Appendix — Gregory-Portland Independent School District v. Texas Education Agency

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IN THE

Supreme Court of the Mnited States

OCTOBER TERM 1978

NO. 78-985

GREGORY-PORTLAND INDEPENDENT

SCHOOL DISTRICT, ET AL.,

Petitioners

Vv.

TEXAS EDUCATION AGENCY, ET AL.,

Respondents

UNITED STATES OF AMERICA,

Applicant for Intervention

APPENDIX

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

RICHARD A. HALL

J. W. GARY

100 Hawn Building

Corpus Christi, Texas 78401

Attorneys for Petitioners

Alpha Law Briej Co., One Main Plasa, No, 1 Main St,, Houston, Texas 77002

INDEX TO APPENDIX

OPINION OR ORDER IN THIS CAUSE: Page

District Court’s Order Granting Preliminary Injunction,

i civ dsb sesss ee sesscccoss |

District Court’s Memorandum denying motion to dis-

miss for want of jurisdiction, dated February 28, 1974 6

Opinion of Fifth Circuit Court of Appeals refusing

United States’ Petition for Mandamus seeking dismissal

or transfer of case to Eastern District of Texas, dated

December 30, 1974 (Reported at 506 F.2d 383) .... 11

District Court’s Memorandum and Order finding no

unconstitutional segregation by Gregory-Portland In-

dependent School District, and permanently enjoining

suspension of funds and accreditation by Texas Edu-

cation Agency, dated January 30, 1976 ............ 14

District Court’s Judgment permanently enjoining Texas

Education Agency’s suspension of funds and accredita-

tion to Gregory-Portland Independent School District,

cc h pa searesccresesspenssce 28

District Court’s Order denying United States’ motion

for leave to intervene, dated May 14, 1976 ........ 30

Opinion of Fifth Circuit Court of Appeals vacating

District Court’s Order dissolving permanent injunction,

and directing dismissal of case or transfer to Eastern

District of Texas, dated July 10, 1978 (Reported at

ES Sree ine rr 38

Letter from Clerk of Fifth Circuit Court of Appeals

advising of denial of petition for rehearing, dated

TEC Geo bes tse teeseersecaceesees 43

Judgment of the Fifth Circuit Court of Appeals, dated

July 10, 1978 and issued as mandate October 2, 1978 44

MISCELLANEOUS ORDERS OF DISTRICT COURT

FOR EASTERN DISTRICT OF TEXAS IN UNITED

STATES V. TEXAS:

Modified Order of the District Court for the Eastern

District of Texas delineating desegregation duties of

the Texas Education Agency, dated July 13, 1971 .. 46

Order of the District Court for the Eastern District of

Texas modifying order of July 13, 1971 with respect to

duties of the Texas Education Agency in desgregating

Texas public schools, dated August 9, 1973 ......... 63

IN THE

DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

CIVIL ACTION NO. 73-C-175

GREGORY-PORTLAND INDEPENDENT

SCHOOL DISTRICT, ET AL

Vv.

TEXAS EDUCATION AGENCY

AND J. W. EDGAR

ORDER GRANTING PRELIMINARY INJUNCTION

On January 18, 1974, there came on to be heard in

the above cause the plaintiffs’ Motion for Preliminary

Injunction and the defendants’ Motion to Dismiss for

Want of Jurisdiction, at which time the Court heard

evidence and argument of counsel. The defendants’ Mo-

tion to Dismiss for Want of Jurisdiction is currently

under consideration by the Court. Meanwhile, due notice

having been given to defendants, and taking into account

the evidence and stipulations of fact entered into by all

of the parties in open court, the Court finds the following:

(1) By letter dated November 5, 1973, the Central

Education Agency (Texas Education Agency), acting

through J. W. Edgar, Commissioner of Education, noti-

fied the Gregory-Portland Independent School District

that unless the Gregory-Portland Independent School Dis-

trict would consent to a reassignment of elementary

students attending its three elementary schools in a man-

ner specified by the Central Education Agency or in a

manner proposed by the Gregory-Portland Independent

School District and approved by the Central Education

Agency, the Central Education Agency would suspend

the school district’s accreditation with the Central Educa-

tion Agency and, in addition, would suspend the payment

to the Gregory-Portland Independent School District of

all state funds granted to the district under the state

Minimum Foundation Program.

(2) The proposed suspension of accreditation and

funds was to take effect fifteen (15) days after the com-

mencement of the Spring, 1973-74 school semester, which

semester commenced in January of 1974. The basis of

the proposed suspension of accreditation and funds by

the Central Education Agency is the alleged existence

in the Gregory-Portland Independent School District of

current or past discriminatory practices which violate the

United States Constitution or the district’s refusal to

eliminate vestiges of such past discriminatory practices.

The school district and the individual plaintiffs herein

deny the existence of any such discriminatory practices

or vestiges thereof.

(3) It has been stipulated and the Court finds as a

fact that at no time before the filing of the instant suit

were the Gregory-Portland Independent School District

or the individual plaintiffs herein notified of any claim

or contention by the Central Education Agency that

discriminatory practices or vestiges thereof existed in the

Gregory-Portland Independent School District nor were

any of the plaintiffs afforded a specification of the alleged

practices or vestiges, or of the evidence claimed to sup-

port the existence thereof, or an opportunity to appear

and present evidence refuting the contentions.

(4) No evidence has been presented to the Court

which suggests that the Gregory-Portland Independent

School District is or has been engaged in discriminatory

practices in contravention of the United States Constitu-

tion or that vestiges of any alleged past discrimination

still exist. Such evidence as was presented suggests to

the contrary.

(5) A large percentage of the funds necessary to

operate the Gregory-Portland Independent School Dis-

trict is derived from state funds granted to the district

under the Minimum Foundation Program. Suspension

of the district’s accreditation with the Texas Education

Agency would work a hardship upon students who trans-

fer out of the district or who graduate during the course

of the suspension in that difficulty is experienced in trans-

ferring credits for completed work from a non-accredited

school to an accredited school and credits for work

completed by a student at a non-accredited school are

not readily accepted by many colleges in connection with

application for admission.

(6) The Gregory-Portland Independent School District

has satisfactorily complied with all requirements for ac-

creditation with the Central Education Agency and is

entitled to such accreditation and to receive state funds

pursuant to the Minimum Foundation Program, unless

it should ultimately be determined that the Gregory-

Portland Independent School District has engaged or is

engaging in discriminatory practices violative of the

United States Constitution or has refused to eliminate

vestiges of past unconstitutional discrimination.

(7) The contentions raised by the parties in this pro-

ceeding with respect to alleged discrimination on the

basis of race, color, or national origin do not relate to

segregation or discrimination as between Negro and

white children. There are currently only two Negro

children who reside and are eligible to attend school

within the Gregory-Portland Independent School System.

There is no contention made of discriminatory practices

with respect to Negro children. Any claimed constitutionai

violation by the Gregory-Portland Independent School

District relates solely to children with Mexican surnames.

Accordingly, it is ORDERED, ADJUDGED and DE-

CREED that pending further order of this Court, the

defendants Central Education Agency (Texas Education

Agency) and J. W. Edgar, Commissioner of Education,

their respective officers, agents and representatives, be

and they are hereby restrained and enjoined from sus-

pending the accreditation of the Gregory-Portland In-

dependent School District with the Central Education

Agency and from suspending payment to the Gregory-

Portland Independent School District of any state funds

granted to the Gregory-Portland Independent School Dis-

trict under the Minimum Foundation Program.

It is furthere ORDERED, ADJUDGED and DE-

CREED that this order shall be effective from and after

4:00 p.m., January 18, 1974.

It is furthere ORDERED, ADJUDGED and DE-

CREED that the plaintiffs herein file a joint bond, with

corporate surety, to be approved by the Court, in the

sum of One Thousand Dollars ($1,000.00), conditioned

for the payment of such costs and damages as may be

incurred or suffered by any party who is found to have

been wrongfully enjoined or restrained.

DATED at Corpus Christi, Texas, the 24th day of

January, 1974.

/s/ OWEN D. COX

United States District Judge

IN THE

DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

C.A. NO. 73-C-175

GREGORY-PORTLAND INDEPENDENT

SCHOOL DISTRICT, ET AL,

TEXAS EDUCATION AGENCY and

DR. J. W. EDGAR, COMMISSIONER

OF EDUCATION

MEMORANDUM

Gregory Portland Independent School District and the

members of its Board of Trustees, Plaintiffs, have brought

this action against the Texas Education Agency and

J.W. Edgar, to enjoin them from suspending the accredi-

tation of, and the distribution of funds to, the said School

District. Plaintiffs also sue as representative parties for

the class or classes of the adult residents and taxpayers

and their children who are in attendance at public

schools within the District, under Rule 23, Federal Rules

of Civil Procedure.

Plaintiffs also ask for a declaration by this Court that

the District has not acted so as to violate any right

guaranteed to any resident of the District under the laws

or the Constitution of the United States.

A preliminary injunction was granted on the 24th day

of January, 1974, and it remains in effect. Thereafter,

a hearing was held on the Defendants’ motion to dis-

miss this action for want of jurisdiction.

At this hearing, the Defendants took the position that

the challenged actions were taken pursuant to the manda-

tory injunction issued by the United States District Court

for the Eastern District of Texas, Tyler Division, as

amended by court order of August 9, 1973; and that any

action seeking relief from the effects of such order must

be pursued in the Tyler court. If their contention is valid,

this cause should be dismissed.

Subsequent to the hearing on jurisdiction, the United

States has sought and been granted permission to file

an amicus curiae brief, in which it supports the contention

of Texas Education Agency and Mr. Edgar that no

jurisdiction exists for this action in the Southern District

of Texas, Corpus Christi Division.

Plaintiffs respond by arguing that they seek to deter-

mine whether or not the Texas Education Agency has

followed Section F of the Tyler court’s August 9, 1973,

order, in its reassignment of students within the Plaintiff

District, under existing circumstances. Plaintiffs cite

United States v. State of Texas, 356 F.Supp. 469 (E.D.

Tex. 1972), in which a state court action, which at-

tempted to restrain a school board from carrying out

the Tyler court’s desegregation order, was enjoined. The

language of Judge Justice, in his opinion, left the door

open for a United States District Court, with venue, to

proceed as Plaintiffs are doing here. He said:

“Nor does this Court’s decision reach the merits of

the decision made by the Commissioner on these

particular transfers. Whether the Commissioner

properly carried out Section A(1) of this Court's

order in United States v. Texas, supra, may properly

be aired in a federal district court if and when such

challenge is asserted.” (At 472.)

This statement, says the Plaintiffs, is dispositive of the

issue now before the Court.

In this case, so far as the allegations of the Plaintiffs

reflect, the Defendants have made a determination that

the constitutional rights of the minority residents of the

Gregory-Portland Independent School District have been

contravened; that is, that those residents are being un-

constitutionally segregated and discriminated against by

the elementary-pupil assignments of said School District.

This determination was apparently made ex parte, with-

out any sort of hearing during which the School District

could present facts and give the Commissioner the benefit

of its interpretation of those facts. And, following such

determination, the School District was advised that the

distribution of funds to it and accreditation would be

terminated, This action by the Texas Education Agency

and the Commissioner may have refused the District due

process. In any event, we are concerned if the Com-

missioner has properly carried out Section A(1) of the

order of the Tyler court.

