DOCKET NO. 216-R6-295
FLOYD MICHALK, ET AL.,
THE
V.
MARLIN INDEPENDENT
DISTRICT
TEXAS
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BEFORE
COMMISSIONER OF EDUCATION
STATE OF
DECISION OF THE COMMISSIONER
Statement of the Case
Floyd Michalk and fifteen other named Petitioners seek detachment
of certain territory from the Marlin Independent School District and the
annexation of that land to the Riesel Independent School District. The
Petitioner's petition was approved by the Riesel I.S.D.'s Board of
Trustees, but rejected by Respondent, Marlin I.S.D.'s Board.
Subsequently, Petitioners appealed that denial to the Commissioner of
Education and a de novo hearing was held on August 15, 1995. Petitioners
are represented by Jeff Wooley1, Attorney at Law, of Waco, Texas and
Respondent was represented by Roger Hepworth and Robert Bostick,
Attorneys at Law, of Austin, Texas. A Proposal for Decision was issued
on March 1, 1996 by Katherine L. Moore, the Administrative Law Judge
appointed, which recommended that Petitioners' appeal be granted. No
Exceptions were filed by either party. Based upon the evidence
presented, and as are herein reflected in the Findings of Fact and
Conclusions of Law, it is Ordered that Petitioners' appeal be GRANTED.
Findings of Fact
After due consideration of the evidence and matters officially
noticed, in my capacity as Commissioner of Education, I make the
following Findings of Fact:
1. After notice and public hearing, the Riesel Independent School
District adopted a resolution approving Petitioners' request for
annexation of certain territory.
2. After notice and public hearing, the Marlin Independent School
District adopted a resolution rejecting Petitioners' request for
detachment of certain territory.
3. The Petition requesting detachment and annexation was signed by
a majority of the resident, registered voters of the territory at issue.
4. The Petition described with adequate particularity the specific
territory to be detached and annexed.
5. Detachment of the affected territory will not reduce
Respondent's tax base by a ratio at least twice as large as the ratio by
which it would reduce its membership.
6. Approval of the detachment of the affected territory will not
reduce the Marlin Independent School District to an area of less than
nine square miles.
7. Twelve students currently reside in the affected territory,
eight of whom presently attend Riesel I.S.D. on a transfer basis.
8. The subject detachment is not intended to create, nor does it,
in fact, promote to a significant degree, a racially discriminatory dual
school system.
9. Detachment from Marlin I.S.D. and annexation to Riesel I.S.D.
of the affected territory will permit the affected students easier and
more convenient access to educational opportunities and extracurricular
activities.
10. The affected students and their families share a community of
interest, including religious, family and social relationships with the
Reisel community. They have Reisel addresses and Reisel telephone
numbers. They have considered themselves as members of the Reisel
community for many years.
11. The involved territory is geographically much closer to Riesel
schools than it is to Marlin schools.
12. But-for the students' ability to attend Reisel I.S.D., some
students in the affected territory would have to ride the school bus
thirty-two miles daily. The closest Reisel school location to them is
one to two miles.
13. But-for the students' ability to attend Reisel I.S.D., some
students would have to leave for school as early as 6:40 a.m., rather
than 7:40 a.m.
14. Attendance at Reisel I.S.D. will afford the affected students
greater opportunity to participate in sports and extra curricular
activities than would be available if they were required to attend Marlin
I.S.D.
15. Attendance at Reisel I.S.D. will afford the parents of the
affected students greater opportunity for personal involvement and
interaction in their children's educational endeavors.
16. Detachment of the affected territory will have a nominal
economic effect on Marlin I.S.D., but will not impair the overall quality
of education it is able to provide those students who remain.
Discussion
The annexation and detachment statute exists to allow residents of
a territory some choice in determining their school district affiliation.
