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League of United Latin American Citizens v. State

United States District Court, W.D. Texas, San Antonio Division

November 1, 2017

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, Plaintiff,
v.
STATE OF TEXAS, et al., Defendants.

          ORDER DENYING CLASS CERTIFICATION

          ROBERT PITMAN, UNITED STATES DISTRICT JUDGE

         Order 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.

         I. BACKGROUND

         Plaintiff 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 educational opportunities.[1]

         The 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.

         After 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).

         Plaintiff 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.

         II. STANDARD OF REVIEW

         Under 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 certification.

         III. DISCUSSION

         Plaintiff 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).

         When 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.).

         Then, 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.[2] 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. ...


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