceedings. Normally, a judgment or
decree cannot bind strangers to the litigation. See Martin v.
Wilks, 490 U.S. 755, 762, 109 S.Ct. 2180, 2184 (1989). Although
13
there are some exceptions to this rule,6 the United States is
rarely “barred from independent litigation by the failure of a
private plaintiff.” United States v. East Baton Rouge Parish Sch.
Dist., 594 F.2d 56, 58 (5th Cir. 1979); but see Tyus v. Schoemehl,
93 F.3d 449, 456 (8th Cir. 1996). Barring a showing, not made
here, that the government maintained a “laboring oar” in the state
court litigation, Montana v. United States, 440 U.S. 147, 155, 99
S. Ct. 970, 974 (1979) (quoting Drummond v. United States, 324 U.S.
316, 318, 65 S. Ct. 659, 660 (1945)), preclusion doctrine is
inapplicable to the United States.7
6
Exceptions to this general rule have been found where
there is privity between the party to the second suit and a party
who is bound by an earlier judgment, see Richards v. Jefferson
County, Ala., 517 U.S. 793, 798, 116 S. Ct. 1761, 1766 (1996);
where a person, although not a party, has his interests
adequately represented by someone with the same interest who is a
party, as in the case of a “class” or “representative” suit, see
id. at 798-99, 116 S. Ct. at 1766 (citing Hansberry v. Lee, 311
U.S. 32, 41-42, 61 S. Ct. 115, 117-18 (1940); Fed. R. Civ. P.
23); where a party to the second suit exercised “control” over
the litigation of a party who was bound by the earlier action,
see Montana v. United States, 440 U.S. 147, 154-55, 99 S. Ct.
970, 974 (1979); or where an express or implied legal
relationship exists between a party to the second suit and the
party bound by the earlier action--e.g., “‘estate beneficiaries
bound by administrators, presidents and sole stockholders by
their companies, parent corporations by their subsidiaries, and a
trust beneficiary by the trustee’”--so that it could be said that
the subsequent litigant was “virtually represented” by the
earlier one, Pollard v. Cockrell, 578 F.2d 1002, 1008-09 (5th
Cir. 1978) (quoting Southwest Airlines Co. v. Texas Int’l
Airlines, 546 F.2d 84, 95 (1977)).
7
The Forest Springs residents argue that the United States
was essentially a bystander to the federal proceeding, offering
no evidence and limiting its participation to “rather cursory”
cross-examinations of a couple of witnesses. To the extent the
14
IV.
The district court rejected every assertion of the Forest
Springs residents supporting their proposed annexation to
Livingston I.S.D. The court found as matters of fact that if the
annexation were approved, it (1) would limit Goodrich’s financial
ability to run a school district, (2) would create a perception
that race is a relevant factor in establishing district boundaries,
and (3) would likely trigger further annexations and increased
school segregation. The court interpreted its modified order to
incorporate a 1% “guideline” for evaluating the resegregative
impact of boundary changes on the racial makeup of affected school
districts. Finally, it refused to read the 27-year old modified
order in light of more recent Supreme Court decisions concerning
school desegregation decrees. Portentous significance must flow,
in the district court’s view, from the detachment of a few hundred
acres and 22 students from Goodrich.
Unlike the district court, we believe that much less is
involved in this minuscule boundary change. First, it does not
contravene even the court’s own modified order, properly construed.
Second, the district court’s factual findings are either clearly
erroneous or too attenuated to demonstrate that the proposed
government is present in a federal suit simply to give an
unsuccessful state court litigant a second bite at the apple,
issue preclusion may apply. Cf. Montana, 440 U.S. at 154-55, 99
S. Ct. at 974. Based on the events in this case, however, there
is no basis for finding such collusion.
15
boundary change will result in the creation of a segregated
Goodrich school district. Third, the 27-year old modified order
could and should be interpreted with an eye toward significant
intervening Supreme Court precedent. Each of these points requires
elaboration.8
A.
