United States District Court, W.D. Texas, San Antonio Division
ORDER DENYING CLASS CERTIFICATION
PITMAN, UNITED STATES DISTRICT JUDGE
Before the Court are Plaintiff's Motion for Class
Certification and Appointment of Class Counsel, (Dkt. 232),
the responsive briefings thereto, and Magistrate Judge
Primomo's Memorandum and Recommendation regarding
Plaintiff's motion, (Dkt. 268). Having considered the
parties' submissions, the record, and the applicable law,
the Court issues the following Order.
League of United Latin American Citizens
(“LULAC”) brought suit under the Equal
Educational Opportunities Act (“EEOA”), 20 U.S.C.
§ 1703(f), seeking declaratory and injunctive relief.
Plaintiff seeks an order requiring that the State of Texas;
Michael Morath, in his official capacity as the Commissioner
of Education; and the Texas Education Agency
(“TEA”) (collectively, the “State
Defendants”) effectively monitor, enforce, and
supervise programs for English language learner
(“ELL”) students in Texas public schools.
Plaintiff further seeks an order requiring that Defendants
Southwest Independent School District (“SWISD”)
and North East Independent School District
(“NEISD”) effectively implement, monitor, and
supervise locally their language programs to ensure that ELL
students receive appropriate educational programs and equal
EEOA states that “[n]o State shall deny equal
educational opportunity to an individual on account of his or
her race, color, sex, or national origin, by . . . (f) the
failure by an educational agency to take appropriate action
to overcome language barriers that impede equal participation
by its students in its instructional programs.” 20
U.S.C. § 1703. Plaintiff's Amended Complaint, (Dkt.
130), is the latest iteration in long-running litigation
against the state of Texas to enforce the EEOA. This case is
an offshoot of a suit originally filed in 1970 in the Eastern
District of Texas by the United States against the State of
Texas, which eventually resulted in a permanent injunctive
order requiring, among other things, that the TEA take a set
of actions related to educational opportunity for minority
students. United States v. Texas (LULAC I),
506 F.Supp. 405, 409 (E.D. Tex. 1981), rev'd,
680 F.2d 356 (5th Cir. 1982). Relevant to this motion for
class certification, Plaintiff was permitted to intervene in
July 1972 “for all purposes as representatives of all
persons of Mexican-American descent or nationality in the
State of Texas” to enforce the court's order and
seek supplemental relief. Id. at 410.
intervening, Plaintiff has twice litigated to enforce the
district court's order and to bring claims under the
EEOA. See United States v. Texas (LULAC
II), 680 F.2d 356 (5th Cir. 1982) (reversing LULAC
I, 506 F.Supp. 405); United States v. Texas
(LULAC VI), 601 F.3d 354 (5th Cir. 2010) (reversing
United States v. Texas (LULAC IV), 572
F.Supp.2d 726 (E.D. Tex. 2008)). Twice, the Fifth Circuit
indicated concern that the litigation did not include one or
more individual school districts. LULAC VI, 601 F.3d
at 373 (“we encourage the district court and the
parties involved to reconsider whether one or more individual
school districts should be added to this litigation in order
for it to proceed”); LULAC II, 680 F.2d at 374
(“We fail to see how such questions [of EEOA
compliance] can be properly resolved in the absence of the
school district concerned . . . .”). After the Eastern
District of Texas severed Plaintiff's EEOA claims,
(Order, Dkt. 1, at 2), Plaintiff filed an amended complaint
including two San Antonio school districts, (Dkt. 130,
¶¶ 6-14), and this action was transferred to the
Western District of Texas, (Order, Dkt. 162).
now seeks to certify a class of “all Latino English
Language Learner students attending public secondary schools
in Texas” (the “Statewide Class”) and a
subclass of “all Latino English Language Learner
students attending public secondary schools in [the]
Southwest Independent School District” (the
“SWISD Subclass”). (Am. Compl., Dkt. 130, ¶
3; Mot. Class Cert., Dkt. 232, at 2). This Court referred
Plaintiff's Motion for Class Certification and
Appointment of Class Counsel to Magistrate Judge Primomo for
report and recommendation, (Dkt. 267), and the magistrate
judge recommended denying Plaintiff's motion, (Mem. &
Rec., Dkt. 268, at 16). Plaintiff did not object to the
magistrate judge's recommendation.
