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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

GI FORUM, IMAGE DE TEJAS, §
RHONDA BOOZER, MELISSA§
MARIE CRUZ, MICHELLE MARIE §
CRUZ, LETICIA ANN FAZ,§
ELIZABETH GARZA, MARK §
GARZA, ALFRED LEE HICKS,§
BRANDYE R. JOHNSON, §
JOCQULYN RUSSELL§

§

Plaintiffs,§

§

V.§

§ Civil Action No. SA-97-CA-1278EP

TEXAS EDUCATION AGENCY,§
DR. MIKE MOSES, MEMBERS §
OF THE TEXAS STATE BOARD §
OF EDUCATION, in their official §
capacities,§

§

Defendants.§

PLAINTIFFS' RESPONSE AND BRIEF IN OPPOSITION TO

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

TABLE OF CONTENTS

I. SUMMARY OF POSITION 1

II. PROCEDURAL ISSUES 2

III. FACTS OF THE CASE 3

A. The TAAS Exit Test Has Harmed Plaintiffs and Other Minority Students 3

B. Texas' State and Local Officials Discriminated Against Hispanics and African Americans in the Past 5

C. Standardized Tests Are One Tool of Discrimination Against Hispanics and African Americans in the United States in General and in Texas in Particular
6

D. Although TAAS and its Predecessors Have Consistently Shown Significantly Lower Scores by African Americans and Hispanics than Whites, Texas Continues to Use the Test to Limit Opportunities for High School Graduation
7

E. In Every Measure of Success in the Public Schools of Texas, Discrimination Against Minorities Has Caused to Lower Performance by Minorities 8

F. The TAAS Test Has Denied Tens of Thousands of Minority Students an Opportunity to Obtain a High School Diploma 9

G. The TAAS Exit Test Has a Disparate Impact On African American and Hispanic Students 12

H. The TAAS Exit Test Has Particularly Negative Effects On LEP Students, Almost All of Whom Are Hispanic 13

I. The TAAS Exit Test Has Additional Negative Effects On Minority Students
14

J. The TAAS Exit Tests Are Invalid Tests 15

K. The Development of the TAAS Exit Test Has Exacerbated the Differences Between Passing Rates Between White and Minority Students 17

L. The Texas State Board of Education Followed an Irrational, Arbitrary and Discriminatory Procedure When it Set the Cutoff Scores for the TAAS Tests
17

M. The TAAS Exit Test Is Invalid As Used 18

N. There Are Less Discriminatory Alternatives to Meet the State's Objectives
19

IV. SUMMARY JUDGMENT STANDARD 20

V. SUMMARY OF ARGUMENT 21

VI. THE PLAINTIFFS HAVE SHOWN MATERIAL ISSUES OF FACT SUPPORTING THEIR CLAIMS THAT THE STATE VIOLATED THE EQUAL PROTECTION CLAUSE AND
TITLE VI OF THE CIVIL RIGHTS ACT OF 1964, 42 U.S.C. 2000D 22

VII. PLAINTIFFS HAVE SHOWN MATERIAL
ISSUES OF FACT SUPPORTING THEIR CLAIMS OF A
VIOLATION OF THE TITLE VI REGULATIONS, 34 C.F.R. § 100.3. 27

A. Plaintiffs' Evidence Creates Fact Issues Whether the TAAS Exit Test Has an Adverse Impact 27

B. Plaintiffs' Evidence Creates Fact Issues Whether There is A Substantial Legitimate Justification for the State's Use of the TAAS Exit Test as a Diploma Requirement
30

C. The Plaintiffs Have Produced Evidence to Show That the State's Justification Is A Pretext For Discrimination 34

VIII. PLAINTIFFS' EVIDENCE PRESENTS A MATERIAL FACT THAT
THE TAAS EXIT TEST VIOLATES THE DUE PROCESS CLAUSE 35

A. Procedural Due Process 37

B. Substantive Due Process 38

IX. PLAINTIFFS' EVIDENCE PRESENTS GENUINE ISSUES
OF MATERIAL FACT THAT DEFENDANTS VIOLATED
EDUCATION OPPORTUNITY ACT, 20 U.S.C. § 1703 39

X. PLAINTIFFS' HAVE ESTABLISHED GENUINE ISSUES
OF MATERIAL FACT THAT THE STATE VIOLATED CLAIM
UNDER UNITED STATES v. TEXAS IS VALID 42

XI. CONCLUSION 43

TABLE OF AUTHORITIES

Cases Page(s)

Alvarado v. El Paso, 445 F.2d 1011 (5^th Cir. 1971)......................................................25

AMAE v. California, 937 F. Supp. 1397 (N.D. Ca. 1996)........................................................22

Anderson v. Banks, 540 F. Supp. 761 (S. D. Ga. 1982).............................................................22

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)......................................................21, 22

Bazemore v. Friday, 478 U.S. 385 (1986).................................................................................29

Bew v. City of Chicago, 979 F. Supp. 693 (N.D.Il. 1997)........................................................30, 31

Board of Regents v. Roth, 92 S.Ct. 2701 (1972)....................................................................37

Brown v. Board of Education, 347 U.S. 483 (1954)................................................................2, 24

Buchanan v. City of Bolivar, 99 F.3d 1352 (6^th Cir. 1996)..........................................................28

Castañeda v. Partida, 430 U.S. 482 (1977)...................................................................................29

Castañeda v. Pickard, 648 F.2d 989 (5^th Cir. 1981).................................................................28, 41

Castañeda v. Pickard, 781 F.2d 456 (5^th Cir. 1986)..............................................................28, 31

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)............................................................................21

Chicago v. Lindley, 66 F.3d 819 (7th Cir. 1995)............................................................................28

Cisneros v. Corpus Christi Indep. Sch. Dist., 324 F.Supp. 599 (S.D. Tex. 1970),

aff'd, 467 F.2d 142 (5^th Cir. 1972), cert. denied, 413 U.S. 920 (1973).............................25

Cleveland Board of Education v. Loudermill, 105 S.Ct. 1487 (1985)..................................36, 37

Columbus Board of Education v. Penick, 443 U.S. 449 (1979)......................................................24

Cromartie v. Hunt, 119 S.Ct. 1545 (1999).....................................................................21, 23, 24

