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(l), 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 (LU-LAC I),
Defendants appealed, and this court reversed and remanded.
United States v. Texas (LULAC II),
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,
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),
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,
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).
LU-LAC IV,
Under the Texas Education Code, “[t]he 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, “[a]n 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 to “administer and monitor compliance.” TEA is given certain authority respecting monitoring compliance with various programs, including the state bilingual education and ESL programs. Id. §§ 29.051-29.064. Under Section 7.028(a), such compliance monitoring function extends “only as necessary to ensure ... compliance with federal law and regulations” (and financial integrity and certain “data integrity”); and under section 7.028(b), “[t]he board of trustees of a school district or the governing body of an open-enrollment charter school has primary responsibility for ensuring that the district or school complies with all applicable requirements of state educational programs.” TEA is required to “evaluate the effectiveness of [bilingual and ESL] programs” as “compared to state established standards.” Id. §§ 29.062(a), 39.053(c). Factors to be considered include, among other things, drop-out rates, graduation rates, and standardized test passing rates. Id. § 39.053(c).
In 2003, the TEA’s previous monitoring program to evaluate program compliance was replaced with the Performance Based Monitoring Analysis System (PBMAS).
Problems With PBMAS
The district court identified two overall problems with TEA’S monitoring procedures: (1) the kind of data collected by PBMAS inaccurately reflects how well a district is performing and cannot adequately detect deficiencies at the campus level; and (2) TEA’S inadequate response to problems flagged by PBMAS contributes to the denial of educational opportunity-
In particular, the court determined that data collected by PBMAS show that some school districts are likely under-reporting the number of LEP students, and TEA has done nothing to verify these numbers. The court also found that although TEA compared the bilingual-ESL indicators to state standards for all students, TEA has no procedure for comparing the performance of LEP students to non-LEP students directly. The court further found that PBMAS’s aggregation of scores for multiple grade levels as well as for entire school districts distorted the performance indicators and masked problems at specific schools.
With respect to on-site visits, the court determined that TEA had not conducted any on-site monitoring for some years and had no bilingual-ESL certified monitors' at the time of the trial. The court also considered other ways TEA monitors LEP students, such as monitoring that it performs under the No Child Left Behind (NCLB) program and the Texas accountability rating system. The court found that, although some of these monitoring programs disaggregate student performance data, they do not overcome the deficiencies in PBMAS because they do not target all relevant criteria for evaluating LEP students.
Achievement Of LEP Students
The district court also found that too high a proportion of the statewide
secondary
LEP student population were failing. At all grade levels and in all subject areas, secondary LEP students are performing poorly on TAKS. In fact, secondary LEP students have much lower passage rates on standardized tests than the general student body — creating a significant gap in achievement that ranges (roughly) between thirty-five and forty-five percentage points. Also, secondary LEP students have higher retention and drop-out rates when compared to the general student population. “LEP students fail to progress through or exit LEP programs in a reasonable time.”
LULAC IV,
The trial court made no finding or determination that with respect to primary grades (kindergarten through sixth grade) the defendants had violated Section 1703(f).
III. DISCUSSION
A Appellate Jurisdiction
The United States and intervenors first argue that this court lacks jurisdiction to ■ review the interlocutory LEP Order. We disagree.
28 U.S.C. § 1292(a)(1) provides this court with jurisdiction over “[ijnterlocutory orders of the district courts of the United States ... granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.” The trial court ordered that defendants “establish a monitoring system and establish a language program that fulfill the requirements of the Equal Education Opportunity Act, 20 U.S.C. § 1703(f)” for the 2009-2010 academic year and thereafter. The LEP order also requires defendants to “submit a monitoring plan addressing the failures of PBMAS and to submit a proposed new language program for secondary LEP students by January 31, 2009, or earlier.”
Id.
We find these instructions to be sufficiently coercive to constitute a mandatory injunction appealable under Section 1292(a)(1).
See Morales v. Turman,
Though the above instructions do not specify the plan’s exact content, defendants were ordered to affirmatively (and promptly) act to establish a monitoring system and to devise and implement a new secondary LEP program. There are over 1,200 school districts in the State of Texas. Devising a new monitoring system and secondary LEP language program for all of these districts would require extraordinary effort. Defendants would not only be forced to address a wide variety of concerns, e.g., funding, staffing, and even their own legislative authority to create and carry out such a plan, they would also need to implement substantial changes systemwide in a very short period of time.