Modified order 5281 forbids boundary line changes
which are designed to, or do in fact, create, maintain,
reinforce, renew, or encourage a dual school system based
on race, color, or national origin.
The court found that the Forest Springs boundary change would
reinforce, renew and encourage a racially dual system. Critical
to, though not dispositive of, the court’s analysis was its
adaptation of a 1% guideline from a separate portion of the decree
dealing only with student transfers. The other provision of the
order forbids defendants from approving student transfers
where the effect of such transfers will change the
majority or minority percentage of the school
population . . . by more than one percent (1%) in either
the home or the receiving district . . . .
Amendments to modified order 5281, August 9, 1973, at 2. The court
considered this percentage “a useful rule of thumb” for evaluating
the proposed Forest Springs and future boundary changes. According
to the court’s arithmetic, the Goodrich school-age population would
8
In the following discussion, the interpretation of
modified order 5281 is a matter of law reviewed de novo on
appeal, and the court’s factual findings are reviewed under the
clearly erroneous standard.
16
be 2.7% less white if the boundary change occurred.9
Inferentially, the court found that because a 2.7% shift of
children is greater than the 1% “rule of thumb,” the boundary
change presumptively violated modified order 5281. This reasoning
is seriously flawed.
The court offers no basis, legal or factual, for its
decision to import the 1% transfer standard into the boundary
change portion of the decree. The goal of affording notice to
parties affected by the decree is wholly ignored by this ad hoc
rewriting. It matters not, and the court did not rely on the fact,
that apparently the Commissioner has also informally followed a 1%
rule on boundary changes. The decree simply has no such limit, and
common sense suggests why, even if a 1% rule was justifiable for
student transfers, the decree distinguished between student
transfers and boundary changes. Student transfers are much easier
9
Students were counted without regard to whether they were
presently attending school in Goodrich I.S.D. In other words,
“even if students within a school district had transferred for
the present to another school, they would still be counted as
within their home district.” United States v. State of Texas,
No. 6:71cv5281, at 6 n.1 (E.D. Tex. Dec. 10, 1996). Based on
this methodology, the district court concluded that presently the
student population of Goodrich I.S.D. was 57.8% white. See id.
Next, the district court determined “the percentage of students
of the particular race in the school district, minus the area
proposed to be detached and annexed.” Id. Based on these
calculations, the district court found that if the proposed
detachment and annexation were approved, Goodrich’s white student
population would be 55.1%. See id. Thus, the district court
concluded that the proposed annexation and detachment would
reduce the white student population by 2.7%.
17
for school districts to implement and would have afforded a
convenient subterfuge for parties bent on undermining desegregation
efforts. Boundary changes, on the other hand, are permanent, and
they irrevocably affect district population, tax base, size and
allocation of resources. Viewing boundary changes solely from the
perspective of a tiny transient percentage change in school racial
makeup is too rough a measure of their significance. See Texas
Educ. Agency, 898 S.W.2d at 957-58.
That the court characterized its new 1% standard as a
rule of thumb, not a rigid benchmark, does not ameliorate the
problem, for the decree effectively guides day-to-day school
administrative decisions. Cautious school officials, not to
mention unhappy homeowners, will opt not to buy a lawsuit by
proposing boundary changes that challenge this low threshold. One
look at the protracted seven-year battle waged by Goodrich against
the Forest Springs residents proves the litigation potential
inherent in a vague and anachronistically construed remedial order.
The 1% rule of thumb is also a static statistic with
little analytical power for measuring segregative population
changes. The district court recognized as much by citing its own
earlier order, which stated that the “one percent guideline . . .
cannot stand as a benchmark by which to rigidly approve or deny
transfers.” See order re Intervention of Mary Hightower, C.A. 5281
(Sept. 8, 1980) (permitting student transfers that would increase
18
the white population of the transferor school by 7%).10 In the
Hightower order, the district court bowed to governing Fifth
Circuit law, which had already come to reject purely quantitative
analysis in the desegregation context. See Davis v. Board of
School Comm’rs of Mobile County, 393 F.2d 690, 693 (5th Cir. 1968).
