Full opinion text
MEMORANDUM OPINION WILLIAM WAYNE JUSTICE, Senior District Judge. Before the Court for consideration is Intervenors’, GI Forum’s and the League of Latin American Citizens’ (LULAC), Motion to Amend Findings of Fact and Conclusions of Law and to Alter or Amend Judgment in the above numbered and styled civil action pursuant to Federal Rules of Civil Procedure 52(b) and 59(e). (Docket No. 730.) The Court entered its Memorandum Opinion and Judgment on July 30, 2007. (Docket No. 729.) Interve-nors’ timely filed their motion on August 13, 2007. Intervenors claim that the Court committed manifest errors of law and fact by “(1) concluding that, under the EEOA, the failure of language programs for LEP students at the secondary level can be ignored ... if language programs at the elementary level demonstrate success ... (2) determining that [Intervenors] bear the burden of identifying [alternative] evaluation ....,” and (3) the blanket claim that the Court committed manifest errors of law and fact by “denying all relief entitled to Plaintiff-Intervenors under the EEOA_” (Intvs.’ Mot. Amend 4.) Federal Rule of Civil Procedure 52(b) provides that “[o]n a party’s motion filed no later than 10 days after the entry of judgment, the court may amend its findings — or make additional findings — and may amend the judgment accordingly.” Rule 59(e) provides that “[a] motion to alter or amend a judgment must be filed no later than 10 days after the entry of the judgment.” The purpose of both Rule 52(b) and Rule 59(e) is to allow courts to “correct manifest errors of law or fact.” Templet v. HydroChem, Inc., 367 F.3d 473, 479 (5th Cir.2004) (addressing Rule 59(e)); Fontenot v. Mesa Petroleum Co., 791 F.2d 1207, 1219 (5th Cir.1986) (addressing Rule 52(b)). Under Rule 52(b), rulings on motions to amend findings are committed to the sound discretion of the district court. 9 James Wm. Moore et al., Moore’s Federal Practice § 52.60[2] (3d ed.2000); 9C Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure § 2582 (3d ed.1998). “[A] party may move to amend the findings of fact even if the modified or additional findings in effect reverse the judgment. ‘If the trial court has entered an erroneous judgment, it should correct it.’ ” Fontenot, 791 F.2d at 1219 (quoting 5A James Wm. Moore et al., Moore’s Federal Practice ¶ 52.11 (2d ed.1985)). This directive to correct erroneous judgments appears particularly clear where, as here, the parties have not contributed to the court’s error. See Templet, 367 F.3d at 479 (cautioning against granting motions to amend based upon evidence available at trial but not proffered, relitigation of old issues, or to secure a rehearing on the merits); Fontenot, 791 F.2d at 1219 (same). The Court GRANTS the motion in order to correct its erroneous judgment, which was based upon manifest errors of law and fact. In the exercise of its discretion and for purposes of judicial economy, the Court also reviews and amends the clear and manifest errors in its findings of fact and conclusions of law that relate to the Court’s Modified Order, which were not challenged in Intervenors’ Motion to Amend. Golden Blount, Inc. v. Robert H. Peterson Co., 438 F.3d 1354, 1358 (Fed.Cir.2006) (holding that “a Rule 52(b) motion provides the district court discretion to amend any of its own findings”); 9 James Wm. Moore et al., Moore’s Federal Practice § 52.60[2] (3d ed. 2000) (“The court, in the exercise of its discretion, may also review and amend, any of its own findings and conclusions.”) Regarding Rule 59(e), a district court has considerable discretion to alter or amend a judgment but not limitless discretion. Templet, 367 F.3d at 479. In determining whether to grant a Rule 59(e) motion, a court must strike the proper balance between the need to bring litigation to an end and the need to render just decisions on the basis of all the facts. Id. As new persuasive authority demonstrates a clear and manifest error of law in integral conclusions of the Court, and as the Court committed other clear and manifest errors in its conclusions of law and findings of fact, the Court finds that the need to render a just decision on the basis of all the facts vastly outweighs the momentary delay in concluding the litigation before this Court. Accordingly, the Court GRANTS the motion in order to correct clear and manifest errors of law and fact upon which the judgment is based. 