Because the district court’s order compels defendants to promptly and affirmatively act in a specific and extremely extensive manner, the order constitutes a mandatory injunction over which this court may assert its appellate jurisdiction.
B. Standard of Review
The district court’s order granting intervenors’ motion to alter the judgment, pursuant to Federal Rules of Civil Procedure 52(b) and 59(e), is reviewed for abuse of discretion.
See Ross v. Marshall,
C. Section G of the Modified Order
The district court retained remedial jurisdiction over all actions brought to
“The Modified Order directs Defendants to take affirmative steps to eliminate all remaining vestiges of the former
de jure
segregated school system in Texas, to prevent the recurrence of a segregated system, and to achieve fully integrated schools.”
LULAC IV,
This court has repeatedly acknowledged the historical and statewide
de jure
segregation of black and white students in Texas, but has held that at no time “ha[s] Texas segregated Anglo students from Mexican-American ones by law.”
United States v. Gregory-Portland Independent School District,
Further, the district court erred in relying on its broad remedial jurisdiction under the Modified Order to assert jurisdiction over intervenors’ EEOA claim. In determining whether it had jurisdiction, the trial court reasoned that, because intervenors’ claims were a continuation of the 1981 intervention under the Modified Order, the “instant action [was] a successive motion ... lineally descending from the Fifth Circuit’s remand in [1982].”
LU-LAC IV,
It is unclear to this court how intervenors’ claim could be a successive motion when the original claim was previously denied. And even if, as the trial court suggests, intervenors raised new facts suggesting a violation of Section G’s broader principle of equal educational opportunities, there has been no finding of statewide de jure segregation of Mexican-Americans in Texas. Thus, the lower court erred in finding that intervenors could establish a Section G violation, and the district court should not have exercised jurisdiction over intervenors’ supplemental EEOA claim pursuant to its remedial jurisdiction over the Modified Order.
Because intervenors’ Section G claim was invalid pursuant to the district court’s own order in 1981 and Fifth Circuit precedent, we hold that intervenors’ Section G and EEOA claims should have been severed into entirely separate lawsuits.
D. Equal Educational Opportunities Act
1. Absence of Local Districts
The district court’s finding of an EEOA violation is unreliable because the district court failed to adequately address this circuit’s 1982 remand instructions. In 1982, this court questioned whether intervenors’ EEOA claim could be appropriately addressed absent local school districts as parties. Specifically, we concluded that “there exists little if any practical or logical justification for attempting to deal on a statewide basis with the problems presented by this case.”
LULAC II,
“[T]he language problems to be met will necessarily vary by district.... [Wjhether the effect of a local language program, state-mandated or not, constitutes appropriate action to deal with language barriers faced by the students of a given school district will of necessity be an essentially local question.... We fail to see how [a question of Section 1703(f) compliance] can be properly resolved in the absence of the school district concerned or how [it] can effectively be dealt with on a statewide basis.... [W]e therefore direct the district court to determine ... what questions — if any — presented by the case are subject .to resolution on a statewide basis before proceeding further on the. remand that we mandate.”
Id. at 374.
In light of this court’s analysis of the evidence below, we conclude that the issues raised by intervenors’ EEOA claim have not been properly addressed in the absence of individual school districts as parties.
This court notes that intervenors identified fourteen.LULAC members who were parents of one or more LEP students. Those parents represent, in total, twenty LEP students attending schools within
Further, because no school district is a party to the present litigation, the issue remains as to whether the district court constitutes an “appropriate district court” capable of asserting jurisdiction over intervenors’ claim. See 20 U.S.C. § 1708 (“The appropriate district court of the United States shall have and exercise jurisdiction of proceedings instituted under [this statute].” (emphasis added)). The district court improperly relied on its remedial jurisdiction under the Modified Order to assert jurisdiction over intervenors’ supplemental EEOA claim; thus, it failed to adequately address whether it constituted an “appropriate district court” pursuant to Section 1708. Congress did not define “appropriate district court” in the statute, and there is little legislative history or judicial precedent on the issue.