The district court recognized both in Hightower and in this case
that the proper inquiry is whether the proposed boundary change
would undermine the effectiveness of its plan to remedy
specifically identified constitutional violations.11 See, e.g., Lee
v. Eufaula City Bd. of Educ., 573 F.2d 229, 232 (5th Cir. 1978)
(“In measuring the cumulative effect of a student transfer program
on desegregation, the Court must do so from a qualitative
10
In this unpublished order, eight black and two white high
school students who lived in one district sought to transfer to a
larger district. The smaller district had a 70% white
population, and the transfer would change its racial balance,
increasing the white population by 7%. Approving the transfer,
the district court denied that this change would render the
smaller district segregated.
11
See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S.
1, 25, 91 S. Ct. 1267, 1280 (1971) (“We see therefore that the
use made of mathematical ratios was no more than a starting point
in the process of shaping a remedy, rather than an inflexible
requirement. From that starting point the District Court
proceeded to frame a decree that was within its discretionary
powers, as an equitable remedy for the particular circumstances.
As we said in Green, a school authority’s remedial plan or a
district court’s remedial decree is to be judged by its
effectiveness. Awareness of the racial composition of the whole
school system is likely to be a useful starting point in shaping
a remedy to correct past constitutional violations. In sum, the
very limited use made of mathematical ratios was within the
equitable remedial discretion of the District Court.” (emphasis
added) (footnote omitted)).
19
viewpoint, without blind deference to an objective mathematical
formula.”); see also United States v. Lowndes County Bd. of Educ.,
878 F.2d 1301, 1307-08 (11th Cir. 1989).
Finally, the 1% guideline has absurdly little to do with
the facts of this case. Goodrich experienced an annual student
“mobility rate” of about 35%, which means that the population
turnover was dramatic. The population fluctuated significantly
both up and down, and an apparent decline in the white student
population over several years is attributable to a doubling of
Hispanic students. Amid these seismic shocks, a 1% guideline, or
even an actual 2.7% student population change, is barely a tremor.12
Not only is the 1% rule of thumb too small to be
probative of anything, it is, standing alone, legally insufficient
to evaluate compliance with the court’s modified order. Moreover,
the 1% “guideline” is not and may not be treated as if it were a
part of the boundary change portion of the modified order. The
court erred by relying on this “rule of thumb” for any purpose
concerning the proposed boundary change.
12
See also Lee v. Eufaula City Bd. of Educ., 573 F.2d at
232 (4% change in racial balance of school district caused by
transfer proposal not per se segregative); Lee v. Lee County Bd.
of Educ., 639 F.2d 1243, 1261 (5th Cir. 1981) (policy that
resulted in black student population rising from 91 to 96%
because of transfers had no significant segregative effect). In
contrast, the government’s reliance on Ross v. Houston Indep.
Sch. Dist., 583 F.2d 712 (5th Cir. 1978), is misplaced. The
creation of a breakaway school district raises considerations not
present in this boundary change case.
20
B.
In addition to the “violation” of the newly-minted 1%
guideline, the district court found that the boundary change would
violate modified order 5281 because it would “reinforce, renew, and
encourage a dual school system based on race and color, in
violation of this court’s order of July 13, 1971.” The district
court relied on findings that the proposed annexation would impair
Goodrich’s ability to run an integrated school district; would
likely trigger further annexations and increased school
desegregation; and would reinforce the perception that school
district boundaries were drawn on account of race.
The district court first found that the money the
district would lose in the wake of Forest Springs’s detachment
would adversely affect the quality of the teaching, the
availability of resources (e.g., computers), and the type of
programs Goodrich would be able to offer.
The court’s sub silentio overruling of the Commissioner’s
finding of no adverse financial impact on Goodrich is troubling.
