United States, et al v. State of Texas, et al

United States Court of Appeals
Fifth Circuit
F I L E D
July 24, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
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:

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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
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”)

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3
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

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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
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

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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
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

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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
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

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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
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.

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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
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

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9
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

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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
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

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11
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

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12
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

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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
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.

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14
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

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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
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

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16
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

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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
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

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18
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)

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19
(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.

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20
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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21
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,

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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

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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

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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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