It is not reasonable to assume that Judge Justice

intended for the Texas Education Agency to act ex parte

in all its determinations, relegating the local school

districts to the Tyler court for relief after the fact, no

matter the miles to be traveled and the money to be

spent. Venue has certainly not been destroyed by the

Tyler court order. So, we believe due process and venue

combinec give these Plaintiffs the right to a full hearing,

so as to defend against charges of unconstitutional segre-

gation, in their own back yard. The following language

of the Tyler court,

“(2) Nothing herein shall be deemed to affect the

jurisdiction of any other district court with respect

to any presently pending or future school desegrega-

tion suit.”

indicates as much.

Plaintiffs, in the Southern District of Texas, Corpus

Christi Division, have said, “We want a declaratory judg-

ment that we are not segregating minority students,” and

the Texas Education Agency, in order to uphold its

position, necessarily is the adversary and should have

some responsibility to support its prior ex parte decision

and the propriety of the sanctions it here hopes to

impose. This proceeding is, in effect, a desegregation suit,

and it is brought subsequent to July 13, 1971.

This Court does not purport to contravene the Tyler

order, but says that the Texas Education Agency has no

right, under the Tyler order or any other order, to

impose the sanctions it proposes without a proper finding

of the existence of unconstitutional segregation. Without

such a finding, there is no fault in the School District.

Since this Gregory-Portland School District, by this

action, says there is no basis for such a finding and

asks for a declaration to that effect, they are bringing, in

reverse, such a segregation suit as is excluded from the

operations of the Tyler order. The issues will be generally

the same as if minority residents had sought relief from

the School District because of unconstitutional segre-

gation, although, perhaps, the burden of proof may be

on a different party.

The Court concludes that it has jurisdiction and venue

to determine the facts and draw its own conclusions of

law as to whether or not there is existing unconstitutional

segregation in this School District. If such exists, then

Texas Education Agency would be entitled to enforce its

sanctions, if same are proper, and any relief which the

District might want from the sanctions of the Texas

Education Agency would, necessarily, have to be gotten

from the Tyler court. But, if for some unforeseen

reason the Plaintiffs are being deprived of due process,

this Court should not retreat from their protection in

that regard.

The motion to dismiss this action for want of juris-

diction should be denied. A separate judgment will be

prepared and signed by this Court.

Signed this 28th day of February, 1974.

/s/ OWEN D. COX

United States District Judge

UNITED STATES OF AMERICA, Petitioner,

Vv.

UNITED STATES DISTRICT COURT, SOUTHERN

DISTRICT OF TEXAS, Respondent.

NO. 74-2480.

United States Court of Appeals,

Fifth Circuit.

December 30, 1974.

Original Petition for Writ of Mandamus or Writ of

Prohibition.

Before BROWN, Chief Judge, and RONEY and GEE,

Circuit Judges.

ORDER:

The request for a writ of mahdamus or a writ of

prohibition is denied.

The alternative petition of the United States of Amer-

ica requests either

(1) a writ of prohibition ordering the District Court

for the Southern District of Texas to dissolve a prelimi-

nary injunction issued by Judge Owen D. Cox in the

case of Gregory-Portland Independent School District

et al. v. Texas Education Agency et al., C.A. No. 73—

C—175 (S.D. Tex.) and to dismiss that suit, or

(2) a writ of mandamus directing that court to transfer

that case under 28 U.S.C.A. § 1404(a) to the District

Court for the Eastern District of Texas (Tyler Division).

The Eastern District Court is presently exercising con-

tinuing supervision of the desegregation injunction en-

tered in United States v. Texas, 321 F.Supp. 1043 (E.D.

Tex. 1970), 330 F.Supp. 235 (E.D.Tex.), modified,

447 F.2d 441 (Sth Cir.), cert. denied, 404 U.S. 1016,

92 S.Ct. 675, 30 L.Ed.2d 663 (1972).

While the Texas Education Agency is a party defend-

ant in both the Southern District suit and the Eastern

District suit, the United States is not a party to this suit

which it seeks either to prohibit or to transfer to the

Eastern District Court where it is a party defendant.

[1, 2] Traditionally mandamus has been available

only to confine an inferior court to a lawful exercise of

its prescribed jurisdiction. Roche v. Evaporated Milk

Association, 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185

(1943). It is not to be used as a substitute for appeal.

Ex parte Fahey, 332 U.S. 258, 67 S.Ct. 1558, 91 L.Ed.

2041 (1947). This is so even though hardship may re-

sult from delay or a perhaps unnecessary trial. The

writ is appropriately issued when there is a usurpation

of judicial power or a clear abuse of discretion. Bankers

Life & Cas. Co. v. Holland, 346 U.S. 379, 74 S.Ct. 145,

98 L.Ed. 106 (1953). The power to issue the writ is

discretionary and is sparingly exercised. It is a drastic

and extraordinary remedy and is reserved for really extra-

ordinary causes. Parr v. United States, 351 U.S. 513,

76 S.Ct. 912, 100 L.Ed. 1377 (1956).

(3, 4] We deny the extraordinary relief here requested

for two reasons. First, we have found no authority, nor

has any been cited to us by the United States, which

would allow a non-party standing to seek a writ of

mandamus or prohibition in circumstances such as pre-

sented in this case. Second, even if standing existed, we

do not believe that the government has shown a “clear

and indisputable” right to the extraordinary writ. See

Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19

L.Ed.2d 305 (1967). The Southern District Court has

expressly disavowed any intent to contravene the man-

date in Unitec States v. Texas, the suit pending in the

Eastern District. The two cases need not inevitably be in

conflict, and, thus, we do not see where our supervisory

intervention into the district court proceeding is required.

IN THE

DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

C. A. NO. 73-C-175

GREGORY-PORTLAND INDEPENDENT

SCHOOL DISTRICT, ET AL

TEXAS EDUCATION AGENCY, ET AL

MEMORANDUM

and

ORDER

By this suit, the Gregory-Portland Independent School

District and members of its Board of Trustees seek to

enjoin the Texas Education Agency and its Commissioner

from requiring the School District to implement certain

student reassignment plans under the penalty of losing

state funding and school accreditation. The Court has

granted a preliminary injunction in this case and is now

prepared to make it permanent.

The individual Plaintiffs who joined the Gregory-Port-

land Independent School District (hereinafter School Dis-

trict), in bringing this suit in December of 1973, were

citizens who resided in and paid taxes to said District;

and, also were members of the Board of Trustees of that

School District. All but one of such Plaintiffs had minor

children attending the District’s schools, and such child-

ren appeared through their respective parents. These

citizens were alleged, at the time the suit was filed, to

be representative parties on behalf of other adult residents

and taxpayers of the School District, and their children,

as a class. Among these named class representatives were

persons of both Anglo-American and Mexican-American

ancestry. There has been no appreciable change in the

status of these Plaintiffs since suit was filed.

The Defendant Texas Education Agency (hereinafter

TEA) is empowered under state law to administer and

distribute state funds to the various independent school

districts around the state and to grant or deny accredita-

tion to those same school districts. Defendant J. W.

Edgar is Commissioner of Education and Chief Adminis-

trative Officer of TEA.

The American G.I. Forum and League of United Latin

American Citizens, on the 28th day of March, 1974,

filed a joint motion to intervene herein. No individual

citizen was named in said motion as complaining about

segregated treatment within such School District, and

no citizen who resided in the School District was named

by said organizations as an intervening party. Tendered

for filing by said organizations were a motion to dismiss

the suit of said School District and what is titled “Answer

in Intervention.” Neither the motion to intervene nor the

tendered pleadings set forth any facts which indicated

that proof of the existence of segregation or discrimina-

tion, either de facto or de jure, could be produced. The

bare defensive conclusion that segregation existed in the

School District, without more, did not justify their inter-

vention. Consequently, the Court denied the bid of said

Organizations to intervene. Nothing further was heard

from them, although the Court’s order at the time gave

adequate hints as to how they could become effective

parties in the lawsuit. This Court’s reaction, at the time,

was that these two organizations had no complaints to

act upon, had not conducted any sort of ex parte investi-

gation to determine the existence of complaints, and did

not know if the school system was a segregated one

or not.

The origin of this suit lies in an order of the United

States District Court for the Eastern District of Texas

in a case styled United States of America v. State of

Texas, et al, 321 F.Supp. 1043 (E.D. Tex. 1970), 330

F.Supp. 235 (E.D. Tex.), modified 447 F.2d 441 (Sth

Cir.), cert. denied, 404 U.S. 1016 (1972); amendment

to order filed E.D. Tex., August 9, 1973. While the

history of that litigation is too extended and tedious to

warrant thorough discussion here, it suffices to say that

on the date this suit was filed, the Defendant Texas

Education Agency was bound by the particulars of the

District Court’s order of July 13, 1971,’ in the above

entitled cause (hereinafter identified as Order), as

amended August 9, 1973’ (hereinafter identified as

Amendment). The Court, in that case, stated that the

duty of the state was,

“First to act at once to eliminate by positive means

all vestiges of the dual school structure throughout

the state; and, second, to compensate for the abiding

scars of past discrimination.” Order, July 13, 1971,

D. 2

1. Defendants’ Exhibit #2.

2. Defendants’ Exhibit #3.

The Tyler Court gave the TEA very specific instruc-

tions on how it was to proceed in eliminating a dual

school system in school districts across the state. With

regard to student assignments, Section F(3) of the July

13, 1971, Order provided that TEA must identify the

school districts containing a minority student population

in excess of 66% of the total’ and then make a deter-

mination “whether or not the student plans in these dis-

tricts resulted in compliance with federal constitutional

standards.” The July 13, 1971, Order did not require

TEA to force upon any individual school district the

adoption of a plan to comply with constitutional stand-

ards. TEA was required, however, to report to the Court

and others what efforts those school districts with ethnical-

ly identifiable schools were making to eliminate them

and what recommendations TEA had proposed to aid

these school districts in their efforts.

The August 9, 1973, Amendment to Section F(3)

markedly changed TEA’s responsibility in terms of re-

quiring the various school districts across the state to

come into compliance with the intent of the Tyler Court's

July 13, 1971, Order. The TEA and its Commissioner

were required to provide school districts with a specific

and detailed plan for complying with the Tyler Court

Order and if the school district did not implement this

plan, or one equally effective, the Defendants were under

a mandatory duty to suspend the errant school district’s

accreditation and to simultaneously suspend payment of

all funds granted to this district under the Minimum

Foundation Program. Paragraph F(4)(5). These sanc-

tions were to be imposed against districts failing to “elimi-

| 3. Part II(E) (6).

nate all racially or ethnically identifiable schools found

to be in violation of constitutional standards, as provided

by paragraph F(3).” Paragraph F(4).

It was against this legal background that TEA acted

in the case of the Gregory-Portland independent School

District. On November 5, 1973, the Commissioner of

Education wrote the President of the Board of Education

of the School District, informing him that it was TEA’s

position that the existence of Austin Elementary School,

with a 92.37% minority student enrollment, and T. M.

Clark Elementary and East Cliff Elementary, with sinall

minority enrollments, constituted a violation of the Tyler

Court’s Order.* The TEA suggested that the School Dis-

tric adopt one of two possible plans for eliminating Austin

Elementary School as a racially identifiable school or

develop their own plan. In any event, a plan acceptable

to TEA was to be implemented at the beginning of the

next semester or TEA would be compelled to impose

the sanctions set out in Paragraph F(4) and (5). The

Defendant School District was given no opportunity to

contest the TEA’s finding that the conditions then exist-

ing in its School District violated the Tyler Court’s Order.

