                     REVISED, July 16, 1998

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT
                         _______________

                           No. 97-30323
                         _______________



                   VIRGIE LEE VALLEY, et al.,

                                                Plaintiffs,


                    UNITED STATES OF AMERICA,

                                                Intervenor-
                                                Plaintiff-Appellee,

                             VERSUS

                  RAPIDES PARISH SCHOOL BOARD,

                                                Defendant-Appellee,

                        RICHARD P. IEYOUB,
           Attorney General of the State of Louisiana,

                                                Appellant.


                    _________________________

          Appeal from the United States District Court
              for the Western District of Louisiana
                    _________________________

                          June 26, 1998

Before WISDOM, SMITH, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:



     The Attorney General of Louisiana appeals a judgment striking
a state constitutional amendment and invalidating implementing

legislation designed to divide the Rapides Parish School District

into two districts.             Finding this case not ripe for review, we

vacate and remand.



                                           I.

                                           A.

        The      Rapides    Parish    School     Board    (“RPSB”)    operated     a

constitutionally impermissible dual school systemSSone for whites

and one for non-whitesSSat the time of Brown v. Board of Educ.,

347 U.S.         483   (1954)   (Brown   I).     In   light   of   Brown   and   its

progenySSwhich directed that schools be desegregated “with all

deliberate speed,” Brown v. Board of Educ., 349 U.S. 294, 301

(1955) (Brown II)SSblack children in 1965 filed suit against the

RPSB, seeking desegregation.

        In the intervening thirty-three years, the district court has

imposed successive plans to achieve integration.                   None apparently

has achieved unitary status or has brought the district court to

the point of relinquishing its remedial powers over the RPSB.1

        At first, the district court settled upon a “free choice” plan

that removed the barriers for blacks to go to white schools and

vice versa, but stopped short of forced integration.                       When the



        1
            The district court recently extended its order through the 2005-06 school
year.

                                            2
Supreme Court struck down a similar program in Green v. County

Sch. Bd., 391 U.S. 430 (1968), this court directed the district

court to be more aggressive in achieving integration, using the

Green factors.   That was in 1969.       See generally Valley v. Rapides

Parish Sch. Bd. (“Valley I”), 646 F.2d 925, 929-30 (describing the

history of the litigation), modified, 653 F.2d 941 (5th Cir. Unit A

May 1981).

     Since    that   time,   the   district   court   has   given   careful

attention to the racial ratios of the students, faculty, and

administrators in each school.       The program continues to this day

and involves extensive busing and other means to achieve racial

parity.    The district court remains active in redrawing the lines

of attendance at schoolsSSat regular intervalsSSin order to maintain

racial balance and in managing other aspects of running the RPSB.

     At issue in this case are Wards 9, 10, and 11 of Rapides

Parish (the “northern wards”), all north of the Red River.            These

wards are primarily white, while the remaining wardsSSlocated in

the city of Alexandria, south of the riverSSare more racially

mixed.    The northern wards areSSand have beenSSpart of the RPSB.

     Throughout the litigation, the district court has made a

continuing effort to maintain racial balance in the city schools of

Alexandria.    Accordingly, the court has ordered the RPSB to bus

white students from these suburbs to the city and to do the

opposite with non-white students from the city. The district court


                                     3
has been hindered in its quest for racial balance, however, by

increases in white flight and in black enrollment.

     In 1995, the state legislature approved a ballot measure to

change the state constitution to form a separate school district in

the northern wards and to allow it to elect its own school board.

The measure was approved by state voters and proclaimed part of the

state constitution by the governor in November 1995.         See LA. CONST.

art. VIII, § 13(D), and advisory notes.

     Contemporaneously,      the       legislature       passed     enabling

legislationSSAct   973SSto   provide,    among   other    things,   for   the

drawing of election districts for the members of the new district’s

board.   See LA. REV. STAT. ANN. § 17:62.            Assuming the Justice

Department’s approval of the voting districts under the Voting

Rights Act, the election for the initial board members is to take

place with the congressional elections in November 1998.             See id.

§ 17:62(C).



                                   B.

