U.S. v. State of Tex., s. 81-2196

• Citation: 680 F.2d 356
• Decision Date: 12 July 1982
• Docket Number: Nos. 81-2196,81-2310 and 81-2330,s. 81-2196
• Parties: 5 Ed. Law Rep. 141 UNITED STATES of America, Plaintiff-Appellee, and Mexican American Legal Defense Fund, Lulac and G. I. Forum, Plaintiffs-Intervenors-Appellees, v. STATE of TEXAS, et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 356

680 F.2d 356

5 Ed. Law Rep. 141

UNITED STATES of America, Plaintiff-Appellee, and Mexican American Legal Defense Fund, Lulac and G. I. Forum, Plaintiffs-Intervenors-Appellees, v. STATE of TEXAS, et al., Defendants-Appellants.

Nos. 81-2196, 81-2310 and 81-2330.

United States Court of Appeals, Fifth Circuit.

July 12, 1982.

Mark White, Atty. Gen. of Tex., C. Ed Davis, Asst. Atty. Gen., William C. Bednar, Jr., Austin, Tex., for State of Tex.

Kelly Frels, Houston, Tex., for Houston Ind. School Dist.

Susan E. Waite, Houston, Tex., for Legal Foundation of America.

Michael D. Simpson, Washington, D. C., for Nat. Educ. Assoc.

Miriam R. Eisenstein, Walter W. Barnett, Attys., U. S. Dept. of Justice, App. Section, Civil Rights Div., Washington, D. C., for the U. S.

Peter D. Roos, Director, Educ. Litigation, MALDEF, San Francisco, Cal., for MALDEF.

Roger L. Rice, Center for Law & Educ., Inc., Cambridge, Mass., for LULAC and G. I. Forum.

Alan Jay Rom, Boston, Mass., for Deans, et al.

Richard Arnett, Deputy Com'r for Legal Services, Texas Educ. Agency, Austin, Tex., for Tex. Educ. Agency.

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

Before BROWN, GEE and GARWOOD, Circuit Judges.

GEE, Circuit Judge:

Procedural oddities characterized the trial of this case of great importance and are prominent among the matters assigned as error on appeal. Oral argument and an exhaustive canvass of the vast record have convinced us that the factual underpinnings of the proceedings below were too severely flawed to serve as the basis for the truly momentous decree of the trial court-one that affects the education of every student of limited English-speaking ability in the State of Texas and casts aside the state's language-remedial scholastic program in favor of one devised by the district court itself. We reverse.

Remote Procedural History

This appeal is another spinoff of the district court's general undertaking to supervise broad aspects of Texas' educational system and policy, an undertaking that commenced with a suit filed there by the United States in early 1970. That suit had as its target nine allegedly all-black school districts located generally in the northeastern portion of the state and eventuated in a comprehensive order directed to the Texas Education Agency ("TEA") concerning its responsibilities statewide, as well as the retention of jurisdiction by the trial court over TEA and thus, indirectly, over the Texas public school system at large.

As the opinion below notes, numbers of other actions followed concerning school districts around the state. United States v. State of Texas, 506 F.Supp. 405, 410 n.1 (E.D.Tex.1981). Among the provisions of the court's initial, far-ranging order was its section G, one requiring TEA to carry out a study of the educational needs of minority children throughout the entire state and to report its findings to the district court. Specific mention was made of "educational programs designed to compensate ... for unequal educational opportunities and ethnic isolation, as well as programs ... designed to meet the specific educational needs of students whose primary language is other than English ...." Id. at 409. In 1972, the appellees League of United Latin American Citizens ("LULAC") and GI Forum were allowed to intervene as representatives of all Mexican-Americans in Texas; and in 1975 these appellees, in effect, filed the present suit. This they did by moving for "enforcement" of the above-quoted portion of section G of the district court's prior order and for additional relief, claiming that Mexican-American students were being unequally treated in the Texas public schools. Thus the stage was set for the unusual procedural developments that attended trial and judgment in our case.

