                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                 UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                    July 24, 2006

                     _______________________             Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-41205
                     _______________________


                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

               HEARNE INDEPENDENT SCHOOL DISTRICT,

                                    Intervenor Plaintiff-Appellee,

                               versus

                     STATE OF TEXAS; ET AL,

                                                         Defendants,

             STATE OF TEXAS; TEXAS EDUCATION AGENCY,

                                            Defendants-Appellants,

                               versus

              MUMFORD INDEPENDENT SCHOOL DISTRICT,

                         Intervenor Defendant-Appellant-Appellee,

 PETE J., individually and in his capacity as Superintendent of
Mumford Independent School District,

                                   Intervenor Defendant-Appellant.



          Appeals from the United States District Court
                for the Eastern District of Texas


Before JONES, Chief Judge, and DeMOSS and OWEN, Circuit Judges.

EDITH H. JONES, Chief Judge:
            This case arises out of student transfers from one rural

Texas school district to another.          Before and after the transfers,

both districts had a majority of racial minority students.1                  The

United States and Hearne ISD, the Plaintiff district, contend that

the transfers impermissibly impeded desegregation and violated a

thirty-five-year-old       desegregation      decree    against      the   Texas

Education Agency.        The district court ruled in favor of the

Plaintiffs and enjoined the transfer only of white students (even

though large numbers of black and Hispanic students have also

continued to transfer out of Hearne).           After carefully reviewing

the record, we hold that the court had no basis for sanctioning the

transferee district, Mumford, a non-party to the original court

order. Further, there is no legal or factual basis for the court’s

finding of a reduction in desegregation caused by the transfers.

Because   the   Plaintiffs     are   entitled    to    no   relief   under   the

desegregation decree, we REVERSE the judgment and VACATE the

district court’s injunction.

                               I. BACKGROUND

            In 1970, the United States brought suit in the Eastern

District of Texas against various Texas school districts, the

governing county boards of education of each such district and

their respective officials, and the Texas Education Agency (“TEA”)


      1
            A school district with a student population comprised of more than
fifty percent minority students is commonly referred to as a “majority-minority”
district.   For this purpose, the word “minority” includes African-American,
Hispanic, and Asian.

                                       2
to achieve meaningful school desegregation.           Each of the school

districts named as a defendant in the original suit was either an

all-white district or an all-black district that had taken no steps

to comply with the Supreme Court’s desegregation precedent.            The

district court, Judge William Wayne Justice presiding, found that

the named school districts were responsible for creating and

maintaining   dual   school   systems   and   that    systemically,   “the

vestiges of racially segregated public education” had not been

eliminated.   Accordingly, Judge Justice entered Order 5281, a far-

reaching   desegregation   decree   applicable   to    the   named   school

districts and the TEA, which directs funding to the State’s public

schools.    United States v. Texas, 321 F. Supp. 1043 (E.D. Tex.

1970).     The Order contains two parts, the first directed at

desegregating the named school districts and the second directed at

correcting systemic segregation.        Specifically, with respect to

transfers, the Order enjoined TEA and any person acting in concert

with TEA

     from permitting, approving or supporting by any means:
     (1) The inter-district transfer of students within the
     state of Texas which will reduce or impede desegregation
     or which will reinforce, renew or encourage the
     continuation of acts and practices resulting in
     discriminatory treatment of students on the ground of
     race, color, or national origin . . . .
Id. at 1060. The Order was later modified by the district court,

United States v. Texas, 330 F. Supp. 235 (E.D. Tex. 1971), and

subsequently by the Fifth Circuit, United States v. Texas, 447 F.2d




                                    3
441 (5th Cir. 1971), but the text of the transfer provision

remained largely the same.

            During the thirty-five years that have elapsed since the

original entry of Order 5281, there have been eight decisions in

which our Circuit has addressed questions regarding the validity

and applicability of Order 5281,2 and during this same thirty-five-

year period, the racial composition of public schools in Texas has

changed drastically. Today, Texas public school districts continue

to expend considerable resources complying with TEA’s directives

pursuant to the now-antiquated Order, yet the State has not moved

to terminate it.     Because of the Order’s dwindling relevance, only

three disputes have arisen under it in the last ten years, and the

case was administratively closed for three years before this matter

was filed.     Judge Justice, the judge presiding over the original

dispute in 1970, has remained in charge of the case throughout,

even though he is now on senior status.