Crump v. Gilmer Indep. Sch. Dist., 797 F. Supp. 552 (E.D. Tex. 1992)................................37, 44

Cureton v. NCAA, 37 F. Supp.2d 687 (E.D. Pa. 1999)..............................................22, 32, 34-36

Debra P. v. Turlington, 644 F.2d 397 (5^th Cir. Unit B 1981)..............................passim

Debra P. v. Turlington, 564 F. Supp. 177 (M.D. Fla. 1983)........................................................32

Debra P. v. Turlington, 730 F.2d 1405 (5^th Cir. 1984)........................................................22, 32

DeShaney v. Winnebago County Department of Social Service,

109 S.Ct. 998 (1989)........................................................................................................40

Edgewood v. Kirby, 777 S.W.2d 391 (Tex. 1989)........................................................2

Edgewood v. Kirby, 804 S.W.2d 491 (Tex. 1991)........................................................2

Elston v. Talladega County Board of Educ., 997 F.2d 1394 (11th Cir. 1993)................................28

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)...............................................................................29

Georgia State Branches of NAACP v. State of Ga., 775 F.2d 1403

(11th Cir. 1985)...................................................................................................28, 29, 32

Gomez v. Board of Education, 811 F.2d 1030 (7^th Cir. 1987).......................................................42

Goss v. Lopez, 415 U.S. 565 (1975)...............................................................................................37

Groves v. Ala. Bd. of Educ., 776 F. Supp. 1518 (M.D. Ala. 1991)......................................22, 30-33

Guardians Ass'n v. Civil Service Comm'n of New York City,

463 U.S. 582 (1983)...................................................................................................28, 29

Hazelwood School District v. U.S., 433 U.S. 299 (1977).......................................................29, 30

Hernandez v. Texas, 347 U.S. 475 (1954)......................................................................................2

Hiett v. Biondi, 389 F. Supp. 1132 (N.D.Tex. 1975).................................................................43

Huckaby v. Moore, 142 F.3d 233 (5th Cir. 1998)...................................................................22

Keyes v. Sch. Dist. No. 1, 576 F. Supp. 1503 (D. Colo. 1983)........................................................42

Larry P. v. Riles, 495 F. Supp. 926 (N.D. Ca. 1979)..............................................................33

Larry P. v. Riles, 793 F.2d 969 (9^th Cir. 1984)....................................................................passim

Latinos Unidos de Chelsea en Accion v. Secretary of Hous. and Urban Dev., 799 F.2d 774

(1st Cir. 1986).................................................................................................................28

Lodge v. Buxton, 639 F.2d 1358, 1363 n.8 (5^th Cir. 1981), aff'd sub nom, Rogers v. Lodge,

458 U.S. 613 (1982).........................................................................................................23

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)............................................................35

New York Urban League, Inc. v. State of N.Y., 71 F.3d 1031

(2d Cir. 1985)...................................................................................................28, 32, 35

Phillips v. Vandygriff, 711 F.2d 1217 (5^th Cir. 1983), reh'd, 724 F.2d 490

(5^th Cir. 1984)....................................................................................................................40

Plyler v. Doe, 475 U.S. 202 (1983)........................................................................................2

Quarles v. Oxford Municipal Separate School Dist., 868 F.2d 750

(5^th Cir. 1989).........................................................................................................29, 31, 35

Regents of Univ. of Mich. v. Ewing, 474 U.S. 214 (1985)...........................................37

Ross v. Houston Indep. Sch. Dist., 699 F.2d 218 (5^th Cir. 1979)..................................25

Schware v. Board of Bar Examiners, 77 S.Ct. 752 (1957)..........................................39

Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)..........................................29

Sharif v. New York State Education Department, 709 F. Supp. 345

(S.D.N.Y. 1989)....................................................................................................22, 32, 35

United States v. Crucial, 722 F.2d 1182 (5^th Cir. 1983)..........................................................25

United States v. LULAC, 793 F.2d 636 (5^th Cir. 1986)................................................................39

United States v. Texas, 321 F. Supp. 1043 (E.D. of Tex., 1971), aff'd and modified,

447 F.2d 441, (5^th Circuit 1972)................................................................passim

United States v. Texas, 509 F.2d 192 (5^th Cir. 1975)...................................................43

United States v. Texas, 680 F.2d 356 (5^th Cir. 1982)...................................................42

United States v. Texas Education Agency (Austin) 564 F.2d 162 (5^th Cir. 1977), cert. denied,

443 U.S. 915 (1979).........................................................................................................25

United States v. Yonkers, 96 F.3d 600 (2d Cir. 1996).....................................................................42

Tasby v. Wright, 713 F.2d 90 (5^th Cir. 1983).........................................................................25

Teresa P. v. Berkeley Unified Sch. Dist., 724 F. Supp. 698 (N.D. Cal. 1989)..............42

Truax v. Raich, 36 S.Ct. 7 (1915)..............................................................................................39

Village of Arlington Heights v. Metropolitan Housing Dev. Corp.,

429 U.S. 252 (1977).........................................................................................................24

Villanueva v. Carere, 85 F.3d 481 (10th Cir. 1996)....................................................................28

Washington v. Davis, 426 U.S. 229 (1976)........................................................................23, 25

Watson v. Ft. Worth Bank and Trust, 487 U.S. 977 (1988)..........................................30, 35

White v. Regester, 412 U.S. 755 (1973)......................................................................................2

Williams v. Adams, 836 F.2d 958 (5th Cir. 1988)...........................................................................22

Ex Parte Young, 209 U.S. 123 (1908).......................................................................................29

Statutes

29 C.F.R. § 1607.4 ..............................................................................................................14, 30

34 C.F.R. § 100.3 .................................................................................................................28, 29

20 U.S.C. § 1703 ..................................................................................................40-42

42 U.S.C. § 1983 .......................................................................................................44

42 U.S.C. § 2000d ..........................................................................................................23, 28, 29

19 Tex. Admin. Code § 74.11 (West 1998)...............................................................38

19 Tex. Admin. Code § 101.2 (West 1998).................................................................38

Tex. Educ. Code Ann. § 4.002 (West 1997)................................................................37