Comal I.S.D. v. Bexar County, Docket No. 066-R6-283 (Comm'r. Dec. January
1984) And, while a school district's vigorous opposition to the loss of
territory is an understandable reaction to a detachment request, that
reluctance is not a valid and sufficient reason to deny an otherwise
meritorious petition. Beaumont I.S.D. v. Windsor Drive Petitioners,
Docket No. 150-R6-684 (Comm'r. Dec. July 1985). However, certain
statutory prerequisites must be established, as a matter of law, without
which no detachment order may issue. See Tex. Educ. Code, §19.022.
Marlin Independent School District, Respondent herein, challenges the
detachment of the territory at issue on three separate grounds: (1) an
alleged inadequacy of the metes and bounds description presented by
Petitioners to the Marlin I.S.D. Board of Trustees; (2) an argument that
the description in the amended Petition presented at the Commissioner's
hearing could not be considered; and (3) that the racial impact of
granting such a detachment represented "white flight," having an adverse
impact on the integration of the district. Each of these challenges are
discussed subsequently, the first two together, as the argument and their
implications overlap.
The Adequacy of the Metes and Bounds Description
Respondent insists that because it believes Petitioners' Original
Petition did not contain a valid metes and bounds description, this
dispositively prevents the Petitioners' appeal from being successful.
This challenge presents two areas of inquiry: first, was Petitioners'
metes and bounds description in its Original Petition presented to Marlin
I.S.D. deficient, and second, if it was deficient, could such
deficiencies be corrected subsequently?
When Petitioners presented their request for detachment and
annexation to the two school districts involved, the metes and bounds
description did contain a clerical error: it failed to complete one line
joining the outline of the affected territory from "100 acres owned by
Jack Wooley to the 75 acres also owned by Jack Wooley." This error,
however, was ameliorated by a map, attached to the metes and bounds
description, which highlighted the boundaries of the affected territory
and, essentially, "closed" the segregated area involved. Moreover,
credible testimony was presented from two individuals who indicated that
anyone familiar with the area could adequately identify the territory at
issue by utilizing the metes and bounds description provided along with
the accompanying map highlighting the area to be affected. Additionally,
Respondent's own expert, a professional land surveyor, testified that the
true test for the adequacy of a metes and bounds description is whether
the area is "locatable on the ground." He then conceded that, although
he had not personally surveyed the area, that by using the map and metes
and bounds description, an ordinary person (i.e., one without expertise
in surveying) could adequately determine the area of land at issue.
These facts lead to the conclusion that the metes and bounds
description provided by Petitioners met the minimum statutory
requirements of identifying the area at issue with reasonable certainty.
See Rio Vista Independent School District v. Grandview Independent School
District, 379 S.W.2d 408, 411 (Tex.Civ.App. - Waco, 1964, no writ),
citing Gates v. Asher, 154 Tex. 538, 280 S.W.2d 247, 2492 Moreover, a
"reasonable certainty" is all that the law requires. Gates, supra at
249, citing Mansel v. Costles, 93 Tex. 414, 55 S.W. 539, 560.
Respondent contends that even if the metes and bounds description
and map submitted at the hearing before the Commissioner's designee was
adequate, the law requires its rejection if the property description
presented at the time of the original petition presented to the board of
trustees requesting detachment was deficient. Essentially, Marlin argues
that any such error (no matter how minor) is incurable and any such
petition is subsequently barred from further presentation for three
years, pursuant to §19.002(b) of the Texas Education Code. However,
given that appeals to the Commissioner of Education are now, by statute
and caselaw, de novo proceedings (see Clear Creek Independent School
District v. Commissioner of Education, 775 S.W.2d 490, 492 (Tex.App.Austin, 1989, no writ) and Tex. Educ. Code §19.022(i)), a hearing is held
and the Commissioner must then decide whether substantial facts support
the decision. Most recently, this legal maxim has been articulated by
the Texas Supreme Court in Nueces Canyon Consolidated Independent School
District v. Central Education Agency, No. 95-0793, slip op. at 5
(February 9, 1996). Accordingly, the metes and bounds description
presented by Petitioners both before the Board of Trustees and this
agency was adequate to describe the affected territory as a matter of
law.