We conclude that “an appropriate district court” is normally the district court in which a local school district, as a party to the action, is located. And once one or more local districts are added as parties in this litigation, the district court should reconsider whether it constitutes an “appropriate district court” for jurisdictional purposes or if the case should, instead, be handled in a forum that constitutes a proper venue for such additional parties.
2. The Evidence Presented Below
This court’s decision regarding the necessity of a local school district is further supported because the record below is insufficient to uphold the trial court’s finding of an EEOA violation. To find a violation of, and order a remedy under, the EEOA, intervenors must establish (1) a violation of a student’s rights under the EEOA, (2) that the violation “stem[med] from a failure to take ‘appropriate action’ ” on the part of the defendants,
Home,
Under the EEOA, a state may not “deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin, by ... the failure by an educational agency to take
appropriate action
to overcome language barriers that impede equal participation by its students in its instructional programs.” 20 U.S.C. § 1703(f) (emphasis added). Both state and local educational agencies are responsible for taking “appropriate action” under the statute,
11
but the EEOA “leave[s] state and local educational authorities a substantial amount of latitude in choosing the program and techniques they would use to meet their obligations under the EEOA.”
Castaneda v. Pickard,
“[T]he State of Texas has chosen a system of shared responsibilities between state actors and local officials” in educational matters.
LULAC TV,
To determine the appropriateness of an educational agency’s action, this court has instituted a three-prong test: (1) whether the program is based on sound educational theory, (2) whether reasonable efforts are being made to implement the theory (implementation prong), and (3) whether the program, over a legitimate period of time, has achieved some success in overcoming language barriers (results prong).
Castaneda,
The district court’s ruling that a given defendant has or has not taken the “appropriate action” required of it under section 1703(f) presents “a mixed question of fact and law,” review of which requires us to determine whether the trial court’s “conclusion was adequately supported by subsidiary findings of fact which do not appear clearly erroneous.”
Castaneda,
a. Implementation Prong
Under the implementation prong, a court must determine whether defendants’ implementation of PBMAS “follow[s] through with practices, resources and personnel necessary to transform the [educational] theory into reality.”
Castaneda,
According to the district court, defendants failed the implementation prong because PBMAS, as implemented, cannot effectively monitor the progress of LEP programs and students.
LULAC IV,
1. Equality Based Comparisons
First, the trial court determined that PBMAS was flawed because it did not make equality based comparisons between LEP and non-LEP students. Data collected under PBMAS compares LEP student achievement to state assigned target passage rates; a district’s deviation from state targets determines its performance level, which in turn determines whether and to what degree TEA will intervene. Thus, PBMAS does not directly compare LEP student achievement with non-LEP student achievement, and absent such a direct comparison, the district court concluded that the program could not adequately monitor the effectiveness of LEP programs. The only basis the district court provided for this conclusion was that the EEOA is an equality based statute.
Federal law provides no instruction as to how states should analyze LEP student achievement. But the Supreme Court did recently hold that “the EEOA requires ‘appropriate action’ to remove language barriers, § 1703(f), not the equalization of results between native and nonnative speakers on tests administered in English.”
Home,
Further, reasonable minds could differ over what comparative method is most effective to determine whether language barriers are being overcome. The State of Texas and the TEA have determined that success is best measured by determining whether LEP students are achieving state-passage rate targets, and there is no evidence that the district court’s preferred method of comparison is better than that of the State’s.
In fact, the district court’s method comes with significant faults. For example, standardized tests are administered to secondary LEP students in English, a language in which they, by definition, lack proficiency.
Horne,
The district court failed to adequately acknowledge any of the above criticisms and, instead, abused its discretion by supplanting defendants’ educational policy decision with its own judgment. Moreover, there is no evidence that any such method of comparison deficiency caused any deprivation of the Section 1703(f) rights of Mexican-Ameriean LEP students.
2. Under-identification of LEP Students
The district court also determined that school districts are “likely” under-identifying LEP students.
LULAC IV,
At trial, intervenors presented evidence that, while the state average of parental denials is 4.9%, some districts have reported a significantly higher percentage of denials.
16
Based on this evidence, the trial court determined that those districts must be under-identifying LEP students, and this under-identification decreases the perceived achievement gap between LEP and non-LEP students.
