Opinion
Civil Action No. SA-97-CA-1278-EP
July 27, 1999
ORDER GRANTING, IN PART, AND DENYING, IN PART, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
On this date, the Court considered Defendants' motion for summary judgment, filed June 4, 1999, in the above-numbered and styled cause, and Plaintiffs' response to that motion. After careful consideration, the Court will grant the motion.
FACTS AND PROCEDURAL HISTORY
Plaintiffs assert that the Texas Assessment of Academic Skills (TAAS) test, which is administered to public school students several times over the course of their attendance in public schools and which students must pass to graduate, is racially discriminatory. Plaintiffs have brought suit under 42 U.S.C. § 2000d (Title VI), 20 U.S.C. § 1703, and 42 U.S.C. § 1983. Plaintiffs also argue that the Defendants have violated their duties under the United States District Court for the Eastern District of Texas in United States v. Texas, 330 F. Supp. 235 (E.D. Tex. 1970). Plaintiffs seek declaratory relief and a permanent injunction forbidding the State Board of Education from enforcing a law that requires students to pass the TAAS test in order to receive a high school diploma. See TEX. EDUC. CODE § 39.021 et seq.
SUMMARY JUDGMENT STANDARD
In the usual case, the party who seeks summary judgment must show by affidavit or other evidentiary materials that there is no genuine dispute as to any fact material to resolution of the motion. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 4 (1986); Lavespere v. Niagra Machine Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990); Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). To satisfy this burden, the movant must either submit evidentiary documents that negate the existence of some material element of the nonmoving party's claim or defense or, if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidentiary documents in the record contain insufficient proof concerning an essential element of the nonmoving party's claim or defense. See Celotex Corp., 477 U.S. at 325; Lavespere, 910 F.2d at 178.
Once the moving party has carried that burden, the burden shifts to the nonmoving party to show that summary judgment is not appropriate. See Fields, 922 F.2d at 1187. The nonmoving party cannot discharge this burden by referring to the mere allegations or denials of the nonmoving party's pleadings; rather, that party must, either by submitting opposing evidentiary documents or by referring to evidentiary documents already in the record, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324; Fields, 922 F.2d at 1187. In order for a court to find there are no genuine material factual issues, the court must be satisfied that no reasonable trier of fact could have found for the nonmoving party or, in other words, that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict for the nonmovant. See Liberty Lobby, 477 U.S. at 249-50; FED.R.CIV.P. 56(e).
Where the party opposing the motion for summary judgment will have the burden of proof on an essential element of his case at trial and does not, after adequate time for discovery, make a showing sufficient to establish the existence of that element, summary judgment may be entered against him. Celotex, 477 U.S. at 322-24; Fontenot, 780 F.2d at 1194-95.
SECTION 1983 CLAIMS
Section 1983 of the Civil Rights Act of 1964 provides a vehicle for redressing injuries suffered by individuals whose constitutional or legal rights have been violated by officials acting under "color of state law." See Lamaz v. Hennosy, 151 F.3d 493, 499 (6th Cir. 1998). Plaintiffs claim that the TAAS test violates their constitutional rights to equal protection of the law and their rights to substantive and procedural due process.
Equal Protection
The Fourteenth Amendment to the United States Constitution renders government classifications made on the basis of race suspect. Suspect classifications are subject to the most stringent judicial scrutiny — in order to survive such scrutiny, the classification must be narrowly tailored to a compelling government interest.
Courts have categorized allegations of discrimination according to two analytical frameworks: intentional discrimination and disparate impact discrimination. Claims of intentional discrimination require plaintiffs to prove that the defendant had a discriminatory motive behind his actions. Disparate impact outlaws unjustifiable practices that are facially race neutral but that fall more harshly on certain minorities. To establish a claim that their right to equal protection under the Fourteenth Amendment has been violated, the Plaintiffs are required to demonstrate that the government intentionally discriminated against them, or that they were motivated by racial considerations. Washington v. Davis, 426 U.S. 229, 240 (1976). Proof of intent is admittedly difficult. Hunt v. Cromartie, 119 S.Ct. 1545, 1548-49 (1999). Therefore, the United States Supreme Court has acknowledged that intent may be proven through the use of circumstantial evidence. Id. at 1549. Factors that a plaintiff might rely upon in demonstrating intent include a disparate impact of the government action on ethnic minorities; a history of discriminatory official actions; procedural and substantive departures from the norms generally followed by the decision-maker; and discriminatory statements in legislative or administrative history. Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 266 (1977). In addition, acts having "foreseeable and anticipated disparate impact are relevant evidence to prove" that the government intended to discriminate. Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 464 (1979).