Tex. Educ. Code Ann. § 25.085 (West 1997)..............................................................37

Tex. Educ. Code Ann. § 28.025 (West 1997)..............................................................38

Tex. Educ. Code Ann. § 39.023 (West 1997).............................................................38

Tex. Educ. Code Ann. § 39.025 (West 1997)..............................................................15

Tex. Rev. Civ. Stat. Ann. art. 8451 (West 1990)...............................................................5, 40

Other Authorities

Carlos Alcala and Jorge Rangel, Project Report: De Jure Segregation of Chicanos in Texas

Schools, 7 Harv. C.R.-C.L. L. Rev. 307 (1972)..........................................................7

American Psychological Association, Standards for Educational and Psychological Testing

(1985).............................................................................................................15

Guadalupe San Miguel, Let All of Them Take Heed: Mexican Americans and the Campaign for

Educational Quality in Texas, 1910-1981 (1987)..............................................7

Missing Youth: Dropout and attrition rates in Texas Public High Schools,

IDRA, (1999)..................................................................................................13

David Montejano, Anglos and Mexicans in the Making of Texas, 1836-1986 (1987)...7

National Research Council, High Stakes Testing for Tracking Promotion and Graduation

(Nat'l Academy Press, D.C. 1999)..................................................................19

U.S. Commission on Civil Rights, Mexican American Education Study Reports 1-6

(1971-74).........................................................................................................7

NOW COME Plaintiffs, GI Forum, et al., and file this response in opposition to Defendants' motion for summary judgment and brief in support.

I. SUMMARY OF POSITION

The TAAS exit test is the ultimate "high-stakes" test.⁽¹⁾ Failure on one of the three parts of the test by one point denies a student a high school diploma, regardless of the student's record in school. Without a high school diploma a person will have no chance to participate in the economic or community life of the twenty-first century. Texas has denied tens of thousands of students their high school diploma because of the TAAS exit test. Minority students are disproportionately negatively affected by these tests - a particularly tragic fact considering Texas' long history of discrimination against these groups in its educational system.

Given the significant negative impact on minorities and the State's history of racial discrimination, it is even more tragic that Texas has not met national standards in the development and use of these tests and Texas could have used significantly less discriminatory means to meet the state's objectives.

The basis of the Defendants' position in this litigation is that their use of the TAAS exit test is a state policy and that the court should not interfere with state policies, especially in the area of education. This is the same worn defense that the State of Texas has used for fifty years in cases brought by African Americans and Hispanics to improve education and protect other civil rights. See, e.g. Brown v. Bd. of Education, 347 U.S. 483 (1954) (Texas supporting separate but equal doctrine); Hernandez v. Texas, 347 U.S. 475 (1954) (Texas supporting exclusion of Hispanics from juries); United States v. Texas, 321 F. Supp. 1043 (E.D. Tex. 1971), aff'd and modified, 447 F.2d 441 (5^th Cir. 1972) (Texas defending discriminatory transfers, segregated districts and the failure to provide programs for students of Limited English Proficiency); White v. Regester, 412 U.S. 755 (1973) (Texas supporting the use of multi member districts which disenfranchised minority voters); Plyler v. Doe, 475 U.S. 202 (1983) (Texas supporting the right to exclude the children of undocumented persons from a free public education); Edgewood v. Kirby, 777 S.W.2d 391 (Tex. 1989) (Edgewood I) and Edgewood v. Kirby, 804 S.W.2d 491 (Tex. 1991) (Edgewood II) (Texas defending inequitable school finance system).

State educational policy is entitled to some deference, but when it has a sustained negative effect upon minorities and when there is a tenuous relationship between the broadly defined interests of the state and the actual policy it is defending, courts should review and strike down such policies.

II. PROCEDURAL ISSUES

Plaintiffs have been particularly prejudiced by Defendants' failure to comply with this Court's Order, requiring movant to list "uncontested facts." December 9, 1997 Scheduling Order and Order Concerning Consent Trials, Discovery, Pretrial Matters, and Pretrial Order ¶ B (10). Defendants' summary judgment motion does not include "a separate, short, and concise statement of the material facts" not in dispute. Id. Defendants' brief includes hundreds of self-serving factual allegations without specifying which of are material and/or uncontested, leaving Plaintiffs the task of guessing what Defendants allege to support their motion. For this reason alone, the Court should deny Defendants' motion for summary judgment. Nevertheless, Plaintiffs will summarize those material and contested issues which they guess are responsive, while reserving the right to respond again if Defendants comply with the rules.

Plaintiffs have amassed an incredibly rich and broad factual record of thousands of documents, thirty depositions, approximately 10,000 pages of depositions, nine expert reports and other sources. What follows is a brief summary of that record; yet the following summary is still more than enough information to show that any material fact issue in this case is either uncontested in the plaintiffs' favor or contested by the parties.

III. FACTS OF THE CASE

A. The TAAS Exit Test Has Harmed Plaintiffs and Other Minority Students

The harmful effects of the TAAS exit test are palpable and catastrophic for all students, but especially for minority students. Plaintiffs Alfred Lee Hicks, Mark Garza, Rhonda H. Boozer, Leticia Ann Faz and Elizabeth Garza are representative of other Hispanic and African American students who did not receive their high school diplomas because of the TAAS exit test. (See generally, Tab 6, Mark Garza Aff.; Tab 4, Leticia Faz Aff.; Tab 8, Mary Alice Moreno Aff.; Tab 9, Tracy Ann Soto Aff.). Without a high school diploma, Plaintiffs and others like them have been denied jobs and the opportunity to attend college. (Tab 6, M. Garza Aff. ¶ 20; Tab 9, T. A. Soto Aff. ¶ 3; Tab 28, R. Boozer Depo. at 40:12 - 41:6; Tab 34, Daniel Garcia Depo. at 25:11 - 26:13). In addition, the denial of a high school diploma based on the TAAS exit test has stigmatized Plaintiffs and others similarly situated as persons lacking minimal competency in math, reading and writing. This is true even if students successfully completed all of their course credits but failed any part of the exit test by one point.