     The RPSB filed the instant declaratory judgment actionSSas

part of its ongoing school desegregation litigationSSin October

1996, praying for a declaration that Act 973 is unconstitutional as

applied to the RPSB because it interferes with the RPSB's ability

to conform to the desegregation order.           See Valley v. Rapides

Parish Sch. Bd., 960 F. Supp. 96, 97 (W.D. La. 1997).                At the


                                   4
district court’s request, the RPSB served notice on the state

attorney general, who is the officer statutorily obliged to defend

the state’s laws.

      The attorney general filed a response opposing the declaratory

judgment but did not have the opportunity to introduce evidence in

support of the law.2           Instead, he argued that a declaratory

judgment was improper because the claim is not ripe for review.

Even if it were ripe, he reasoned, the law does not unconstitution-

ally infringe on the district court’s remedial authority.

      The district court found that there was a ripe case or

controversy    needed    to   sustain    a   declaratory    judgment    action,

because the school district faced substantial uncertainty and

expense   if   subjected      to   the   possibility   of   adhering    to   two

conflicting obligationsSSone imposed by the state constitution and

the other by the federal court.              See id. at 98.      Reaching the

merits, the court relied on the fact that without the northern

wards, there would be fewer white children in the remaining school

district. The resulting RPSB would become slightly more black than

white, while the new district would be overwhelmingly white.3                The

court held that because of this change in racial balance, Act 973

impermissibly infringes on its remedial powers and thus offends the



      2
        The district court did not hold an evidentiary hearing before it entered
its order.
      3
        The students residing in the remaining RPSB would be 60% black and 40%
white, while those residing in the new district would be 87% white and 13% black.

                                         5
federal Constitution.        See id. at 100-01.

      The state appeals this adverse judgment.               The RPSB, and the

United States as plaintiff-intervenor, argue for affirmance.4



                                       II.

                                        A.

      Ripeness concerns subject matter jurisdiction, so we consider

it de novo.5        Subject-matter jurisdiction can be raised at any

time, even sua sponte.         See, e.g., Marathon Oil Co. v. Ruhrgas,

1998 U.S. App. LEXIS 13358, at *12 (5th Cir. June 22, 1998)

(en banc).



                                        B.

      With any declaratory judgment action, there is a concern that

the legal issues will not be sufficiently developed for the court

to make a decision on the merits.            Instead, the court may face a

set of facts so contingent on other events that a decision would

constitute no more than an advisory opinion on an abstract legal


      4
        Not participating in the appeal are the original minority plaintiffsSSthe
parties ostensibly sued by the school district in its declaratory judgment
action. The real adverse parties appear to be the proposed new school district
and the state.
      5
        See Powder River Basin Resource Council v. Babbitt, 54 F.3d 1477, 1483 (10th
Cir. 1995); Felmeister v. Office of Attorney Ethics, 856 F.2d 529, 535 n.8 (3d Cir.
1988).       A decision to stay a declaratory judgment proceeding when there is a
parallel state court proceeding is reviewed for abuse of discretion. See Wilton v.
Seven Falls Co., 515 U.S. 277, 282-83 (1995). We decline to adopt the appellants'
suggestion that Wilton addresses the district court’s finding of Article III
subject-matter jurisdiction under the ripeness doctrine.

                                         6
dispute.     Accordingly, before addressing the merits of the case,

courts must be vigilant, in declaratory judgment suits, to make

certain the action is ripe for review.



                                        1.

      “Ripeness is a function of an issue’s fitness for judicial

resolution as well as the hardship imposed on the parties by

delaying court consideration.”6 Thus, in considering a declaratory

judgment    action’s     ripeness     for    review,    we    address    both    a

constitutional requirement and prudential concerns.                 The Supreme

Court most recently has reminded us of the importance of these

considerations.      See Texas v. United States, 118 S. Ct. 1256, 1259-

60 (1998); accord National Treasury Employees Union v. United

States, 101 F.3d 1423, 1427 (D.C. Cir. 1996) (“NTEU”).



                                        a.