While older case law referred to a showing of "racial animus," cases allowing equal protection claims brought where there has been "benign" or "reverse" discrimination would seem to render that language obsolete.
Defendants argue that Plaintiffs have not demonstrated that they acted with an intent to discriminate in developing and implementing the TAAS test. According to Defendants, the test was designed to do exactly the opposite of harm minorities — it was designed to provide all students, including minorities, with dual opportunities for assessment and remediation. Plaintiffs, on the other hand, argue that, applying the factors set forth in Arlington Heights, fact issues remain on whether the Defendants acted with the intention of harming minorities. Specifically, Plaintiffs argue that (1) the State knew that minorities would fail the examination in larger numbers than white students; (2) the State acted against a backdrop of historical and continuing discrimination; (3) the timing of the implementation of the TAAS test is suspect, because it was implemented just as the state's public school financing system was declared unconstitutional and finally remedied; (4) there are no explanations for the implementation of TAAS except race; and (5) the implementation of the test departed from normal procedures. The Court will address each of these claims in turn.
The evidence is undisputed that the Defendants knew, based on early projections, that a larger number of minorities would fail the TAAS exam than would white students. The Defendants projected that, at a cutoff score of 70 percent, at least 73 percent of African American takers and 67 percent of Hispanic takers would fail the math portion of the test. In addition, the Texas Education Agency (TEA) projected that 55 percent of African Americans and 54 percent of Hispanics would fail the reading portion and that 62 percent of African Americans and 45 percent of Hispanics would fail the writing portion of the test. However, in the context of all the summary judgment evidence presented, the Court is not convinced that the fact that the State anticipated discrepancies in scores is of any significance to support an inference of discrimination. Defendants contend that the TAAS test was instituted, in part, so that the State could identify and remedy the poor performance of students, instructors, and schools. Defendants have offered evidence that the focus on remediation was not illusory; test takers are given eight opportunities to take the exam, and remediation is offered upon failure. Schools are rewarded or penalized, depending on their students performance on the examination. Moreover, state officials have recognized, and attempted to target, the discrepancy in scores between white and minority students. Those efforts have met with measurable success — the gap between the scores of minority and white students continues to narrow. Thus, while the Court agrees that the Defendants' knowledge that the TAAS test would initially have a larger adverse impact on minority students should be considered, the Court finds that, upon consideration of that factor, there is no summary judgment evidence supporting Plaintiffs' claim that this knowledge reflects an intent to discriminate.
The projections for success among white takers were significantly better — 50 percent, 29 percent, and 36 percent, respectively.
The Court notes that the Defendants were also willing to tolerate up to 50 percent failures among white students. While this projected failure rate is surely not as large as that projected for minorities, it is significant and, in the Court's view, supports the Defendants' argument that its goal was remedial, not discriminatory.
It is also undisputed that all Texas public school students have suffered the effects — both direct and indirect — of an unfortunate history of segregation and discrimination. See, e.g., Brown v. Board of Education, 5349 U.S. 294 (1955); Ross v. Houston Indep. Sch. Dist., 699 F.2d 218 (5th Cir. 1979); United States v. Texas Educ. Agency, 564 F.2d 162 (5th Cir. 1977), cert. denied, 443 U.S. 915 (1979); Alvarado v. El Paso, 445 F.2d 1011 (5th Cir. 1971). The Court agrees with Plaintiffs that, in light of this history, the actions of Texas educators that adversely affect minorities should be viewed with careful scrutiny. Specifically, the Court has paid careful attention to the Plaintiffs' argument that current effects of discrimination on minorities render the TAAS test particularly unfair. Plaintiffs argue that minority students in Texas are often concentrated in inferior educational "tracks," that they attend schools with teachers who lack proper teaching credentials, and that they are under represented in college preparatory classes. Because these students are receiving arguably inferior educations to those being received by white students, it might be doubly unfair to minorities to hold their diplomas in abeyance until they pass an exam that they are ill-prepared to take.
The United States Supreme Court, in United States v. Fordice, 505 U.S. 717 (1992), held that plaintiffs alleging that a state practice that was rooted in prior discriminatory policies could be prohibited without a finding that the State, in engaging in the practice, acted with a discriminatory purpose. See Fordice, 505 U.S. at 734 n. 8. Because Plaintiffs have alleged that the TEA here acted against a backdrop of prior discrimination, the Defendants argue that they must, as in Fordice, demonstrate that the discriminatory effects of the TAAS test are rooted in Texas's history of discriminatory educational practices. The Court disagrees.
