793 F.2d 636 (5th Cir. 1986), 85-2579, United States v. LULAC

Docket Nº:85-2579.
Citation:793 F.2d 636
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. LULAC, GI Forum and NAACP, Plaintiffs-Intervenors-Appellees, v. STATE OF TEXAS, et al., Defendants-Appellants.
Case Date:July 02, 1986
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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793 F.2d 636 (5th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellant,

v.

LULAC, GI Forum and NAACP, Plaintiffs-Intervenors-Appellees,

v.

STATE OF TEXAS, et al., Defendants-Appellants.

No. 85-2579.

United States Court of Appeals, Fifth Circuit

July 2, 1986

As Clarified Sept. 12, 1986.

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[Copyrighted Material Omitted]

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Kevin T. O'Hanlon, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for State of Texas.

Brian K. Landsberg, Chief, Appellate Section, Civ. Rights Div., Michael Carvin, Washington, D.C., Bob Wortham, U.S. Atty., Steven M. Mason, Asst. U.S. Atty., Tyler, Tex., Jeremiah Glassman, Irving Gornstein, Educ. Opp. Civ. Rights Div., for U.S.

Bruce M. Berman, Howard P. Willens, Washington, D.C., for amicus curiae Educational Testing Service.

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Roger Rice, Camilo Perez-Bustillo, Jose Roberto Juarez, Jr., Cambridge, Mass., for GI Forum and NAACP.

Albert Kauffman, San Antonio, Tex., for LULAC, GI Forum, et al.

Audrey Little, Asst. Gen. Counsel, NAACP, Brooklyn, N.Y., for Leslie Duggan, Jr., et al.

Michael Slutsky, Richard F. Watt, Cotton, Watt, Jones & King, Chicago, Ill., for amicus curiae Texas Civil Liberties Union.

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

Before THORNBERRY, RUBIN and JOLLY, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

This action challenges the Texas requirement that college students pass a Pre-Professional Skills Test (PPST) before scheduling more than six hours of professional education courses at any state college or university. To teach in Texas public schools, a teacher must have a certificate from the Texas State Board of Education, which requires either an undergraduate minor in education, based on eighteen hours of courses in professional education, or a major in education, based on thirty hours. A college student who wishes to become a teacher could not do so without first passing the PPST and then passing the professional education courses.

Intervenors representing two sets of minority groups, one composed of elementary and secondary school students and the other of college students who desire to take education courses, challenge this requirement because the passing rate for minority-group students who take the PPST is, on average, much lower than the passing rate for white students. They assert that this discrepancy impedes minority students from becoming teachers in violation of their constitutional and statutory rights, and will prevent the Texas school system from hiring a sufficient number of minority teachers to fulfill its obligation under a court desegregation order.

The district court, 628 F.Supp. 304, issued a preliminary injunction requiring the Texas Education Agency to permit students to enroll in education courses who would have been qualified to do so but for their having failed the PPST. The district court did not determine, however, whether or not the test is a valid measure of the basic skills essential to perform satisfactorily in teacher-education courses. A state is not obligated to educate or certify teachers who cannot pass a fair and valid test of basic skills necessary for professional training, and the record contains considerable evidence tending to show that the PPST is a valid measurement of such skills. Without assessing this evidence, the district court had no adequate basis to decide the requisites for issuance of a preliminary injunction. The extent of the harm to the parties, whether that harm is irreparable, the likelihood of success on the merits by demonstrating discriminatory intent, and the effect of the injunction on the public interest all turn on whether the test is a fair measure of necessary skills. Accordingly, we vacate the preliminary injunction.

I.