Plaintiffs and others like them went to public schools in Texas for their elementary and secondary education. (See, e.g., Tab 6, M. Garza Aff. ¶ 3; Tab 4, L. Faz Aff. ¶ 3). For the better part of their public school years, Plaintiffs attended schools that were burdened by the effects of racial discrimination and an unconstitutional public school finance system. See infra III(B), (C). Plaintiffs' experience with the Texas public school system was marred by, among other things, inferior curricula, inadequate curriculum materials, and inexperienced and uncertified teachers. See infra III(B), (C), (E), (J) and (K); see also, Tab 48, Treisman Depo. at 269:17 - 270:16. Despite these adversities, Plaintiffs and others like them diligently met the attendance requirements set by the State and their respective school districts and successfully completed the course requirements necessary for a high school diploma. (See generally, Tab 6, Mark Garza Aff.; Tab 4, Leticia Faz Aff.; Tab 8, Mary Alice Moreno Aff.; Tab 9, Tracy Ann Soto Aff.).

Plaintiffs also dutifully took the State's exit test but failed one or more parts of the test. Id. Thus, after twelve years of schooling and proving that they learned the material taught to them, Plaintiffs were informed they could not have their high school diplomas because they failed the State's standardized test.

The negative consequences of the TAAS exit test on Plaintiffs' life opportunities cannot be overstated. Without a diploma, Plaintiffs and others like them can never attend college and earn a bachelor's degree or an advanced professional degree. They also cannot attend a technical school and earn a degree which would provide them with a better standard of living. (See, e.g., Tab 35, E. Garza Depo. at 25:8). Persons without a high school diploma also cannot pursue common trades like plumbing, cosmetology and law enforcement. (See, e.g., Tab 64, Texas State Bd. of Plumbing Examiners Board of Rules - July, 1998 at 13; Tex. Rev. Civ. Stat. Ann. art. 8451a § 33(i) (Supp. 1999) (requiring high school diploma to renew license); Tab 34, D. Garcia Depo. at 25:11 - 26:13).

Finally, for many students and especially those who are Limited English Proficient (LEP), the negative impact of the TAAS is felt before students complete high school. See infra III(H); (Tab 24, Valenzuela Expert Report at 2-3; Tab 51, Valenzuela Depo. at 245:15-25). As a result of poor performance on the TAAS test, many students are retained in their grades even though they are performing satisfactorily in their courses. See infra III(F); Tab 75, October 1998 TEA Report on Grade Level Retention at p. 4 (reporting a 25% retention rate for African Americans and Hispanics in the 9^th grade). The TAAS is also used to place students in inferior educational tracks which limit students' future educational opportunities. Sadly, these tracks are maintained by schools for the sole purpose of teaching students how to pass the TAAS. (Tab 13, Pat Boerner Depo. at 10:8 - 11:12, 58:7 - 59:2; Tab 55, Sally Tilley-Cuevas Depo. at 13:11 - 16:2). Poor performance on the TAAS also extinguishes the hopes of many students in their freshman and sophomore years for a high school diploma and influences them to drop out. See infra III(F). This is a particularly tragic fact of life for LEP students who perform better in class than some of their peers but fail the TAAS exit test at disproportionate rates. (Tab 24, Valenzuela Expert Report at 8-9). Realizing that they will not learn English well enough to pass the TAAS exit test in four years, many LEP students drop out. See infra III(H), (I).

Specifically, Hispanics and African Americans earn significantly lower scores on all grade 3 TAAS tests (reading and math), all grade 4 TAAS tests (reading, writing and math), all grade 5 tests (reading and math), all grade 6 TAAS tests (reading and math), all grade 7 TAAS tests (reading and math), all grade 8 TAAS tests (reading, writing, math, science and social science) and all grade 10 TAAS exit tests (reading, writing and math). (Tab 56, Depo. Exh. 2 at 29-31). In addition, Hispanics and African Americans have significantly lower cumulative pass rates on the TAAS exittest.⁽³⁾ (Tab 56, Exh. 2 at 32). A significantly greater proportion of Hispanics and African Americans are exempted from the TAAS exit test because they are LEP; a significantly greater proportion are exempted by their special education ARD committees. (Tab 56, Depo. Exh. 2 at 32). Attendance rates for Hispanics and African Americans are slightly lower than for whites. The drop-out rates for Hispanics and African Americans are significantly higher than those of whites.⁽⁴⁾

The same pattern persists today. In May 1993, 71% of African Americans, 66% of Hispanics and 34% of whites failed at least one part of the exit test when they took it the first time. (Tab 2, Fassold Aff. at ¶6). Moreover, significantly higher percentages of African Americans and Hispanics -- 17% of African Americans and 18% of Hispanics as compared to 4% of whites -- failed all three parts of the test when they first took it. Id. As they entered their junior year in high school, over two-thirds of minority students and only one-third of whites had not yet completed their TAAS requirements. In addition, 40% of minority students, as compared to 13% of white students, had failed two or three parts of the TAAS test, implying a decreased probability of finally passing the test. Id. Thus in May of 1993, of the 24,000 African Americans who took the TAAS test at the end of their sophomore year, only 7,000 passed all three parts of the test, and over 10,000 failed two or three parts of the tests. Id. For Hispanics, of the 63,000 who took the test, only 21,000 passed all parts of the test and 25,000 failed either two or three parts of the test. Id. A similar pattern of adverse impact exists for the March 1994, March 1995, March 1996 and the February 1997 tests. Id.

Although Defendants point to significant progress in minority passing rates, the failure rate for minorities was still more than twice the failure rate for whites in 1997. Id. Specifically, in February 1997, 51% of African Americans, 49% of Hispanics and 19% of whites failed at least one part of the test. Id. In addition, 23% of African Americans, 25% of Hispanics but only 6% of whites failed two or three parts of the TAAS test when they first took the test in February 1997. Id.

The detailed reports on the TAAS test for the various grades and subjects in 1993 (Tabs 70-72), 1995 (Tab 73), 1996 (Tab 80), 1998 (Tab 58), and 1999 (Tab 76) are attached as exhibits. The pattern from these statistics is clear. In each case, African Americans and Hispanics score significantly lower than whites.