            The most recent litigation under Order 5281 has involved

small rural school districts fighting over student population in




      2
            See United States v. Texas, 447 F.2d 441 (5th Cir. 1971); United
States v. Texas (San Felipe-Del Rio), 466 F.2d 518 (5th Cir. 1972); United States
v. Texas (Wilmer-Hutchins), 508 F.2d 98 (5th Cir. 1975); Gregory-Portland Indep.
Sch. Dist. v. Texas Educ. Agency, 576 F.2d 81 (5th Cir. 1978); United States v.
Gregory-Portland Indep. Sch. Dist., 654 F.2d 989 (5th Cir. 1981); United States
v. Texas (LULAC), 680 F.2d 356 (5th Cir. 1982); United States v. LULAC, 793 F.2d
636 (5th Cir. 1986); United States v. Texas (Goodrich), 158 F.3d 299 (5th Cir.
1998).

                                       4
contests rooted more in resource allocation than racial injustice.3

Texas has a liberal transfer policy wherein funding from TEA

follows the student across district lines.                See TEX. EDUC. CODE

§§ 25.035-037.     In this case, Hearne seeks to prevent flight from

its schools and retain funding in the district.              At trial, Hearne

administrators testified that they were concerned about all student

transfers, correctly valuing students of all races equally.                   By

intervening into the case underlying Order 5281, however, Hearne

can only legally complain about the transfer of white students; the

district consequently argues that their voluntary departure has

reduced desegregation in Hearne schools.

            Hearne sued TEA, Mumford Independent School District,

which received many Hearne transfers, and Mumford’s superintendent

Bienski.    The United States, as Plaintiff to the original Order

5281 litigation, joined the case.          The district court conducted a

bench trial and ruled in favor of the Plaintiffs, enjoining Mumford

from accepting any more white transfers — even of students who have

been attending Mumford schools for many years — and prohibiting TEA




      3
            The only noteworthy case within the last ten years, United States v.
Texas (Goodrich), 158 F.3d 299 (5th Cir. 1998), involved a neighborhood’s attempt
to be annexed to a different school district. Id. at 303. The dispute’s only
connection with race and segregation came from the creative legal theories used
to attempt to prevent a few neighborhood students from taking their funding with
them to the other school district. The district court’s order refusing the
annexation on the basis of Order 5281 was reversed by this court.

                                       5
from funding Mumford for those transfers.            This court stayed the

district court’s remedy pending TEA’s and Mumford’s appeal.4

                               II. DISCUSSION

A.    Jurisdiction

            Mumford first asserts that the district court should not

have exercised jurisdiction over this dispute through a reopening

of the TEA litigation and Order 5281.          Mumford argues that because

Hearne is subject to a prior, separate desegregation order that

originated in a different court, the court here erred in asserting

jurisdiction.     We disagree.      The fact that Hearne was itself the

defendant in another desegregation case years ago and remains

subject to a consent decree arising from that suit has no bearing

on the State’s compliance with Order 5281.             Accordingly, subject

matter jurisdiction is proper.

            Mumford also challenges the district court’s reopening of

an administratively closed case and its allowance of Hearne’s

motion to intervene to enforce Order 5281.               Because a district

court may reopen an administratively closed case sua sponte, Mire

v. Full Spectrum Lending Inc., 389 F.3d 163, 167 (5th Cir. 2004),

we find no abuse of discretion in the district court’s timing and

decision to reopen the case.       Likewise, the court did not abuse its

discretion in permitting Hearne to intervene, as Hearne challenged


      4
            One draconian consequence of the district court’s order would have
been to require transfer students entering into their senior high school year at
Mumford, who have completed nearly all of their education there as transfer
students, to go to Hearne schools instead.

                                       6
TEA’s action under Order 5281, which is a still-effective decree.

See Trans Chem. Ltd. v. China Nat. Mach. Import & Exp. Corp., 332

F.3d 815, 822 (5th Cir. 2003) (explaining that permissive inter-

vention is reviewed for abuse of discretion).