First, it is unclear whether Plaintiffs are bringing a specific "Fordice" claim. To the extent that they are, the Court agrees with Defendants that such a claim must be rejected. While Plaintiffs have demonstrated that a history of discrimination exists in the State, they have not shown that the TAAS test itself is rooted in that history. See Fordice, 505 U.S. at 729-30 n. 4. The TAAS test does not contribute to or further the existence of segregated schools, for example. See id. at 734. Nor have Plaintiffs demonstrated that the test itself even contributes to the practice of "tracking" students, although they have presented evidence that such tracking exists and makes passage of the TAAS test more difficult for minorities. In Fordice, the Supreme Court found that the use of American College Testing scores as the sole basis for college admission were "remnants of (Mississippi's) dual system with a continuing discriminatory effect." Id. at 736. The dual system at issue was not one where Mississippi refused to graduate minorities or made such graduation more difficult than for white students; it was a system that sought to keep minorities and whites apart. Here, the prior discrimination complained of is similar — an attempt to keep students segregated and a disregard for the educational needs of minorities, as demonstrated by a proportionately inadequate funding for schools with large minority populations. There is no evidence that the implementation of the TAAS test, which is a tool to identify problems in education and hold schools and students accountable for those problems, stems from this discrimination.
The Plaintiffs are not limited to Fordice in bringing their equal protection claim, however. A finding that the challenged practices are not rooted in prior segregation simply means that the Plaintiffs may proceed with their claim under traditional equal protection standards. Id. at 732 n. 6. Thus, the Plaintiffs are required to demonstrate intentional discrimination and may attempt to do so by relying, in part, on circumstantial evidence, including a history of prior discrimination by the state actor. In that event, however, the history of prior discrimination is relevant only insofar as it supports an inference of intent, which remains the threshold showing.
The Court finds that the evidence presented here does not support an inference of intent. The problem with Plaintiffs' argument is that the Plaintiffs have offered no evidence refuting or raising a fact issue regarding Defendants' claims that the TAAS test was instituted, in part, to ensure that all Texas students receive a minimally adequate education. The Defendants have offered evidence not only that they intended to improve all students' scores, including (if not especially) those of minorities, but also that they have met with increasing success in meeting that goal. If the TAAS test was designed to discriminate against minorities, the Court believes there would be no evidence that the State has been pursuing remedial efforts and that the scores of minorities had increased.
The Court finds that the evidence on two factors — the timing of the implementation of the test and the claim that there is no reasonable explanation except for race to explain the test — is too tenuous to support a finding of intent. While it could be observed that, generally, the TAAS test was implemented in the same decade as efforts were being made to ensure that public school financing in Texas was constitutional, it is difficult, if not impossible, to draw any conclusions from that observation. Likewise, it is difficult to know how to respond to a claim that race is the only reasonable explanation for the TAAS test's implementation. There is certainly no evidence supporting such a claim, and there is ample evidence contradicting it.
Finally, the Court disagrees with Plaintiffs' contention that the State departed from normal procedures in implementing the TAAS test. The Plaintiffs' summary judgment evidence supports a claim that the State departed from procedures that some experts deem necessary from the implementation of standardized tests. However, there is no evidence that the State departed from its own procedures in such a way as to lead to an inference of intentional discrimination. For example, there is no evidence that meetings that are traditionally held in open session were held in closed section, or that minority voices were systematically excluded from the process, or that votes were taken when key persons were not present or at other times that would render the process generally suspect.
After careful consideration of all of the Arlington Heights factors, the Court finds that the summary judgment evidence does not raise a material fact question on the issue of intentional discrimination. Instead, the summary judgment evidence establishes, beyond dispute, that the TAAS test has an adverse impact on minority students in the state. There is no basis for inferring that the impact was the result of intentional discrimination. Therefore, summary judgment must be granted in favor of the Defendants on the Plaintiffs' equal protection claim.
Procedural Due Process
Plaintiffs claim that the implementation of the TAAS test violates their right to due process of the law, guaranteed by the Fourteenth Amendment. The Defendants argue that Plaintiffs have raised no interests that are protected by the Due Process Clause. The Court disagrees.
Procedural due process protects an individual's liberty and property interests against arbitrary action by the state and/or federal governments. The United States Supreme Court has not defined with precision the contours of the liberty interests protected by procedural due process. See Board of Regents v. Roth, 408 U.S. 564, 571 (1972). However, that Court has stated that the interest is broad and includes such interests as the rights to be free from bodily restraint, to contract, to engage in any of the common occupations of life, to marry, establish a home, and raise children, and to practice one's chosen religion. Id. at 572.