The Commissioner specifically evaluated the pertinent state law
issue whether Forest Springs’s detachment would reduce Goodrich’s
tax base by a ratio at least twice as large as the ratio by which
it would reduce student population. See Texas Educ. Code Ann.
§ 19.022(d) (West 1991). It would not, and the parties so
21
stipulated, yet the federal court embarked on its own fact-finding
without tether to the standard that Texas law provides.
The district court’s result is also doubtful standing
alone. According to unchallenged testimony elicited during trial,
state and local ad valorem taxes each contribute approximately one-
half of the school district’s funding. Using the methodology the
district court followed,13 the detachment of Forest Springs would
result in a loss of approximately 22 students. Goodrich spends
approximately $5,300 per student. Accordingly, the loss of the
Forest Springs students could reduce Goodrich’s expenditures by
$116,600. If one-half of this amount were supplied by the state,
the remaining $58,300 must have been financed through local ad
valorem taxes. However, Forest Springs’s ad valorem contribution
to Goodrich I.S.D.’s coffers was only about $52,000, almost $6,300
less than the district spent to educate Forest Springs’s children.
From this evidence, the district court should have concluded that
Goodrich I.S.D. would actually benefit from the proposed
detachment. In other words, when the boundary change is analyzed
with proper regard for cost savings, not merely revenues lost, the
resources available to Goodrich to spend on individual pupils would
13
The district court found that the proper formula for
evaluating the impact Forest Spring’s departure would have on the
student population of Goodrich requires that “even if students
within a school district had transferred for the present to
another school, they would still be counted within their home
school district.” United States v. State of Texas, No.
6:71cv5281, at 6 n.1 (E.D. Tex. Dec. 10, 1996).
22
rise following the detachment of Forest Springs. The evidence does
not support the district court’s finding that the quality of
education within Goodrich I.S.D., as measured by money spent, would
be adversely affected merely by the loss of Forest Springs’s
revenue.14
Similarly problematic is the district court’s finding
that approval of the boundary change would “trigger further
annexations and increased school segregation.” Relying on the
opinion of an expert witness, the district court reasoned that the
departure of Forest Springs would push the white population one
step closer to minority status within Goodrich I.S.D. According to
a phenomenon known as “tipping,” as whites approach minority status
“white flight” ensues. Thus, Goodrich’s loss of Forest Springs
would accelerate the departure of other white families and would
“‘certainly’ make other subdivisions more likely to seek similar
14
Although we recognize that this analysis assumes that the
loss of 22 students would not increase the amount of money
Goodrich I.S.D. spends per pupil (e.g., due to irreducible fixed
costs), the evidence does not permit assuming otherwise. The
record focuses almost exclusively on the impact the proposed
boundary change would have on revenues flowing to Goodrich I.S.D.
On cross examination Forest Springs pointed out that the economic
impact must be examined from both sides of the ledger.
Specifically, Forest Springs argued, “[I]t’s a wash . . . .
[Y]ou lose fifty thousand dollars of revenue, but you get rid of
fifty thousand dollars of expenses.” Although on redirect
Goodrich’s counsel attempted to rehabilitate its witness, the
testimony does not yield any evidence that the loss of students
from Forest Springs would detrimentally change Goodrich’s
expenditure per pupil.
23
detachments and annexations.” Neither the law nor the evidence in
this case supports such a finding.
Although the district court’s authority over the Texas
educational system under the venerable desegregation decree is
quite broad, the Supreme Court has reminded us that “‘there are
limits’ beyond which a court may not go in seeking to dismantle a
dual school system.” Pasadena City Bd. of Educ. v. Spangler, 427
U.S. 424, 434, 96 S. Ct. 2697, 2704 (1976) (quoting Swann, 402 U.S.
at 28, 91 S. Ct. at 1282). The modified order reaches the
reinforcement, renewal or encouragement of a dual school system,
and it binds public officials to prevent racial segregation. The
key to the order’s scope is state action. Absent any showing that
school authorities “have in some manner caused unconstitutional
segregation,” the district court lacks any power to enjoin a change
in school boundaries. Spangler, 427 U.S. at 434, 96 S. Ct. at
2704; see also Swann, 402 U.S. at 28, 91 S. Ct. at 1282.