The Constitutional Issues: Arrival, Departure, and Return

Some time after the filing of appellees' motion, the defendants moved for the convening of a three-judge court, pointing out specific claims of constitutional violations in the motion, in its request for injunctive relief, and so on. ¹ In apparent response, at a hearing held in November 1976 on that motion, counsel for appellees stated, "we would move to amend our pleadings to clear up any question about that by deleting the constitutional claims." (emphasis added). To this the court responded: "I'm going to grant the motion to amend that has been filed by the intervenors in which they disclaim any intention to proceed under the Constitution." ² (emphasis added). Some months later plaintiffs did amend their pleadings to delete all direct references to the Constitution, and later still, in June of 1978, the court entered its formal order denying defendants' request for a three-judge court, writing in part as follows:

A three-judge court is required to hear "any suit which seeks to interpose the Constitution against enforcement of a state policy." Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 483, 85 L.Ed. 800 (1941) (emphasis added). In their present state, the pleadings in this case simply do not reflect such a suit. Although in their original Motion to Enforce the July 13 Order, plaintiff-intervenors alleged that defendants' actions violated "the Order of this Court and the Constitution and laws of the United States", a subsequent amendment excised all occurrences of the words "and the Constitution." In other words plaintiff-intervenors have chosen to ground their claim for relief not in the Constitution, but rather solely in the above specified federal statutes. At best, therefore, the Court has before it a claim that the Texas Bilingual Act of 1973 conflicts with two federal statutes.

(emphasis in original).

Later, however, the judge was to conclude that by time of trial, in December 1979, the constitutional issues had re-entered the case and were tried to him by implied consent of the defendants. Thus, having been abandoned by the plaintiffs in order to avoid a three-judge court, and having been read out of the case's front door by a formal order, these issues finessed the three-judge tribunal, found their way back into court by the window, were tried by a single judge, and form the primary and major basis of the court's opinion in the case. Nor, despite this peculiar scenario, can we, in view of actions by counsel for the defendants that we will describe shortly, disagree with the court that defendants' counsel, at any rate, believed that the constitutional issues were presented and were tried.

Constitutional Issues: Of Pretrial Orders and Proposed Opinions

Primary responsibility for the handling of the case for the state and the defendant agency and official was assigned by the Texas attorney general to Ms. Susan Dasher, a young assistant who had been licensed and practiced law in California for about three years before moving to Texas in 1978 and being, it appears, straightaway assigned to this case. The graduate of a law school not on the approved list of the Texas Supreme Court, Ms. Dasher was engaged in personal litigation throughout the term of her handling of this case seeking admission to the Texas bar, litigation that proved unsuccessful about the time of this appeal. Dasher v. Supreme Court of Texas, 650 F.2d 711, op. on rehearing, 658 F.2d 1045 (5th Cir. 1981). As, apparently, her sole source of assistance in this case, she was furnished a law student on whom-a somewhat poignant motion for continuance in the record advises-she "had to rely heavily ... for the organization and preparation of the ... case for trial." ³ Against this backdrop of counsel's relative inexperience and probable overextension, what followed in the handling of the case becomes more comprehensible, although some aspects of it remain curious indeed, and others all but defy analysis.

As of the entry, then, of the court's order of June 8, 1978, denying a three-judge court and minuting the removal of all constitutional issues from the case, the defendants had maneuvered these dangerous and difficult issues out of the case and faced only statutory claims. Yet, as we noted above, the trial court concluded that the constitutional issues later re-entered the case and decided it chiefly on the basis of them. Arguing that this was error, the state's appellate brief remarks, "It is simply astounding for the district court to have supposed that the defendants, having won this major procedural victory, somehow allowed the constitutional issue of alleged discrimination to be injected during the preparation of the 'pretrial order' or during trial of the case." Astounding it is indeed, but even so we must examine the record to determine whether it took place. We conclude that it did.

The first basis upon which the court below determined that these issues had re-entered the case was that of their inclusion in the so-called "Final Pre-Trial Order" filed by appellees on November 20, 1978. We have carefully examined that document which, with attachments, runs to over 200 pages and consumes an entire volume of the record. Nowhere in it appears any explicit reference to constitutional provisions or issues; all references are either to statutory provisions, such as 42 U.S.C. § 2000d, or 20 U.S.C. § 1703(f), or to section G of the court's seminal order. When pressed at oral argument to point to such a constitutional reference, counsel for appellees could do no more than refer to the use of the phrase "root and branch" in the pretrial order, remarking that "when we talk root and branch that to us is jargon for fourteenth amendment." We think this an entirely insufficient basis upon which to posit implied consent to litigate issues that had been once read out of the case in a formal order. Here, if anywhere, a clear reraising of the excised contention should be required. Such trials by implied consent are difficult to justify, depending as they do on determining that the parties recognized-or at the least...