             Finally, Mumford contests the district court’s exercise

of jurisdiction against it, a non-party to the original suit, as an

entity acting “in concert” with TEA to violate Order 5281.                  See

FED. R. CIV. P. 65(D)) (confining district courts to injunctive

relief against parties or those “in active concert or participation

with them”).      Because the court’s judgment must be reversed on

other grounds, we need not decide whether the district court erred

in construing the scope of its Rule 65 authority on the facts

presented, and assume arguendo Mumford acted “in concert” with

TEA.5

B.      Merits

             Order 5281, as occasionally modified,6 prohibits the

State from permitting or supporting in any way

        student transfers, between school districts, when the
        cumulative effect, in either the sending or receiving
        school or school district, will be to reduce or impede
        desegregation.


        5
            The court’s finding that Mumford acted “in concert” with TEA would
be subject to doubt for a number of reasons. In particular, TEA administratively
sanctioned Mumford for not complying with its “one percent guideline” regarding
student transfers and for not accurately reporting hardship transfers. Further,
in federal court, the parties have taken different legal positions.
      6
            In Goodrich, we described Order 5281, with amendments, as the
“Modified Order.” See 158 F.3d at 301 & n.2. Here, we use the term Order 5281
synonymously with Goodrich’s Modified Order, to conform to the parties’ and the
district court’s terminology in this case.

                                       7
United States v. Texas, 447 F.2d 441, 443 (5th Cir. 1971).                  One

“guideline” for enforcing this proscription instructs TEA not to

approve   transfers    whose   effect     “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 or the

home or the receiving school.”        Under the Order, the white student

population is measured against the “minority” population, including

black and all other minority students.

            Neither Hearne nor Mumford was an original defendant

school district subject to Order 5281.7           During the past decade,

more or less, Hearne has lost student population of all races via

transfers, dropouts, and changes of residence.               While Hearne’s

enrollment declined from nearly 1700 in 1991 to under 1200 in 2004,

Mumford grew from a district of just fifty-seven students in 1991

to over four hundred in 2004.       Mumford expanded largely by receiv-

ing transfers, mostly from Hearne, and mostly of Hispanic and black

students.     Notwithstanding the districts’ changing populations,

both districts have remained “majority-minority.”

            When analyzing this case, the district court stated

repeatedly that the critical issue is whether TEA’s funding to

Mumford of white transfer students from Hearne violated Order 5281

because   such   transfers’    cumulative    effect    reduced    or   impeded


      7
            Hearne, indeed, entered into a desegregation decree in another
archaic case still technically pending in another Texas federal district court.
Nearly twenty years ago, Hearne represented to that court that all vestiges of
desegregation had been eliminated.

                                      8
desegregation in Hearne.      We cannot fully endorse this characteri-

zation. The Order itself required the court to consider the racial

balance of both Hearne and Mumford as well as all the transfers and

the   resulting   student    body   populations,   taking     into   account

Hispanic as well as black and white students.           Contrary to the

Order,   however,   the     court   skewed   its   analysis    toward   the

complaining district alone and arbitrarily excluded Hispanics, the

racial group that has grown considerably in both Hearne and Mumford

(just as it has grown all over Texas).       Moreover, the court’s focus

seems to have been misplaced on racial balancing for its own sake

rather than on effectuating the more tailored remedies required in

recent years by the Supreme Court and this court.       The court should

have been more mindful of Goodrich, where this court recited

applicable Supreme Court cases and held that “since there is no

reason why [Order 5281] 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.”       United States v. Texas (Goodrich),

158 F.3d 299, 311-12 (5th Cir. 1998).

           Wisely, however, the court declined to equate a violation

of the one percent guideline with a violation of Order 5281.

Goodrich disapproved, albeit in the context of school boundary

changes rather than student transfers, prophylactic percentage

tests that have little or no connection to the remedial facts

                                     9
underlying Order 5281.       Even as to student transfers, within the

Order itself,     a   guideline   is   a    guideline,   not   an   inflexible

command.8

            Bearing in mind these initial observations, we analyze

separately the appellate points of TEA and Mumford.