The Racial Impact and Potential "White Flight"
Based upon its argument and presentation, Respondent's most pointed
attack upon the propriety of the detachment of the area in question
focuses upon the concern that permitting this detachment from the Marlin
Independent School District would promote segregation and result in the
flight of the white populace from a school district predominantly black
to a school district already largely, predominantly white. The racial
breakdown of the two districts for the 1993-1994 school year demonstrates
that Marlin I.S.D. is 49% black, 16% Hispanic and 35% white, while Riesel
I.S.D. is 6% black, 10% Hispanic and 84% white. Riesel had a total of
493 students, Marlin had 1,821. While Reisel had 28 graduates, Marlin
had 88. Further, Marlin had a 95.7% attendance rate, a 1.6% dropout rate
and 65.3% of its total student population was considered economically
disadvantaged. Reisel, on the other hand, had an attendance rate of
95.7%, an annual dropout rate of 0% and 27.2% of its student population
was considered disadvantaged.
These bare numbers, standing alone, raise the specter of
segregation. But mere numbers alone do not tell the whole story. In
every scenario where a group of all white students seek to formally alter
their zone of educational attendance, race may become an issue. This is
particularly so where the all-white group seeks to leave behind a school
"known as a black" or minority school district and move to one that is
overwhelmingly nonminority. Moreover, while motive is a factor to be
considered in making the determination as to whether to approve the
district alterations, it is more importantly the effect of the boundary
changes that are central to our inquiry. Here, there is no evidence that
any of the Petitioners' desires to formally attend Reisel I.S.D. for
discriminatory motives; in fact, the evidence is to the contrary.
Petitioners' motivations stem from their unwavering and long-standing
identification with the Reisel community: its family, social and
organizational entities. Further, Petitioners' desires in this regard
are a function of convenience, safety and efficiency. Students who
attend school close to their homes have greater and quicker access to
their parents, relatives and support groups. They are more free to
participate in before and after school activities and any emergencies on
their part can be attended to much more effectively by their parents and
guardians.
It must be noted that the only true evidence of "white flight" was
speculation coupled with an inference to be drawn from a recent four-year
trend showing an increase in the minority population of Marlin I.S.D. No
evidence related to the causal connection, if any, between these facts
was offered. The evidence is clear however, that the on-going
alterations in the racial makeup of the student population of Marlin
I.S.D., particularly over the past four academic years, is increasingly
black, suggesting, at the very least, a possible tendency toward reestablishment of segregation. Countering this, however, is the Texas
Education Agency's Equal Educational Opportunity Unit Report in evidence
which concludes that "the changes in the school district boundaries
resulting from the granting of this detachment and annexation petition is
not designed to, nor will it in fact create, maintain, reinforce, renew
or encourage a dual school system based on race, color, or national
origin." While it is acknowledged that evidence exists on both sides of
this issue, its greater weight is on the side of supporting the
detachment and annexation. However, caution is advised for the granting
of any future detachments from Marlin I.S.D. at least in those cases
where its minority-majority population will be negatively impacted.
Conclusions of Law
After due consideration of the record, matters officially noticed
and the foregoing Findings of Fact, in my capacity as Commissioner of
Education , I make the following Conclusions of Law:
1. The Commissioner of Education has jurisdiction over this appeal
pursuant to Tex. Educ. Code §§11.13 and 19.022.
2. The Petition for Detachment and Annexation meets all the
statutory criteria of §19.022 of the Texas Education Code.
3. The change of boundaries resulting from detachment of the
affected territory from Marlin I.S.D. and annexation of that territory to
Reisel I.S.D. is in the best educational interests of the students
residing in the affected territory.