      A    federal   court     must   find    that     Article    III   standing

requirements are met.           These include (1) “injury in factSSan

invasion of a legally protected interest which is (a) concrete and

particularized and (b) actual or imminent, not conjectural or

hypothetical”; (2) causation, meaning that the injury is “fairly

traceable to the challenged action of the defendant”; and (3)



      6
        Jobs, Training & Servs., Inc. v. East Tex. Council of Gov’ts, 50 F.3d 1318,
1325 (5th Cir. 1995); see, e.g., Abbott Lab. v. Gardner, 387 U.S. 136, 149 (1967).

                                        7
redressability, meaning that “it must be likely, as opposed to

merely    speculative,    that   the   injury    will   be   redressed    by   a

favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555,

560-61 (1992) (citations and internal quotation marks omitted); see

NTEU, 101 F.3d at 1427.             The standing component that deals

directly with ripeness is the requirement of “imminence.”                 In a

declaratory action, the threatened injury must be “sufficiently

'imminent' to establish standing.”          NTEU, 101 F.3d at 1428.



                                       b.

      Once the constitutional showing has been made, a court must

satisfy prudential concerns by balancing the need to expend its

resources on a case it may never need to decide against the expense

and hardship to the parties of having a delayed adjudication.               The

court must make sure that a sufficient factual basis, and necessity

on the part of the parties, exist to justify the expenditure of

judicial resources. “Prudentially, the ripeness doctrine exists to

prevent the courts from wasting our resources by prematurely

entangling ourselves in abstract disagreements . . . .”                  Id. at

1431.7 These prudential concerns ensure that changing hypothetical

circumstances or lack of party interest does not make resolution of



      7
        See also Ohio Forestry Ass'n, Inc. v. Sierra Club, 118 S. Ct. 1665, 1670
(1998) (“[T]he ripeness requirement is designed 'to prevent the courts, through
avoidance of premature adjudication, from entangling themselves in abstract
disagreements . . . .'”) (quoting Abbott Lab., 387 U.S. at 148-49).

                                       8
the legal issues unnecessary.   “Article III courts should not make

decisions unless they have to.”       Id.



                                  2.

                                  a.

     This case is not ripe for adjudication, because it fails to

satisfy the Article III “case or controversy” requirement.      Under

the Article III analysis, there is no imminent threat of harm to

the RPSB or to the desegregation decrees.       As the district court

found, there is a potential threat of harm.            RPSB could be

subjected to conflicting obligations of the federal court and the

state constitution. The harm’s probability of occurrence, however,

is sufficiently remoteSSgiven the myriad of contingencies necessary

for it to developSSthat it fails to constitute the immediate harm

necessary for Article III justiciability.

     In order for the RPSB to face an imminent risk of violation of

the desegregation order, too many contingencies would have to

occur.   There would have to be a new district in the northern wards

with a proposed plan that would unconstitutionally interfere with

the court’s remedial authority.        For that to occur, there would

have to be a proposed plan about how the new district would operate

in relation to the RPSB.   For that to occur, there would have to be

an election of a new board.     And for that to occur, there would

have to be Justice Department preclearance of the new voting


                                  9
districts.    Because any one of these numerous links may not come to

be,   the    string    of   contingencies      is    too   tenuous    to    support

ripeness.8



                                        b.

      Even if these contingencies were to constitute an imminent

injury, prudential concerns strongly dictate against the district

court’s conclusion that this case is ripe for adjudication, for

there is a substantial possibility that the actions of the new

board will not violate the court’s orders.                 For example, the new

board could adopt an inter-district busing and teacher reassignment

plan with the RPSB to comply with the remedial order.                 Such a plan

likely would moot the controversy.