By letter dated November 30, 1973, the President of the

Board of Trustees of the School District informed the

TEA that they did not feel bound by the order of the

Tyler Court and therefore would not implement any plan

for reassignment of its District’s students. The President

stated that it was his opinion that the School District

had at no time participated in any unconstitutional dis-

crimination.° The School District came into the United

4. Plaintiff's Exhibit #1.

5. Defendants’ Exhibit #1.

States District Court for the Southern District of Texas,

seeking preliminary relief against the impending loss of

accreditation and loss of state funds as a result of TEA

action. On January 24, 1974, this Court granted the

Gregory-Portland Independent School District a prelimi-

nary injunction against the Texas Education Agency and

its Commissioner, J. W. Edgar.

The United States of America is not a party to this

suit, nor has it sought to intervene herein, although

counsel for the government sat silently through the hear-

ing on the temporary injunction which is now in effect.

Nevertheless, and we assume that since the government

was, and is, a party to the Tyler Court’s suit, it hoped

to control this litigation by seeking to have the United

States Court of Appeals for the Fifth Circuit issue a

writ of mandamus or a writ of prohibition with regard

to this Court’s preliminary injunction and the continued

maintenance of this proceeding in the Corpus Christi

Division. These petitions were denied and the Fifth Cir-

cuit commented,

“The Southern District has expressly disavowed any

intent to contravene the mandate in United States

v. Texas, the suit pending in the Eastern District.

The two cases need not inevitably be in conflict,

and, thus, we do not see where our supervisory

intervention into the district court proceeding is

required.” United States v. U.S. District Court,

Southern Distr.ct of Texas, 506 F.2d 383 (Sth Cir.

1974).

This Court believes this language supports its position

that a Court sitting in close proximity to the questioned

school district can and should hear and decide the ques-

tion whether that school district has acted in an uncon-

Stitutional manner. See United States v. Georgia, 466

F.2d 197 (Sth Cir. 1972); United States v. State of

Texas, 466 F.2d 518 (Sth Cir. 1972), 509 F.2d 192

(Sth Cir. 1975).

This Court in this case is seeking only to determine

whether the School District has acted in a constitution-

ally impermissible manner in assigning its students. If

it has, then the mandate of the Tyler Order is binding

on TEA and the School District now before this Court.

In any case, this Court believes each school district so

threatened by a loss of accreditation and a withdrawal

of funds ought to have a right to a determination of

whether they acted in an impermissible manner prior to

the exercise of the sanctions. The existence of uncon-

stitutional conduct on the part of the School District must

be a prerequisite to any action under the Tyler Court’s

Order.

Arbitrary minority-majority _tios which are in no way

based upon fact findings as the historical and back-

ground information of a particular school district should

not constitute prima facie evidence of either segregation

or discrimination in any school system, Such ratios may

be enough to cause the TEA to review the situation,

but that agency should have to establish, by facts based

upon competent investigation, segregation before depriv-

ing the School District of any state funds or loss of

accreditation. It does not comport with our. system of

due process that a school district can be cut off from

public funds because an arbitrary minority-majority ratio

has been established.

The central question for this Court’s consideration is

whether the ethnic makeup of the School District’s three

elementary schools for the school year 1973-1974 was a

result of intentional action on the part of the School

District in contravention of the Fourteenth Amendment.

This is not a case where a segregated condition exists

in schools which were once a part of a statutorily man-

dated dual system, and therefore in this case there is no

automatic duty upon the state to effectuate an automatic

transition to a racially nondiscriminatory school system.

Brown v. Board of Education, 349 U.S. 294 (1955)

(Brown II). In fact, in the years 1950-1951, when the

consolidation of the Gregory Independent School District

and the Portland Independent School District into the

present School District came about, both Districts had

sizable percentages of Mexican-Americans in all of its

schools.° There is no basis in fact in this lawsuit upon

which we can say this situation is the result of restrictive

covenant in deeds to land, or in restrictions governing

residential subdivisions. As in most suits of this sort, there

is no significant conflict as to the physical and statistical

facts here. The Court considers all such facts are before

it. As there is no background of de jure segregation

here, a finding that the School District has maintained

a segregated system must be predicated on evidence that

the School District has, through its policies, carried out

an intentional and systematic program of segregation.

Keyes v. School District No. 1, Denver, Colorado, 413

U.S. 189 (1973).

Since “intent ordinarily may not be proved directly,

because there is no way of fathoming or scrutinizing the

6. Plaintiff's Exhibit #2.

operations of the human mind,” as we tell criminal juries,

the School District should be allowed to rebut the prima

facie case of segregation by affirmatively establishing that

any facts which appear segregative in no way contributed

to the segregated condition now existing in the School

District, to wit, a school with an overwhelming percent-

age of minority (Mexican-American) students. /d., at

211. The Court need not decide whether the School

District has met this latter burden of proof because it

is the opinion of the Court that the Plaintiffs have pre-

sented sufficient evidence to prove that the School Dis-

trict has not conducted itself in a manner which indicates

Segregative intent on its part against any of the children,

Mexican-American or Anglo-American, in its care.

The history of the Gregory-Portland Independent

School District belies any claim that the District has

followed a policy of purposeful segregation. In October

of 1950, a majority of the voters in each of the then

Gregory Independent School District and the Portland

Independent School District voted for consolidation of

these districts.

At the time, both districts, some 4 to 4-1/2 miles

apart, center to center, were basically rural farming

areas with no residential areas. The Board of Trustees

of what is now known as the Gregory-Portland Inde-

pendent School District succeeded to two educational

facilities operating in the following manner: the Gregory

Independent School District consisted of four buildings,

a high school housing grades 6-12, a single grade school

housing grades 1-5, a gym, and a vocational/agricultural

building. The ethnic makeup of the elementary students

(grades 1-8) in the Gregory School District at the time

was approximately 76% minority. In the high school

grades (9-12), the minority percentage was approximately

20%. The Portland Independent School District con-

sisted of a single elementary school (grades 1-7) which

was approximately 37% minority students. There was no

Portland high school and students in those grades were

given the option of attending the Gregory High School,

Taft High School, or Corpus Christi High School. All

the schools which were combined to make up the Gregory-

Portland Independent School District were attended by

both Anglos and Mexican-Americans sharing the same

facilities. There is no evidence, at least in this record,

that the children of either group were treated specially.

In the year immediately following consolidation, the

School District continued to maintain the two elementary

facilities in basically the same manner as before. There

was no reassignment of students in these grades and the

ethnic ratios in each school remained approximately the

same. On the high school level, all students were sent

to a single facility in Gregory. Those students from the

former Portland district who had begun their secondary

education elsewhere were given the option of returning

to the new consolidated high school or permanently

transferring to the school of their present attendance.

All students leaving the eighth grade were required to

attend the consolidated high school. The high school

had an ethnic enrollment of about 35% minority. During

this year following consolidation, construction was begun

on the Reynolds Metals Company Plant, a large industrial

complex which was to bring substantial numbers of people

into the District.

During the school year 1953-1954, construction was

completed on two new elementary school facilities for

the School District. In October of 1953, T. M. Clark

Elementary School opened to serve a zone encompassed

within the old Portland Independent School District. This

school housed grades 1-8 and had an ethnic minority

enrollment of about 38%. Soon thereafter, in February

of 1954, Austin Elementary School opened. This school,

likewise, housed grades 1-8 and served a zone encom-

passed within the old Gregory Independent School Dis-

trict. It opened with an ethnic minority enrollment of

85%. These schools were substantially similar in con-

struction and furnishings save that Austin had some

additional capacity. Superintendent Andrews testified that

the Board, in deciding to replace these facilities, did

not concern themselves with what ethnic minority enroll-

ment might result in the schools, nor did it consider

building an elementary school somewhere along the four

to four and one-half mile stretch between the two towns.

During the first years following construction of these

new facilities, there was a small decline in the ethnic

minority enrollment percentage in both schools.

At the beginning of the 1958-1959 school year, a

new addition on the T. M. Clark campus was opened as

a junior high school. All seventh and eighth graders from

Clark and Austin were reassigned to this facility. The

junior high school had an ethnic minority enrollment of

54%. Under the School Board’s policy, the seventh

and eighth graders from Austin found themselves going

to a new school with an appreciably higher percentage

of Anglos than before, and the seventh and eighth graders

from Clark were going to a new school with an ap

preciably higher percentage of Mexican-Americans than

before. It should be pointed out that in October of

1959, the Harbor Bridge was completed and one side

of the present Nueces Bay Causeway also was completed

about that time, giving residents of Portland easy access

to the heart of the Corpus Christi business district. This

event has undoubtedly marked the beginning of an ap-

preciable demographic change in this area. The City of

Portland began to grow rapidly. Located only minutes

from downtown Corpus Christi, it became for many

people a seaside suburb of this city. It was about as close

to the downtown area as many of Corpus Christi’s

southside and far westside neighborhoods. The division

of the City of Portland became more definite when the

present four-lane freeway (U.S. 181) was completed

in 1970. The population of Gregory, however, stayed

fairly constant.

As Portland grew and the need arose, the School Board

decided to build a second elementary school there. In

1962, East Cliff Elementary opened on a site east of

U.S. Highway 181, which, at that time, was a wide, two-

lane highway, and divided Portland almost in half. At

the time, East Cliff was on the edge of town, but it

was the opinion of the Board that the residential areas

would expand in that direction. When it opened its doors,

it had an ethnic minority enrollment of only 13%. By

the time the school had reached full operation the

following year, this percentage had dropped to some 7%.

Students were assigned to East Cliff or Clark on the

basis of residence, with Highway 181 being the dividing

line. This assignment of students was modified to some

extent to allow some students south of East Cliff and

east of Highway 181 to attend Clark, if they wished, be-

cause it was physically closer than East Cliff. Generally

speaking, now all the children in this area gc to East

Cliff. The year after East Cliff opened. the ethnic enroll-

ment in Austin was 82%, and in Clark it was some

23%.

In 1965, the School District substantially changed its

program on the secondary level. A new high school

facility was opened at a point almost equidistant between

the two cities. This school opened its doors with an

ethnic minority enrollment of some 35%. The old high

school in Gregory was converted into a facility for eighth

graders from the whole district and had a beginning

ethnic minority enrollment of 36%. The seventh graders

attended school in the junior high school in Portland

and ethnic minority enrollment was 34%. It wasn’t until

1968 that the District reunited the seventh and eighth

graders in the same buildings. In that year, a new junior

high school facility was constructed and opened at a

site near the high school. This junior high school had

in its first year an ethnic minority enrollment of 36%.

All students residing within the District attend this junior

high school.

The record before the Court in this case shows no

discrimination against the School District’s ethnic mi-

nority in other areas of school life. Apparently all stu-

dents are permitted and encouraged to participate on

athletic teams and in extracurricular activities. The School

District might be subject to some criticism for having

failed to hire appreciable numbers of Mexican-American

teachers until the late 1960’s, in comparison to the per-

centage of ethnic minority students attending the schools.

It does now appear that the District is making strides to

hire more such teachers, a trend which this Court ex-

pects will continue. These ieachers have been assigned

to schools throughout the District.

