980 F.2d 1514 (5th Cir. 1993), 91-4958, Frazier v. Garrison I.S.D.

Docket Nº:91-4958.
Citation:980 F.2d 1514
Party Name:, 24 Fed.R.Serv.3d 1504, David FRAZIER, Hattie Bradley, Bonnie Alexander and Juanita Griffin, Individually and on Behalf of Others Similarly Situated, Plaintiffs-Appellants, v. GARRISON I.S.D., Tyler I.S.D., Terrell I.S.D., Troup I.S.D., State of Texas, Texas Central Education, Texas Commission of Education, and Texas Education Agency, Defendants-A
Case Date:January 14, 1993
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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980 F.2d 1514 (5th Cir. 1993)

, 24 Fed.R.Serv.3d 1504,

David FRAZIER, Hattie Bradley, Bonnie Alexander and Juanita

Griffin, Individually and on Behalf of Others

Similarly Situated, Plaintiffs-Appellants,

v.

GARRISON I.S.D., Tyler I.S.D., Terrell I.S.D., Troup I.S.D.,

State of Texas, Texas Central Education, Texas

Commission of Education, and Texas

Education Agency, Defendants-Appellees.

No. 91-4958.

United States Court of Appeals, Fifth Circuit

January 14, 1993

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[Copyrighted Material Omitted]

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Larry Robert Daves and Carmen Rumbaut, San Antonio, Tex., for plaintiffs-appellants.

Ron Adkison, Wellbonr, Houston, Adkison, Mann & Sadler, Henderson, Tex., and Franklin Moore, Murphy, Moore & Bell, Fort Worth, Tex., for Garrison I.S.D.

James Connor Thompson, Asst. Atty. Gen., Austin, Tex. and John L. Ross, Thompson, Coe, Cousins & Irons, Dallas, Tex., for State of Texas, TX Cent. Educ. et al.

John L. Ross, Thompson, Coe, Cousins & Irons, Dallas, TX, for Tyler, I.S.D.

John Shelton Aldridge, Walsh, Judge, Anderson, Underwood & Schulz, Austin, Tex., for Terrell I.S.D.

Jack A. Jackson, Jackson & Jackson, Tyler, Tex., for Troup I.S.D.

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

Before BROWN, GARWOOD, and DEMOSS, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

PROLOGUE

Plaintiff schoolteachers (Teachers) brought this suit in the United States District Court for the Eastern District of Texas against several school districts (School Districts) and the State of Texas and its

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various agencies (State) 1 challenging the constitutionality of the Texas Examination for Current Administrators and Teachers (TECAT). The Teachers alleged that the TECAT, a state administered examination for teachers that tested basic reading and writing skills, violated Title VI and Title VII of the 1964 Civil Rights Act, the Age Discrimination In Employment Act (ADEA), the Equal Educational Opportunities Act of 1974, and the Due Process and Equal Protection Clauses of the Constitution. The Teachers moved the trial court pursuant to Rule 42(a) to consolidate this case with United States v. Texas, 447 F.2d 441 (5th Cir.1971), cert. denied, 404 U.S. 1016, 92 S.Ct. 675, 30 L.Ed.2d 663 (1972), a long-running state desegregation case, on the ground that this case and the Texas case involved common questions of law and fact. The Teachers also moved the trial court to certify them as a class for purposes of maintaining a class action. The trial court refused to certify the class, denied the Teachers' motion to consolidate, and granted summary judgment in favor of the School Districts on the Title VI claim, the Title VII claim, the ADEA claim, and the Due Process and Equal Protection claims. This is an appeal from the district court's final judgment. We affirm.

HOW IT ALL BEGAN

History Of The TECAT

On July 3, 1984, the Texas legislature passed into law House Bill 72 2 which contained numerous provisions for education reform including school funding, school finance reform, teacher raises, establishment of a teacher career ladder, provisions for school discipline management, restructuring of the State Board of Education (Board), and teacher competency testing. Section 13.047 of the act, 3 which provides for teacher competency testing, is the section at issue on this appeal. Section 13.047 provides:

(a) The board shall require satisfactory performance on an examination prescribed by the board as a condition to continued certification for each teacher and administrator who has not taken a certification examination under Section 13.032(e) of this code.