11 Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure § 2810.1 (stating that one ground on which a Rule 59(e) motion may be granted is if it is “necessary to correct manifest errors of law or fact upon which the judgment is based”). To conform to the opinion set out below, the Court amends its findings of fact and conclusions of law and alters its judgment. For the sake of clarity, no portion of the previous July 30, 2007 Memorandum Opinion and the Order attached therewith has been retained; the previous opinion and order are, in effect, vacated in full. After reconsidering all of the evidence, arguments, and briefs, the Intervenors’ Motion for Further Relief and the United States of America’s request for relief are GRANTED in part and DENIED in part. I. Procedural Posture The complex factual and procedural background of this case begins thirty-seven years ago, with a suit filed in the United States District Court for the Eastern District of Texas. That action involved nine all-black school districts located in northeastern Texas and resulted in a comprehensive order directed to the Texas Education Agency (“TEA”), concerning its responsibilities with regard to all Texas school districts. The Court entered a permanent injunctive order and retained jurisdiction over TEA and thereby, indirectly, over the Texas public education system. See United States v. Texas, 321 F.Supp. 1043 (E.D.Tex.1970), aff'd as modified, 447 F.2d 441 (5th Cir.1971). The Court crafted the injunctive order to ensure that “no child w[ould] be effectively denied equal educational opportunities on account of race, color or national origin.” Id. at 1056. The original injunctive order was modified by this Court, United States v. Texas, 330 F.Supp. 235 (E.D.Tex.1971), and later by the United States Court of Appeals for the Fifth Circuit, United States v. Texas, 447 F.2d 441 (5th Cir.1971). The original injunctive order as modified will be referred to herein as the “Modified Order.” Section G of the Modified Order, entitled “Curriculum and Compensatory Education,” provides that the State of Texas, the TEA, its officers, agents, and employees: (1) ... shall [ensure] that school districts are providing equal education opportunities in all schools. The [TEA] through its consulting facilities and personnel, shall assist school districts in achieving a comprehensive balance[d] curriculum on all school campuses.... (2) [TEA] shall institute a study of the educational needs of minority children in order to [ensure] equal educational opportunities of all students. The [TEA] shall request the assistance of the United States Office of Education and any other educational experts whom they choose to consult in making this study.... [A] report on this study shall be filed by the [TEA] with the Court including: (A) Recommendations of specific curricular offerings and programs which will [ensure] equal educational opportunities for all students regardless of race, color, or national origin. These curricular offerings and programs shall include specific educational programs designed to compensate minority group children for unequal educational opportunities resulting from past or present racial and ethnic isolation, as well as programs and curriculum designed to meet the special educational needs of students whose primary language is other than English .... A. 1981 Intervention In 1975, Plaintiff-Intervenors GI Forum and LULAC filed a Motion to Enforce Decree and for Supplemental Relief under the Modified Order, seeking to address denials of equal education opportunity to Mexican-American students in Texas public schools. United States v. Texas (LU-LAC), 506 F.Supp. 405, 410 (E.D.Tex.1981). That motion asserted the following bases for relief: Section G of the Modified Order, Title VI of the 1964 Civil Rights Act, the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and the Equal Educational Opportunities Act (“EEOA”), 20 U.S.C. § 1703(f). Id. In their demand for relief, Intervenors called for TEA to implement a plan that would provide all limited English proficiency (“LEP”) students with bilingual instruction and compensatory programs to overcome the effects of past discrimination. Id. The United States also moved for enforcement of section G and for similar, but not identical, supplemental relief. Id. The Court held that the Defendants had violated the Equal Protection Clause and section 1703(f) of the EEOA by failing to take appropriate action to address the language barriers of LEP students and by failing to remove the disabling vestiges of past de jure discrimination against Mexican-American students. Texas (LULAC), 506 F.Supp. at 428-34. The Court issued a remedial decree compelling Texas to take affirmative steps to remedy the EEOA and equal protection violations. Id. However, the Court found that because no evidence of purposeful discrimination was present, Defendants had not violated Title VI. Id. at 431. The Court also found no violation of Section G of the Modified Order, explaining