1.    TEA

            The district court enjoined TEA from funding all white

transfers from Hearne to Mumford, even if those students had

attended Mumford for their entire school careers.           In doing so, the

court disregarded that TEA had previously sanctioned Mumford for

its Order 5281 reporting violations by refusing to fund any new

transfers.    For reasons originating in the adoption of automated

reporting devices, TEA made a policy decision to recognize two

levels of transfers.      All students who had already transferred as

of the 2000-2001 school year were considered “baseline” students.

Students who had transferred for the 2001-2002 school year were

considered “grandfathered” students.            TEA has continued to fund

baseline    and   grandfathered    students,    as   well   as   siblings   of

baseline transfers, finding a disruption in funding to be contrary

to desirable educational policy. The district court rejected TEA’s

balancing approach and ordered TEA to cease all funding for any

      8
            The one percent guideline may well be an unenforceable vestige of
conditions long since substantially remedied. The guideline lives on, however,
as a cause of voluminous continuous recordkeeping and monitoring by TEA and all
Texas school districts. Because the State calculates that it would cost more to
challenge the guideline than to enforce it, the State’s limited education
resources remained devoted to the highly questionable bureaucratic exercise of
implementing the guideline.

                                       10
white    transfers    —    including     the     baseline    and      grandfathered

transfers — from Hearne to Mumford.

            Because “injunctive relief must not transcend the scope

of the violation,” a court enforcing Order 5281 against an original

party thereto must find that transfers “reduce desegregation or

reinforce the existence of a dual system” before enjoining such

transfers.     Lee v. Eufaula City Bd. of Educ., 573 F.2d 229, 234

(5th Cir. 1978).      “In measuring the cumulative effect of a student

transfer program on desegregation, the Court must do so from a

qualitative viewpoint, without blind deference to an objective

mathematical formula.”         Id. at 232; see also Davis v. Bd. of Sch.

Comm’rs, 393 F.2d 690, 693 (5th Cir. 1968) (explaining that “school

desegregation       can    first    be   measured        quantitatively,          using

percentages as a rough rule of thumb, but ultimately must be

measured     qualitatively,        judging     whether      schools       are     still

identifiable” as one-race schools).               If, after performing both

quantitative and qualitative analysis, the court finds that there

is   a   violation    of   a   desegregation       decree,       it   must      fashion

appropriately    tailored      equitable       relief.      In     this   case,     the

district court’s quantitative and qualitative findings were clearly

erroneous,    and    the   district      court    abused     its      discretion     in

fashioning such a broad remedy.

            The first step of a transfer analysis looks at the

quantitative effect of the transfers on both school districts.

Previous cases explain what this analysis entails.                    See, e.g., Lee

                                         11
v. Lee County Bd. of Educ., 639 F.2d 1243, 1261 (5th Cir. 1981);

Eufaula, 573 F.2d at 234.      Although this court has “refused to

sanction the use of strict quantitative or percentage analysis in

measuring the effect of a transfer program on desegregation,” it

has noted “that the range of deviation may be significant in

measuring qualitative segregative effect.”     Eufaula, 573 F.2d at

233 n.9. Specifically, “a transfer program which has the effect of

increasing the black student population in a particular school from

90% to 100% may be more suspect than a corresponding 10% increase

from 50% to 60%.”   Id.   Another test comes from the Sixth Circuit:

whether the “foreseeable and actual result of a transfer policy is

to increase the racial identifiability of schools.”      Id. at 233

(quoting NAACP v. Lansing Bd. of Educ., 559 F.2d 1042, 1051 (6th

Cir. 1977)).

          Most important for present purposes, small changes in the

racial composition of a district through transfers cannot justify

mandatory interdistrict desegregation remedies.     See Lee County,

639 F.2d at 1261.    In Lee County, the white transfers out of a

particular school caused the racial composition of the school to

change from ninety-one percent black to ninety-six percent black.

“This increment of change in the racial composition of a school

seems unlikely to alter significantly general perceptions of a

school’s racial identity or the behavior of persons who rely on




                                  12
such factors in determining whether or not to send their children

to a particular school.”       Id.9

             Contrary to the district court’s finding, the numbers in

this case do not prove that the transfers from Hearne to Mumford

reduced desegregation or caused Hearne to transform into a one-race

school.      Of equal significance, the district court ignored the

race-neutral impact that transfers of all races has had on Mumford.