(b) The board shall prescribe an examination designed to test knowledge appropriate to teach primary grades and an examination designed to test knowledge appropriate to teach secondary grades. The secondary teacher examinations must test the knowledge of each examinee in the subject areas listed in Section 21.101 of this code in which the examinee is certified to teach and is teaching. If a teacher is not tested in an area of certification, the teacher must take the examination for that area within three years after beginning to teach that subject. The administrator examinations must test administrative skills, knowledge in subject areas, and other matters that the board considers appropriate. The examinations must also test the ability of the examinee to read and write with sufficient skill to perform satisfactorily as a professional teacher or administrator.

(c) In developing the examinations, the board shall solicit and consider the advice of classroom teachers and administrators. 4

(d) Each teacher must perform satisfactorily on the applicable examination on or before June 30, 1986, to teach the subject at a particular level unless a school district establishes to the satisfaction of the commissioner of education that there is an emergency need. A teacher may not teach under a determination of an emergency need for more than one school year.

(e) The board, in conjunction with school districts, shall provide teachers and administrators with an opportunity for board-developed preparation for the examination,

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including an opportunity for remedial aid.

(f) The board may limit the number of times a teacher or administrator who fails to perform satisfactorily on an examination may retake it, but each teacher must be given more than one opportunity to perform satisfactorily. The board shall determine the level of performance that is satisfactory.

(g) The board may exempt from the examination required by this section any person who, before the examination adopted under this section is prescribed, performed satisfactorily on an examination administered by an employing district if the board finds the examination to be substantially the same or at least as difficult as the examination prescribed by the board.

At its next session, however, the Texas legislature only appropriated enough funds 5 for the Board to administer an examination that tested basic reading and writing skills. 6 This examination became known as the Texas Examination for Current Administrators and Teachers (TECAT). In keeping with the mandate of section 13.047(f) of the act, which required that teachers who failed be given the opportunity to retake the exam at least one more time before the June 30, 1986, cut-off date, the Board offered the TECAT on March 10, 1986, and again on June 28, 1986. All teachers in Texas, regardless of the duration of their teaching tenure, were required to pass the TECAT before they could obtain recertification.

Shortly after the Board began administering the TECAT, Project Principle, a non-profit corporation composed of certified public school teachers and administrators, brought suit against the State of Texas in state district court alleging, inter alia, that section 13.047 was unconstitutional as violative of federal due process and equal protection. 7 State v. Project Principle, 724 S.W.2d 387, 389 (Tex.1987). The Texas Supreme Court held that the administrative procedures contained in the Texas Administrative Procedures Act, 8 which provided a teacher both the right to appeal the revocation of his teaching license to the commissioner of education, and the right to judicial review of that administrative proceeding in a state district court, were sufficient to satisfy the due process guarantees of the Fourteenth Amendment. 724 S.W.2d at 391. In addition, the Texas Supreme Court held that section 13.047 did not violate the equal protection clause of the Texas Constitution 9 because the classification of teachers into those who passed the test and those who failed the test bore a rational relationship to the legitimate state objective of maintaining competent teachers in the public schools; therefore, section 13.047 was constitutional. Id.

Shortly thereafter two African-American teachers challenged the TECAT in the United States District Court for the Eastern District of Texas alleging that the Board and the State of Texas chose a cutoff score on the TECAT that worked to discriminate against them based on age and race in violation of Title VII, the ADEA, and the Employee Retirement Income Security Act (ERISA). Fields v. Hallsville Indep. School Dist., 906 F.2d 1017, 1018 (5th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 676, 112 L.Ed.2d 668 (1991). The suit named the Texas Education Agency, Texas Commissioner of Education, Texas State Board of Education, State of Texas (collectively, the State), and the Hallsville Independent School District (HISD) as defendants.

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Id. The federal district court granted summary judgment for the State defendants on the ground that the State was not the teacher's employer; in addition, the district court granted summary judgment for HISD on the ground that, under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), a Title VII action could not be maintained unless the plaintiffs, after losing their jobs, had applied for a job for which they are qualified. Fields, 906 F.2d at 1021. In that case, the district court found that the teachers' verbal expression of interest did not create a genuine issue that the teachers applied for vacancies. On appeal, the Fifth Circuit affirmed. Id. at 1021-22.

The case at hand involves a similar challenge to the TECAT as that decided in Hallsville. 906 F.2d at 1017. The Teachers have cited to numerous conflicting statistical analyses of the discriminatory or nondiscriminatory impact of the TECAT both on minority schoolteachers and schoolteachers over forty years of age. The relevant statistical studies provided by counsel are tabulated in the Appendix to this opinion.

The Case At Hand

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