In Roth, the plaintiff argued that his liberty interests were implicated when the university at which he was employed did not re-employ him for the coming school year. The Supreme Court disagreed that liberty interests were at issue, noting that, in refusing to rehire him, the school had not damaged his standing in the community or his good name and had not stigmatized him in any way. Id. at 573. In addition, the Court stated that the school had not barred the plaintiff from seeking employment at other schools. Id. In that regard, the Court suggested that to be deprived not only of present employment, but also of future opportunities for employment would be a grave injury. Id. (citing Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 185 (1951)).
Here, the Court finds that no liberty interest has been implicated. The Court agrees with Plaintiffs that a high school diploma is not an insignificant achievement. The diploma is not only a requisite to obtaining many types of employment, it is also a measure, to some degree, of one's standing in American society. However, the Court cannot say that the temporary deprivation of a diploma denotes a loss of liberty. Failure to pass the TAAS test on one try may result in a temporary deprivation of a diploma, but the State does not cut off all opportunities to earn that diploma. Students who fail one or more portions of the test are offered remediation and future chances to take the examination. If the State were to offer graduating seniors only one chance to pass the examination in order to receive a diploma, the Court agrees that a liberty interest may very well be implicated. That is simply not the case, however.
On the other hand, the Court agrees with Plaintiffs that they have a protected property interest in their diplomas. To be protected by procedural due process, the property right at issue must actually belong to an individual. Id. at 576 ("[t]he Fourteenth Amendment's procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits"). Property rights are not themselves created by the Constitution, which serves only to protect such rights. See id. at 577. Property rights are "created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Id. The Court finds that, under Texas law, Plaintiffs do have a property right to a high school diploma, created by the requirement of compulsory education, attendance requirements, and the statute detailing graduation requirements. See TEX. ADMIN. CODE § 74.11 (detailing requirements for graduation, which include passing standardized exit examination); see also Debra P. v. Turlington, 644 F.2d 397, 403 (5th Cir. Unit B May 1981). Accordingly, Texas is required to provide some measure of process before depriving a student of a diploma. At a minimum, such process must include notice. See Debra D., 644 F.2d at 404. The Court finds that Plaintiffs have not raised a fact issue regarding whether procedural protections have been provided in this case. All Texas students have been put on ample notice that they must pass an exit examination in order to receive their diploma. Moreover, an "opportunity to be heard" is provided, in some sense, because students are permitted to take the examination multiple times.
In spite of much confusion about the Due Process Clause, this makes sense. Procedural due process ensures that state actors follow proper procedures when they seek to deprive individuals of a right; it does not itself create the right. in other words, even though the State is not compelled to provide the right itself, it is compelled to protect the right with certain procedural guarantees once it does. Thus, plaintiffs may not rely on procedural due process to create a right to a diploma; that tight, if it exists, is created by the State.
Substantive due process, on the other hand, recognizes the existence of certain basic rights, regardless of whether they are provided by State statute, such as the right to be treated in a manner that is not arbitrary or the right to engage in the common occupations of life. See Ewing, 474 U.S. at 229 (Powell, J., concurring).
Applied to this case, then, the question of substantive due process asks whether the State of Texas infringed any basic rights, recognized by the Constitution, in adopting and implementing the TAAS test. The question of procedural due process asks whether the State of Texas has created an interest in a diploma and, if so, what procedural protections it must provide before denying that diploma.
The Defendants' argument that, because Plaintiffs did not pass the test, there is no right to a diploma is somewhat off the mark. The statute, by describing what must occur before diploma occurs, creates an expectation of a diploma. When the state then seeks to deny the diploma, even for a reason that is supported by the statute, it is required to provide some process. This is why, when an employment contract mandates that an employee may only be terminated for "good cause," public employers seeking to terminate them, even for good cause, are required to provide procedural protections. See Roth, 408 U.S. at 566; Sartin v. City of Columbus Util. Comm., 421 F. Supp. 393, 397-98 (N.D. Miss. 1976), aff'd, 573 F.2d 84 (5th Cir. 1978).
However, the Court finds that a fact issue remains on another element of due process, as it has been discussed by the Fifth Circuit — whether the test is valid. See Debra D., 644 F.2d at 404-405; Ellen Smith Pryor, Student Competency Testing in Texas, 16 ST. MARY'S L.J. 903, 910 (1985). Accordingly, the Court will not grant summary judgment to Defendants on Plaintiffs' procedural due process claim.
Plaintiffs articulate this as a requirement of procedural due process. The language of the Fifth Circuit case suggests that the court saw the invalidity question as one impacting substantive rights. See Debra D., 644 F.2d at 404 ("[t]he due process violation potentially goes deeper than the deprivation of property rights without adequate notice. When it encroaches upon concepts of justice lying at the basis of our civil and political institutions, the state is obligated to avoid action which is arbitrary and capricious, does achieve or even frustrates a legitimate state interest, or is fundamentally unfair). The Court has considered the issue under both procedural and substantive due process analyses and reaches the same conclusion; the question of which analysis is applicable is therefore immaterial, although the Court finds the issue is better addressed by substantive due process considerations.
