United States v. State of Tex., Civ. A. No. 5281.

CourtUnited States District Courts. 5th Circuit. United States District Court of Eastern District Texas
Writing for the CourtStanford Von Mayrhauser and Joan Allen, Princeton, N.J., for Educational Testing Service
Citation628 F. Supp. 304
Decision Date27 August 1985
Docket NumberCiv. A. No. 5281.
PartiesUNITED STATES of America, Plaintiff, Lulac, Gi Forum, and NAACP, Plaintiffs-Intervenors, Leslie Dugas, Jr., Clevin Giles, Elaine Hudson, Dietrick Mays, Ernestine Randall, William Traylor, and Kimberly Wilson, Nelda Elizalde, Marianela Gonzalez, Aurora Gutierrez, Genoveva Marmodejo, Oralia Martinez, Irene Rael and Linda Reyes, Applicants for Intervention, v. STATE OF TEXAS, et al., Defendants.

628 F. Supp. 304

UNITED STATES of America, Plaintiff,
Lulac, Gi Forum, and NAACP, Plaintiffs-Intervenors,
Leslie Dugas, Jr., Clevin Giles, Elaine Hudson, Dietrick Mays, Ernestine Randall, William Traylor, and Kimberly Wilson, Nelda Elizalde, Marianela Gonzalez, Aurora Gutierrez, Genoveva Marmodejo, Oralia Martinez, Irene Rael and Linda Reyes, Applicants for Intervention,
v.
STATE OF TEXAS, et al., Defendants.

Civ. A. No. 5281.

United States District Court, E.D. Texas, Tyler Division.

August 27, 1985.


628 F. Supp. 305

Kevin O'Hanlon and Robert Sinderman, Asst. Attys. Gen., State of Tex., Austin, Tex., Howard P. Willens and Bruce M. Berman, Wilmer, Cutler & Pickering, Washington, D.C., for defendants.

Stanford Von Mayrhauser and Joan Allen, Princeton, N.J., for Educational Testing Service.

Jeremiah Glassman and Joseph Rich, Civil Rights Div., U.S. Dept. of Justice, Washington, D.C., for U.S.

Roger Rice and Camilo Perez-Bustillo, META Project, Cambridge, Mass., Albert Kauffman, Norma V. Cantu and Jose Roberto Juarez, Jr., Mexican-American Legal Defense and Educational Fund, San Antonio, Tex., Audrey Little, Asst. Gen. Counsel, NAACP-Special Contribution Fund, Brooklyn, N.Y., Richard Dockery, NAACP, Dallas, Tex., Larry R. Daves, Tyler, Tex., for plaintiff intervenors Lulac, G.I. Forum and NAACP.

JUSTICE, Chief Judge.

Plaintiff-intervenors1 and the applicants for intervention ("applicants")2 seek a preliminary injunction to restrain the State of Texas, acting by and through the Texas Education Agency ("TEA"), from excluding students who fail the Pre-Professional Skills Test ("PPST") from enrollment in teacher education courses at colleges and universities in Texas.

In 1981, the Texas Legislature enacted a statute requiring "satisfactory performance on a competency examination on basic skills prescribed by Texas State Board of Education as a condition to admission into an approved teacher education program."3 The examination chosen by the State Board of Education was the PPST, which tests skills in mathematics, reading, and writing.4 If a student falls below the preclusionary scores set by the Board on any of the three components of the test, a student

628 F. Supp. 306
may not take more than six hours of courses in education until such time as he or she has passed all sections of the test. The test is apparently given about three times a year. A recent action by the State Board of Education allows students to take the PPST as often as it is administered, rather than only three times as the rules initially provided

There is no dispute that the requirements relating to the PPST have prevented several thousand students from enrolling in teacher education courses. Nor is it disputed that its requirements have had a massively adverse impact on Black and Hispanic education students. As of July 1985, after more than 18,000 persons had taken the test, defendant's statistics showed that 73% of Whites who took the test one or more times passed; by contrast, Hispanics passed at a rate of 34% and Blacks passed at a rate of 23%.