             Following the district court’s emphasis, we focus on

Hearne first.      At their highest percentage in 2001-2002, 56.67

percent of students attending Hearne were African-American.                 The

lowest percentage of African-American students was 50.71 percent in

1998-99.10      The    district    court’s     exhaustive     discussion     of

mathematical calculations, percentages and percentage points is

rendered moot by this simple comparison, as this court has already

explained that a change, because of transfers, in percentage of

black students from fifty percent to sixty percent would be “less

suspect.”     Eufaula, 573 F.2d at 233 n.9.




      9
            As will be seen infra, “perceptions alone cannot form the basis for
federal court intervention”; actual segregative effect is needed to support a
finding that transfers reduce desegregation. See Goodrich, 158 F.3d at 311.
      10
              These percentages derive from Trial Exhibit 237, an exhibit the
district court found reliable and used in its calculations. Trial Exhibit 237
presents data from 1996 to 2004.     The highest percentage of white students
attended Hearne in 1996-1997, when 23.50 percent of the student population was
white. The lowest percentage occurred in 2003-2004, when 12.98 percent of the
student population was white. Hearne’s resident population of white students has
also fallen, from a high of 26.18 percent in 1998-1999 to a low of 19.41 percent
in 2003-2004.

                                      13
          The district court also erred because it examined only

the impact of the transfers on the percentage of black and white

students in Hearne, ignoring the substantial and growing portion of

Hispanic students.   A central purpose of desegregation decrees was

to prevent, to the extent practicable and not attributable to

demographic changes, the continued existence of one-race schools.

See, e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1,

26, 91 S. Ct. 1267, 1281 (1971); Tasby v. Black Coal. to Maximize

Educ., 771 F.2d 849, 851 n.3, 855 (5th Cir. 1985) (discussing

concern over predominantly black schools in a school district where

fifty percent of the students were black and twenty-three percent

were Hispanic); see also Ross v. Houston Indep. Sch. Dist., 699

F.2d 218, 226 (5th Cir. 1983) (“[I]n seeking reduction in the

number of one-race schools, the district court could not ignore

diminished white enrollment in [the district] and substantial

immigration of Hispanic students.”).     Hearne is, however, nowhere

close to becoming a one-race school, as the largest percentage of

black students since 1998 has been fifty-six percent.

          Furthermore,   even   by   grouping   blacks   and   Hispanics

together as one minority group, the change in population at Hearne

would not be so significant as to imply a return to segregation.

In the years 2001-2002 and 2003-2004, when the attendance of white




                                 14
students reached its lowest point — approximately thirteen percent11

— the resident population of white students was 22.11 percent and

19.41 percent, respectively.12           These differences are simply not

enough to mark a return to segregation as a result of State action

through the transfer funding. See Lee County, 639 F.2d at 1261

(finding it unreasonable “to conclude that this small number of

transfers effectively perpetuated the segregative effect of earlier

actions”).       Also noteworthy is that TEA cannot be held liable for

a decline in Hearne’s white student population caused by a decline

in white residency within the district.

              Accordingly, to the extent that the district court relied

on a quantitative analysis to show that white transfers from Hearne

to Mumford were “transforming the district into a predominantly

African-American district when it would not otherwise be so,” its

findings are clearly erroneous.              To be sure, Hearne’s enrollment


      11
               In 2001-2002, 165 of Hearne’s 1267 students, or 13.02 percent, were
white.     In 2003-2004, 153 of Hearne’s 1179 students, or 12.98 percent, were
white.
      12
             The district court performed an additional unnecessary calculation
by determining what the “white enrollment of Hearne would have been if there were
no white transfers to Mumford.” This calculation omits the significant numbers
of Hispanic and African-American students that also transferred from Hearne to
Mumford. Under the district court’s calculation and subsequent injunction, black
and Hispanic students could freely transfer from Hearne to Mumford, but white
students would not be allowed. Such an odd result appears to violate the rule
that transfers be administered in a nondiscriminatory manner. See Lee v. Eufaula
City Bd. of Educ., 573 F.2d 229, 232 n.6 (5th Cir. 1978) (“[A] ruling that only
black students may transfer into the . . . school system would itself run afoul
of Singleton, which clearly prohibits acceptance of transfers on a racially
discriminatory basis.”)(citing Singleton v. Jackson Mun. Separate Sch. Dist.,
419 F.2d 1211, 1218-19 (5th Cir. 1969)).      Further, even under the district
court’s “white transfers only” analysis, the largest net effect of the transfers
is a mere 9.97 percentage points, from 22.99 percent to 13.02 percent. Even this
numerical difference cannot be found to resegregate Hearne.

