* District Judge of the Northern District of Texas, sitting

by designation.

1 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: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 This case pits a community’s effort to send 22 children

to the school that will best serve their educational needs 1 against

the district court’s interpretation of a 27-y ear-old statewide

s chool desegregation decree. At issue is whether the injunctive

decree prohibits a neighborhood subdivi sion 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.

Bec ause we conclude that the proposed boundary change

does not violate t he United States Constitution or the district

court’s desegregation order, properly construed, we REVERSE.

I.

Since 1971, the Texas publi c education system has been

governed according to a federal court order 2 designed to ensure

that “no child will be effectively denied equal opportunity to

educational opportunities on a ccount 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 employees3

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 in vestigate “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

inves tigation to the appropriate county and local officials,

stating whether the proposed change is in violation of law.

In January 1991, th e Forest Springs subdivision, which

lies on the boundary of the Goodrich and Liv ingston 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 s ubdivision appealed to the

Commissioner.

Following a hearing on the merits, the Commissioner found

tha t the proposed detachment and annexation neither violated3 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 modified order 5281 nor would impose significant adverse

educational, economic, or social effects on the stud ents in the

affected territories. 3 S ee Forest Springs Subdivision v. Goodrich

Indep. Sch. Dist. , No. 240-R6-391 (Comm’r Educ. Sept. 1992). The

Comm issioner 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, reinf orce, renew, or encourage a dual school

system based on race, color, or national origin.

. . . .5

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 th e school districts or students

involved.

Id. T he 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

t he cause to the Commissioner to enter a new order denying t h e

detachment and annexation. But the Austin Court of Appeals

reversed the district court. S ee Texas Educ. Agency v. Goodrich

Indep. Sch. Dist.

, 898 S.W.2d 954, 956 (T ex. App.--Austin 1995,

writ denied). The appeals court reasoned that due deference must

be a ccorded 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 supported6

by substantial evidence” and rendered j udgment 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 t he 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 evi dence 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 Livings ton Independent

School District would reinforce, renew and

enc ourage a dual school system based on race

and color, in violation of this court’s order

of July 17, 1971.4 Hereinafter, we will refer to the appellant as either the

residents of Forest Springs or simply the Residents.

7 Th e 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

f ederal court; (2) finding that the proposed detachment and

annexation would reinforce, r enew 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 st anding 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 re dressed 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. Defenders8

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

participa te as members of the local community. When Goodrich

i ntervened in federal court and secured a favorable declara tory

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 Court9

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. S ee 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, onl y 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

constitutionalit y 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 bysta nders” invoking the

exercise of judicial power “simply as a ‘vehicle for the

vindication of value inte rests,’” i d. 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 fromthis 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.10

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, 105 2 (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. S ee 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 ae gis of federal or state government.

See Astoria Fed. Sav. & Loan Ass’n v. Solimino

, 501 U.S. 104, 107-11

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 th e State’s courts.” U niversity 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. S ee 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 ha s acted in adjudicatory, judicial or quasi-judicial

capacity. S ee 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 appl y. 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.”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 Forest Springs Subdivision v. Goodrich Indep. Sch. Dist.

, No. 240-

R6-391 (Comm’r Educ. Sept. 1992).

The appellees urge, and the district court erro neously

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).13 The district court also rejected issue preclusion arising

from the state proceedings with a puzzling statement that

if the parties had sought to relitigate i n 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 ma y 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 an d 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. S ee Martin v.

Wilks , 490 U.S. 755, 762, 109 S.Ct. 2180, 2184 (1989). Although6 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 there are some exceptions to this rule, 6 the United States is

rarely “barred from independent litigation by the failure of a

private plaintiff.” U nited 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. 7government 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 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 lik ely trigger further annexations and increased

school segregat ion. The court interpreted its modified order to

incorpo r ate 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 c oncerning

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 proposed8 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 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 cou rt found that the Forest Springs boundary change would

reinforce, renew and encourage a ra cially 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 tran sfers 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 would9 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 be 2.7% less wh ite 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 bo undary

change portion of the decree. The goal of affording notice to

parties affected by the decree is wholly ignored by this a d 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 easier18