The Court is convinced, on the evidence presented in

this record, that the condition existing in Austin Ele-

mentary School was not the result of School District poli-

cies motivated by segregative intent. At the time of its

consolidation, the Gregory Independent School District

was predominantly, but by no means completely, Mexi-

can-American in the primary grades. With the passage

of twenty-five plus years, the minority predominance has

become slightly more pronounced in this area (served

now by Austin Elementary School) but this was not the

result of any action by the School District. The ele-

mentary schools are and have been town-oriented and

the racial composition in them reflects the town’s particu-

lar history. Significantly, on the secondary level, the

School District, through consolidation and its student-

assignment policies over the years, has commendably

maintained a completely integrated school system.

The Court finds that a permanent injunction should

issue against the Texas Education Agency, and J. W.

Edgar. A final judgment setting out the injunctive relief

granted will be prepared and entered. A copy of this

Memorandum and Order shall be furnished appropriate

counsel.

IT IS SO ORDERED.

SIGNED this 30th day of January, 1976.

/s/ OWEN D. COX

United States District Judge

IN THE

DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

C.A. NO. 73-C-175

GREGORY-PORTLAND INDEPENDENT SCHOOL

DISTRICT, ET AL

TEXAS EDUCATION AGENCY, ET AL

JUDGMENT

The Court, having considered the evidence, has decided

for the reasons outlined in its Memorandum and Order

filed this day that the preliminary injunction entered in

this case on January 24, 1974, should be made perman-

ent. It is therefore

ORDERED, ADJUDGED and DECREED that the

Defendants Central Education Agency (Texas Education

Agency) and J. W. Edgar, Commissioner of Education,

their respective officers, agents and representatives, and

their successors, be, and they are hereby, permanently re-

strained and enjoined from suspending the accreditation

of the Gregory-Portland Independent School District and

from suspending payment to the Gregory-Portland In-

dependent School District of any state funds granted to the

Gregory-Portland Independent School District under the

Minimum Foundation Program in an attempt to enforce

the July 13, 1971, order, as amended August 9, 1973, of

the United States District Court for the Eastern District

of Texas, in a case styled United States v. State of Texas,

et al, Civil Action No. 5281.

IT IS SO ORDERED

SIGNED this 30th day of January, 1976.

/s/ OWEN D. COX

Owen D. Cox

United States District Judge

IN THE

DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

C.A. NO. 73-C-175

GREGORY-PORTLAND INDEPENDENT SCHOOL

DISTRICT, ET AL.

TEXAS EDUCATION AGENCY AND J. W. EDGAR

ORDER

On January 30, 1976, this Court entered a final judg-

ment in this case permanently enjoining the Texas Ed-

ucation Agency and its officials from suspending the ac-

creditation of the Gregory-Portland Independent School

District and from suspending payment to the Gregory-

Portland Independent School District of any state funds

granted to that school district under the Minimum

Foundation Program. The Defendant Texas Education

Agency brought this suit initially in an attempt to en-

force the July 13, 1971, order, as amended August 9,

1973, of the United States District Court for the Eastern

District of Texas, in a case styled United States v. State

of Texas, et al., Civil Action No. 5281. The United

States now seeks leave of Court to intervene, under Rule

24(a)(2) of Rules of Civil Procedure, for the purpose of

taking an appeal from the final judgment in this suit. As

the Court has in several prior orders outlined the com-

plex procedural history of this case, it will not do so

here, rather it will turn directly to the question of inter-

vention.

Rule 24(a) provides that there shall be interven-

tion of right where the application is “timely” and “(2)

when the applicant claims an interest relating to the prop-

erty or transaction which is the subject of the action and

he is so situated that the disposition of the action may,

as a practical matter, impair or impede his ability to pro-

tect that interest, unless the applicant’s interest is ade-

quately represented by the existing parties.” Therefore, to

intervene as a matter of right, the United States must

demonstrate (1) the timeliness of its application; (2)

the existence of a protectable interest in the case in which

it seeks to intervene; and (3) an inability to protect such

interest, as a practical matter without intervening. See

7A, Wright and Miller, Federal Practice and Procedure,

$1908 (1972). In support of its motion, the United

States asserts that they have a substantial interest in the

orderly implementation of the Court’s order in United

States v. Texas and that the judgment in this case im-

pairs that interest. The United States argues that the in-

junction of this Court is at odds with the decision in

United States v. Texas, makes for potentially conflicting

interpretation of that order, and impedes Texas Educa-

tion Agency’s ability to enforce that order. The United

States asserts that Texas Education Agency’s failure to

take an appeal from this judgment clearly reflects the

fact that Texas Education Agency does not adequately

represent its interest. It further states that its motion to

intervene is timely because it is only an appellate court

who can resolve the issue of whether this case was prop-

erly heard by this Court or by the United States District

Court tor the Eastern District of Texas. Having con-

sidered the assertions and the arguments of the United

States, the Court has decided, for the reasons outlined

below, that the United States has not met the require-

ments for intervention of right pursuant to Rule 24

(b) (2).

On the issue of the timeliness of the motion to inter-

vene, the Fifth Circuit has taken a jaundiced view of

permitting intervention after judgment has been entered,

on the valid assumption that such intervention will either

(a) prejudice the rights of the existing parties to the

suit, or (b) substantially interfere with the orderly pro-

cesses of the Court. McDonald v. E. J. Lavino, 430 F.2d

1065, 1072 (Sth Cir. 1970). While the passage of time

militates against **% granting of intervention, the key

issue is whether a grant of intervention will prejudice the

existing parties to the suit. Diaz v. Southern Drilling Co.,

427 F.2d 1118, 1125-1126 (Sth Cir. 1970); McDonald

v. E. J. Lavino, supra; see also NAACP v. New York,

413 U.S. 345, 369 (1973).

The United States delayed in excess of two years from

the date of filing before seeking to intervene in this case.

While such a delay seems plainly excessive, the Court

must, as pointed out above, focus on what prejudice might

result to the existing parties to the lawsuit if intervention

were permitted at this post-judgment stage. The United

States has repeatedly involved itself in this suit without

taking the final step of actually seeking leave to inter-

vene. It has participated as amicus curiae and sought

relief by way of mandamus in the Fifth Circuit to present

the very question of venue which it now seeks to present

on this appeal. The United States undoubtedly caused

the Gregory-Portland Independent School District signifi-

cant legal expenses by filing the mandamus proceeding.

It watched the Gregory-Portland Independent School Dis-

trict go through the various hearings and trial with the

expense those proceedings certainly entailed without at

any time trying to intervene. It did not seek to intervene

to take an interlocutory appeal when Texas Education

Agency’s motion to dismiss and/or transfer was denied

on March 1, 1974. The Texas Education Agency decided

not to appeal that decision, which had the effect of “con-

tinuing” an injunction, as might have been its right under

28 U.S.C. § 1292(a)(1), and the United States did not

seek to intervene and take that appeal in its stead.

Not only would Gregory-Portland Independent School

District be prejudiced by allowing intervention in terms

of incurring more legal expenses, an order allowing them

to take an appeal at this stage would, if successful, permit

the United States to reopen and relitigate the substantive

issues, already decided by this Court, and not presently

contested by the United States, in contravention of the

settled judicial policy favoring the finality of judgments.

See McDonald v. E. J. Lavino, supra, at 1072. The Court

believes that the added expense and delay involved in

letting the United States intervene at this late date is

more than ample prejudice to the School District for

finding that the motion to intervene is untimely. The

United States has had numerous opportunities to inter-

vene in this case before this date. It cannot be allowed

to shout from the sidelines of these proceedings, as it

has done here, and then be heard to object to the judg-

ment.

Not only is this motion to intervene untimely, the

Court believes that the United States lacks the kind of

impaired interest required by Rule 24(a)(2). To pro-

ceed under this rule, the movant must show a “significant

protectable interest,” Donaldson v. United States, 400

U.S. 517, 531 (1971), or, as phrased by the Fifth Circuit,

“a direct, substantial, legally protectable interest” in the

proceedings. Diaz v. Southern Drilling Co., supra, at

1112. A “protectable interest” surely encompasses much

more than economic or property interest. Charles Allen

Wright cites, with apparent approval, the case of Smuck

v. Hobson, 408 F.2d 175 (C.A. D.C. 1969), which

completely depreciates the concept of “interest” and in-

stead focuses on whether the “concern” of the would-be

intervenor is such that to deny him the right to intervene

would cause him practical harm and on whether his

“concern” is such that none of the parties to the litiga-

tion represent his interests. See 7A, Wright and Miller,

supra, at 508-511. There is a Fifth Circuit case which

can be read for the proposition that the intervenor’s

interest, or concern, which is threatened with impairment,

must be substantive rather than procedural. United States

v. City of Jackson, Mississippi, 519 F.2d 1147, 1153

(Sth Cir. 1975).

The United States has asserted that its “interest” in

the case is its interest in assuring the statewide enforce-

ment of United States v. Texas. It fears that this Court’s

decision, taking jurisdiction of this case, will make uni-

form application of the standards of United States v.

Texas impossible and will, through the judicial doctrine

of stare decisis, enable other courts to hear suits which

are properly within the jurisdiction of the United States

District Court for the Eastern District of Texas under

United States v. Texas, supra, These “interests,” in reality,

boil down to a single contention: if this Court’s decision

in this case stands, the United States believes that its

impact will proliferate as precedent to other district

courts, depriving the Eastern District of its virtual state-

wide jurisdiction under United States v. Texas to deter-

mine the constitutionality of student-assignment plans in

all school districts.

The Court doubts whether the United States’ alleged

interest in this Court’s decision, which has nothing to

do with the substantive issues of segregation decided by

the Court, is a Rule 24 “interest.” The United States

has made no allegation that the Court erred in finding

that Gregory-Portland Independent School District did

not engage in purposeful segregative intent in its student-

assignment policies. The United States only objects to

the fact that this Court made that determination about

a local school district instead of the Court for the Eastern

District. This is an “interest” in procedures, not in the

substance of the question of whether segregation existed

in Gregory-Portland Independent School District. See

United States v. City of Jackson, Mississippi, supra.

The Court further believes that denying the United

States the right to intervene will not, as a “practical

matter,” impair its ability to protect its asserted interests.

To justify intervention, the movant must show that denial

of his right to intervene will, as a “practical matter,” im-

pair his ability to protect his interest and that the present

parties to the controversy will not adequately defend

such interest. The term “as a practical matter” was added

to Rule 24 in the 1966 amendments to get away from

the naive legalism that grew up under some interpreta-

tions of the old rule that held that a person was not im-

paired in protecting his interest by a court decision unless

he was bound by “res judicata.” 7A, Wright and Miller,

supra, at 514. Several cases have now held that stare

decisis, by itself, may be sufficient “practical” disadvan-

tage. Atlantic Development Corporation v. United States,

379 F.2d 818 (Sth Cir. 1967). See also United States

v. City of Jackson, Miss., supra, at 1151. In Atlantic

Development Corporation, the Fifth Circuit recognized

that the intervening party might be practically affected

by the interpretation of the law handed down in that

case even though he was not a party to the suit and

therefore would not be bound by res judicata, and ruled

it was important that he be able to assert his opinion

of the law.

A finding that the intervenor’s rights will be “prac-

tically” affected by the Court’s decision sets the stage

for determining whether his interests are adequately repre-

sented by the existing parties. If the Court finds that the

would-be intervenor has asserted no interest which might

be impaired if he is not permitted to intervene, then

the Court need not face the issue of whether Texas

Education Agency’s decision not to appeal constitutes

inadequate representation. Compare Smuck v. Hobson,

408 F.2d 175 (C.A. D.C. 1969), and Spangler v.

Pasadena Board of Education, 427 F.2d 1352 (9th

Cir. 1970).

