US v. Texas

• Decision Date: 22 March 2010
• Docket Number: No. 08-40858.,08-40858.
• Citation: 601 F.3d 354
• Parties: UNITED STATES of America, Plaintiff-Appellee, G.I. Forum and LULAC, Intervenor Plaintiffs-Appellees, v. State of TEXAS, Texas Education Agency, and J.W. Edgar, Commissioner of Education, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

601 F.3d 354

UNITED STATES of America, Plaintiff-Appellee G.I. Forum and LULAC, Intervenor Plaintiffs-Appellees, v. State of TEXAS, Texas Education Agency, and J.W. Edgar, Commissioner of Education, Defendants-Appellants.

No. 08-40858.

United States Court of Appeals, Fifth Circuit.

March 22, 2010.

COPYRIGHT MATERIAL OMITTED

Teresa Kwong (argued), Dept. of Justice, Civ. Rights Div., Appellate Section, Dennis J. Dimsey, Dept. of Justice, Civ. Rights Div., Javier Guzman, Washington, DC, for U.S.

David G. Hinojosa (argued), Mexican Amer. Legal Defense & Educ. Fund, San Antonio, TX, for GI Forum, Lulac.

James Carlton Todd, Asst. Atty. Gen. (argued), James Byron Eccles, Office of Atty. Gen., Gen. Lit. Div., Austin, TX, for State of Tex., Tex. Educ. Agency, J.W. Edgar.

Before KING, GARWOOD and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge.

Defendants-appellants, the State of Texas, the Texas Education Agency (TEA), and the Texas Commissioner of Education (collectively, defendants), appeal the district court's finding that defendants denied students with limited-English proficiency (LEP students) equal educational opportunities in Texas public schools, thereby violating the court's longstanding injunctive order (the Modified Order) and Section 1703(f) of the Equal Educational Opportunities Act (EEOA), 20 U.S.C. § 1703(f). Defendants also appeal the district court's denial of their subsequent motion to modify the Modified Order. We REVERSE the district court's denial of defendants' motion to modify, and REVERSE and REMAND as to the district court's finding of a violation of the Modified Order and Section 1703(f).

I. PROCEDURAL HISTORY

This appeal arises out of litigation with a long and complex procedural history. It is an offshoot of a suit originally filed in 1970 in the Eastern District of Texas by plaintiff-appellee, the United States, against defendants concerning nine all-black school districts located in northeastern Texas. The suit resulted in the district court's issuance of the July 1971 Modified Order, a permanent injunctive order that provided for the district court to supervise broad aspects of the State's educational system and policies.¹

The Modified Order contains a number of provisions. Pertinent to the merits of this case is Section G, entitled "Curriculum and Compensatory Education." Section G is comprised of two subsections. The first, Section G(1), contains broad language, providing that: "Defendants shall insure that school districts are providing equal educational opportunities in all schools." Section G(2) is more specific and requires TEA to conduct a study of the educational needs of minority children throughout the entire state and report its findings to the district court.²

Also pertinent is Section J of the Modified Order. Section J provides: "This Court retains jurisdiction of this matter 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."

In 1972, plaintiffs-intervenors-appellees, LULAC and G.I. Forum (collectively, intervenors), were allowed to intervene as representatives of all Mexican-Americans in Texas. In 1975, intervenors filed a motion to enforce Section G of the Modified Order, alleging that defendants were denying equal educational opportunities to Mexican-American students in Texas public schools. United States v. Texas (LULAC I), 506 F.Supp. 405, 410 (E.D.Tex. 1981), rev'd, 680 F.2d 356 (5th Cir.1982). Intervenors also alleged claims under the Equal Protection Clause of the Fourteenth Amendment and Section 1703(f).

In its January 1981 opinion, the trial court rejected intervenors' Section G claim, holding that "section G of the Modified Order required only the filing of a report to propose remedial programs," and TEA had already fulfilled this requirement. Id. at 410. Still, the trial court held that defendants had subjected Mexican-Americans to past de jure discrimination, and the state's failure to take appropriate action to meet language difficulties encountered by Mexican-American LEP students constituted a violation of Section 1703(f). Id. at 411, 433-34. On those grounds, the court ordered defendants to offer bilingual instruction to all Mexican-American LEP students in Texas public schools.³ Id. at 439-41.