      Essentially, the threat of noncompliance with the court's

orders    will   not   occur   unless    the   new    board   seeks    to    become

operational under Act 973 and then decides to take actions that,

under the existing caselaw,9 would unconstitutionally interfere


      8
        See Texas v. United States, 118 S. Ct. at 1259 (“A claim is not ripe for
adjudication if it rests upon “'contingent future events that may not occur as
anticipated, or indeed may not occur at all.'”) (quoting Thomas v. Union Carbide
Agric. Prods. Co., 473 U.S. 568, 581 (1985)). The existence of a law is not, by
itself, necessarily sufficient to establish imminent injury. See, e.g., United
Pub. Workers v. Mitchell, 330 U.S. 75, 90 (1947) (“A hypothetical threat is not
enough.”); id. at 91 (“No threat of interference by the Commission with rights
of these appellants appears beyond that implied in the existence of the law and
the regulations.”) (citation omitted).
      9
        The Supreme Court addressed the constitutionality of “splinter school
districts” in United States v. Scotland Neck City Bd. of Educ., 407 U.S. 484, 490
(1972), and Wright v. Council of the City of Emporia, 407 U.S. 451, 464-66
(1972), and this circuit thoroughly considered the issues in Ross v. Houston
                                                                 (continued...)

                                        10
with the orders.     Although the RPSB need not wait until an actual

disruption occurs in order to seek declaratory and injunctive

relief, it should wait at least until there is a concrete threat.

Here, that would mean that it must defer at least until the new

board is in place and develops a plan for how it proposes to run

the new district.

     Also important is the need to conserve judicial resources. As

we have said, this dispute may end up being entirely academic, as

no one can know what a not-yet-elected board will do.          The RPSB and

the United States have imputed to this yet-to-exist body its worst-

case parade of horribles.      Both have assumed that the new district

will do everything it can to thwart the district court’s remedia-

tion of the past de jure segregated school system.                 From the

record, there is no basis for that fear.             The ripeness balance

therefore weighs in favor of waiting to address this controversy.

     Our ripeness holding is underscored by our holding in Ross v.

Houston Indep. Sch. Dist., 577 F.2d 937, 944-45 (5th Cir. 1977)

(per curiam).      There, we made plain the proof needed by the

proponent of the splinter district:

     WISD [the new school district] must, at the outset,
     establish what its operations will be. It cannot meet
     this requirement by simply reasserting the admission
     previously filed; rather, WISD must express its precise
     policy positions on each significant facet of school
     district operation. For example, it should state how it


     9
      (...continued)
Indep. Sch. Dist., 559 F.2d 937, 943-44 (5th Cir. 1977) (per curiam).

                                     11
      plans to work with HISD regarding interdistrict pupil
      assignments,    including    transportation;    curriculum
      composition and control; teacher employment, discharge,
      assignment and transfer; financing and taxation; school
      building    construction,    utilization    and    closing
      procedures; special district-wide efforts such as the
      magnet school program; administration; and any other
      areas of public school operations or support which the
      district court may specify as pertinent to the
      accomplishment of its underlying desegregation order.
      Even after this definitive statement has been made, the
      burden   remains   on   WISD   to   establish   that   its
      implementation and operation will meet the tests outlined
      for permitting newly created districts to come into being
      for parts of districts already under an ongoing court
      desegregation order.

Id. (citation omitted).        Given the facts of the instant case, as

now   developed,      the    stateSSand      more   importantly,        the   new

boardSSshould have an opportunity to offer such proof.

      Finally, there are fairness concerns.             The stateSSwhich has

the burden of proving its own law’s constitutionality10SShas had no

reasonable     opportunity    to   meet     its   burden,   as   most    of   the

information it would have to present for this purpose simply does

not   exist.

      The real adverse party in interest is the yet-to-be-formed

school board.       Its actionsSSor inactionsSSare fundamental to a

determination whether the RPSB has an injury of which to complain.

We should not allow the forfeiture of its possible interests


      10
         In most civil litigation, the burden of proof is on the party seeking
to invoke the court’s remedial authority. Therefore, the failure to introduce
evidence necessary to meet the legal standard would be grounds to dismiss for
failure to state a claim. School desegregation cases, however, are an exception.
The party seeking to escape from the court’s remedial authority bears the burden
of proving that its actions are not intended to re-establish de jure segregation.
See Freeman v. Pitts, 503 U.S. 467, 494 (1992).

                                       12
without the presentation of a defense.



                                     III.

      If and when this case becomes ripe for reviewSSand if and when

the parties thereafter decide to reassert a request for reliefSSthe

district court should apply the legal test outlined in Wright v.

