A Microsoft Word version of this letter is available for download and PRINTING.

April 8, 2010

Subject: Fifth Circuit Court of Appeals Decision Concerning Civil Action (CA) 5281

To the administrator addressed:

This letter is to inform you of a decision announced by the federal Fifth Circuit Court of Appeals in the longstanding statewide desegregation order (often called “Civil Action (CA) 5281”) that will affect every Texas school district.  The opinion is available at
http://www.ca5.uscourts.gov/opinions/pub/08/08-40858-CV0.wpd.pdf  . 

The decision  responds to the State of Texas’ appeal of two recent rulings by the United States District Court for the Eastern District of Texas:  one concerning the application of the CA 5281 order to districts other than the nine identified in the original 1970 lawsuit, and a second decision concerning language programs for students with limited English proficiency at the secondary level and the state’s monitoring of those programs.  Please be aware that the existing CA 5281 order continues in effect until the trial court enters a modification of the order. However, in this letter, Texas Education Agency (TEA) requests information from and provides guidance to districts regarding actions that must be taken in the interim.

With respect to the appeal of the first ruling and the application of the CA 5281 order, the decision states that the order should be modified to no longer apply to districts that either have been declared unitary by a federal court or are under the continuing jurisdiction of another federal court in a desegregation proceeding.  While the decision is not yet final, TEA requests your assistance in compiling for submission to the court a complete list of districts that meet either of those criteria.  A list of districts that TEA understands to be either unitary or under another court’s jurisdiction in a desegregation proceeding is available online.  Please confirm that your district is properly classified.  If it is, no action or response to TEA is necessary.  However, if you believe, your district is on the list in error or should be on the list, but is not please contact Sandy Lowe in the Office of Legal Services at (512) 463-9720 or sandy.lowe@tea.state.tx.us so that the agency can correct the posted information.

The decision further states that all other districts in Texas may be removed from the order by the trial court unless proven to continue to implement vestiges of the former dual school system.  TEA is working with the Attorney General’s Office to determine the best manner in which to accomplish that goal.

As noted above, until the trial court enters a modification of the existing CA 5281 order, the order continues in effect. Pending a determination by the trial court, the agency is taking the following actions:

1. Deed approvals should continue to be submitted to TEA, Office of Legal Services, until a district is confirmed as not subject to the order by the trial court. 
2. The Student Transfer System (STS) data reporting system is currently open for entry of student transfers for the 2009-10 school year, and districts must continue to report student transfers in STS throughout the remainder of this school year.  The STS will not be opened for transfers for the 2010-11 school year until we have further guidance from the trial court.  Please refer to the most recent agency letter on that subject (http://ritter.tea.state.tx.us/taa/legal081606.html).  During the 2010-11 school year, and until further guidance is provided by TEA, districts must maintain at the local level any necessary documentation related to student transfers.  The agency will not take any action against a district for accepting transfers unless it receives an allegation that transfers are being taken in a manner that discriminates on the basis of race, language or national origin.

With respect to the second part of the decision concerning language programs for students with limited English proficiency at the secondary level and the state’s monitoring of those programs, there is no change.  Districts should continue to implement the English language proficiency standards (ELPS) as an integral part of each subject in the required Texas Essential Knowledge and Skills (TEKS) curriculum for students in Kindergarten through Grade 12.  In addition, districts should continue to follow appropriate policies for identifying, testing, and exiting students with limited English proficiency as outlined in Title 19, Texas Administrative Code, Chapter 89, Subchapter BB. The agency’s performance-based monitoring system will continue to evaluate the effectiveness of districts’ and charters’ bilingual education and English as a second language programs.
We anticipate that the court will begin proceedings sometime this year to consider the guidance from the Fifth Circuit in its recent decision.  As any changes in the existing order become final, we will notify districts and education service center staff. 

Sincerely,
David Anderson
General Counsel
Texas Education Agency