LULAC IV,
We find that the district court reached this conclusion in error. The district court based its conclusion on the belief that a parental denial altered the identification of the student, so that the child is no longer characterized as LEP.
Id.
at 767-68. This conclusion is entirely incorrect — once students are identified as LEP, they remain identified as such until they obtain English proficiency, regardless of participation in the program. Thus, the district court abused its discretion in determining
3. Aggregation of Data
The district court also took issue with the PBMAS monitoring system’s aggregation of data at the district level. 17 Id. at 768. The district court held that this comparative method prevents intervention on individual campuses that are not performing as well as the district overall. In reaching this conclusion, the court relied upon a study which showed that 277 schools, attended by a total of 54,963 LEP students, performed at a performance level lower than the stage of intervention required by the district’s assigned performance level. 18 However, this study did not ascertain the total number of campuses in need of intervention or the total number of campuses subject to intervention based on the district-wide data. Thus, it did not provide what percentage of campuses in need of intervention or subject to intervention these 277 campuses actually represented.
Rather than questioning the significance of the report, the trial court perfunctorily concluded that aggregation of data at the district level rendered the PBMAS monitoring system ineffective. Further, the trial court determined that it would be more reasonable for TEA to analyze data at the campus level to avoid this “masking effect.” 19 This conclusion ignores the allocation of shared responsibilities within the Texas education system. Under Texas’s system, local districts are primarily responsible for implementing LEP programs, and addressing and remedying under-performing campuses within their own district. On the other hand, TEA is responsible for intervening in failing districts to ensure overall compliance. 20
There is no finding nor sufficient evidence that individual districts are ignoring LEP under-performance on individual campuses or sufficient evidence of resulting actual harm to such campuses and their students. We accordingly find that the district court abused its discretion in supplanting defendants’ policy choice with its own preferred method of comparison. 21
b. Results Prong
Under the results prong, this court must determine whether defendants’ program, “after being employed for a period of time sufficient to give the plan a legitimate trial, [failed] to produce results indicating that the language barriers confronting students are actually being overcome,” and thus,
“no
longer constitute^] appropriate action.”
Castaneda,
To begin with, we note that, statewide, the total secondary school LEP population is only some twenty percent of the total LEP student population.
This court does not dispute that secondary LEP student performance data is alarming. It is clear that LEP students at all secondary grades are not performing satisfactorily on TAKS, and the performance data indicate significant achievement gaps as compared to passage rate targets — roughly falling anywhere between a thirty-five to forty-five percent gap in achievement. This court is further concerned that there is little evidence that these gaps are steadily decreasing over time or that secondary LEP students are showing signs of steady improvement on standardized tests.
But in spite of these real concerns, we find that the district court over-emphasized the significance of student achievement scores. As mentioned previously, it is difficult for standardized tests administered in English to accurately capture an LEP student’s knowledge of core curriculum. And, “[i]t is inevitable that [LEP] students (who by definition are not yet proficient in English) will underperform as compared to native speakers.”
Horne,
Further, the district court’s analysis of student achievement data was not restricted to the longitudinal data derived from the PBMAS system. Instead, the district court reviewed data over a period of four years, from the 2003-2004 school year to
We find this period of time insufficient to show whether defendants’ use of PBMAS enables them to effectively monitor LEP programs and ensure EEOA compliance.
See Castaneda,
We also take issue with the district court’s conclusion that the “totality of [the] data establishes causation.”