that the comprehensive bilingual program sought by Intervenors was not inherent in Section G. Id. Therefore, the Defendants were not bound, res judicata, to implement such a program under that section. Id. Soon thereafter, Defendants moved to vacate the remedial decree. Defendants argued that a recently enacted state law, the Texas 1981 Bilingual and Special Language Programs Act (“S.B. 477”), created a new program for addressing the learning difficulties of LEP students and “must be given a chance to work before it can be evaluated for success or failure.” See United States v. Texas, 523 F.Supp. 703, at 736 (E.D.Tex.1981). This Court denied Defendants’ motion, and Defendants appealed. In 1982, the United States Court of Appeals for the Fifth Circuit reversed the Court’s decision. United States v. Texas (LULAC), 680 F.2d 356 (5th Cir.1982). First, the Fifth Circuit held that there was insufficient factual support for the Court’s equal protection findings. Id. at 370-71. Regarding the EEOA findings, the Fifth Circuit explained that the case below was tried and decided prior to the Fifth Circuit’s decision in Castaneda v. Pickard, 648 F.2d 989 (5th Cir.1981), which laid down a three-step test for compliance with section 1703(f) of the EEOA. Id. at 371. Relying upon this new standard, the Fifth Circuit concluded that this Court’s EEOA findings were moot. Id. The Fifth Circuit explained that where the court erred ... was in its denial of the state’s post-trial motion to vacate the injunctive order on the ground of mootness.... The court’s refusal to reconsider its injunctive order in light of the 1981 Act imposed a judicial gloss on the new legislative scheme without testing that scheme against the requirements of section 1703(f) as elaborated by Castaneda. In these circumstances, the court’s judgment may not legitimately be sustained upon the section 1703(f) ground. Id. The Fifth Circuit remanded. B. 2006 Intervention On February 9, 2006, LULAC and GI-Forum filed a Motion for Further Relief under the Modified Order. The instant action is a successive motion in Interve-nors’ original 1981 intervention, lineally descending from the Fifth Circuit’s remand in United States v. Texas (LULAC), 680 F.2d 356. Intervenors assert that TEA’S actions deny LEP students equal educational opportunity and therefore violate section 1703(f) of the EEOA and the Modified Order. (Mot. Further Relief ¶ 63.) Intervenors claim (1) that in the years since Texas enacted S.B. 477, TEA has abandoned monitoring, enforcing, and supervising school districts to ensure compliance with Texas’s bilingual education program and (2) that TEA has failed to provide equal educational opportunity to LEP students above the elementary level. Id. at ¶¶ 64, 65. On February 28, 2006, the United States intervened in a limited capacity. The United States reserved its position on the Intervenors’ allegations, awaiting the Defendants’ response as well as future factual developments. Defendants immediately moved to dismiss the Intervenors’ motion, asserting Eleventh Amendment immunity. They also argued that Intervenors had improperly invoked the forum of this Court by filing this action as a Motion for Further Relief under the Modified Order — directly challenging Intervenors’ “successive motion” theory. It is important, at this juncture, to clarify that although Defendants’ motion to dismiss framed the issue as one of “jurisdiction,” it is more accurately termed an objection to an allegedly factitious forum. It is undisputed that this Court has subject matter jurisdiction over Intervenors’ EEOA claim. 20 U.S.C. § 1708. Instead, Defendants object that Intervenors improperly filed their Motion for Further Relief under the Modified Order when In-tervenors’ claim is exclusively an EEOA claim. On August 11, 2006, the Court issued a lengthy written opinion denying Defendants’ motion to dismiss. Therein, the Court rejected Defendants’ Eleventh Amendment Claim. (April 11, 2006 Order 33.) Regarding Defendants’ forum objection, the Court explained that Interveners had pled not only a violation of the EEOA, section 1703(f), but also had pled separate violations of the Modified Order as a “source of law.” Id. at 4-6. Intervenors invoked section G(l) of the Modified Order, which requires Defendants to ensure “that school districts are providing equal educational opportunities in all schools,” and invoked the enforcement provision of Section J(l), which provides that “[t]his Court retains jurisdiction for all purposes, and especially for the purpose of entering any and all further orders which may become necessary to enforce or modify this decree.” Id. The Court applied notice pleading principles to find that the facts and