Substantive Due Process
The Fourteenth Amendment's Due Process Clause also protects certain fundamental rights, vested in every individual, from arbitrary deprivation. The United States has enunciated two alternate tests for determining whether a substantive due process violation has occurred. See Pittsley v. Warish, 927 F.2d 3, 6 (1st Cir. 1991), cert. denied, 502 U.S. 879. Under the first theory, the plaintiff need not demonstrate a protected liberty or property interest but must prove that the state's conduct "shocks the conscience." See id. Under the second theory, the plaintiff is required to show a protected interest. There is no allegation here that Defendants' conduct "shocks the conscience," so the Court must determine whether a protected interest is implicated.
The Supreme Court has not decided squarely that a school's (or State's) academic determinations are to be subjected to a substantive due process analysis. However, in University of Michigan v. Ewing, 474 U.S. 214 (1985), the Court assumed that such an analysis was appropriate, and the Court delineated a "narrow avenue for judicial review." Ewing, 474 U.S. at 227. The Court stated that courts reviewing academic decisions should show great respect for the school official's professional judgment and may not override that judgment unless "it is a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment." Id. at 225.
Plaintiffs argue that the implementation of the TAAS test in this case is arbitrary because it is an invalid test, the failure of which unfairly denies students of their diplomas. In addition, Plaintiffs argue that the 70 percent cutoff point for passing grades was determined arbitrarily, with no study or data supporting it. Plaintiffs offer expert testimony that the use of TAAS test scores as the sole means for determining whether a diploma should be awarded is "contrary both to professional standards regarding testing and to sound professional practice."
The Court finds that this is an extremely difficult question, especially in light of the Supreme Court's reluctance to determine whether, in fact, substantive due process rights are even implicated when purely academic decisions are at issue. See Ewing, 474 U.S. at 229 (Powell, J., concurring). However, close issues, at the summary judgment stage, should be decided in favor of the nonmovant, providing the nonmovant has offered evidence raising a genuine issue of material fact. Here, there is a fact issue on the question of whether the implementation and use of the TAAS test "is a substantial departure from accepted academic norms." See Crump v. Gilmer Indep. Sch. Dist., 797 F. Supp. 552, 556 (E.D. Tex. 1992) (stating that it would be difficult for TEA to prove that the TAAS test covers matters "actually taught" in the schools at issue); Debra D., 644 F.2d at 404 ("[t]he due process violation potentially goes deeper than deprivation of property rights without adequate notice. When it encroaches upon concepts of justice lying at the basis of our civil and political institutions, the state is obligated to avoid action which is fundamentally unfair). Accordingly, the Court will allow the substantive due process claim to proceed on that question.
TITLE VI
Defendants move for summary judgment on Plaintiffs' claim under Title VI of the Civil Rights Act of 1964, arguing that, because that provision is interpreted like claims brought under the Fourteenth Amendment, the claim is defeated by a failure to show discriminatory intent. The Court agrees.
Title VI was passed to "guarantee that the money collected by color-blind tax collectors will be distributed by Federal and State Administrators who are equally color-blind." 110 Cong. Rec. 7055 (1964). The text of Title VI provides that "[n]o person in the United States shall, on the basis of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal assistance." 42 U.S.C.A. § 2000d. The overall purpose of Title VI is further clarified in the congressional record:
In many instances the practices of segregation or discrimination, which Title VI seeks to end, are unconstitutional. This is clearly so wherever federal funds go to a state agency which engages in racial discrimination. It may also be so where federal funds go to support private, segregated institutions. . . . In all cases, such discrimination is contrary to national policy, and to the moral sense of the Nation. Thus, Title VI is simply designed to insure that Federal funds are spent in accordance with the Constitution and the moral sense of the Nation.110 Cong. Rec. 6544 (1964).
The issue of whether Title VI proscribes unintentional discrimination that has a disparate impact on minorities has been considered by the Supreme Court and the Fifth Circuit several times in the past twenty years. In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the Court held that Title VI does not prohibit a recipient of federal funds from taking race into account in an affirmative action program designed to eliminate the effects of past discrimination. Bakke, 438 U.S. at 286. Because the special minority admissions program at the Medical School at the University of California, Davis, deliberately used racial criteria, the Court did not address the question of whether proof of discriminatory intent is necessary to establish a violation of Title VI. However, the majority held that "Title VI must be held to proscribe only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment." Id. at 287. Combining this statement with the holding in Washington v. Davis, 426 U.S. 229 (1976) that a law or other official act is not unconstitutional under the Equal Protection Clause because it has a racially disparate impact unless there is a finding of intentional discrimination, it appears that only cases of intentional discrimination violate Title VI. Because the Court has concluded that Plaintiffs have not demonstrated discriminatory intent, there can be no violation of Title VI, and summary judgment must be granted in favor of the Defendants on that claim.