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 irrevoc ably 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 roug h a measure of their significance. S ee 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 effecti vely guides day-to-day school

administrative de cisions. 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 re sidents 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 ri gidly approve or deny

transfers.” See order re Intervention of Mary Hightower

, C.A. 5281

(Sept. 8, 1980) (permitting student transfers that would increase10 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 the white population of the transferor school by 7%). 1 0 In the

Hightower order, the distric t court bowed to governing Fifth

Circuit law, which had already come to reject purely quantitative

analysis in the desegregation context. S ee 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 effectiven ess of its plan to remedy

specifically identified constitutional violations. 11 S ee, 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 qualitative12 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 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 a n 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 to o 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 po rtion of the modified order. The

court erred by relying on this “rule of thumb” for any purpose

concerning the proposed boundary change.21 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 abilit y to run an integrated school district; would

likely trigger further annexations and increased school

desegre g ation; and would reinforce the perception that school

district boundaries were drawn on account of race.

The district court first found that the m oney the

district would lose in the wake of Forest Springs’s detachment

would adversely affect the quality of the teaching, the

availability of resourc es (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 a dverse financial impact on Goodrich is troubling.

The Commissioner specifically eva luated 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. S ee Texas Educ. Code Ann.

§ 19.022(d) (West 1991). It would not, and the parties so13 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 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 onehalf 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 stu dents 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 would14 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 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 i ncreased school segregation.” Relying on the

opinion of an expert witness, the district court reasoned that the

departure of Fores t 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 similar24

detachments and annexations.” Neither the law nor the evidence in

this case supports such a finding.

Although the district court’s authority o ver the Texas

educational system under th e 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

reinf orcement, 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. S pangle r , 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].” S pangler

, 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 the15 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 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 dua l 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 m odified 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 res idential 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 that26

a re the product of private choice and not state-sanctioned

discrimination. S ee id. at 495, 112 S. Ct. at 1448. The district

court could not predicate a violation of the modified order on the

for ecast 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

Spri ngs 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 th e 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.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 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 access ible.

In urban neighborhoods, families can relocate short

distances

–– within a large metropolitan area or to a nearby

suburb

–– and sele ct 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. 17enrollment, 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 Thus, neither the theoretical likelihood of tippi ng nor its

practicability in and around Goodrich is strongly supported. 18

Finally, the district court found that if the proposed

a nnexation were granted, the “public perception of [Goodr ich

I.S.D.] as the Black school district would be strengthened.” But

perceptions alone cannot form the basis for federal court

intervention in to 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 racial29

classification. The court’s finding also fails to square with the

persistent high turnover of the Goodrich school popu lation, its

significant fluctuations in size, and its growing Hispanic

contingent

–– all of which facts are relevant to local perceptions,

and all o f 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 insufficien t. 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 consi d er 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, 11230

S.Ct. at 1447

-- the pertinent portion of modified order 5281,

which deals with boundary changes, is not facially i nconsistent

with evolving school desegregation jurisprude nce. 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. S ee, 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; M illiken 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 e nforcement efforts, easily lends itself to the reading

mandated by the Supreme Court. The order does not expressly

mandate racial balancing in boundary changes. C f. 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 st a nd-alone basis for

fede ral intervention. S ee Lee v. Eufaula City Bd. of Educ.

, 57319 There is no difference in this regard between a consent

decree and an order, like modified order 5281, entered without

31 F.2d at 232. Put otherwise, since there is no reason why the order

must be interpreted to extend the dis trict court’s remedial

jurisdictio n 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 s egregation, 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 decree 19 sua sponte when it becomesthe parties’ consent. See System Fed’n No. 91 v. Wright, 364

U.S. 642, 81 S.Ct. 368 (1961).

32 manifest tha t there has been a change in the facts or the

underlying law t hat gave rise to the decree. S ee 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 underlyin g that decree

has ch anged-- r egardless 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 Spr ings 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 segregat ion has

degenerated into a petty war of attrition against 22 students and33

360 acres of tax base. The declaratory judgment of the district

court is REVERSED

.