4. Detachment of the affected territory from Marlin I.S.D. and
annexation of that territory to Reisel I.S.D. will be socially,
economically and educationally beneficial to the involved students.
5. Detachment of the affected territory from Marlin I.S.D. and
annexation of that territory by Reisel I.S.D. will have no material
adverse social, economic or educational effect on the involved districts.
6. Petitioner's appeal should be GRANTED and the affected
territory detached from Marlin I.S.D. and annexed to Riesel I.S.D.
ORDER
After due consideration of the record, matters officially noticed
and the foregoing Findings of Fact and Conclusions of Law, in my capacity
as Commissioner of Education, it is hereby
ORDERED that Petitioners' appeal be GRANTED; and it is
FURTHER ORDERED that the territory affected, as herein described
and specifically set forth in Attachment "A" to this Decision, be
detached from the Marlin Independent School District and annexed to the
Riesel Independent School District, effective July 1, 1997.
SIGNED AND ISSUED this ________ day of
___________________________, 1996.
_______________________________________
MIKE MOSES
COMMISSIONER OF EDUCATION
ATTACHMENT "A"
METES AND BOUNDS DESCRIPTION OF PROPERTY
DETACHED FROM MARLIN I.S.D. AND ANNEXED TO
RIESEL I.S.D.
Northwest corner is Highway 6 at Falls County line, then proceeds east to
CR 126 and Falls County line for the northeast corner, then south on CR
126 to CR 118, then east to Jack Wooley property;
All that certain tract or parcel of land, out of the Gregoria Basquez 7league Survey in Falls County, Texas, being Block No. 3 on the map of
partition of the Allen and Hale 1/2 League out of said Basquez Survey,
described as follows:
Beginning at a point in the north line of said Basquez Survey being the
NE corner of Block No. 5, and the NW corner of the block here conveyed;
Thence with said north line N 62 E 903 vrs to stake for corner;
Thence S 28 E 625 vrs to stake for corner;
Thence S 62 W 903 vrs to the SE corner of Block No 5;
Thence N 28 W 625 vrs to the place of beginning, containing 100 acres of
land, and being the same land described in a deed from Carl Dieterich to
W.F. Dieterich dated March 28, 1944, and recorded in Vol. 185, Page 496,
of the Falls County Deed Records.
Beginning at the Southeast corner of a 100 acre tract owned by Pape, the
same being Mitscher's Northeast corner, from which point a forked elm brs
N 39-1/2 E;
Thence S 28 E 625 vrs to corner in the south line of the Allen and Hale
1/2 league;
Thence N 62 E 451-1/2 vrs to the Southeast corner of this tract;
Thence N 28 W 625 vrs to corner;
Thence S 62 W 225-3/4 vrs to ell corner of this tract;
Thence N 28 W 625 vrs to the Northeast corner of this tract in the
Basquez north line;
Thence S 62 W 225-3/4 vrs to Pape's Northeast corner;
Thence S 28 E 625 vrs to the place of beginning.
Containing 75 acres of land. Being the same land described as First
Tract in a deed from Klara Elwert, et al., to Charles Sielaff, dated
November 18, 1910, and recorded in Vol. 72, Page 457, of the Falls County
Deed Records.
North along Voges property 1/2 way to USA property Southeast Corner, then
west along southern fence lines of property owners: Charles E. Stone,
Edward G. Schraeder Et Ux, Dwight Pursche, Kenneth L. Edmiston, Joe Clint
Short Et Ux, Phillip C. Ballman, Dorothy Ballman, to Highway 6 and Ruby
Kluck property as Southwest corner, then north along Highway 6
approximately 2.9 miles returning to the point of origin at the Falls
County line.
1 Counsel for Petitioners was also a Petitioner in this appeal.
2 As the Supreme Court stated in Gates, "If enough appears in the
description to enable one 'familiar with the locality can [sic] identify
the premises with reasonable certainty, it will be sufficient'" Id., at
249.
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