Plaintiff-intervenors and applicants claim that the manner in which the test was adopted, and the severity of its sanctions, violate their rights to equal protection and due process under the Constitution, their rights under Title VI of the Civil Rights Act, 42 U.S.C. § 2000d, and their rights as third-party beneficiaries to the contract between the United States and the State of Texas guaranteeing equal educational opportunity in institutions of higher education in Texas. They also allege that the actions of the Texas Education Agency5 with regard to the PPST violate this court's orders in United States v. Texas, 321 F.Supp. 1043 (E.D.Tex.1970), aff'd, 447 F.2d 441 (5th Cir.1971), cert. denied, 404 U.S. 1206, 92 S.Ct. 8, 30 L.Ed.2d 10 (1972). Since jurisdiction was retained in United States v. Texas, plaintiff-intervenors and applicants have come to this court for relief. A hearing was held on the motion for preliminary injunction between August 5 and August 14, 1985. Plaintiff-intervenors and applicants were represented at the hearing, as were the United States6 and the State of Texas. Counsel associated with the Educational Testing Service ("ETS"), which developed the PPST, were present as special counsel for the State of Texas.

A threshold question to be resolved is whether plaintiff-intervenors' and applicants' allegations properly fit within the provisions of this court's orders in United States v. Texas. The defendant contended vigorously at the hearing that these allegations, while undoubtedly stating a claim, did not fall under this court's jurisdiction in United States v. Texas, and that the entire action should have been filed as a new suit, preferably in the Western District of Texas.7 Therefore, the jurisdictional issue will be discussed first. Since it involves solely the characterization of plaintiff-intervenors' and applicants' claims, it must be clearly differentiated from the issue of whether they are entitled to a preliminary injunction, which involves an assessment of the merits of their claims.

JURISDICTION

A. Background

United States v. Texas was one of numerous actions involving desegregation of elementary and high schools in Texas. The action was filed on March 6, 1970. In late 1970, this court found that "the policies and practices of TEA have frequently— whether inadvertently or by design—encouraged or resulted in the continuation of vestiges of racially segregated public education within the state." United States v. Texas, 321 F.Supp. 1043, 1057 (E.D. Tex.1970), aff'd, 447 F.2d 441 (5th Cir. 1971), cert. denied, 404 U.S. 1206, 92 S.Ct. 8, 30 L.Ed.2d 10 (1972). The TEA was, therefore, ordered to devise a plan to remedy the segregation still extant in Texas.

628 F. Supp. 307
The plan was submitted, and further hearings were held. On April 20, 1971, an order8 was issued encompassing student assignments and transfers and, as well, changes in school district boundaries. Moreover, orders were included regarding desegregation in the six areas outlined by the Supreme Court in Green v. County School Board, 391 U.S. 430, 435, 88 S.Ct. 1689, 1692, 20 L.Ed.2d 716 (1968): students, faculty, staff, transportation, extracurricular activities, and facilities.9 This court retained jurisdiction of the action "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." United States v. Texas, 447 F.2d 441, 449 (5th Cir.1971)

Since the initial orders in 1971, this court has exercised its jurisdiction on several occasions to settle issues arising from the desegregation orders, including, inter alia, United States v. Texas, 342 F.Supp. 24 (E.D.Tex.1971) (finding Mexican-Americans a cognizable minority group and ordering desegregation of San Felipe Del Rio School District), aff'd, 446 F.2d 518 (5th Cir.1972); United States v. Texas, 356 F.Supp. 469 (E.D.Tex.1972) (enjoining state court proceedings restraining Highland Park School District from carrying out federal court order); United States v. Texas, 506 F.Supp. 405 (E.D.Tex.1981), rev'd on other grounds, 680 F.2d 356 (5th Cir.1982) (ordering bilingual education from 1-12 grades).10