TITLE VI REGULATIONS
Plaintiffs, however, have also brought suit under Title VI regulation 34 C.F.R. § 100.3, which prohibits federal funding for all state programs that have the effect of discriminating against minorities. Defendants seek summary judgment on this claim on two bases: first, Defendants argue that, like Title VI itself, the regulation requires a showing of intent. Second, Defendants argue that a private cause of action is not authorized by the regulations. The Court rejects both arguments.
The Court also rejects the argument that a claim brought under Title VI regulations would be barred by the Eleventh Amendment. Leaving aside the question of whether immunity has been abrogated, this is a claim for injunctive relief, which survives under the exception to immunity articulated in Ex Parte Young, 209 U.S. 123 (1908).
The Existence of a Private Cause of Action for Violations of Title VI Regulations
The Defendants contend that there is not a private right of action under the Title VI regulations. The Defendants allege that the Plaintiffs must follow administrative procedures set forth in the regulations, not sue the state directly. The Plaintiffs maintain that the long and consistent history of private enforcement of Title VI actions has established that there is a valid private cause of action which can be inferred from the statute.
34 C.F.R. § 100.3 was enacted by the Department of Education pursuant to 42 U.S.C. § 2000d-1. Section 100.3(a) provides a general prohibition against discrimination, while § 100.3(b) refers to specific discriminatory actions that have been prohibited. One such specific discriminatory action is set forth in § 100.3(b)(2), "A recipient . . . may not . . . utilize criteria . . . which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect to individuals of a particular race, color, or national origin."
There is not a private cause of action explicitly mentioned in 34 C.F.R. § 100.3. However, many courts have allowed private causes of action claiming violations of Title VI and its supporting regulations, including 34 C.F.R. § 100.3. See Guardians Association v. Civil Service Commission, 463 U.S. 582 (1983), Castañeda v. Pickard, 781 F.2d 456 (5th Cir. 1986), Harper v. Board of Regents of Illinois State Univ., 35 F. Supp.2d 1118, 1123 (C.D.Ill. 1999), Valeria G. v. Wilson, 12 F. Supp.2d 1007, 1023 (N.D.Cal. 1998), Meyers By and Through Meyers v. Board of Educ. of San Juan School Dist., 905 F. Supp. 1544, 1573 (D.Utah 1995), Graham v. Tennessee Secondary Athletic Ass'n, No. 1:95-CV-044, 1995 WL 115890, at *12 (E.D.Tenn. Feb. 20, 1995). In light of the overwhelming judicial recognition of a private cause of action under 34 C.F.R. § 100.3, the Defendant's motion for summary judgment on the basis that there is not a private cause of action for violations of Title VI regulations 34 C.F.R. § 100.3 cannot be granted.
Exhaustion of Remedies
Defendants argue that, even if Plaintiffs do have a cause of action under Title VI regulations, they cannot avail themselves of it because they have failed to first exhaust administrative remedies. The Court rejects this argument. See Cannon v. University of Chicago, 441 U.S. 677, 708 n. 41 (1979) ("[w]e are not persuaded that individual suits are inappropriate in advance of exhaustion of administrative remedies"); see also Neighborhood Action Coalition v. City of Canton, Ohio, 882 F.2d 1012 (6th Cir. 1989); Chowdhury v. Reading Hosp. Medical Ctr., 677 F.2d 317, 321 (3d Cir. 1982), cert. denied, 463 U.S. 1229 (1983); Bradford C. Mank, Is There a Private Cause of Action Under EPA's Title VI Regulations? The Need to Empower Environmental Justice Plaintiffs, 24 COLUM. J. ENVIRON. L. 1, 61 n. 330 (1999).
Disparate Impact?