While the Court believes that the United States has not

alleged an interest cognizable under Rule 24, given the

liberality with which the term “interest” has been de-

fined, see Diaz v. Southern Drilling Co., supra, the

Court believes the stronger ground for justifying a denial

of intervention is a finding that the United States’ ability

to protect its “interest” will not be “practically impaired”

if the decision of this Court is not appealed. With regard

to this particular case, the United States has shown no

interest in the particular conditions existing in the Greg-

ory-Portland Independent School District and therefore

they apparently have no contention that they have an

interest in the substantive issues which they believe will

be impaired if this judgment is not appealed. With regard

to the statewide effect of this Court’s decision on the

administration of the procedures under United States v.

Texas, this decision will have no mandatory effect. The

case will not be appealed by Gregory-Portland Independ-

ent School District or Texas Education Agency and

therefore will produce no appellate decision on the issue

of venue under United States v. Texas raised by the

United States. If another Texas school district seeks to

file a declaratory action in the district court in the

judicial district in which it is located to stay action by

Texas Education Agency under United States v. Texas,

the United States will have an opportunity to seek

intervention in that case at its inception to preserve any

procedural interests it may have. The district court. hear-

ing the case will not be governed by any mandatory

authority on the question and the Fifth Circuit, should

the case be appealed, will surely not feel constrained by

stare decisis to follow any decision of this Court.

For the reasons outlined above, the United States’

motion to intervene is denied.

IT IS SO ORDERED.

SIGNED this 14th day of May, 1976.

/s/ OWEN D. COX

United States District Judge

GREGORY-PORTLAND INDEPENDENT

SCHOOL DISTRICT et al.,

Plaintiffs-Appellees,

Vv.

TEXAS EDUCATION AGENCY and

J. W. Edgar, Defendants,

United States of America,

Movant-Appellant.

No. 76-2926.

United States Court of Appeals,

Fifth Circuit.

July 10, 1978.

Appeal from the United States District Court for the

Southern District of Texas.

Before GEWIN, GODBOLD and MORGAN, Circuit

Judges.

LEWIS R. MORGAN, Circuit Judge:

In this appeal, the United States seeks review of the

decision of the district court for the Southern District of

Texas denying the government’s motion for intervention.

Additionally, the government contends that the district

court lacked jurisdiction. We hold that the district court

should have declined jurisdiction over the case because

jurisdiction more properly exists in the Eastern District of

Texas.

A little background is necessary for analysis. The

United States and the Texas Education Agency (TEA),

the State “Board of Education,” are currently parties

to a suit in the Eastern District of Texas, United States

v. State of Texas, 321 F.Supp. 1043, 330 F.Supp. 235,

aff'd and modified, 447 F.2d 441 (Sth Cir. 1971), cert.

denied, 404 U.S. 1016, 92 S.Ct. 675, 30 L.Ed.2d 663

(1972). The purpose of the State of Texas litigation was

to force the TEA to carry out its responsibility to dimin-

ish racial segregation in schools. By order of the district

court in the Eastern District, the TEA was to insure

equal education opportunity by refusing to fund and ac-

credit those school districts still discriminating on the

basis of race. The orders were affirmed and modified by

this court. 447 F.2d 441. The modification provided that

the orders of the district court shall not affect the juris-

diction of other courts to entertain desegregation suits

aimed at individual local districts.

The instant litigation is directly traceable to a letter

sent by the TEA to the Gregory-Portland Independent

School District informing the district that its racial make-

up was in violation of the court orders in State of Texas.

The school district was offered plans to conform to the

State of Texas requirements, but the District refused.

The letter ended with the admonition that after a ten-

day notice period, accreditation would be lifted and

funds withheld if the District did not comply. No ten-day

notice was ever issued by the TEA, however.

The District then filed this action in the Southern

District claiming that the action of the TEA in terminat-

ing accreditation violated due process of the law. The

District sought a temporary injunction against TEA, a

declaratory judgment that the District had not discrimi-

nated and an order permanently enjoining the TEA from

Suspending accreditation and disbursement of funds. The

court agreed, essentially, and on January 30, 1976

granted claimants relief. On February 14, 1976, the

government was informed of TEA’s decision to forego

appeal. The government then filed its motion for leave

to intervene on appeal. Additionally, it challenged the

jurisdiction of the Southern District to entertain a suit

impinging upon the order of another court. The district

court denied the government’s motion because the motion

was not timely, filed more than two years after the com-

mencement of the suit and because the government did

not have a substantive interest in the outcome of the

suit. The government then appealed to this court.

Prior to any determination on the intervention issue,

it is necessary for the court to satisfy itself that the case

was properly heard below. The government contends

that any action enjoining the application of the order of

the court of the Eastern District should have been

brought in that court and no other. Therefore, the gov-

ernment argues, upon filing, the district court for the

Southern District should have transferred the action

to the Eastern District, or abstained and dismissed the

suit. We agree. In Mann Manufacturing, Inc. v. Hortex,

439 F.2d 403 (Sth Cir. 1971). this court, in a similar

situation, held that a district court should defer jurisdic-

tion to another district court if the integrity of that

court’s continuing injunction jurisdiction is compromised.

In Mann Manufacturing, Inc., a New York district court

enjoined Mann from bringing a patent action against

Goodrich in Texas. Mann nevertheless brought suit in

the district court for the Western District of Texas and

the Texas court then enjoined Goodrich from proceeding

on its motion in New York. In arriving at its holding

that the Texas court should have declined jurisdiction,

the court stated, paitially quoting from Lapin v. Shulton,

Inc., 333 F.2d 169 !72 (9th Cir. 1964), cert. denied,

379 U.S. 904, 85 S.Ct. 193, 13 L.Ed.2d 177 (1964):

When a court is confronted with an action that

would involve it in a serious interference with or

usurpation of this continuing power, ‘considerations

of comity and orderly administration of justice de-

mand that the nonrendering court should decline

jurisdiction . . . and remand the parties for their

relief to the rendering court, so long as it is ap-

parent that a remedy is available there.’

In the instant case, a continuing power over the order

prescribing TEA conduct existed in the Eastern District

Court. By enjoining the TEA from following the order,

the Southern P strict seriously interfered with the power

of the Eastern District Court to maintain the integrity

of the order. Moreover, all of plaintiff's constitutional

challenges could have as easily been made in the Eastern

District so it is apparent relief was possible in that district.

We therefore hold that because the injunction against

TEA interfered with the integrity of the order from the

Eastern District, the Southern District Court should have

declined jurisdiction. We therefore direct the United

States District Court for the Southern District to dissolve

the injunction, to vacate all orders,’ and to transfer the

action to the proper court or dismiss.

REVERSED and REMANDED with instructions.

1. It is unnecessary to address the question of whether the dis-

trict court erred in denying government’s motion to intervene on

appeal from the judgment of the court for the Southern District,

because, as the court lacked jurisdiction the judgment is without

force and the appeal no longer exists.

GODBOLD, Circuit Judge specially concurring:

I agree with the result but reach it by a different route.

No party to this case, brought in the Southern District

of Texas, appealed from the order of that district court,

entered January 30, 1976, granting a permanent injunc-

tion. The United States timely moved to intervene after

judgment, setting out that TEA had decided not to ap-

peal. Post-judgment intervention for purposes of appeal

is permissible upon a proper showing, and one of the

reasons for allowing intervention is that the intervenor

can prosecute an appeal that the existing but unsuccessful

party has determined not to take.’ We have jurisdiction

of the appeal from the order of January 30, 1976, if,

and only if, we first hold that the motion to intervene

should have been granted. I would hold that the district

court erred in refusing to permit intervention by the

United States for purposes of appeal, and then, reaching

the merits, would rule as does the majority.

The majority’s approach, set out in text and in foot-

note 1, is that first it must satisfy itself whether the case

was properly heard below, and upon such examination

the majority concludes that the district court had no

jurisdiction, thus “the appeal no longer exists.” The error

with this is, of course, that until the United States is

permitted to intervene this court has no viable notice

of appeal before it and no jurisdiction to examine the

jurisdiction of the district court.

1. United Air Lines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct.

2464, 53 L.Ed.2d 423 (1977); Romasanta v. United Airlines, Inc.,

537 F.2d 915 (C.A. 7, 1976); State of Arizona v. Hunt, 408 F.2d

1086 (C.A. 6), cert. denied, 396 U.S. 845, 90 S.Ct. 81, 24 L.Ed.2d

95 (1969); Pellagrino v. Nesbit, 203 F.2d 463 (C.A. 9, 1953);

Smuck v. Hobson, 132 U.S. App. D.C. 372, 408 F.2d 175 (1969):

7A Wright & Miller, Federal Practice and Procedure § 1916 pp. 582-

83.

UNITED STATES COURT OF APPEALS

Fifth Circuit

Office of the Clerk

Edward W. Wadsworth Tel 504-589-6514

Clerk 600 Camp Street

New Orleans, La. 70130

September 22, 1978

TO ALL PARTIES LISTED BELOW:

NO. 76-2926—Gregory-Portland Independent School

District, Et. Al. v. Texas Education

Agency and J. W. Edgar, U.S.A.

Dear Counsel:

This is to advise that an order has this day been entered

denying the petition( ) for rehearing, and no member of

the panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing

en banc (Rule 35, Federal Rules of Appellate Procedure;

Local Fifth Circuit Rule 12) the petition( ) for rehearing

en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH,

Clerk

By /s/ SALLY HAYWARD

Deputy Clerk

44 45

UNITED STATES COURT OF APPEALS ON CONSIDERATION WHEREOF, It is now here

For The Fifth Circuit ordered and adjudged by this Court that the order of the

District Court appealed from, in this cause be, and the

October Term, 1978 same is hereby, reversed; and that this cause be, and the

same is hereby remanded to the said District Court with

directions in accordance with the opinion of this Court;

No. 76-2926

It is further ordered that plaintiffs-appellees pay to

defendants, the costs on appeal to be taxed by the Clerk

D. C. Docket No. CA-73-C-175 of this Court.

July 10, 1978

GREGORY-PORTLAND INDEPENDENT y

SCHOOL DISTRICT, ET AL., GODBOLD, Circuit Judge, filed a specially concurring

Plaintiffs-Appellees, opinion.

versus Issued As Mandate: OCT. 2, 1978.

TEXAS EDUCATION AGENCY

and J. W. EDGAR,

Defendants,

UNITED STATES OF AMERICA,

Movant-Appellant.

Appeal from the United States District Court for the

Southern District of Texas

Before GEWIN, GODBOLD and MORGAN, Circuit

Judges.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Southern District of Texas, and was argued by counsel;

IN THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

CIVIL ACTION NO. 5281

UNITED STATES OF AMERICA

STATE OF TEXAS, ET AL.

MODIFIED ORDER

This Court’s Order of April 20, 1971, in the above-

entitled and numbered civil action is hereby modified

to comply and conform with the directions of the United

States Court of Appeals for the Fifth Circuit in its

Opinion of July 9, 1971, in Cause No. 71-1061, entitled

United States of America, Plaintiff-Appellee, versus State

of Texas, Et Al., and Dr. J. W. Edgar, Commissioner of

Education, Et Al., Defendants-Appellants, F.2d

(5S Cir. 1971), and, as so modified, such Order is re-

issued, as follows:

On November 24, 1970, this Court entered an order

in this case then styled United States of America v. State

of Texas, et al., Civil Action No. 1424, Marshall Divi-

sion, requiring inter alia that the Texas Education Agen-

cy, the State Commissioner of Education and their offi-

cers, agents, employees, successors re-evaluate all of their

activities and practices relating to the desegregation of

public elementary and secondary education within the

State of Texas; upon completion of this re-valuation the

defendants were required to file a plan stating specific

actions which they would take pursuant to their affirma-

tive obligations under Title VI of the Civil Rights Act

of 1964 and the Fourteenth Amendment to the Constitu-

tion. On January 15, 1971, the defendants filed their plan.