23
LULAC LV,
The above comparisons have little significance. First, these comparative factors suffer the same faults as student achievement scores — the data was collected prior to PBMAS implementation, and because the system was implemented only for the 2004-2005 school year, the comparative factors are not based on longitudinal data. Second, a 1.1% difference in the drop out rate between LEP and non-LEP students is not significantly probative. And though the retention rates show a more significant gap, it is foreseeable that LEP students would have greater difficulty in mastering core curriculum while simultaneously trying to achieve English proficiency. Last, the rate of LEP secondary student participation in advanced courses is of little pro
More significantly, the totality of the data does not explain how the “failure” of LEP students was caused by errors or omissions on the part of TEA. To find a violation of the EEOA, a court must make sufficient findings of fact to support a conclusion that student failures “stem from [defendants’] failure to take ‘appropriate action.’ ”
Horne,
Under Texas law the school districts are the ones having “the primary responsibility for implementing the state’s” bilingual and ESL programs, Tex. Educ. Code § 11.002 (emphasis added), and the boards of trustees of such districts have “primary responsibility for ensuring the district ... complies with all applicable requirements of state educational programs.” Id. § 7.028(b). Further, each school district determines whether ESL or bilingual programs (or other transitional language instruction) are used in the seventh and eighth grades. Id. § 29.053(d)(2). There is essentially no evidence, findings or analysis of the performance of any individual school districts or any groups of districts (whether grouped geographically, or by either overall and/or LEP student population size, or by some socio-economic criteria, or on any other basis), or of the presence or absence or the extent or nature of differences in performance of LEP students (or students as a whole), or the nature of the bilingual or ESL programs and the implementation thereof, as between different districts, or groups of districts, or the like. 24 There is simply no substantial evidence that diverse implementation deficiencies in numerous different school districts did not primarily cause the poor performance of so many secondary LEP students.
Moreover, the district court erred in failing to consider other possible causes for the secondary LEP student failure.
See, e.g.,
note 22,
supra.
The district court did not explore alternative causes because it concluded that primary and secondary LEP students suffer similar socio-economic conditions, but show significantly different levels of achievement; thus, “social and economic factors ... are not the culprit.”
LULAC IV,
While we agree that primary and secondary LEP students in a given school district likely exist in similar social and economic situations, we do not believe they are exposed to the same challenges. For example, the Supreme Court recently recognized that secondary LEP students face a greater number of obstacles:
“There are many possible causes for the [under-]performance of students in [LEP programs]. These include the difficulty of teaching English to older students (many of whom, presumably, were not in English-speaking schools as younger students) and problems, such as drug use and the prevalence of gangs.”
Horne,
In light of the above errors, we hold that the evidence relied upon by the district court does not establish that TEA has failed to take “appropriate action” to overcome language barriers nor does it establish that TEA has somehow abdicated responsibility in monitoring the secondary LEP program. Nonetheless, we recognize that LEP student performance is alarming, and we encourage the district court and the parties involved to reconsider whether one or more individual school districts should be added to this litigation in order for it to proceed (with transfer to the proper district and division as appropriate). By adding individual districts, the court can better examine the circumstances of specific students, schools, and districts, which will be invaluable evidence for determining the cause of LEP student failure and how best to remedy it.
We do not suggest that state defendants cannot be held liable under the EEOA. Instead, we merely hold that an appropriate analysis of an EEOA claim should be conducted with regard to a particular district or districts, with state educational agencies serving as additional parties. 26
E. Motion to Modify the Modified Order
This court reviews the district court’s order granting in part, and denying in part, defendants’ motion to modify the order, pursuant to Federal Rule of Civil Procedure 60(b)(5), for abuse of discretion.
Frazar v. Ladd,
Defendants argue that this court’s decision in
Samnorwood Independent School District v. Texas Education Agency,
“[T]he prophylactic provisions created by the Modified Order to remedy the segregative conduct on the part of TEA and all-black schools in East Texas should not be imposed on these two panhandle school districts that had long previously already desegregated and have never since been found to have acted with segregative intent.”
Id.
at 269. Central to the court’s analysis was the fact that there had been no showing of a constitutional violation by the school districts themselves, and “the modi
The trial court read
Samnorwood
very narrowly, determining that this Court’s decision was largely based on the fact that the two school districts involved had been unitary prior to the implementation of the Modified Order.
LULAC V,
The Modified Order was issued for the purpose of eliminating the diverse continued local practices and vestiges of
de jure
racially segregated public education.
27
Since its issuance, nearly forty years have elapsed, and “the racial composition of public schools in Texas has changed drastically.”
See United States v. Texas,
In light of the above, and this court’s supervisory powers, we hold that the Modified Order’s reach.should be further limited. Related concerns led us to modify the original order on direct appeal to provide that “[no]thing herein shall be deemed to affect the jurisdiction of any other district court with respect to any presently pending or future school desegregation suits.”
United States v. Texas,
IV. CONCLUSION
We hold that the distinct court abused its discretion in finding that defendants’ violated Section G of the Modified Order
REVERSED and REMANDED.
Notes
. The district court's original order was modified by this court on appeal, hence its title, "the Modified Order."