The next question, then, is whether Plaintiffs may use Title VI regulations to challenge the TAAS test on the ground that it has an adverse impact on minorities. The Court finds that such a claim is cognizable. In Guardians Association v. Civil Service Commission, Black and Hispanic police officers alleged that the use of written examinations to make entry level appointments to the New York City Police Department violated Title VI because such use had a disproportionate impact on minority applicants. Guardians, 463 U.S. at 585. There was not a majority opinion in Guardians, but rather five separate opinions, which are the basis of two separate holdings that were clarified by the majority in Alexander v. Choate, 469 U.S. 387 (1985). The first proposed holding was that Title VI itself reached only instances of intentional discrimination. Id. at 293. The second holding was that "actions having an unjustifiable disparate impact on minorities could be redressed through agency regulations designed to implement the purposes of Title VI." Id. It would therefore appear that Guardians also established that plaintiffs claiming a violation of Title VI can prevail upon a showing of disparate adverse impact without proof of intent to discriminate as long as they allege a violation of the Title VI regulations.
The Defendants argue that the second holding of Guardians was eradicated by a footnote in Fordice. See Fordice, 505 U.S. 717, 732 n. 7. In Fordice, private citizens sued the governor of Mississippi for alleged violations of 34 C.F.R. § 100.3 resulting from discrimination in the Mississippi state university system. Id. at 723. Citing Bakke and Guardians the Court stated that "the reach of Title VI's protection extends no further than the Fourteenth Amendment. [citations omitted] We thus treat issues in these cases as they are implicated under the Constitution." Id. at 732 n. 7. However, the Court was reiterating the first holding of Guardians, that Title VI claims require intentional discrimination. Because the majority in Fordice did not specifically reach the question of whether such a requirement exists in suits brought pursuant to the regulations, this Court, with others, assumes that the second holding in Guardians must still be considered the rule of law.
Following Guardians, the Fifth Circuit adopted the view that plaintiffs could establish their Title VI claim under a disparate impact theory by proving that a facially neutral practice has the result of producing a significantly adverse impact on one or more racial groups. See United States v. LULAC, 793 F.2d 636, 648 (5th Cir. 1986). The Defendants, however, claim that the Fifth Circuit changed its position in United States v. State of Louisiana, 9 F.3d 1159 (5th Cir. 1993). In United States v. Louisiana, the Fifth Circuit cited Fordice as justification for upholding a district court's ruling that the Title VI standard was the "same as the standard for a Fourteenth Amendment violation." Id. at 1162 n. 1. Again, the court only addressed discrimination claims based on Title VI itself; the Court did not address the regulations enacted to enforce Title VI. Therefore, the Fifth Circuit has not disputed the second holding of Guardians. In addition, there is ample case law following Fordice that supports the Plaintiffs' contention that plaintiffs asserting a claim based on a violation 34 C.F.R. § 100.3 are not required to produce evidence of intentional discrimination. See Harper, 35 F. Supp.2d at 1123: Valeria G., 12 F. Supp.2d at 1023; Meyers, 905 F. Supp. at 1573; Graham, No. 1:95-CV-044, 1995 WL 115890, at *12.
In order to establish a claim for racial discrimination as a result of a disparate impact in violation of Title VI' s regulations, plaintiffs must demonstrate that a facially neutral practice has a racially disproportionate impact. Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403. 1417 (11th Cir. 1985). Once the plaintiffs have established that a facially neutral practice has a racially disproportionate impact, the burden then shifts to defendants to prove substantial and legitimate justification for the practice. Id. In the context of education, the Supreme Court has held that a showing of "educational necessity" could be used to satisfy the defendant's burden. Board of Educ. of City School Dist. of the City of New York v. Harris, 444 U.S. 130, 131 (1979). If defendants meet this burden, plaintiffs must present an equally effective alternative practice which results in less disparate impact. Georgia State Conference, 775 F.2d at 1417. "Educational necessity" can be established by proof that the challenged practices "bear a manifest demonstrable relationship to classroom education." Id. at 1418. What is required to establish that a challenged practice has a "manifest relationship to classroom education" is not entirely clear. The Eleventh Circuit decided that the cases are essentially requiring defendants to show that the challenged course of action is "demonstrably necessary to meeting an important educational goal." Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1412 (llth Cir. 1993), cert. denied, 502 U.S. 910.