Plaintiffs filed a response to this plan on February 1,

1971, incorporating both objections to defendants’ plan

and recommendations for what the defendants were legally

required to accomplish by this plan. An evidentiary hear-

ing was held on February 1 and 2, 1971. A further

hearing was held in Tyler on April 12, 1971, the case

then, and hereafter, being styied Civil Action No. 5281,

Tyler Division.

The Court has catefully considered the submissions of

the respective parties and the evidence presented at the

hearings, in light of the defendants’ affirmative duty to

take “whatever steps might be necessary to . . . [elim-

inate] racial discrimination root and branch.” Green vy.

New Kent County, 391 U.S. 430, 437-38 (1968), Swann

v. Charlotte-Mecklenburg Board of Education, Nos. 281

and 349, US. , (April 20, 1971). In this re-

gard the duty of the state appears to be two-fold: First,

to act at once to eliminate by positive means all vestiges

of the dual school structure throughout the state; and

second, to compensate for the abiding scars of past dis-

crimination.

Accordingly, it is hereby ORDERED that the State of

Texas, Dr. J. W. Edgar, Commissioner of Education of

the State of Texas, the Texas Education Agency, their

officers, agents, employees, successors and all other per-

sons in active concert or participation with them (here-

inafter referred to as defendants) shall fulfill those duties

as follows:

A. Student Transfers

(1) Defendants shall not permit, make arrangement

for or give support of any kind to student transfers, be-

tween school districts, when the cumulative effect in

either the sending or receiving school or school district

will be to reduce or impede desegregation, or to reinforce,

renew, or encourage the continuation of acts and prac-

tices resulting in discriminatory treatment of students on

the ground of race, color, or national origin.

(2) The Texas Education Agency shall review ail stu-

dent transfers and shall notify the sending and receiving

districts promptly of all transfers which do not appear to

comply with the terms of this Order.

(3) If, after receiving notice of the Texas Education

Agency’s refusal to approve transfers, the receiving dis-

trict shall continue to accept the transfer of students, or

if the sending district shall refuse to provide suitable

educational opportunities for these students, defendants,

after 15 days notice to the President of the Board of

Trustees and the Superintendent (if the district has such

an official), shall refuse to transfer the funds, based on

the average daily attendance of the transfer studenis in-

volved to the account of the receiving district, and shall,

thereby, terminate and refuse to grant or continue paying

to the offending district a percentage of state funds

equivalent to the district’s entitlement based on the

average daily attendance of the students transferring in

violation of this Order.

(4) Defendants shall also refuse to distribute to the

offending district any transportation funds which might

accrue On account of transfer students accepted in vio-

lation of this Order. If the offending district continues to

refuse to deny transfers which adversely affect desegrega-

tion, the Texas Education Agency shall warn the dis-

trict that its accreditation status is in danger. This warn-

ing shall remain in effect for ten days, at which time, if

the offending district has failed to correct its violations,

the Texas Education Agency shall suspend the district’s

TEA accreditation.

B. Changes in School District Boundaries

(1) Defendants 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

school system based on race, color, or national origin.

(2) Defendants shall require the board of trustees of

any school district desiring to annex or consolidate with

a nearby district, in whole or in part, or desiring to

change its boundaries in any other manner such as is

described, for example, in Part II-A(2) of the Court’s

Order of November 24, 1970, to report said intention

to the Commissioner of Education for the State of Texas

at least 15 days prior to the effective date of such action,

and shall take appropriate measures to insure compliance

with this requirement.

(3) Whenever the Commissioner shall receive notice

that a district or a portion of a district is to be detached

from, annexed to, or consolidated with another district,

he shall institute an immediate investigation as to the

effects of such projected change of boundaries on the

desegregation status of all of the school districts con-

cerned. He shall promptly notify the appropriate county

and local officials of his findings, and indicate whether

or not the transfer of territory is in violation of the law.

(4) If county and local officials proceed to consum-

mate the transfer of territory after being notified that

they are in violation of the law, defendants, after 15

days notice to the President of the Board of Trustees and

the Superintendent of the district (if the district has such

an official), shall refuse to transfer funds, based on the

average daily attendance of the students in the territory

detached, annexed or consolidated, to the account of the

new district, and shall, thereby, terminate and refuse to

grant or continue paying to the offending district a per-

centage of state funds equivalent to the district’s entitle-

ment based on the average daily attendance of the stu-

dents detached, annexed or consolidated in violation of

this Order. These funds shall be distributed to the re-

mainder of the original district, in cases of illegal de-

tachments, but shall not be used by that district to sup-

port the education of children living in the detached area.

In cases involving the consolidation of whole districts,

the Texas Education Agency shall hold the funds derived

from the average daily attendance of the students illegally

annexed to or consolidated with the new district in escrow

pending dissolution of the illegal transfer of territory and

the return of students to their original districts.

(5) Defendants are enjoined from granting “incentive

aid” payments pursuant to Texas law (Art. 2815-4,

Vernon’s Texas Revised Civil Statutes as amended), to

districts which are enlarged by annexations or consolida-

tion actions in violation of this Order.

(6) Should a county board of education or a school

district, having received notice from the Commissioner

that a territorial alteration has been disapproved, fail to dis-

avow the action and to declare its effects null and void,

the Texas Education Agency shall notify the district that

its accreditation status is in danger. This notice shall

remain in effect for 10 days, at the end of which time,

if the offending district has failed to correct its violations,

the Agency shall suspend the district’s TEA accreditation.

(7) In all cases involving annexation or consolidation

of school districts, the Texas Education Agency shall

apply the portions of the Order of the Court in this case

dated April 19, 1971, concerning the annexation of nine

all-black school districts to nearby bi-racial districts, and

specifically, the portions of that Order relating to faculty

and staff and to bi-racial committees, to the newly en-

larged districts and shall require the said district to

submit to the Texas Education Agency such reports as

may be necessary to enable that Agency to determine

whether the newly enlarged district is operating and will

continue to operate in compliance with Title VI and the

Fourteenth Amendment.

C. School Transportation

(1) Defendants shall not permit, make arrangement

for, acquiesce in, or give support of any kind to bus

routes or runs 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.

(2) The transportation system in those county units

and school districts having transportation systems shall

be completely re-examined each year by the Texas Educa-

tion Agency. Bus routes and runs as well as the assign-

ment of students to buses will be designed to insure the

transportation of all eligible pupils on a non-segregated

and otherwise non-discriminatory basis. Bus routes and

runs shall be constituted to provide that each bus operated

by a district picks up every pupil along the route or run

who is assigned to the school or schools and grade levels

served by that bus. Where two or more equally efficient

and economical routes or runs are available in a given

area of the school district, the route or run which would

promote or facilitate desegregation of buses shall be

adopted by the district and approved by the Texas Educa-

tion Agency rather than a route or run which, whether

by intent, inaction, or inadvertence, would maintain or

encourage segregation.

(3) Accordingly, if upon examination of transporta-

tion systems, the Texas Education Agency shall find that

a district is operating one or more bus routes or runs

which serve 66% or more students of a minority group,

which are duplicated by one or more routes or runs serv-

ing more than 66% students of another race or ethnic

background, the Texas Education Agency shall immedi-

ately investigate and determine whether the heavily minor-

ity routes or runs may be re-routed, terminated or com-

bined with routes or runs which serve non-minority

students so as to desegregate these routes or runs. In no

event shall this paragraph be construed as requiring any

fixed percentage of students of a minority group on a

particular route or run.

(4) If the Texas Education Agency finds that a county

or local district is operating its transportation system in

violation of this Order, it shall notify the appropriate

Officials of the local district. If the offending district

refuses to alter its bus routes or runs so as to avoid

segregation in instances where the Texas Education

Agency has determined that such alterations are neces-

sary, or if such a district persists in operating bus routes

or runs which adversely affect the desegregation of its

schools, classes, or extra-curricular activities, the Texas

Education Agency shall refuse to approve the entire route

structure of the district, and shall, thereby, terminate

and refuse to grant or continue paying state transporta-

tion funds to the offending district until it shall have

altered all routes or runs operated in violation of this

Order, so as to eliminate all vestiges of discrimination

based on race, color, or national origin. In addition, the

Texas Education Agency shall notify the district that

its accreditation status is in danger. This notice shall

remain in effect for 10 days, at which time, if the offend-

ing district has failed to correct its violations, the Agency

shall suspend the district’s TEA accreditation.

D. Extra-Curricular Activities

(1!) Defendants shall not permit, make arrangement

for, acquiesce in or give support of any kind to activities

run in connection with the elementary and secondary

educational program operated by the state or any of its

county and local educational agencies which, whether by

intent, inaction, or inadvertence, results in segregation

or other discrimination against students on the ground of

race, color, or national origin. These extra-curricular

activities include, but are not limited to, student govern-

ment organizations, athletic teams for inter-scholastic com-

petition, clubs, hobby groups, student newspaper staffs,

annual staffs, band, band majorettes and cheerleaders.

(2) The Texas Education Agency shall instruct the

members of its accreditation review teams in conjunc-

tion with its Title IV staff, to examine the extra-curricular

activities of each district which they review. All viola-

tions of this Order which are discovered by such investiga-

tions shall be reported to the Commissioner of Educa-

tion. If the Texas Education Agency receives complaints

from any source that a school district is operating and

supporting extra-curricular activities in violation of this

Order, immediate investigation shall be made of such

complaint.

(3) If the Commissioner finds that a district is op-

erating and supporting extra-curricular activities in vio-

lation of this Order, he shall notify the county or local

school district through the President of its Board of

Trustees and through the Superintendent (if the district

has such an official), that the district is operating in vio-

lation of Title VI of the Civil Rights Act of 1964 and

the Fourteenth Amendment. At the same time, he shall

warn the district that its accreditation is in danger. This

warning shall remain in effect for 10 days, at which time,

if the district has failed to correct the violations, the Texas

Education Agency shall suspend the district’s TEA ac-

creditation.

(4) In addition to the suspension of the accreditation

of districts operating discriminatory extra-curricular ac-

tivities, the State of Texas and the Texas Education

Agency shall reduce the percentage of state funds granted

to the district under the Minimum Foundation Program

for salaries and operating expenses by ten percent. Should

the district persist in operating its extra-curricular ac-

tivities in a manner which results in segregation or dis-

criminatory treatment of students on account of race,

color, or national origin, the State of Texas and the

Texas Education Agency shall reduce the percentage of

state funds as described above by an additional ten per-

cent, for each semester or term that the violations con-

tinue,

(5) Defendants are required to consider that a sus-

pension or reduction of programs and activities to avoid

operating them on a desegregated basis continues a vio-

lation of Title VI and the Fourteenth Amendment.

(6) Any school district aggrieved by the proposed re-

duction or the reduction of Minimum Foundation Pro-

gram Funds, or the proposed suspension or the suspen-

sion of accreditation shall have the right to petition the

United States District Court for the Eastern District of

Texas, in which this suit is pending, for such relief as

said Court may deem proper.