Council of the City of Emporia, 407 U.S. 451, 464-66 (1972), and

elucidated in Ross.      Necessarily, the district court would have to

hold an evidentiary hearing or otherwise provide an avenue for the

parties to introduce evidence.11

      The judgment is VACATED, and this matter is REMANDED for

further proceedings in accordance with this opinion.



ENDRECORD




      11
         From Ross, the district court should realize that consideration of all
the factors of the Wright test is necessary to inform the use of its remedial
discretion when deciding whether to invalidate the instant state constitutional
amendment and its implementing legislation. See Ross, 559 F.2d at 944 (“The
right of WISD to implement and operate a new and separate school district partly
within the geographic confines of HISD has never been tested by the criteria
established in these precedents. We remand the case so that the district court
can make the required assay.”).

                                      13
WISDOM, Senior Circuit Judge, dissenting:

     I respectfully dissent.

     This case is so bursting with over-ripeness that it emits an

unpleasant odor.

     Should this case be sent back to the district court, the

district judge will find again the controlling fact already well

known to the district judge, a life-long Alexandrian and a federal

district   judge   since   his   appointment   in   October   1970.    The

controlling fact, well known to Louisiana and to this Court, is

that the area covered by the ninth, tenth, and eleventh wards of

the eleven wards in Rapides Parish is clearly defined as the

predominantly white section of Alexandria.             It is admittedly

eighty-seven per cent white, and may be more.                 The proposed

majority opinion is, therefore, a blatant attempt to establish a

special public school district for whites in a limited area known

as the white section of Alexandria.

     The notion expressed in the first sentence of the proposed

majority opinion that the enabling legislation was “designed to

divide the Rapides Parish School District into two districts”, is

indeed an admission of the fact that the plan is an attempt to

establish de jure segregation in Alexandria public schools -- at

least for the time it will take to overcome stalling and for the

case to be decided en banc or for it to reach the United States

Supreme Court.



                                    14
     The enabling legislation is directly contrary to Brown,12 Brown

II,13 and to Bolling v. Sharpe,14 and to the spirit of numerous

decisions of this Court.

     The time to stop it is now.15

     It is incredible that half a century after Brown, one should

have to ask for an en banc judgment to prevent the establishment of

a school for whites in a public school system.    That is necessary

in this case where ripeness “is a cape for unauthorized appellate



     12
          347 U.S. 483 (1954).
     13
          349 U.S. 294 (1955).
     14
          347 U.S. 497 (1954).
     15
          The majority is willing to accept Wright v. City of
Emporia, 407 U.S. 451 (1972). Fine. The true “test” from Wright
and the similar case of United States v. Scotland Neck City B. Of
Educ.,407 U.S. 484, 490 (1972), is “whether [the splinter district
plan] hinders or furthers the process of desegregation. If the
proposal would impede the dismantling of a dual system, then a
district court, in the exercise of its remedial discretion, may
enjoin it from being carried out”. Ross v. Houston Ind. School Dist.,
559 F.2d 937, 943 (5th Cir. 1977).

     Wright, like the Rapides case, involved a school district
under court order to dismantle a dual educational system. 407 U.S.
at 455-9. The Wright court’s chief concern with the creation of a
splinter school district was that the division would impede the
efforts to dismantle the dual system. The court held that “a new
school district may not be created where its effect would be to
impede the process of dismantling the dual system.” Id. at 470.
This point is important. The obvious effect of the plan to divide
the Rapides Parish School District is the creation of a
predominately white school district north of the Red River and a
predominately black school district south of the Red River. There
is no justification for considering the current plan two or three
years down the road, thanks to the appellate process. The court
must now consider the racial makeup of the new district.


                                 15
rule making”.16 Here, however, the cape has rubbed hard against the

rock of controlling fact.    The cape is in tatters.

     The   majority’s   opinion,   not   the   first   submitted   on   the

immediate issue, impels an en banc proceeding.




     16
        Marathon Oil Corp. V. Ruhrgas, No. 96-20361 (5th Cir. 1998)
(en banc) (Higginbotham, J., dissenting).

                                   16