Statistical Analysis of Disparate Impact Claims
The Plaintiffs have presented a great deal of evidence supporting their contention that the TAAS test has a disparate impact on minority students. The Supreme Court has recognized that "[s]tatistical analyses have served and will continue to serve an important role as one indirect indicator of racial discrimination." Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 620 (1974). Unfortunately, there is not a clear consensus on what type of statistical analysis is to be used in cases in which racial discrimination is asserted. The Defendants allege that the EEOC's "four-fifths" rule should be applied, while the Plaintiffs assert that the large sample size requires a more sophisticated analysis than the four-fifths rule, such as the Shoben test. However, the Plaintiffs have introduced expert testimony that there is a statistically significant disparate impact under both the four-fifths rule, the Shoben test, and other methods of statistical analysis. A review of the Plaintiff's expert testimony indicates that the Plaintiffs have established material issues of fact to support their claims that the TAAS test has a disparate impact on minorities and therefore violates 34 C.F.R. § 100.3. The Supreme Court has indicated that "statistical disparities must be sufficiently substantial that they raise . . . an inference of causation" to demonstrate an adverse impact on minorities. Watson 4v. Fort Worth Bank and Trust, 487 U.S. 977, 994 (1988) (O'Connor, J., plurality opinion). The statistical disparities presented by the Plaintiff raise an inference of causation; therefore the Defendant's motion for summary judgment on the Plaintiffs claim that the TAAS test has a disparate impact in violation of Title VI regulation 34 C.F.R. § 100.3 cannot be granted.
Once the Plaintiffs have established evidence of a disparate impact, the burden shifts to the Defendants to prove that the TAAS test is a justifiable educational necessity. The Defendants do not address educational necessity as a ground for summary judgment in their brief in support of their motion for summary judgment, although they have provided justification for the examination, and at least one of their experts has testified that, in his view, the test is necessary. Because the Plaintiffs have offered expert opinion to the contrary, the Court cannot decide this issue as a matter of law. Fact issues also remain on whether Plaintiffs can prove an alternative practice that would result in less disparate impact.
VIOLATION OF 20 U.S.C. § 1703(F)
The Plaintiffs also assert that the failure of the Defendants to offer a TAAS exit test in Spanish violates 20 U.S.C. § 1703 (f). Section 1703(f) states that a denial of equal educational opportunity to an individual on account of his or her race will result from "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." The Defendants' failure to administer the TAAS test has not resulted in minorities being prevented from equally participating in any instructional programs. Arguably, Spanish-speaking students that fail the TAAS tests are permitted to participate in extra instructional programs required by § 39.024(b) of the Texas Education Code, to help them pass the TAAS test. Plaintiffs' lawsuit is a suit seeking to enjoin the administration of the TAAS exam. The exam itself does not enable or impede opportunities in instructional programs. Rather, the argument that language-deficient students may be receiving substandard education bolsters the argument that the test is invalid and unfair. Because the Court has not been asked, by way of relief, to address the state's language program itself, the Court finds that no cognizable claim has been made under 1703 (f).
VIOLATION OF UNITED STATES v. TEXAS
The Plaintiffs additionally allege that the Defendant's requirement that all students pass the TAAS test to be eligible for graduation violates the court order set forth 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. 1016 (1972). The Plaintiffs specifically allege that part G(1) of the court order has been violated. This part of the court order states that "[d]efendants shall insure that school districts are providing equal educational opportunities in all schools."
The defendant referred to in the court order set forth in United States v. Texas included the TEA, a named defendant in the suit filed by the Plaintiffs. There can be no question of the order's applicability to the TEA. However, the Plaintiffs have not provided any clear explanation of how the Defendant has violated part G(1) of the court order by implementing the TAAS test. The order set forth in United States v. Texas was passed to insure that students in all schools had access to the same classes and other "educational opportunities." The Plaintiffs have not specifically asserted a claim that students at any school in Texas are being denied "educational opportunities" available to students at other schools in Texas. Rather, the Plaintiffs have merely asserted that the Defendants' requirement that students pass the TAAS test unfairly denies a higher percentage of minority students at all schools throughout Texas the opportunity to graduate. This does not violate the order set forth in Texas v. United States.
Plaintiffs have failed to produce any evidence that students at any school in Texas are being denied "educational opportunities" available to students at other schools in Texas. Further, even if this Court were to rule in favor of the Plaintiffs on this issue, it would not have the power to enforce any order under United States v. Texas. The Eastern District explicitly retained jurisdiction "for the purpose of entering any and all further orders that may become necessary to enforce or modify this decree." United States v. Texas, 447 F.2d at 449. For these reasons, the Court will grant the Defendants' motion for summary judgment on this claim.
CONCLUSION
ACCORDINGLY, it is ORDERED that the Defendants' motion for summary judgment is GRANTED, IN PART, such that the claims brought under the Equal Protection Clause, procedural due process (insofar as it pertains to a notice requirement), Title VI, 20 U.S.C. § 1703, and United States v. Texas are DISMISSED. It is further ORDERED that the Defendants' motion is DENIED, IN PART, such that the claims brought pursuant to substantive due process, procedural due process (insofar as it may pertain to test validity), and 24 C.F.R. § 100.3 will remain. It is finally ORDERED that Defendants' motion, Docket No. 43, is GRANTED, and Plaintiffs' motion, Docket No. 46, is DENIED.