                                        15
has declined for several reasons, including transfers out of the

district.       But Mumford’s acceptance of transfer students of all

races has produced no segregative effect in Hearne.

            The district court’s findings also fell short by failing

to consider the impact of transfers on Mumford’s racial makeup.

Order   5281,    as   well   as    above-cited        desegregation       principles,

required    a    holistic    look    at    the       transfer   policy’s       impact.

Unsurprisingly,       perhaps,     there       has    plainly   been      no   adverse

consequence.       Mumford has accepted larger absolute numbers of

minority transfers than white transfers.                  Mumford was and remains

a majority-minority district.            Its most recent racial composition

was fourteen percent black, forty-one percent white and forty-five

percent Hispanic.       Mumford’s growth must be explained by factors

other than an institutional desire to move itself — or Hearne —

toward one-race status.

            The district court found, qualitatively, that “[t]he

transfers from Hearne have resulted in members of Hearne and

neighboring communities perceiving Hearne as ‘basically a black

school district,’ comprising mainly or exclusively black students.”

Of course, “perceptions alone” cannot form the entirety of a

qualitative analysis, Goodrich, 158 F.3d at 311.                    Moreover, the

witnesses’      perceptions       were    full       of   hearsay   and     illogical




                                          16
conclusions.13 Even if the testimony before the district court were

reliable, the district court never established, as required by

Goodrich, whether such perceptions arose from parents’ private

choices or State action in the form of TEA-funded transfers.                    See

Goodrich, 158 F.3d at 310-11.            Instead, the district court found

that    Hearne    does   not     have   unusual    discipline     problems,     and

apparently parents would thus have no reason to move or transfer

their children from Hearne to Mumford.                  The proper qualitative

analysis would acknowledge that Mumford has always accepted more

black and Hispanic transfers than white transfers and has itself

remained a majority-minority district.             TEA’s funding of transfers

has had no significant net racial impact on either district.

             In sum, the conclusory statements that Hearne is a

“black” school, despite the fact that at no point in the relevant

time period have black students comprised more than fifty-six

percent     of   the   student    population,     are    not    indicative     of   a

resegregative effect in Hearne.               As in Goodrich, “[b]ecause the

district     court’s     findings       of    segregative      effects   are    too


       13
              The district court relied upon, first, the testimony of Norris
McDaniel, Hearne’s former superintendent. McDaniel testified that the perception
of the Hearne District is one of “just basically a black school district.” He
buttressed this conclusion by discussing a conversation he had with a woman who
had just moved into the district and noticed that “there were a lot of black
people in Hearne.” The district court then accepted the testimony of principal
Caroline Reed, who was concerned because she saw a lot of white kids playing
Little League baseball in Hearne, but her school did not have many white faces.
She further testified that her perception of a “predominantly black school” was
one with a majority of African-American students. Finally, the district court
relied upon the testimony of Hearne board member James Taylor. Taylor testified
he perceived Hearne to be a predominantly black school, in large part because
Hearne’s sports teams were predominantly black.

                                         17
speculative, not supported by the record, or are rooted in private

conduct rather than state action, they are clearly erroneous and

legally insufficient.”      Id. at 311.

              Finally, even if the court’s findings that the transfers

had a resegregative impact were not clearly erroneous, the court’s

overbroad remedy would be an abuse of discretion.              The district

court ordered TEA to stop funding all white transfers from Hearne

to Mumford, even if those students had attended Mumford for years.

This remedy grossly exceeds any possible violation of the original

desegregation order.

              The facts found by the district court demonstrate that

the   white    student   population   at   Hearne   declined   to   thirteen

percent, while the black population stood at fifty-six percent.