It hardly needs to be added that there is no evidence
that the demographic change forecast to occur in Goodrich I.S.D. in
the wake of Forest Springs’s detachment is in any way attributable
to “segregative actions chargeable to the [State].” Spangler, 427
U.S. at 435, 96 S. Ct. at 2704. Neither the small number of
students involved in the instant case, nor the reduction in the
white school-age population from 57.8 to 55.1%, taken alone or
together, would directly produce a dual school system, and the
24
court did not so find. The court did not find that the boundary
change was itself a vestige of or flowed from a vestige of a dual
system.15 The court also did not find that the vestiges of a
formerly dual school system would be maintained by the proposed
boundary change. The record is uncontroverted that both Goodrich
and Livingston voluntarily desegregated many years ago, and neither
district was ever subject to a specific local desegregation decree.
Finally, the boundary change will not adversely affect the
district’s overall financial status. State action, in short, has
not violated the modified order, nor does the proposed boundary
change have a segregative effect.
Residential mobility is a virtue of a free and dynamic
society. See Swann, 402 U.S. at 31-32, 91 S. Ct. at 1283-84. No
doubt residential choices turn on economic and social
considerations or even, at times, on private discrimination, but as
long as they remain attributable to individual decisions, born of
free choice, they are devoid of constitutional implications. See
Freeman v. Pitts, 503 U.S. 467, 495, 112 S. Ct. 1430, 1448 (1992).
Although changing residential patterns inevitably affect the racial
composition of schools, it is beyond the authority of the federal
courts to counteract demographic changes in school districts that
15
Although the intent of Forest Springs and Livingston is
not material to compliance with modified order 5281, we note that
the court also did not find any intentional action by Forest
Springs or Livingston to re-create a dual system.
25
are the product of private choice and not state-sanctioned
discrimination. See id. at 495, 112 S. Ct. at 1448. The district
court could not predicate a violation of the modified order on the
forecast that individual residential decisions, unrelated to the
effect of past segregation, would change the district’s racial
makeup in the future. Again, it must be emphasized that the
modified order does not reach private conduct but only state action
that results in a dual system.
Moreover, even if it were relevant, the evidence
furnishes weak support for the finding that the loss of Forest
Springs would necessarily result in an exodus of white students
from Goodrich. Goodrich’s expert, Dr. Richard Murray, testified
that studies suggest that white parents will “tolerate” an
integrated school district as long as the percentage of minorities
in the local population remains within a “comfort zone” of
approximately 20%. As the minority population rises, so do the
anxieties of white parents. When the minority population reaches
40 to 50% of the local population, the studies imply that whites
tend to withdraw from school districts in high numbers and seek
refuge in more homogeneous communities.
Applying this theory of “tipping” to a rural district
like Goodrich is difficult for two reasons. First, Dr. Murray
admitted on cross examination that he was unaware of any academic
study that has found an occurrence of tipping in rural communities.
26
Although he stated that the phenomenon has occurred in rural
Mississippi, he admitted that this observation was purely his own,
not part of a formal analysis, and, hence, not subject to rigorous
academic scrutiny.16
Second, in urban settings where tipping has been
examined, studies suggest that it may be limited to areas where
other neighborhoods and school districts are readily accessible.
In urban neighborhoods, families can relocate short
distances –– within a large metropolitan area or to a nearby
suburb –– and select among public and private schools. A rural
area like that where Goodrich is located affords fewer choices.
Private schools are less common, and alternative neighborhoods, job
opportunities and public school districts tend to be farther away.17
16
Forest Springs did not object to the admissibility of Dr.
