• by Laurie Posner, M.P.A. • IDRA Newsletter • May 2010 • Laurie Posner

In what would become one of the last major rulings in his distinguished career, Judge William Wayne Justice found in U.S. vs. Texas, 2008 that secondary education programs for English language learners in Texas violate the federal Equal Educational Opportunities Act of 1974.

The EEOA requires that “no state shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin, by… the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.”

The state had been ordered in 1981 to address EEOA violations to overcome language barriers facing English language learners (ELL) (the court used the term “limited-English-proficient [LEP]” students) and remove the vestiges of past discrimination against Mexican American students. But over a quarter century later, the U.S. district court found persistent and “palpable injustice.”

This was evident, the court found, in a state performance monitoring system (PBMAS) that under-identifies students with limited English proficiency, sets arbitrary achievement standards as a basis for intervention, and masks specific campus-level and student-level outcomes. The court also found that the Texas Education Agency has no mechanism for directly comparing the performance of LEP students to non-LEP students.

In relying on data that is “seriously flawed,” Judge Justice found, the state failed to uphold its “affirmative duty.”

Serious flaws and gaps raised particular concern for the court given the tremendous growth of ELL student populations across the state. With more than 800,000 English language learners enrolled, the Texas public school system is second only to California in the number of English learners it serves. Even allowing for under-identification, ELL students are present in almost every school in Texas.

The district court’s ruling also rested on an analysis of how ELL students are faring across the state. These data unequivocally show that secondary English language learners drop out of school at twice the rate of “all-student” categories, see a 40 percent or higher performance gap on the Texas Assessment of Academic Skills (TAKS) “all-tests” category compared to their peers, and have had an increase in performance gaps over time by individual subject.

Ruling Reversed by Higher Court

Significantly, such findings were not in dispute, when a U.S. Fifth Circuit Court of Appeals reversed Judge Justice’s order this spring. The appellate court, in fact, affirmed findings of a 35 percent to 45 percent achievement gap between ELL students and other students, performance outcomes it considered “alarming.”

Nevertheless, the appeals court reversed the lower court’s ruling, citing insufficient evidence of statewide de jure segregation, that is, segregation by law. At the same time, on remand, the court left the door open for the plaintiffs (G.I. Forum and LULAC) to present further evidence. Such evidence, the court suggested, should include the reconsideration of whether PBMAS, in combination with other data, can be used to effectively monitor the success of LEP programs, whether monitoring weaknesses keep the state from taking appropriate action to overcome language barriers (thereby denying the rights of Mexican American LEP students), and whether, by adding individual school districts as defendants to the case, specific harm and remedies can be determined.

Still, the Fifth Circuit Court reversal raises critical civil rights questions, as does Texas’ overall response to chronic achievement gaps and poor outcomes for ELL students.

If “helping schools meet the educational needs of all students” is Texas’ goal (as it is described in TEA’s mission statement), how can this be meaningfully achieved without ways to unbundle outcomes by campus and to meaningfully disaggregate outcomes at various grade levels?

More broadly, why is a system marred by “palpable injustice” and producing “alarming” outcomes, defended rather than corrected to ensure that all children have access to a high quality education?

Influence of an Arizona Case

The Fifth Circuit Court ruling comes on the heels of another setback for the civil rights of ELL students. In Horne vs. Flores, a group of ELL students and their parents filed a class action suit alleging that Arizona violates the EEOA in providing inadequate ELL instruction in Nogales Unified School District. Here also, the Supreme Court last fall reversed and remanded the case back to the district court to reconsider a set of factual and legal issues despite affirming that the “goal of the EEOA – overcoming language barriers – is a vitally important one.” As Justice Breyer pointed out in his dissent in Horne vs. Flores, in a nation where 47 million people speak a language other than English at home, the importance of this goal cannot be overstated.

Broader Implications

U.S. and LULAC-GI Forum vs. The State of Texas also takes on particular significance as the Obama administration proposes a requirement in its blueprint for the reauthorization of the Elementary and Secondary Education Act (known as NCLB) that states evaluate and examine the effectiveness of ELL programs.

Specifically, the ESEA blueprint calls on states to “implement a system to evaluate the effectiveness of language instruction educational programs and to provide information on the achievement of subgroups of English learners, to drive better decisions by school districts for program improvement, and to support districts in selecting effective programs.”

On the surface, Texas’ PBMAS program may seem responsive to such requirements, but if actual student outcomes are any guide, the state will need far more intensive action to fulfill not just the letter, but the spirit of probable new act.

Litigation, fortunately, is but one path to change. There is nothing to stop the citizens of Texas, Arizona or any other state, from calling upon public officials to be pro-active and not wait for corrective action. In Texas, much ground could be gained by taking action now to disaggregate data, deal with the under-identification of ELL students, and reform the state’s secondary-level ELL program. In doing what is right and what is best for English language learners, the state would not only fulfill its educational mission, but also provide much-needed models for an increasingly diverse nation.


Cortez, A. “Federal Judge Rules That Texas’ Services for its LEP Students Are Inadequate,” IDRA Newsletter (San Antonio, Texas: Intercultural Development Research Association, February 2009).

Cortez, A. Post-Legislative Session Summary on Proposed Changes to Texas Bilingual Education Monitoring Procedures, Secondary Level ESL Program Reforms, and Related Litigation (San Antonio, Texas: Intercultural Development Research Association, 2009).

Cortez, A., and A. Villarreal. Education of English Language Learners in U.S. and Texas Schools – Where We Are, What We Have Learned and Where We Need to Go from Here – A 2009 Update (San Antonio, Texas: Intercultural Development Research Association, 2009).

IDRA. U.S. Supreme Court Ruling Horne vs. Flores – The Arizona ELL Funding Case: Summary and Related Assessments of the Ruling, web page (San Antonio, Texas: Intercultural Development Research Association, 2009).

Robledo Montecel, M. IDRA Rejects Appeals Court Conclusions about Texas’ Education of English Language Learner Students, statement (San Antonio, Texas: Intercultural Development Research Association, March 25, 2010).

Laurie Posner, M.P.A., is an education associate in IDRA Support Services. Comments and questions may be directed to her via e-mail at feedback@idra.org.

[©2010, IDRA. This article originally appeared in the May 2010 IDRA Newsletter by the Intercultural Development Research Association. Permission to reproduce this article is granted provided the article is reprinted in its entirety and proper credit is given to IDRA and the author.]