Defendants appealed, and this court reversed and remanded. United States v. Texas (LULAC II), 680 F.2d 356, 372 n. 25 (5th Cir.1982). This court held that the evidence did not support the trial court's finding of past statewide de jure segregation of Mexican-Americans in Texas public schools. Id. at 362, 369-71. We further held that the trial court should have granted defendants' post-trial motion to vacate due to the state's enactment of new legislation. Id. at 372. Finally, this court expressed grave concern that no local school districts were party to the case,⁴ and instructed the district court, before proceeding on remand, to determine "what questions—if any—presented by the case are subject to resolution on a statewide basis." Id. at 374. On remand, intervenors did not seek, and the trial court did not make, any such determination, and nothing became of the case for some twenty-four years.

On February 9, 2006, however, intervenors filed a motion for further relief under the Modified Order, again alleging violations of Section G and Section 1703(f). On February 28, 2006, the United States intervened in a limited capacity.

On July 27, 2007, after a five-day bench trial, the district court denied intervenors' motion. United States v. Texas (LULAC III), No. 6:71-CV-5281, 2007 WL 2177369, at *18 (E.D.Tex. July 27, 2007).⁵ The district court held that intervenors failed to establish a Section G violation because no evidence of past statewide de jure segregation of Mexican-Americans was presented. Id. at *9. Further, the trial court held that intervenors failed to prove a Section 1703(f) violation because, viewing the panoptic results, the evidence showed that "language barriers are actually being overcome as to primary LEP students," and intervenors "failed to link data indicating under-performance by secondary LEP students with any flaw in Texas's bilingual/ESL program." Id. at *18.

On August 13, 2007, intervenors filed a motion to amend the judgment, arguing that the district court committed a manifest error of law and fact by ignoring the failure of the secondary LEP language program. Nearly a year later, on July 24, 2008, the trial court granted the intervenors' motion to reconsider the prior judgment, "in order to correct clear and manifest errors of law and fact upon which the judgment is based." United States v. Texas (LULAC IV), 572 F.Supp.2d 726, 730 (E.D.Tex.2008). The trial court then vacated its July 27, 2007 order in full, and entered a new judgment, holding that defendants had violated both the Modified Order and Section 1703(f). Id. at 755, 762. In taking these actions the trial court relied primarily on new "persuasive" authority, namely Flores v. Arizona, 516 F.3d 1140 (9th Cir.2008).⁶ It then granted a remedial decree pursuant to the EEOA violation, ordering defendants to "establish a new monitoring system and establish a language program that fulfill the requirements of the EEOA," "to submit a monitoring plan addressing failures of the monitoring program, and to submit a proposed new language program for secondary LEP students by January 31, 2009." From that decision, the defendants timely appealed.

On August 18, 2008, defendants filed a motion to further modify the Modified Order, arguing that this court's recent decision in Samnorwood Independent School District v. Texas Education Agency, 533 F.3d 258 (5th Cir.2008), constituted a change in law and required that the Modified Order's application be limited to the original school districts in the 1970 action. The trial court granted in part, and denied in part, defendants' motion, and amended the Modified Order to exempt the two Samnorwood school districts and all "school districts that: (1) were not parties to the original 1970 litigation; (2) were unitary prior to the commencement of the 1970 litigation; and (3) have never since been shown to have attempted to resegregate or act with segregative intent." United States v. Texas (LULAC V), No. 6:71-CV-5281, 2008 WL 5334404, at *7 (E.D.Tex. Dec. 17, 2008). Defendants also appeal from that order.

II. TRIAL COURT'S FINDINGS AND CONCLUSIONS

Background

Chapter 29 of the Texas Education Code mandates bilingual education and English as a second language ("ESL") programs in all Texas schools. TEX. EDUC. CODE § 29.051. Bilingual programs are offered in kindergarten through sixth grade (primary education), while ESL programs are offered in seventh through twelfth grade (secondary education). LULAC IV, 572 F.Supp.2d at 736. However, local school districts may elect either bilingual or ESL programs "or other transitional language instruction" for the seventh and eighth grade LEP students. TEX. EDUC.CODE § 29.053(d)(2).⁷ These programs are significantly different; bilingual instruction teaches course materials in both English and the student's native language, while ESL instruction teaches materials in modified English for easier comprehension by LEP students. LULAC IV, 572 F.Supp.2d at 735. Students' participation in bilingual and ESL programs is subject to parental permission, which may be, and sometimes is, withheld.

Under the Texas Education Code, "the school districts and charter schools created in accordance with the laws of this state have the primary responsibility for implementing the state's system of public education and ensuring student performance in accordance with this code." TEX. EDUC. CODE § 11.002. And, "an educational function not specifically delegated to TEA is reserved to and shall be performed by school districts or open-enrollment charter schools." Id. § 7.003. Under Section 7.021(b), TEA is given diverse powers...