The significant differences between Hispanics and African American scores on the one hand and white scores on the other on the TAAS exit test is not a function of income, LEP status or special education status. Specifically, an analysis of TAAS exit test takers who were not below poverty level, eligible for Chapter 1 or Title 1 support, participating in a special education program, identified at-risk status, participating in vocational education, designated as a foreign exchange student, participating in bilingual education programs or English as a second language programs, or designated as a LEP student or as a migrant student, still shows a practical and statistically significant difference between the passing rates of African Americans and Hispanics on the one hand and whites on the other. (Tab 1, Haney Aff. ¶ 8-14; Tab 2, Fassold Aff. at ¶ 7). In 1993 for this "restricted subpopulation group," 48% of African Americans, 38% of Hispanics and 16% of whites failed at least one part of the TAAS exit test. (Tab 2, Fassold Aff. at ¶ 7). In 1994 for this "restricted subpopulation group," 50% of African Americans, 39% of Hispanics and 19% of whites failed the test. Id. In February 1997 for this "restricted subpopulation group," 36% of African Americans, 24% of Hispanics, and 8% of whites failed the exit test. Id.

The TAAS exit test has led to an increase rather than decrease in the drop-out rate for minorities. (Tab 19, Haney Expert Report at 23-25; Tab 30, J. Cardenas Depo. at 220:17 - 221:11, 276:9 - 277:4; Tab 83, IDRA Report; Tab 10, Robledo Aff.; Tab 75, TEA 1996-97 report on Grade Retention). The percent of dropouts from Texas public schools increased from 33% to 42% between 1985-86 (the year before the TAAS-TEAMS exit tests were implemented) and 1997-98. (Tab 74, October 1998 IDRA newsletter). From 1985-86 to 1997-98, the Hispanic dropout rate in Texas public schools increased from 45% to 53% and the African American dropout rate increased from 34% to 49%, and the white rate from 27% to 31%. Id. These statistics are based on the same definition of drop-outs and calculation of drop-out rate performed on TEA data every year, i.e. comparing the number of students who enter the 9^th grade to the number of students who are enrolled in the 12^th grade 4 years later, and correcting for overall changes in enrollment in the district or state. (Tab 83, Missing Youth: Dropout and attrition rates in Texas Public High Schools, IDRA, 1999).

The TEA definition of dropout is changed almost yearly, and unlike IDRA and U.S. Dept of Education reports, continues to decline. (Id. Missing Youth at 19; Tab 74, IDRA Newsletter at 4-5). Yet even the TEA data shows that both the yearly and longitudinal dropout rates for Hispanic and African American students are twice the Anglo rate. (Tab 56, Exh. 2 at 33). The use of the TAAS exit test is one of the causes of these increased dropout rates. (Tab 19, Haney Expert Report at 14, 17-18; Tab 16, Bernal Expert Report at 6).

The TAAS exit test has also led to an increased retention rate in the ninth grade. (Tab 16, Bernal Expert Report at 6; Tab 83, IDRA Report). For example in 1996-97, 25% of minorities as opposed to 10% of whites were retained in the 9^th grade. (Tab 75 at 4).

J. The TAAS Exit Tests Are Invalid Tests

The TAAS exit test is invalid for several reasons. (Tab 19, Haney Expert Report at 20-23; Tab 37, Haney Depo. at 387:9 - 399:8; Tab 22, Dr. Martin Shapiro Expert Report at 3-5; Tab 26, Bernal Depo. at 41:13 - 43:12, 85:18 - 88:24; Tab 50, Valencia Depo. at 91:16 - 93:19). It is the duty and responsibility of the user of a standardized test (in this case, the State of Texas) to show both that the test is valid and that it is valid for a particular use. (Tab 42, Dr. William Mehrens Depo. at 133:7 - 134:15; Tab 44, Dr. Susan Phillips Depo. at 238:8 - 239:4; American Psychological Association, Standards for Educational and Psychological Testing 41, 42, and 63 (1985)). The State has not shown that the TAAS exit test is valid as a diploma sanction; nor has it shown that the test is related to the curriculum or instruction in Texas public schools.

When Texas "validated" the TAAS exit test, they did not do a study to determine whether the subject matter on the TAAS test were actually covered in the textbooks of the State, learned by students or taught by a broad range of teachers. (Tab 62 at 7260; Tab 45, P. Porter Depo. at 16:1-21; Tab 39, E. Johnson Depo. at 213:5-17; Tab 44, Phillips Depo. at 98:7 - 100:12, 121:11 - 123:10). The State's chief expert and consultant on the development of the TAAS exit test did not review any such surveys, (Tab 44, Phillips Depo. at 597:6 - 599:19), because as Plaintiffs contend, the State did not conduct any.

In fact, there are, and have historically been, major differences between the quality of instruction that African Americans and Hispanics receive in Texas public schools and the quality of instruction Anglos receive. (Tab 48, Treisman Depo. at 166:3-22; Tab 18, Mark Fassold Expert Report at Supp. A and B; Def. Exh. F at 16; Tab 52, James Vasquez Depo. at 11:21 - 14:2; Tab 43, Moses Depo. at 89:25 - 93:20; Tab 16, Bernal Expert Report at 6-7). Texas, however, has not determined whether the test is equally or similarly valid for members of Texas' different racial/ethnic groups, specifically for Anglos as compared to Hispanics and African Americans. (See Tab 22, Shapiro Expert Report at 3-5; Tab 16, Bernal Expert Report at 7; Tab 26, Bernal Depo. at 154:4-18; Def. Brief, Exh. 2 at 7).

The State has failed to relate the TAAS exit test results to other indicators of a student's performance, i.e., the State failed to "validate" the test scores against other relevant information such as a student's grades. (Tab 19, Haney Expert Report at 18-20).