B. Position of the Plaintiff-Intervenors

Plaintiff-intervenors and applicants claim that the manner in which the PPST was adopted, and the severity of the sanction for not passing each of its three components, violates Section E of the April 20, 1971, order, relating to treatment of faculty. Section E(1) of the order provides that:

Defendants shall not permit, make arrangement for, acquiesce in or give support of any kind to the hiring, assigning, promoting, paying, demoting, reassigning or dismissing, or treatment of faculty and staff members who work directly with children in a discriminatory manner on account of race, color, or national origin. Defendants shall be responsible for the application and enforcement throughout the State of the provisions of the Order of the Court in this case dated April 19, 1971 ... and specifically, the portions of that Order relating to the treatment of faculty and staff.

United States v. Texas, 447 F.2d at 446.

Section (E)2 of the April 20, 1971, order, to which plaintiff-intervenors and applicants also made reference during the

628 F. Supp. 308
course of the hearing and in their briefs, provides as follows
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 district will measure its faculty and staff for assignment, promotion, demotion, reassignment, or dismissal and by which it will judge prospective employees for faculty and staff positions.

Id.

The plaintiff-intervenors' and applicants' principal allegations with regard to the manner in which the PPST was adopted include a lack of notice to students, colleges, and universities about the PPST until virtually the eve of the first administration, thereby preventing any preparatory programs; a failure on the part of the state to institute an organized program of remediation—or, indeed, to take any action at all—in the face of clear knowledge of the test's impact on minority students; and a failure to conduct an appropriate validation study, contracting instead for an allegedly superficial study which plaintiff-intervenors strongly imply was conducted expressly as a bulwark against litigation. The plaintiff-intervenors and applicants allege that the preclusionary scores on the PPST were adopted arbitrarily, with severe consequences for those who perform poorly. In addition, they contend that the exclusion of minority students from...

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3 practice notes
  • U.S. v. LULAC, No. 85-2579
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 2, 1986
    ...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 q......
  • Meyers v. Bd. of Educ. of San Juan, No. 93-C-1080J.
    • United States
    • U.S. District Court — District of Utah
    • April 7, 1995
    ...The focus is on the program receiving federal money and not on a specific application of that program. Cf. United States v. Texas, 628 F.Supp. 304, 322 (E.D.Tex.1985) (the fact that no federal money was specifically channeled into a state's testing program for prospective teachers did not e......
  • Matter of Global Intern. Airways Corp., Bankruptcy No. 83-02765-2-3-11
    • United States
    • United States Bankruptcy Courts. Eighth Circuit. U.S. Bankruptcy Court — Western District of Missouri
    • February 25, 1987
    ...injunction, an injury is `irreparable' if it cannot be undone through monetary remedies." United States v. State of Texas, 628 F.Supp. 304, 313 (E.D.Tex.1985). If this is the correct rule, the plaintiff in this case has met its demands by demonstrating that, if the property which belon......
3 cases
  • U.S. v. LULAC, No. 85-2579
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 2, 1986
    ...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 q......
  • Meyers v. Bd. of Educ. of San Juan, No. 93-C-1080J.
    • United States
    • U.S. District Court — District of Utah
    • April 7, 1995
    ...The focus is on the program receiving federal money and not on a specific application of that program. Cf. United States v. Texas, 628 F.Supp. 304, 322 (E.D.Tex.1985) (the fact that no federal money was specifically channeled into a state's testing program for prospective teachers did not e......
  • Matter of Global Intern. Airways Corp., Bankruptcy No. 83-02765-2-3-11
    • United States
    • United States Bankruptcy Courts. Eighth Circuit. U.S. Bankruptcy Court — Western District of Missouri
    • February 25, 1987
    ...injunction, an injury is `irreparable' if it cannot be undone through monetary remedies." United States v. State of Texas, 628 F.Supp. 304, 313 (E.D.Tex.1985). If this is the correct rule, the plaintiff in this case has met its demands by demonstrating that, if the property which belon......

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