The PPST requirement is part of a Texas program to improve the quality of education in the State. It was adopted after five years of effort by Texas state agencies to raise the level of competency of the State's teachers. In 1979, the Governor of Texas established an Advisory Committee on Education. The Committee recommended that the State Board of Education test the basic skills of all candidates for teacher certification. At the same time, the Texas legislature created a Commission on Standards for the Teaching Profession. Acting on the Commission's recommendations, the Texas legislature in 1981 adopted a law directing the Board to require satisfactory performance in an examination of basic skills as a condition to admission into any approved teacher-education program. Contemporaneously, the legislature directed the Board to require each teacher already certified to pass an examination designed

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to test the teacher's knowledge of the subjects taught, as a condition of continued certification. After giving some consideration to other tests and to the possibility of the State developing its own examination, the Board decided in 1982 that the PPST test of basic reading, writing, and arithmetic skills should be used, if it could be validated for the statutory purpose.

The PPST is designed to test basic skills at the twelfth grade level. It was developed by Educational Testing Service (ETS), a corporation established in 1947 by three major educational organizations, the American Council on Education, the College Entrance Examination Board, and the Carnegie Foundation for the Advancement of Teaching. ETS provides educational tests to be used at the preschool, elementary, secondary, college, and graduate levels, as well as a number of licensing, certification, and employment examinations. It developed, and currently administers, the National Teacher Examinations, a battery of standardized tests used in twenty-five states to measure the academic preparation of college seniors and graduates who have completed programs in teacher education.

The State Board solicited detailed proposals from several firms for validation studies before contracting with IOX Associates, a firm that specializes in performing such studies, to determine whether the PPST was valid, and to establish passing test scores.

IOX issued a lengthy validation report based on the assessments of 624 Texas public school and university teachers. These educators were asked to examine the test, both overall and question by question, to decide whether students in Texas college preparatory programs were ordinarily taught what the test required them to know, and whether teachers would need to know the tested material in order to perform successfully in teacher education courses and as teachers. More than 95% of the educators reported that students in the Texas school system were taught "most or almost all" the information needed to answer all of the questions on the test. An equal percentage reported that "most of almost all" of the questions on the test required information relevant to successful performance as a teacher. On a question by question basis, 88% reported that the reading, writing and essay portions were relevant to success as a teacher, and 78% reported that the mathematics portion was relevant. More than 75% found the test relevant to the professional education courses for which it determined eligibility. The report concluded that, in the opinion of IOX, the PPST met the requirements of validation for relevance to the teacher education program and to performance as a classroom teacher. To counter the test-validation testimony of the Board's witnesses, the intervenors offered expert testimony that the test is biased against minority-group students and is not a valid test of either success in education courses or in classroom teaching.

The Board, in February 1984, formally approved the use of the test and established the scores that would be necessary to pass. The PPST has also been chosen by four other states--Arizona, Kansas, Tennessee, and Delaware--either as a prerequisite to enrollment in college-level professional education courses or as a prerequisite to teacher certification.

Before the Board adopted the test, it learned that, based on experimental testing, white students would pass in a much larger proportion than Black and Hispanic students. The test was first administered in March 1984. Since then it has been given three times every year, and students are permitted to take it as many times as they wish. The prediction was correct: 73% of the Anglo-Whites, 34% of the Hispanics, and 23% of the Blacks who have taken the test passed it. The passing rates of Black and Hispanic students improved significantly the second year the test was given, while the rate for white students remained about the same. The failure rate for both Black and Hispanic students, however, remains much higher than that for white students. Three times as many

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Blacks and more than twice as many Hispanics have failed the test as have Whites.

Minority enrollment in the public schools is expected to reach fifty percent during the next few years. At present, Hispanic students constitute 29% and Blacks 15% of total state enrollment, while only 12% of the teachers are Hispanic and 11% are Black. Thus, at present, these minority groups provide 44% of the students but only 23% of the teachers. A test that reduces the entry of minority-group teachers would adversely affect that ratio.

II.

This suit was instituted by the United States to desegregate Texas public elementary and secondary schools long before adoption of the PPST. After lengthy proceedings, a desegregation order was issued in 1971. 1 Although the United States was the original plaintiff, it now joins with the State of Texas in defending the PPST requirement. The challenge comes instead from two groups of intervenors: (1) organizations...

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