A significantly higher proportion of African Americans and Hispanics than whites pass their courses in school but are unable to pass the related TAAS exit test. TEA's own study commented on the relationship between the passing of the exit TAAS test and the passing of English II, the English course taken by students the same year that the TAAS exit reading and TAAS exit writing tests are given. The TEA report commented (Tab 81, 1994-95 Student Performance Reports at 183):

For each of the populations analyzed, more students passed English II and failed TAAS reading or writing than failed English II and passed TAAS reading or writing. For example, 28 percent of tenth-grade African American students passed English II but failed TAAS reading, while only 5 percent failed English II but passed TAAS reading. Similarly, 20 percent of African American students passed English II but failed TAAS writing, while 7 percent failed English II but passed TAAS writing. These patterns of performance also held true for Hispanic students, where 24 percent passed English II but failed TAAS reading, 7 percent failed English II but passed TAAS reading, 16 percent passed English II but failed TAAS writing, and 9 percent failed English II but passed TAAS writing. Although similar patterns can also be seen with regard to the white population, a comparison of pass/fail rates in English II with those on TAAS reading or writing reveals a less pronounced difference for tenth-grade white students than for the other two ethnic groups. For example, 9 percent of white students passed English II but failed TAAS reading, and 5 percent who failed English II but passed TAAS reading. Likewise, only 7 percent of white students passed English II but failed TAAS writing, while 5 percent failed English II but passed TAAS writing.

· issuing a multi-tier diploma; the first -tier diploma would indicate that the student has met all graduation requirements but did not pass the TAAS. The second-tier diploma would show that the student met all graduation requirements and passed the TAAS. The third tier diploma would show that the student passed the TAAS at an exemplary level and met stringent coursework requirements.

· allowing individualized administration of the TAAS

· contracting for an interactive computerized learning development system consisting of course that incorporate remediation in each of the TAAS exit level subjects

· allowing students who receive an Associates degree to receive a high school diploma

· allowing students who pass the Texas Academic Skills Program (TASP) and who have met all other requirements to receive a high school diploma

· requiring that remediation plans be filed for students scoring below a certain level on the TAAS

· contracting for a professional development system to assist school districts with the development of remediation programs

· allowing workplace certifications

· judging students' performance based on portfolios of their work

· basing a passing score on the TAAS on a cumulative score from the three parts of the test

(Tab 84 at D 0002885-86; 002903).⁽⁷⁾

The State, however, did not adopt any of these recommendations.

The State's own witnesses admit that the TAAS is useful for assessment purposes even without the diploma requirement. (See Tab 47, Ann Smisko Depo. at 59:12 - 60:9; Tab 39, E. Johnson Depo. at 68:14 - 69:14; Tab 40, M. Johnson Depo. at 66:24 - 67:18; Tab 38, Chrissy Hester Depo. at 40:15 - 41:10). As an assessment tool, it can continue to meet the state's interest of identifying students for remediation and holding schools accountable. A less discriminatory alternative is for the State to continue to administer the exit test without using it as a diploma requirement.

One less discriminatory alternative is to use the TAAS exit test score in a compensatory mode. Under such an approach, low TAAS exit test scores would be off-set by higher grade point averages. (See Tab 37, Haney Depo. at 393:8-15). Alternatively, a combination of grades, the level of courses taken and passed, and actual products that reflect reading, writing or mathematical ability could be taken into account in determining whether a student should receive a diploma.

IV. SUMMARY JUDGMENT STANDARD

In order to prevail on a summary judgment motion, the defendants must show that the record, when viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see, e.g., Cromartie v. Hunt, 119 S.Ct. 1545 (1999); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); Williams v. Adams, 836 F.2d 958, 960 (5th Cir. 1988). The nonmoving party is entitled to the benefit of all reasonable inferences to be drawn from the facts in the record and to have any doubts resolved in its favor. Huckaby v. Moore, 142 F.3d 233, 238 (5th Cir. 1998). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions." Liberty Lobby, 477 U.S. at 255.

V. SUMMARY OF ARGUMENT

There is a wide body of case law in the educational testing arena that governs whether the state can legitimately impose a test such as the TAAS on minority students. Courts have rejected tests as invalid for a variety of reasons, including inadequate test development procedures, insufficient validity data or inappropriate uses of standardized tests. See e.g., Debra P. v. Turlington, 644 F.2d 397, 404-406 (5^th Cir. Unit B 1981); Larry P. v. Riles, 793 F.2d 969, 981 & n.6 (9^th Cir. 1984); Cureton v. NCAA, 37 F. Supp.2d 687 (E.D. Pa. 1999); Groves v. Ala. Bd. of Educ., 776 F. Supp. 1518 (M.D. Ala. 1991); Sharif v. New York State Educ. Dept., 709 F. Supp. 345 (S.D.N.Y. 1989). Plaintiffs have prevailed in their challenges to invalid tests based on Equal Protection, Due Process and Title VI claims. Even in cases where plaintiffs have not prevailed, however, courts have reviewed extensive evidence on test validity and the defendants' uses of tests before ruling on such claims. See, e.g., Debra P. v. Turlington, 730 F.2d 1405 (5^th Cir. 1984) (court held on remand that state had presented evidence that the materials covered on the state's exit test were taught in the state's schools); AMAE v. California, 937 F. Supp. 1397 (N.D. Ca. 1996) (after extensive evidence from all parties, court ruled that the state had provided adequate evidence of the reliability and validity of its exam); Anderson v. Banks, 540 F. Supp. 761 (S. D. Ga. 1982) (court held evidentiary hearings to allow the state to present evidence that its exit examination covered matters actually taught in the schools).

It is in the context of these legal precedents that Plaintiffs ask this Court to review their claims regarding Texas' inappropriate development and use of its TAAS exit test.

VI. THE PLAINTIFFS HAVE SHOWN MATERIAL

ISSUES OF FACT SUPPORTING THEIR CLAIMS THAT THE

STATE VIOLATED THE EQUAL PROTECTION CLAUSE AND

TITLE VI OF THE CIVIL RIGHTS ACT OF 1964, 42 U.S.C. 2000D

Plaintiffs challenge Texas' high school exit test under the Equal Protection Clause and Title VI of the Civil Rights Act of 1964.⁽⁸⁾ To establish liability for their claims under the federal constitution and Title VI, Plaintiffs must prove that the State Defendants were motivated by racial considerations. Washington v. Davis, 426 U.S. 229 (1976). Therefore, the same legal standard and factual contentions are applicable to Plaintiffs' claims of intentional discrimination.