Murray’s unsupported personal opinion as lacking an adequate
foundation. See Fed. R. Evid. 702; Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993);
Moore v. Ashland Chem., Inc., 151 F.3d 269 (5th Cir. 1998) (en
banc). See also Watkins v. Telsmith, Inc., 121 F.3d 984, 991
n.11 (5th Cir. 1997) (“‘[A] conclusion without any support is not
one based on expert knowledge and entitled to the dignity of
evidence.’” (quoting Navarro v. Fuji Heavy Indus., 117 F.3d 1027,
1031 (7th Cir. 1997) (Posner, J.))).
17
Dr. Michael Say, Forest Springs’s expert, also testified
that all of the academic literature on tipping is at least a
decade old. Newer studies suggest that its cause is less clear
than previously believed. See, e.g., Gary Orfield, Metropolitan
School Desegregation: Impacts on Metropolitan Society, 80 Minn.
L. Rev. 825, 867 (1996) (“While many issues in this debate are
still unsettled, there are some agreed relationships between
school desegregation plans and trends in white enrollment.
Mandatory desegregation plans limited to central cities with
large minority enrollments speed up the decline in white
27
Thus, neither the theoretical likelihood of tipping nor its
practicability in and around Goodrich is strongly supported.18
Finally, the district court found that if the proposed
annexation were granted, the “public perception of [Goodrich
I.S.D.] as the Black school district would be strengthened.” But
perceptions alone cannot form the basis for federal court
intervention into the administration of a public school system.
Even assuming the testimony relied upon by the district court
accurately reflects community sentiment, this evidence reveals
almost nothing about whether the demographic changes Goodrich
I.S.D. might undergo in the wake of the proposed boundary change
would be the product of private choices or a state-sponsored racial
enrollment, at least in the beginning. Virtually all central
cities, however, have experienced a continuing decline in the
percent of white students for many years, and declines have been
sharp in many cities whether or not they had a desegregation
plan. In cities which have dismantled all or part of their plan,
the white enrollment decline continues. In other words, the
basic forces that are producing white enrollment decline go far
beyond the school desegregation plan although the plan can
accelerate this decline. On the other hand, analysis of the
largest school systems in the United States shows that half of
those with the greatest stability of enrollments by race between
the 1960s and the mid- 1980s had mandatory metropolitan
desegregation plans.” (emphasis added) (footnotes omitted)); see
also Robert A. Solomon, Building a Segregated City: How We All
Worked Together, 16 St. Louis U. Pub. L. Rev. 265, 316 (1997)
(“There is some argument that white-flight is based, in part, on
a perceived reduction in security more than on race per se.”).
18
It should also be noted that any future detachment would
be subject to the strictures of modified order 5281. Thus, to
the extent any future event represents unconstitutional
segregation, legal redress remains available.
28
classification. The court’s finding also fails to square with the
persistent high turnover of the Goodrich school population, its
significant fluctuations in size, and its growing Hispanic
contingent –– all of which facts are relevant to local perceptions,
and all of which are far more significant than a one-time 2.7%
population shift. District courts cannot substitute subjective
judgments of this character for a finding of an actual segregative
effect.
Because the district court’s findings of segregative
effects are too speculative, or are not supported by the record, or
are rooted in private conduct rather than state action, they are
clearly erroneous and legally insufficient. The district court
erred in concluding that the proposed boundary change would violate
either federal law or the modified order.
C.
The district court declined to consider whether its
interpretation of modified order 5281 is in accord with post-1971
Supreme Court decisions. It rejected this contention of Forest
Springs based on the absence of any Fed. R. Civ. P. 60(b) motion to
modify the decree. Several errors are imbedded in this part of the
court’s decision.