TEA has refused to fund any new transfers to Mumford as a result of

Mumford’s reporting violations and contends that any possible

resegregative effect will be erased by attrition as the baselined

students graduate or move.

              We do not comment on the legal merit of TEA’s chosen

sanction for Mumford’s administrative violations. The issue before

us is whether the court’s injunction is among those federal-court

decrees that “exceed appropriate limits if they are aimed at

eliminating a condition that does not violate the Constitution or

does not flow from such a violation.”               Milliken v. Bradley,

433 U.S. 267, 282 (1977); see also Gen. Bldg. Contractors Ass’n v.

Pennsylvania, 458 U.S. 375, 399, 102 S. Ct. 3141, 3154-55 (1982)

                                      18
(holding that the remedial powers of the federal courts “could be

exercised only on the basis of a violation of law and could extend

no   farther    than   required      by   the    nature    and   extent     of   that

violation”).      The violation here, summed up by the district court

and the Plaintiffs, is that the percentage of white students at one

school district is declining, and thus “impeding desegregation,”

because   those    students    are    transferring        to   another    majority-

minority district.       Yet all TEA did was continue to fund transfer

students already attending the receiving district after it learned

that the one percent guideline had been violated.                           Even if,

contrary to the foregoing discussion, a violation of Order 5281 had

occurred here, the magnitude of the violation is ambiguous, and the

motivation of TEA utterly benign.                 These conditions may have

justified a remedial order that would have deferred to TEA’s

solomonic solution. Instead, the district court’s order threatened

to inflict a harsh and immediate funding reduction on Mumford and

to penalize many innocent students who would be abruptly forced

into changing school districts.

           We     do   not   denigrate     the   importance      of   the    State’s

compliance with Order 5281, as long as it is on the books.

Nevertheless, the Order must be implemented, as we have stated,

consistent with the Supreme Court’s evolution in its approach to

remedial judicial decrees.        The district court’s draconian remedy

failed to follow these standards.



                                          19
2.    Mumford

              In addition to enjoining TEA from funding the Hearne-to-

Mumford   transfers,         the   district      court    enjoined   Mumford     from

accepting all white transfer students (“without legitimate hardship

exemptions”) from Hearne. The court held that Mumford acted “in

concert” with TEA in violation of Order 5281 by accepting students

whose transfers reduced or impeded desegregation in Hearne.                     As we

have invalidated the district court’s findings and remedial order

concerning     TEA,    the    injunction        against   Mumford    cannot   stand.

Nevertheless, it is necessary to point out serious flaws in the

district court’s analysis lest there be a perception that Mumford

has been let off the hook notwithstanding its own misconduct.

Mumford may not be exposed to liability for violating an order to

which it was not a party without evidence of Mumford’s intentional

acts of segregation.         Because the district court did not, and from

the   facts    could    not,       find   that    Mumford   engaged    in     conduct

intentionally designed to foster racial segregation or to interfere

with desegregation in Hearne, the injunction against Mumford cannot

stand.

              Based on its finding that Mumford acted “in concert” with

TEA to violate Order 5281, the district court held that Mumford’s

lack of racial or segregative motive was irrelevant so long as the

effect of its conduct violated the Order.                    This was reversible

error.    This court has long stated that “a federal court cannot



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impose liability on individual defendant school districts on the

basis of a general inverse respondeat superior theory holding them

presumptively responsible for actions of the state or another

governmental entity.”              Lee County, 639 F.2d at 1256 (citing and

discussing Milliken v. Bradley, 418 U.S. 717, 94 S. Ct. 3112

(1974)).   “[N]o local district may be subjected to remedial orders

based on past segregative or other constitutionally invidious local

practices of which it has been condemned unheard.”                        United States

v. Texas (LULAC), 680 F.2d 356, 373 (5th Cir. 1982).                             Because

Mumford was not a party defendant to the original litigation that

resulted in Order 5281, it cannot be condemned for violating the

Order   without        a    finding      that     it     intentionally      engaged      in

segregative conduct.