State action that classifies individuals on the basis of race is constitutionally suspect and subject to the highest scrutiny. Hunt v. Cromartie, 119 S.Ct. 1545, 1548-49 (1999). If the racial classification is explicit, the court does not need to inquire into legislative purpose or motivation. Id. at 1549. On the other hand, facially neutral official actions are subject to strict judicial review "only if it can be proved that the law was 'motivated by a racial purpose or object,' or if it is 'unexplainable on grounds other than race.'" Id. (internal citations omitted). Direct evidence of discriminatory intent is not required for rarely, if ever, is there a "smoking gun." Id.; Lodge v. Buxton, 639 F.2d 1358, 1363 n.8 (5^th Cir. 1981), aff'd sub. nom., Rogers v. Lodge, 458 U.S. 613 (1982). Circumstantial or direct evidence or a combination of both are sufficient to prove a discriminatory purpose or motive. Hunt, 119 S.Ct.at 1549.

Assessing motivation, however, is an exceptionally complex task which requires courts to perform a "sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Id. (citing Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 266 (1977)). The teachings of Arlington Heights establish that a plaintiff can show discriminatory intent through such factors as disparate impact, 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, 429 U.S. at 266. In addition, the Supreme Court has noted that "actions having foreseeable and anticipated disparate impact are relevant evidence to prove the ultimate fact, forbidden purpose." Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 464 (1979). Finally, like in any other civil action, the plaintiff must prove discriminatory intent by a preponderance of the evidence.

Evidence presented by Plaintiffs creates genuine issues of material fact that the State adopted and maintains a high school graduation test with a discriminatory purpose. Plaintiffs' evidence establishes that the TAAS exit test bears disproportionately more heavily on Hispanics and African Americans than whites. See supra III(E), (F). Indeed, the disparate impact is substantial and statistically significant, depriving tens of thousands Texas' minority students of their high school diplomas and encouraging them to drop out. See supra III(G).

Plaintiffs' evidence also establishes that the State's decision to enact policies that negatively affect Hispanics and African Americans arose in the context of a school system that practiced overt and intentional discrimination against minorities. Brown v. Board of Education did not immediately eliminate racial discrimination in the Texas public school system. It has taken years of litigation to compel State and local officials to end segregationist practices in the public schools. See, e.g., Ross v. Houston Indep. Sch. Dist., 699 F.2d 218 (5^th Cir. 1979); United States v. Texas Education Agency 564 F.2d 162 (5^th Cir. 1977) (Austin I.S.D.), cert. denied, 443 U.S. 915 (1979); Alvarado v. El Paso, 445 F.2d 1011 (5^th Cir. 1971); Cisneros v. Corpus Christi Indep. Sch. Dist., 324 F.Supp. 599 (S.D. Tex. 1970), aff'd, 467 F.2d 142 (5^th Cir. 1972), cert. denied, 413 U.S. 920 (1973). Some school systems bitterly fought desegregation. See, e.g., United States v. CRUCIAL, 722 F.2d 1182 (5^th Cir. 1983); Tasby v. Wright, 713 F.2d 90 (5^th Cir. 1983). To date, the State and forty school districts are still subject to federal court desegregation orders.

The State's ignominious role in providing unequal educational opportunities to its minority students counsels for special consideration and further judicial review of any official action that "bears more heavily on [Texas' minority students] than [whites]" Washington, 426 U.S. at 242.

Plaintiffs have also presented evidence that the effects of racial discrimination on minorities continues today. See supra III(D-J). African American and Hispanic students are concentrated in educational tracks that are inferior to those of their white peers. (Tab 50, Valencia Depo. at 202:16 - 203:21; Tab 30, J. Cardenas Depo. at 264:2-6). A disproportionate number of minority students attend schools that employ teachers who lack proper credentials. (Tab 48, Treisman Depo. at 269:17 - 270:6; Tab 86, "Inclusion of Exempted LEP Students in the Assessment and Accountability Systems," at 0007395). Also, Hispanic and African American students are underrepresented in college preparatory or advanced placement courses. (Tab 48, Treisman Depo. at 47:1-17; Tab. 50, Valencia Depo. at 203:22 - 205:8). Therefore, the State's decision to impose a high school graduation requirement in a public school system which is still plagued by the effects of official discrimination raises serious questions about the State's motivation and its good faith efforts to improve the lot of minority students in Texas.

The timing of the State's decision also raises questions about the State's true motivations. For the better part of this century, Hispanic and African American students were concentrated in the poorest public school districts in the State. (Tab 52, J. Vasquez Depo. at 11:17 - 14:15). Minority students had fewer curricular materials, computers, science equipment, library materials, and lower-paid teachers, many who lacked proper credentials. Id. This state of affairs changed only as a result of litigation brought by Plaintiffs' lawyers. Moreover, although the Texas public school financing system was declared unconstitutional in 1987, it was not until 1995 that the system was declared constitutional.⁽⁹⁾ Thus, the State's interest in "raising standards and accountability" in its public school system are belied by its callous indifference to the education that its minority students had received prior to 1993 and which had ill-prepared them for the State's exit test.

The plaintiffs can also point to evidence that the State's actions or patterns are unexplainable except on grounds other than race. In this case, the State implemented a test that the TEA and the SBOE knew to be of dubious validity at the time it was implemented. (Tab 62, Minutes of SBOE July 1990 meeting, 007259-60).⁽¹⁰⁾ There is no legitimate reason to implement a test that will provide an inaccurate measurement of a student's knowledge and that does not provide accurate information about the success of a given school district's programs. The TEA and the SBOE also knew at the time the test was implemented that it would have a disproportionate impact on minorities. (Tab 59, Depo. Exh. at 347). Finally, although it has asserted an interest in holding schools accountable and in identifying deficiencies for purposes of remediation, the State has articulated no interest which is furthered by the use of the test as a diploma requirement. The decision by school officials to use a test of dubious educational value that they knew would have a disparate impact for no legitimate purpose, is, therefore an action unexplainable on grounds other than race.

Finally, Plaintiffs' summary judgment evidence shows significant departures from the normal procedural sequence in the State's decision to adopt a high school graduation test and set the passing score. The State failed to conduct any surveys of teachers to determine whether students were taught the material covered by the test. See supra III(J). The State also failed to conduct any surveys of students to find out what they were learning in school. Id. In addition, the State neglected to ascertain whether the textbooks used in Texas public schools covered the material tested by the exit test. Id. Indeed, if the State is correct that the TAAS tests reflect the state-mandated curriculum, Defs.' Brief at 3, the best evidence that public school students, especially minority students, are exposed to an inferior curriculum and inadequate instruction is the field test results of the TAAS exit test.