See United States v. Texas,
. Specifically, Section G(2)(a) requires that TEA file a report containing "[r]ecommendations of specific curricular offerings and programs which will insure equal educational opportunities for all students ... [including] programs and curriculum designed to meet the special educational needs of students whose primary language is other than English." TEA complied with this subsection and has no residual obligations under it.
United States
v.
Texas (LULAC I),
. On June 12, 1981, the Texas legislature enacted the 1981 Bilingual and Special Language Programs Act, which compelled bilingual education in kindergarten through sixth grade, thereby placing the state in substantial compliance with the trial court’s order.
United States
v.
Texas (LULAC II),
. Specifically, this court’s opinion stated:
"... [T]he geographical distribution of Mexican-American students in Texas ... is anything but homogeneous across the state; hence conditions vary substantially from school district to school district, some districts comprising heavy majorities of Mexican-American students, some having virtually none ... [TJhere exists little if any practical or logical justification for attempting to deal on a statewide basis with the problems presented by this case ... The State of Texas, qua state, directly educates no one; this is the work of the school districts ... \T\he language problems to be met will necessarily vary by district.... ['W\hether the effect of a local language program, state-mandated or not, constitutes appropriate action to deal with language barriers faced by the students of a given school district will of necessity be an essentially local question.... We fail to see how [this case] can be properly resolved in the absence of the school district concerned or how [it] can effectively be dealt with on a statewide basis.”
Id. at 373-74 (emphasis added).
. Prior to the bench trial, defendants filed multiple motions to dismiss on jurisdictional and standing grounds. The trial court dismissed all of defendants' jurisdictional claims, holding that it retained jurisdiction over inter
. Thus, the trial court’s July 24, 2008 opinion states, for example:
“A persuasive February 22, 2008 decision by the Ninth Circuit Court of Appeals, Flores v. Arizona,516 F.3d 1140 (9th Cir.2008), allowed the Court to perceive its previous clear and manifest errors of fact and law, regarding the application of NCLB requirements to EEOA implementation and the court’s analysis of the distinct bilingual and ESL programs. Persuaded by the circuit court, this Court adopts conclusions of law from the holdings in Flores."
Id.,
"As discussed infra, the holdings in Flores persuaded the Court that it committed clear and manifest error in its factual finding that it was compelled to consider the 'panoptic results' of LEP students in all grades rather than considering the achievement of primary and secondary students separately.”
Id.,
. In the years in evidence, apparently all used ESL.
. The trial court's findings in this respect are extremely lengthy and detailed; for a more complete recital of these, see the trial court’s opinion.
. The trial court did state that: “this Court has already found [in the 1981 intervention], and the Fifth Circuit has upheld, that TEA and the State of Texas [were] involved in intentional discrimination against Spanish speaking Mexican-American students [in the past]."
LULAC TV,
. The trial court addressed this apparent contradiction between the present order on appeal and the original 1981 order, reasoning that "it is abundantly clear that [it] was referring to Section G(2), and therefore did not hold that Section G(l) [sic], which has nothing to do with the reporting requirement, was complied with by virtue of filing the report.”
. The EEOA defines “educational agency” as “a local educational agency or a 'State educational agency,'" and a state educational agency as “the agency primarily responsible for the State supervision of public elementary schools and secondary schools.” 20 U.S.C. §§ 1720(a), 7801(41);
see Gomez v. Ill. State Bd. of Educ.,
. Moreover, while the No Child Left Behind Act of 2001 (NCLB) does not replace Section 1703(1) (and compliance with the former does not necessarily constitute compliance with the latter), nevertheless, as Home states:
"NCLB marked a dramatic shift in federal education policy. It reflects Congress' judgment that the best way to raise the level of education nationwide is by granting state and local officials flexibility to develop and implement educational programs that address local needs, while holding them accountable for the results.... NCLB conditions the continued receipt of funds on demonstrations of 'adequate yearly progress.'” Id. at 2601.
Title III of NCLB specifically focuses on LEP students and their acquisition of English language proficiency. Id.
. It is undisputed that defendants’ primary and secondary LEP programs are based upon sound educational theory.
See, e.g.,
. "... [Ojur court will 'review
de novo,
as a mixed question of law and fact, a district court's [merits-] decision that a local school district's IEP was or was not appropriate and that an alternative placement was or was not inappropriate under the IDEA.’ "
Id.