STANDARD OF REVIEW
federal statute and the Federal Rules of Civil Procedure,
magistrate judges may make findings and recommendations on
dispositive motions. 28 U.S.C. § 636(b)(1)(B);
Fed.R.Civ.P. 72(b)(1). Motions to certify a class action are
dispositive motions under the Federal Magistrates Act.
Davidson v. Georgia-Pac., L.L.C., 819 F.3d 758, 763
(5th Cir. 2016) (citing 28 U.S.C. § 636(b)(1)(A)). For
dispositive motions, parties are entitled to de novo
review of any part of the magistrate judge's disposition
that has been properly objected to. Fed.R.Civ.P. 72(b)(3).
Even when no objections are made, however, the district judge
has the discretion to “accept, reject, or modify the
recommended disposition” regarding dispositive motions.
Id.; see also Thomas v. Arn, 474 U.S. 140,
156 (1985). Accordingly, this Court has the discretion to
review de novo the magistrate judge's
recommendation on Plaintiff's motion for class
is a Latino political association founded in 1929 with
approximately 4, 500 members in Texas. (Flores Decl., Dkt.
245-6, at 1, 6). Plaintiff does not track which school
districts its members live in or which members are ELLs or
parents of ELL students. (Id. at 6). Plaintiff
declares through its former national president that many of
its members are ELLs or parents of ELLs and that many of its
members or their children attend schools throughout Texas,
including in San Antonio. (Id.). Plaintiff
identifies two of its members-Zulema Perez and Francisco
Gomez-whose students are or were ELL students in SWISD
schools. (Perez Decl., Dkt. 246; Gomez Decl., Dkt. 246-1).
Plaintiff asserts the claims of its members. (Mot. Class
Cert., Dkt. 232, at 51).
Plaintiff filed its motion for class certification in January
2017, Ms. Perez had two children who were ELL students:
S.A.P. (sixth grade) and S.M.P. (fourth grade). (Perez Decl.,
Dkt. 246, at 4-5). Mr. Gomez had three children who were ELL
students at that time: I.N.G. (fifth grade), D.A.G. (second
grade), and A.G.G. (pre-kindergarten). (Gomez Decl., Dkt.
246-1, at 4). Plaintiff argued that S.A.P. was suffering an
injury-in-fact as a secondary-school ELL who was being harmed
by Defendants' policies. (Mot. Class Cert., Dkt. 232, at
48-49). Plaintiff argued that S.M.P. and I.N.G. were
suffering injuries-in-fact as primary-school ELLs who were on
the verge of being harmed by Defendants' policies when
they entered sixth grade. (Id.).
on June 2, 2017, both S.A.P. and I.N.G. were exited from the
ELL program. (SW. Defs.' Sur-Reply, Dkt. 264, at 2-3).
That left S.M.P. as the lone remaining ELL in SWISD schools
among Plaintiff's identified members. S.M.P. was then a
rising fifth grader who would not enter secondary school
until August 2018 and would not necessarily be an ELL when he
got there. The SWISD Defendants therefore argued that
S.M.P.'s injury was too contingent on uncertain future
events to establish standing. (Id. at 3). The
magistrate judge agreed, finding that “[a]ny claim by
S.M.P. is purely hypothetical” and that Plaintiff had
failed to establish that S.M.P.'s injury was sufficiently
imminent to provide Plaintiff with standing. (Mem. &
Rec., Dkt. 268, at 15). The magistrate judge's conclusion
regarding Plaintiff's standing was the sole basis for
recommending that the Court deny class certification.