Plaintiffs' summary judgment evidence therefore creates a genuine issue of material fact that the State adopted the TAAS exit test and the cut-off score with a discriminatory purpose.VII. PLAINTIFFS HAVE SHOWN MATERIAL

ISSUES OF FACT SUPPORTING THEIR CLAIMS OF A

VIOLATION OF THE TITLE VI REGULATIONS, 34 C.F.R. § 100.3.

Plaintiffs' summary judgment evidence raises material fact issues on all the elements of their disparate impact claim under the regulations to Title VI of the Civil Rights Act of 1964.

A. Plaintiffs' Evidence Creates Fact Issues Whether the TAAS Exit Test Has an Adverse Impact

Plaintiffs have a right to sue for equitable relief under the implementing regulations to Title VI of the Civil Rights Act of 1964.⁽¹¹⁾ Castañeda v. Pickard, 648 F.2d 989, 1000 (5^th Cir. 1981); Guardians Ass'n v. Civil Service Comm'n of New York, 463 U.S. 582 at 607. To establish a violation under the Title VI regulations, a plaintiff must simply show by a preponderance of the evidence that a facially neutral practice has a racially disproportionate effect. See Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d at 1417 (11^th Cir. 1985); Quarles v. Oxford Municipal Separate School Dist., 868 F.2d 750, 754 n.3 (5^th Cir. 1989); Larry P. v. Riles, 793 F.2d at 982. Just as in a Title VII case, "[a] plaintiff . . . need not prove discrimination with scientific certainty; rather, his or her burden is to prove discrimination by a preponderance of the evidence." Bazemore v. Friday, 478 U.S. 385, 400 (1986).

Statistical techniques and rules play a key role in determining whether a facially neutral policy, such as the TAAS exit test, has a disparate impact on minorities. See Hazelwood School District v. United States, 433 U.S. 299 (1977) (recognizing the efficacy of probability analysis); Castañeda v. Partida, 430 U.S. 482 (1977) (acknowledging the probative value of probability theory in determining the significance of the under-representation of Hispanics on Texas grand juries). The courts avail themselves of several types of statistical analyses to determine the empirical significance of the disparity. See, e.g., Groves v. Ala. St. Bd. of Educ., 776 F.Supp. 1518 (M.D.Ala. 1991) (reviewing disparate impact claim under the 80% rule, the standard deviation analysis described in Hazelwood and the Castañeda statistical method (the Shoben test) to determine disparate impact); Bew v. City of Chicago, 979 F. Supp. 693 (N.D.Ill. 1997) (reviewing plaintiffs' disparate impact claim under both the Four-Fifths Rule and the Shoben methodology). The key to determining that adverse impact establishes a violation is that the "statistical disparities must be sufficiently substantial that they raise . . . an inference of causation." Watson v. Ft. Worth Bank and Trust, 487 U.S. 977, 995 (1988).

Using statistical techniques, the plaintiffs can show that the test has produced a racially disproportionate effect including higher diploma denial rates and higher dropout rates. (Tab 1, Haney Aff. at ¶¶ 12-14; Tab 2, Fassold Aff. at ¶ 6-9; Tab 19, Haney Expert Report at 7-18; Tab 18, Fassold Expert Report at 3-10). Here, Plaintiffs have shown adverse impact under the Four-Fifths Rule, the Shoben Rule and other inferential statistics. Id. They have shown that the disparity in pass rates is practically significant.⁽¹²⁾ Id.

Thus, even if the Court accepts Defendants' argument that Plaintiffs failed to show disparate impact under the EEOC's Four-Fifths Rule, there is equally persuasive evidence showing that the TAAS exit test has a disparate impact on minorities. Id. The Court simply cannot grant summary judgment on Plaintiffs' disparate impact claims on these facts. See Bew v. City of Chicago, 979 F. Supp. at 695-97 (denying defendants' summary judgment motion where plaintiffs demonstrated disparate impact through the Shoben methodology even though the plaintiffs could not show adverse impact under the 80% rule); Groves v. Ala. St. Bd. of Educ., 776 F.Supp. at 1528 (finding disparate impact under Shoben methodology even though selection rates did not meet Four Fifths Rule).

B. Plaintiffs' Evidence Creates Fact Issues Whether There is A Substantial Legitimate Justification for the State's Use of the TAAS Exit Test as a Diploma Requirement

Upon a showing by plaintiffs of disparate impact on a Title VI claim, the burden shifts to the state to rebut the prima facie case by showing a substantial legitimate justification for its use of the TAAS test as a diploma requirement. Quarles v. Oxford Mun. School District, 868 F.2d 750, 754 n.3 (5^th Cir. 1989); Larry P. v. Riles, 793 F.2d at 982; Castañeda, 781 F.2d at 465. Courts have construed educational necessity as a substantial legitimate justification. See New York Urban League v. State of New York, 71 F.3d 1031, 1036 (2d Cir. 1995); NAACP v. Georgia, 775 F.2d 1417.

The State simply does not have an educational necessity in implementing an invalid test. The State must demonstrate the test's validity in order to meet its burden of showing educational necessity. Debra P. v. Turlington, 644 F.2d 397 (5^th Cir. Unit B 1981); Larry P., 793 F.2d at 981 n.6; Groves, 776 F.Supp. at 1530-1531; Cureton v. NCAA, 37 F. Supp.2d 687 (E.D. Pa. 1999); Sharif v. New York State Educ. Dept., 709 F. Supp. 345 (S.D.N.Y. 1989). Courts have rejected states' uses of tests based on several different types of validity evidence.

For example, in Debra P., 644 F.2d at 404-406, the Fifth Circuit enjoined the use of Florida's high school exit test because the state failed to meet its burden to show that the test measured what was taught in the classrooms. There, the plaintiffs claimed that Florida's exit test violated their due process and equal protection rights because it did not cover what the students learned in school. The Fifth Circuit held that there was no rational relationship between the test and the state's legitimate interest if the test covered matters outside the curriculum (curricular validity) or covered matters outside the scope of what was actually taught in the schools (instructional validity).⁽¹³⁾