E. Faculty and Staff

(1) Defendants shall not permit, make arrangement

for, acquiesce in or give support of any kind to the hir-

ing, assigning, promoting, paying, demoting, reassigning

or dismissing, or treatment of faculty and staff members

who work directly with children in a discriminatory man-

ner on account of race, color or national origin. Defen-

dants shall be responsible for the application and enforce-

ment throughout the State of the provisions of the Order

of the Court in this case dated April 19, 1971, referred

to in Section B(7) herein, and specifically, the portions

of that Order relating to the treatment of faculty and

staff.

(2) In carrying out its affirmative duties under Title

VI and the Fourteenth Amendment in this area, the

Texas Education Agency shall require each county or

local educational agency desiring to receive state funds

under the Minimum Foundation Program to include

with its preliminary application for such funds a list

of objective, non-racial and non-ethnic criteria by which

the county or local district will measure its faculty and

staff for assignment, promotion, demotion, reassignment

or dismissal and by which it will judge prospective em-

ployees for faculty and staff positions.

(3) The Texas Education Agency shall require the

members of its accreditation review teams, in conjunction

with the members of its staff designated to work in col-

laboration with the United States Office of Education to

provide technical assistance to desegregating school dis-

tricts pursuant to Title IV of the Civil Rights Act of

1964 (hereinafter referred to as “Title IV staff” or

“Title IV personnel”), to examine the faculty and staff

hiring and assigning practices of the districts which they

visit for accreditation purposes, and to examine the

records relating to hiring, assigning, promoting, paying,

demoting, reassigning or dismissing of faculty and staff

who work directly with children for a period including

the three years prior to the complete elimination of the

district’s dual school structure. The review teams and

state Title IV personnel shall also examine faculty assign-

ments within each school district under review to deter-

mine whether the percentage of minority teachers in

each school is substantially the same as the percentage

of minority teachers in the school district as a whole,

as required under Part II, Section A of the Order of this

Court dated April 19, 1971, and referred to in Sections

B(7) and E(1) herein. Any evidence of discriminatory

practices concerning faculty and staff shall be reported

to the Commissioner of Education.

(4) After such further investigation as deemed neces-

sary by the Commissioner, he shall notify the district

through the President of its Board of Trustees and its

Superintendent (if the district has such an official), of

any acts and practices with regard to faculty and staff

which violate the areas described in Part II, Section A,

of the Order of this Court, dated April 19, 1971, referred

to in Section B(7), E(1) and E(3) herein. At the same

time, he shall warn the district that its accreditation is in

danger. This warning shall remain in effect for 15 days,

at which time, if the offending district fails to correct

its violations with regard to faculty and staff who work

directly with children, the Texas Education Agency shall

suspend the district’s TEA accreditation.

(5) In addition to the suspension of accreditation,

the State of Texas and the Texas Education Agency shall

refuse to approve the district’s application for state funds

under the Minimum Foundation Program for salaries,

and shall, thereby, terminate and refuse to grant or con-

tinue paying such funds to the district.

(6) Any school district aggrieved by the proposed

termination or the termination of Minimum Foundation

Funds or the proposed suspension or the suspension of

accreditation shall have the right to petition the United

States District Court for the Eastern District of Texas,

in which this suit is pending, for such relief as said Court

may deem proper.

(7) This Order shall not be construed to have any

effect upon the state or federal remedies available to any

individual members of Faculty or Staff for discriminatory

action by a school district in assignment, demotion, dis-

missal, re-assignment, payment or other employment

conditions.

F. Student Assignment

(1) Defendants shall not permit, make arrangement

for, acquiesce in or give support of any kind to the

assignment of students to schools, individual classrooms

or activities on the basis of race, color or national origin,

except where required to comply with constitutional

standards.

(2) Defendants, having identified pursuant to this

Court’s Order of November 24, 1970, school districts

whose enrollment of minority race children is greater than

66% and whose total student population is fewer than

250 students, shall show cause by August 15, 1971, why

each such school district should not be annexed to or

consolidated with one or more independent school dis-

tricts of over 150 students, or one or more common

school districts of over 400 students, so as to eliminate

its existence as a racially or ethnically separate educa-

tional unit.

(3) Defendants shall review each year all school dis-

tricts in the state in which there exists schools enrolling

more than 66% minority group students, as reported in

accordance with Part II] (E)(6) of the Court’s order

in this case dated November 24, 1970, and shall make

findings as to whether or not the student assignment

plans of these districts have resulted in compliance with

federal constitutional standards. On October 1, 1971,

and on the same date each subsequent year until further

order of this Court, defendants shall file a report with

the Court indicating (1) the school districts reviewed and

the particular findings concerning the assignment and

transfer of students within each such district; (2) what

steps each district is taking to eliminate their racially

and ethnically identifiable schools and what recommenda-

tions defendants have proposed in this regard; and (3)

what special cultural and educational activities these

districts have instituted to compensate for the inherently

unequal educational opportunities provided to students

in these racially or ethnically identifiable schools. Copies

of this report shall be served upon the Civil Rights Di-

vision of the United States Department of Justice and the

Office for Civil Rights of the United States Department

of Health, Education and Welfare. A copy of this report

shall also be retained in the Offices of the Texas Educa-

tion Agency in such a manner that it will be readily and

conveniently available for public inspection during normal

business hours.

(4) If a school district which is reviewed pursuant to

paragraph F(3) is the subject of a school desegregation

suit or a court-approved plan of desegregation, a copy of

the report required by paragraph F(3) shall be sub-

mitted to the District Court having jurisdiction of such

suit or plan.

G. Curriculum and Compensatory Education

(1) Defendants shall insure that school districts are

providing equal education opportunities in all schools.

The Texas Education Agency, through its consulting

facilities and personnel, shall assist school districts in

achieving a comprehensive balance curriculum on all

school campuses, and, where necessary, in providing for

students to transfer to different schools in the district on

a part-time basis to avail themselves of subjects not

offered in their assigned school. Full time transfers may

be allowed only where they do not adversely affect de-

segregation as further described in Section A herein.

(2) The Texas Education Agency shall institute a

study of the educational needs of minority children in

order to insure equal educational opportunities of all

students. The Texas Education Agency shall request the

assistance of the United States Office of Education and

any other educational experts whom they choose to

consult in making this study. By not later than August

15, 1971, a report on this study shall be filed by the

Texas Education Agency with the Court including:

(a) Recommendations of specific curricular offerings

and programs which will insure equal educational op-

portunities for all students regardless of race, color or

national origin. These curricular offerings and programs

shall include specific educational programs designed to

compensate minority group children for unequal educa-

tional opportunities resulting from past or present racial

and ethnic isolation, as well as programs and curriculum

designed to meet the special educational needs of students

whose primary language is other than English;

(b) Explanation of presently existing programs funded

by the State of Texas or by the Federal Government

which are available to local districts to meet these special

educational needs and how such programs might be

applied to these educational needs;

defendants will determine when a local district, which

has racially or ethnically isolated schools or which has

students whose primary language is other than English,

shall be required by the defendants to participate in the

special compensatory educational programs available; and

(d) Explanation of procedures for applying these

standards to local districts including appropriate sanc-

tions to be employed by the defendants should a district

refuse to participate in special compensatory educational

programs where it has been instructed to do so pursuant

to application of the standards developed under sub-

section (c) above.

(e) Copies of this report shall be served as described

in Section F above, and a copy shall also be retained

in the Offices of the Texas Education Agency as described

therein.

H. Complaints and Grievances

The defendants shall send to all county and local edu-

cational agencies an information bulletin designed to

notify faculty, staff and patrons of local school districts

of the availability of complaint and grievance procedures

and to inform them of how to utilize these procedures.

Defendants shall further require that every county and

local educational agency shall place this bulletin on

public display in such a way as to assure its availability

at all times during school hours. A copy of this bulletin

shall be filed with the Court on or before August 15,

1971, with a copy to the plaintiff.

I. Notification

The defendants, in all cases where notification is given

to a school district of imminent loss of accreditation or

state funds because of its failure to meet the requirements

of Title VI, Civil Rights Act of 1964 and the Fourteenth

Amendment, shall, at the same time, notify the plaintiff.

In the event that it becomes necessary to suspend the

district’s accreditation or to reduce or remove state funds

the defendants shall also notify the plaintiff.

J. Jurisdiction

(1) This Court retains jurisdiction of this matter for

all purposes, and especially for the purpose of entering

any and all further orders which may become necessary

to enforce or modify this decree.

(2) Nothing herein shall be deemed to affect the juris-

diction of any other district court with respect to any

presently pending or future school desegregation suit.

SIGNED and ENTERED this 13th day of July, 1971.

/s/ WM. WAYNE JUSTICE

United States District Judge

IN THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

CIVIL ACTION NO. 5281

UNITED STATES OF AMERICA

STATE OF TEXAS, ET AL.

AMENDMENTS TO MODIFIED ORDER OF

JULY 13, 1971

After extensive hearings relating to proposed modifi-

cations of this court’s modified order of July 13, 1971,

after due consideration of the evidence and the argument

of counsel, it appears to the court that such order should

be modified, as follows:

It is ORDERED that Section A be, and it is hereby,

amended, so as hereafter to read as follows:

A. Student Transfers

(1) Defendants shall not permit, make arrangement

for or give support of any kind to student transfers, be-

tween school districts, when the cumulative effect, in

either the sending or receiving school or school district,

will be to reduce or impede desegregation, or to rein-

force, renew, or encourage the continuation of acts and

practices resulting in discriminatory treatment of students

on the ground of race, color, or national origin.

(2) In applying the above section to student transfers

between school districts, the defendants may grant the

following classes of exceptions regardless of the race,

color, or national origin of students.

(a) Class One: All transfers of students to county

or multi-county day schools for the deaf.

(b) Class Two: Special education students from

districts where the special education ciass for which

the students are qualified is unavailable and such

class is available in the receiving district, provided

such students have been properly screened according

to Texas Education Agency guidelines by the re-

ceiving districts.

may grant additional transfers in hardship situations.

Before such transfers are granted by the Commis-

sioner, the parties will be notified at least 30 days

in advance of the intent to grant such transfers and

the reasons therefor. The parties may object to such

transfers to the court, and the court may approve

or disapprove such transfers with or without a hear-

ing.

(3) In addition to the above exceptions, defendants

shall use the following guidelines to determine the cumula-

tive effect of student transfers in the various school dis-

tricts of Texas.

(a) Where student transfers between school dis-

tricts involve ethnic consideration concerning race,

color or national origin of students, only hardship

Situations shall be considered, and such transfers

shall be governed by the procedure in Paragraph

A(2)(c), above.

(b) In such situations, the defendants shall not

approve transfers where the effect of such transfers

will change the majority or minority percentage of

the school population, based on average daily at-

tendance in such districts by more than one per

cent (1%), in either the home or the receiving

district or the home or the receiving school.

(4) Defendants may use the following additional guide-

lines in approving or disapproving student transfers be-

tween the various school districts in Texas:

(a) The Agency will review and apply this Sec-

tion to all in-grade transfers between school districts

in Texas.

(b) The Agency will investigate all complaints

of violations of its decisions made pursuant to Sec-

tion A of the Court Order.

the assistance of other agencies, both State and

Federal, in arriving at a decision under Section A of

this Court Order, but the Agency shall not be bound

by such recommendations.