           Further, a finding that Mumford violated a prophylactic

provision in Order 5281 is not an adequate substitute for proof of

intentional      segregative        conduct.           In   United     States   v.   Texas

(Gregory-Portland), 654 F.2d 989 (5th Cir. 1981), this court

reversed an order requiring busing of Mexican-American students

throughout a school district in South Texas.                         Id. at 996.        The

district   court       had       concluded     that      “[i]f   TEA    determines      the

existence of ethnically identifiable schools, it need show nothing

further;” specifically, TEA was not “required to find discrimina-

tory    intent    on       the    part    of      [the      school   district]       before

implementing” sanctions based on Order 5281.                           United States v.

Texas, 498 F. Supp. 1356, 1366 (E.D. Tex. 1980).                           We reversed,

                                             21
overruling the district court’s reliance on imputed and presumptive

discrimination. Gregory-Portland, 654 F.2d at 996. We invalidated

a procedure whereby TEA could sanction school districts solely on

the basis of a numerical trigger:

      [B]y the order of August 1973, the district court
      established TEA as its agent for purposes of combing the
      Texas   school  districts   in   search  of   ethnically
      disproportionate campuses. These the court defined as
      ones comprising student bodies more than 66 percent
      minority. On finding one, and without further hearing or
      inquiry into causation, TEA was to do as it did here:
      offer the district a choice between accepting a student
      assignment plan or plans devised by TEA to dilute
      minority attendance, or suffering the imposition of
      sanctions calculated to disestablish it.    Relief from
      either could be had only by the district’s proving its
      innocence of discriminatory intent in a single and
      faraway federal court.

Id. at 997.    The procedure was fatally flawed, because “[t]o infer

discriminatory intent from such slender factual data and act

decisively upon that inference is to run a high risk of acting

unjustly.”      Id. at 997.         We concluded:          “[T]he ultimate and

dispositive issue is that of the intent with which an autonomous

body, [the school district], acted in making student assignments.”

Id. at 999.     It follows from these authorities that the district

court   erred        by     cursorily    dismissing        Mumford’s         lack   of

discriminatory intent as irrelevant.

             There    is,    moreover,       no   direct    evidence     condemning

Mumford.     Mumford’s “violation” of the one percent guideline found

in   Order    5281    and    used   as   a     trigger     by   TEA    for    further

investigation is not indicative of intentional discrimination. The


                                         22
Fifth Circuit has rejected bare numerical requirements in the

context of transfers.       See, e.g., Eufaula, 573 F.2d at 232 & n.6.

And, as Gregory-Portland explained, discriminatory intent cannot be

presumed from “such slender factual data.”              Gregory-Portland,

654 F.2d at 997.       The facts surrounding the Hearne-to-Mumford

transfers demonstrate why a numerical guideline is of so little

import.     Before it accepted transfer students, Mumford was a tiny

school district with fewer than sixty students.           Once it started

accepting transfer students, parents of all races began to send

their children to Mumford.         The court’s focus on white student

transfers alone was misplaced, as Mumford has accepted students of

all races whose parents evidently seek educational opportunities of

a different nature than those that exist in Hearne.

            The district court faulted the district because it gave

incorrect data to TEA and encouraged parents to claim hardship

exemptions to TEA’s rigid numerical requirements.          As stipulated,

Mumford did not provide TEA with transfer data for several years.

The district court found that this “pattern of fraudulent conduct

. . . demonstrated a consistent and persistent willingness to

circumvent the requirements of [Order] 5281 whenever possible.”

Yet   the   question   is   not   whether    Mumford   complied   with   TEA

directives; Mumford must have acted with discriminatory intent in

accepting the transfers.       See Gregory-Portland, 654 F.2d at 999.

Mumford’s mishandling of reporting requirements, without more, does

not prove discriminatory intent.          Accordingly, the district court

                                     23
had no legal or factual basis to enjoin Mumford from accepting

white transfer students.

                            III. CONCLUSION

          Though   it      is   certainly     possible   that   racial

discrimination still exists with regard to the treatment of black

students in Texas schools, no evidence of segregation or its

vestiges was presented in the instant case.        The battle between

Hearne and Mumford is fought for transfer dollars rather than

racial justice.    For the reasons expressed above, the district

court’s application of the timeworn Order 5281 was in error.       We

therefore REVERSE the judgment of the district court, and VACATE

its injunction against Mumford and TEA.

          REVERSED AND VACATED.




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