(quoting
Cypress-Fairbanks ISD v. Michael F.,
.
See also, e.g., Lake Charles Stevedores v. PROFESSOR VLADIMER POPOV MV,
. Intervenors also presented evidence that some districts report a significantly lower percentage of LEP students than the county-wide percentage of households in which a language other than English is spoken. To the extent that the district court based its finding of under-identification on this evidence, we find that this conclusion was in error. The percentage of households in which a language other than English is spoken does not in any meaningful way evidence the number of LEP students residing within the county.
The district court also observed "it appears that in at least some of these schools [in districts with high rates of parental denials], parents may not be well informed of the advantages of bilingual-ESL programs or may be subject of coercion” (emphasis added). There is no substantial evidence of instances of any such "coercion” (or misinformation), and in any event the above quoted 'observations are entirely too vague and speculative to form any valid basis for relief against defendants. Finally, there is no substantial evidence of any default by defendants in performance of their duties in this respect causing Mexican-American LEP students' loss of their § 1703(f) rights.
. The trial court also disapproved of TEA’s aggregation of TAKS subject data across multiple grade levels. Defendants explained that TAKS subjects are not annually administered at each grade level; thus, to determine achievement in specific subjects, TAKS scores for each subject are combined across the grade levels in which the subject test was administered. The district court held that this allowed the scores of successful primary students to overinflate the success of the entire group, thus masking the underperformance of secondary LEP students.
. These numbers represent only 3.4% of campuses within the state and 7.7% of the LEP student population.
. The district court felt a campus-level analysis was reasonable because TEA already collects both district-wide and campus data.
. In holding that the evidence adduced thus far fails to establish that the PBMAS monitoring system does not discharge the State's responsibilities under the EEOA, we do not necessarily foreclose a finding upon more factual development that district-wide monitoring may be inappropriate for larger school districts because of its potential for masking the deficiencies on individual campuses (nor do we now give either legal blessing or condemnation to any such finding on further factual development).
. The district court also explained that defendants should monitor at the campus level because the Modified Order was originally purposed to remedy segregation on the campus level and Section G requires that equal opportunities be provided in “all schools.” To the extent the trial court relied in any way on the Modified Order to reach the above conclusions, we find it committed error because there has been no showing of statewide de jure segregation against Mexican-Americans.
. Yearly in every grade (at least at and/or above grade 3) LEP students are tested in English language proficiency tests and those who are scored “advanced high” are thereafter no longer classified as LEP. Thus, it is virtually inevitable that the higher grades will tend to have a lower proportion of students whose natural talent is above average at least in the ability to learn a language other than that in which they communicated prior to entering school.
. The district court held that its previous order erred in reading “extraneous causation” into Castaneda’s three-part test and erroneously determined that aggregate student performance data, without more, could not evidence the requisite degree of causation:
"This Court [] misstated the factual record because Intervenors presented much more than 'aggregate student performance data.’ Secondary LEP students across the board not only failed to perform at the level of their non-LEP peers on achievement tests, but also dropped out of school at significantly higher rates; had significantly higher retention rates; and remained in LEP programs for four or more years, without making adequate yearly progress. That the Court did not consider the multitude of indicators in its finding of fact was error in itself; that the Court amplified this error by misstating that Intervenors had presented only a paucity of evidence was ... clear and manifest reversible error.... Examining such nebulous factors as social and economic background as potential primary causes of LEP student failure is a task fraught with hazard.”
LULAC IV,
. Apart from that relating to the percentage rate of parental denials in certain districts.
See
opinion below,
. This court notes that a significant difference between primary and secondary students is their ability to obtain gainful employment. Secondary students who are able to alter their
.
Castaneda
offers just such an example, where plaintiffs appropriately initiated an EEOA action against a local school district and later named the TEA as a defendant.
See
. This court, of course, recognizes that
de jure
racial discrimination existed in Texas. We also note that in 1955 the Texas Supreme Court declared invalid, under the United States Constitution, the provisions of the Texas Constitution and statutes requiring school racial segregation,
McKinney v. Blankenship,
. And such districts shall no longer be subject to the district court's continuing jurisdiction under the Modified Order.