(d) The Agency will consider as factors relevant

to its decision in approving or disapproving student

transfers under this Section: (1) whether the receiv-

ing district or the home district is composed solely

of students of one race or ethnic origin, (2) whether

all the students seeking transfers are of one race

or ethnic origin, and (3) whether the sending or re-

ceiving school district is operating under the pro-

visions of an order issued by another District Judge

requiring said school district to eliminate segrega-

tion on the ground of race, color, or national origin.

(e) The Agency will use such additional guide-

lines as may be ordered by the court. The Agency

may also use such guidelines as adopted by the

Agency and submitted to the court and to all other

parties, in writing, provided no objection is filed by

the parties to said agency-adopted guidelines within

twenty-one (21) days of the filing of said guidelines

with the court or their receipt by certified mail,

return receipt requested, by the parties. In the event

of objection by the parties or the court within such

period, the Agency may request a hearing for ap-

proval of said guidelines by the court.

(5) The Texas Education Agency shall review all

student transfers and shall notify the sending and receiv-

ing districts promptly of all transfers which do not appear

to comply with the terms of this order.

(6) If, after receiving notice of the Texas Education

Agency’s refusal to approve transfer, the receiving district

shall continue to accept the transfer of students, or if the

sending district shall refuse to provide suitable educa-

tional opportunities for these students, defendants, after

15 days notice to the President of the Board of Trustees

and the Superintendent (if the district has such an offi-

cial), shall refuse to transfer the funds, based on the

average daily attendance of the transfer students involved

to the account of the receiving district, and shall, thereby,

terminate and refuse to grant or continue paying to the

offending district a percentage of state funds equivalent

to the district’s entitlement based on the average daily

attendance of the students transferring in violation of

this order.

(7) Defendants shall also refuse to distribute to the

offendng district any transportation funds which might

accrue on account of transfer students accepted in viola-

tion of this order. If the offending district continues to

refuse to deny transfers which adversely affect desegrega-

tion, the Texas Education Agency shall warn the district

that its accreditation status is in danger. This warning

shall remain in effect for ten days, at which time, if the

offending district has failed to correct its violations, the

Texas Education Agency shall suspend the district's TEA

accreditation.

(8) The State Board of Education shall entertain no

appeal from any decision of the Agency which applies

sanctions against a school district in compliance with

this or any preceding order of this court. However, any

school district aggrieved by the proposed reduction or

the reduction of funds, or the proposed suspension or

the suspension of accreditation, shall have the right to

petition the United States Court for the Eastern District

of Texas, in which this suit is pending, for such relief as

said court may deem proper.

It is ORDERED that Section F be, and it is hereby

amended, so as hereafter to read as follows:

F. Student Assignment

(1) Defendants are required to consider forthwith the

application of the procedures and provisions of this order

to any school district reviewed pursuant to Section F

of this court’s Modified Order of July 31, 1971, where

(a) such review has been conducted at any time prior

to the entry of this order, (b) such district was found

to be in violation of federal constitutional standards, and

violations were provided to the district by the defendants

but have not been implemented.

(2) Defendants shali not permit, make arrangement

for, acquiesce in or give support of any kind to the assign-

ment of students to schools, individual classrooms or

other school activities on the basis of race, color, or

national origin, except where required to comply with

constitutional standards.

(3) Defendants shall review each year all school dis-

tricts in the state in which there exists schools enrolling

more than 66% minority group students, as reported in

accordance with part II(E)(6) of the Court’s Order in

this case dated November 24, 1970, and shall make find-

ings as to whether or not the student assignment plans

of these districts have resulted in compliance with the

terms of this order. Priority shall be given to any dis-

trict about which the defendants receive specific com-

plaints. Any district found not to be in compliance shall

be notified that it is in violation, and, further, shall be

provided in writing by the defendants with a specific de-

tailed plan designed to eliminate all such violations of

the terms of this order. Defendants shall be required to

take all measures necessary to insure that whenever pos-

sible, the notice and plan provided for herein shall be

received by the district at least 45 days prior to the begin-

ning of the next semester or term. As to any district re-

viewed at any time prior to the entry of this order, de-

fendants shall serve the notice and plan provided for

herein forthwith in order that the sanctions provided

hereafter in this order be made applicable to the school

semester or term starting on or about September 1.

1973.

(4) If, by the end of the first week of the semester

or term following receipt of the notice and plan pro-

vided for in paragraph F(3), a district has failed to imple-

ment such plan, or, has failed to adopt and imple-

ment an equally effective alternate plan to eliminate all

racially or ethnically identifiable schools found to be in

violation of constitutional standards as provided by para-

graph F(3), the defendants shall warn the district through

the President of its Board of Trustees and through its

Superintendent (if the district has such an official) that

its accreditation is in danger. This warning shall remain

in effect for ten days after which time, if the district has

still failed to achieve compliance, the Texas Education

Agency shall suspend the district’s TEA accreditation.

(5) In addition to suspension of accreditation and

simultaneously therewith defendants shall suspend pay-

ment of all state funds to the district under the Minimum

Foundation Program for salaries, operating expenses,

transportation and all other purposes.

(6) Defendants shall suspend immediately without fur-

ther notice the accreditation and the payment of all Mini-

mum Foundation Program funds of any district which

changes or otherwise modifies a plan adopted and imple-

mented pursuant to paragraphs F(3) and F(4) herein

when such changes or modifications are designed to. or

do in fact, recreate, renew, reimplement or result in vio-

lation of federal constitutional standards.

(7) On or before June | of each school year until fur-

ther orders of this court, defendants shall file a report with

the court indicating (a) the school districts reviewed and

the particular findings concerning the assignment and

transfer of students within each such district, (b) all

recommendations made and actions taken by the de-

fendants and each such district to eliminate racially or

ethnically identifiable schools, (c) what special cultural

and educational activities these districts have instituted to

compensate for the inherently unequal educational op-

portunities provided to students in these racially or eth-

nically identifiable schools. Copies of this report shall!

be served upon the Civil Rights Division of the United

States Department of Justice, the Office for Civil Rights

of the United States Department of Health, Education

and Welfare and all parties to this action. A copy of this

report shall also be retained in the offices of the Texas

Education Agency in such a manner that it will be readily

and conveniently available for public inspection during

normal business hours.

(8) Any school district aggrieved by the proposed

reduction or the reduction of Minimum Foundation

Program funds or the proposed suspension of accreditation

shall have the right to petition the United States District

Court for the Eastern District of Texas, in which this

suit is pending, for such relief as said court may deem

proper.

(9) If a school district which is reviewed pursuant

to paragraph F(3) is the subject of a school desegrega-

tion suit or a court-approved plan of desegregation, a

—

copy of the report required by paragraph F(3) shall be

submitted to the District Court having jurisdiction of such

suit or plan.

It is further ORDERED that Section J shall be

amended, so as hereafter to be designated as Section K.

It is further ORDERED that such modified order of

July 13, 1971, be amended by the addition of a new

section, to be designated as Section J, which shall read

as follows:

J. Conveyances of Real Property by a School District

(1) Defendants shall not permit, make arrangement

for, approve, acquiescence in or give support of any kind

to sales, leases or other conveyances of real property by

a school district where such conveyances are designed

to or do, in fact, create, maintain, reinforce, or en-

courage a dual school system based on race, color or

national origin.

(2) Defendants shall require the board of trustees of

any school district desiring to sell, lease or otherwise

convey any interest in real property or buildings to report

said intention to the Commissioner of Education for the

State of Texas at least 15 days prior to the effective

date of such conveyance and shall take all appropriate

measures to insure compliance with this requirement.

(3) Whenever the Commissioner shall receive notice

that a district intends to sell, lease or otherwise convey

any interest in real property, he shall promptly notify

the appropriate local school officials that the following

language shall be incorporated into the instrument of

conveyance, sale or lease and. further, that failure of the

district to comply with this requirement will result in

the imposition of sanctions as set out in paragraph J(4):

“Subject nevertheless to the following covenant, con-

dition and restriction:

The [name of grantee, lessee, etc., as the case may

be] [his heirs, personal representatives, or assigns,

or its successors and assigns, as the case may be]

shall not, for the period of fifty (50) years from

the date hereof, use or permit the use of the realty

herein described, or any part thereof, for the opera-

tion of a school or any other facility used in conjunc-

tion with any institution of learning, study, or in-

struction which unlawfully discriminates against per-

sons on the basis of race, color, or national origin, or

which tends to create, maintain, reinforce, renew,

or encourage a dual school system within the public

school district in which such realty is now or may

be situated.

For so long as such realty is used for a purpose

other than the uses or purposes forbidden and pro-

scribed in the preceding sentence, the estate herein

granted and the title and right to possession of such

property shall remain in the [name of grantee, lessee,

etc., as the case may be] [his heirs, personal repre-

sentatives, and assigns or its successors and assigns,

as the case may be]. If, during such fifty (50) year

period, such realty is used, or permitted to be used,

in violation of the covenant, condition, and restric-

tion above specified, the estate herein granted shall

expire and shall immediately revert to grantor, and

grantor shall be entitled to immediate title and pos-

session of such property, without the necessity of a

re-entry or suit.

(4) If a school district, after notice from the Com-

missioner, proceeds to sell. lease or otherwise convey

ida

any interest in real property but fails to comply with

the requirements set forth in paragraph J(3) herein, the

defendants shall proceed to impose sanctions in accord-

ance with the following:

(a) The Commissioner shall notify the proper

official or officials of the school district that the

district is not in compliance and that, unless the dis-

trict initiates legal proceedings in a court of compe-

tent jurisdiction, within thirty days from date of

the notice, to reacquire possession of the property,

the payment of all state funds to said district under

the Minimum Foundation Program for salaries, ope-

rating expenses, transportation and all other pur-

poses shall be suspended. If the district initiates

legal proceedings as required but, in the judgment

of the Commissioner, the district fails to prosecute

said proceedings expeditiously and in good faith,

the Commissioner at any time thereafter may sus-

pend the payment of all state funds to the district.

Any party to this action who has reason to believe

or to question that the Commissioner is not pro-

ceeding as required herein may, upcn proper motion,

apply to this Court for whatever relief is indicated,

at law or at equity.

(b) In the event that a school or other facility

used in conjunction with any institution of learning

which would constitute a breach of the condition

set forth in paragraph J(3) is operated on the real

property conveyed by the district, the defendants

shall suspend the payment of state funds under the

Minimum Foundation Program for salaries, trans-

portation and all other purposes, operating expenses,

and, simultaneously therewith, defendants shall sus-

pend the district’s TEA accreditation. The suspen-

sion of funds and of accreditation as provided in

this subparagraph shall continue until such times

as the school or other institution of learning which

was the basis for these sanctions has ceased opera-

tion or until such time as the district in question

has taken steps to exercise its rights of reversion

and has reacquired the property in question.

(5) Defendants are enjoined from granting TEA ac-

creditation to any school or other facility used in con-

junction with any institution of learning, study or in-

struction, the operation of which would constitute a

breach of the condition set forth in paragraph J(3).

(6) Any school district aggrieved by the proposed

Suspension or the suspension of Minimum Foundation

Funds, or the suspension of accreditation shall have the

right to petition the United States District Court for the

Eastern District of Texas in which this suit is pending,

for such relief as said court may deem proper.

SIGNED and ENTERED this 9th day of August, 1973.

/s/ WM. WAYNE JUSTICE

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.