First, except for the superimposed 1% rule -- which
connotes impermissible racial balancing “for its own sake” rather
than a remedy for past state action, Freeman, 503 U.S. at 494, 112
29
S.Ct. at 1447 -- the pertinent portion of modified order 5281,
which deals with boundary changes, is not facially inconsistent
with evolving school desegregation jurisprudence. The gist of
post-1971 cases has been to confirm federal courts’ broad remedial
jurisdiction over those facets of school operations which represent
or flow from an earlier de jure discriminatory system, while
acknowledging that federal remedial jurisdiction goes only so far
as the correction of the constitutional infirmity. See, e.g.,
Missouri v. Jenkins, 515 U.S. 70, 97-98, 115 S.Ct. 2038, 2053-54
(1995); Freeman, 503 U.S. at 496-97, 112 S. Ct. at 1448-49;
Spangler, 427 U.S. at 434-37, 96 S. Ct. at 2704-05; Milliken v.
Bradley, 433 U.S. 267, 282, 97 S. Ct. 2749, 2758 (1977); Milliken
v. Bradley, 418 U.S. 717, 750-53, 94 S. Ct. 3112, 3130-31 (1974);
Swann, 402 U.S. at 16, 91 S. Ct. at 1276. The modified order,
although written broadly, as was necessary at the outset of the
court’s enforcement efforts, easily lends itself to the reading
mandated by the Supreme Court. The order does not expressly
mandate racial balancing in boundary changes. Cf. Spangler, 427
U.S. at 434, 96 S. Ct. at 2703. Nor does it expressly detach the
consideration of boundary changes from prior unconstitutional state
action. The district court has, in the Hightower ruling, acceded
to intervening Fifth Circuit caselaw that rejected trivial
statistical population differences as a stand-alone basis for
federal intervention. See Lee v. Eufaula City Bd. of Educ., 573
30
F.2d at 232. Put otherwise, since there is no reason why the order
must be interpreted to extend the district court’s remedial
jurisdiction beyond limits articulated by the Supreme Court,
prudence and deference to the High Court strongly counsel
enforcement of the order consistent with rather than in the teeth
of its pronouncements.
Second, in light of the compatibility of modified order
5281 with later-articulated law, the district court’s insistence on
a Rule 60(b) motion as a prerequisite for re-evaluating its
modified order is a red herring. The district court thought that
Forest Springs must bear the burden of proving that the entire
decree –– covering the whole state of Texas –– must be vacated or
modified in order to justify the Residents’ desire to transfer 22
students to Livingston I.S.D. The court’s error lies in its
perception that the Residents may only claim relief if the order is
modified; because the modified order is limited to a remedy of the
effects of past state-imposed segregation, the Residents’ burden
consisted of demonstrating only that the proposed annexation would
not confound the remedy.
Third, to the extent the district court believed that it
lacked the discretion to modify its order sua sponte, it erred.
This court has clearly held that a district court has the authority
to modify or terminate a consent decree19 sua sponte when it becomes
19
There is no difference in this regard between a consent
decree and an order, like modified order 5281, entered without
31
manifest that there has been a change in the facts or the
underlying law that gave rise to the decree. See Williams v.
Edwards, 87 F.3d 126, 132 (5th Cir. 1996) (“[T]he district court
has the discretion to modify a decree when the court is made aware
that the factual circumstances or the law underlying that decree
has changed--regardless of the parties’ silence or inertia.”);
Alberti v. Klevenhagen, 46 F.3d 1347, 1365-66 (5th Cir. 1995).
Moreover, in the context of this old case and the significant
clarifications of school desegregation law that have occurred in
the quarter-century since the modified order was issued, the court
should have been wary of enforcing its order if the court perceived
a significant gap between the order and ensuing legal developments.
This error, of course, is irrelevant, where, as here, no such gap
appears when the modified order is properly interpreted.
V.
The Residents of Forest Springs have doggedly pursued
their detachment from Goodrich for seven years. The victory they
deserve is now probably Pyrrhic, as their children have grown and
their subdivision’s legal bills have mounted. It is most
unfortunate that a noble decree to end school segregation has
degenerated into a petty war of attrition against 22 students and
the parties’ consent. See System Fed’n No. 91 v. Wright, 364
U.S. 642, 81 S.Ct. 368 (1961).
32
360 acres of tax base. The declaratory judgment of the district
court is REVERSED.
33