allegations in the Intervenors’ Motion for Further Relief, if proven, could establish a violation of the Modified Order. Id. In a subsequent motion to dismiss, the Defendants argued that Intervenors lacked associational standing because no LEP students are members of their organizations, and no member of either LULAC or GI-Forum would have standing to bring this action in their own right. Intervenors requested, and this Court granted, leave to amend their Motion for Further Relief in order to identify Texas LEP students who are members of their organizations. That same afternoon, Intervenors amended their complaint, identifying fourteen parents of LEP students enrolled in Texas schools who are members of Texas LU-LAC or whose children are members of Texas LULAC. The Court considered In-tervenors’ amended submissions and arguments and rejected Defendants’ standing challenge by written order. (Mem. Op. and Order Den. Defs.’ Mot. Dismiss, October 23, 2006.) II. Findings of Fact To the extent that these findings of fact are also deemed to be conclusions of law, they are hereby incorporated into the conclusions of law that follow. A. TEA’S monitoring program 1. LEP student population in Texas The State of Texas seeks to educate one of the largest populations of LEP students in the country, and the population steadily grows. In 1979, TEA reported that 6.9%, 198,618 students out of 2,872,719, of total public school students were LEP students. (Intvs.’ Ex. 1 #1.) In the 2004-2005 school year 15.5%, 684,007 students out of 4,400,644, of total public school students were LEP students. Id. at #2. 637,239 (93%) of these 684,007 LEP students are Hispanic. Id. at # 43. LEP students are present in nearly every school in Texas— 57% of the state’s 1,227 school districts serve 20 or more LEP students. (Intvs.’ Ex. 99 at 3.) At least one LEP student is enrolled in 1,070 district and charter schools statewide, resulting in the presence of at least one LEP student in approximately 87% of schools. Id. Contrary to conventional wisdom, in 2005-2006 only 13.1% of LEP students were classified as immigrants — TEA classifies immigrants as those not born in the United States and who have not attended school in the United States for at least three years. (Intvs.’ Ex. 1 # 7.) Therefore, 86.9% of Texas’s LEP students are not immigrants as defined by TEA. Id. 2. State Administration of LEP Education To educate Texas students, including LEP students, Texas has legislated a system of shared responsibilities between state and local educational entities. Under the Texas Education Code, the school districts shoulder “the primary responsibility for implementing the state’s system of public education and ensuring student performance in accordance with this code.” Tex. Educ.Code § 11.002 (Vernon 2008). Texas law enumerates TEA and the state board of education’s powers and reserves all other functions for the school districts: “[a]n educational function not specifically delegated to the agency or the board under this code is reserved to and shall be performed by school districts.... ” Id. at § 7.003. TEA’s enumerated powers regarding LEP students are summarized below. Under Texas law, TEA has fourteen enumerated “educational functions” that broadly apply to all public education in Texas, including education of LEP students. Id. at § 7.021. Directly relevant here, the agency “shall administer and monitor compliance with education programs required by federal or state law....” Id. at § 7.021(b)(1). In terms of LEP student education, Chapter 29 of the Texas Education Code mandates bilingual education and English as a second language (“ESL”) programs in all Texas schools. Id. at § 29.051. The state policy controlling these programs unequivocally states: English is the basic language of this state. Public schools are responsible for providing a full opportunity for all students to become competent in speaking, reading, writing, and comprehending the English language. Large numbers of students in the state come from environments in which the primary language is other than English. Experience has shown that public school classes in which instruction is given only in English are often inadequate for the education of those students. The mastery of basic English language skills is a prerequisite for effective participation in the state’s educational program. Bilingual education and special language programs can meet the needs of those students and facilitate their integration into the regular school curriculum. Therefore, in accordance with the policy of the state to ensure equal educational opportunity to every student, and in recognition of the educational needs of students of limited English proficiency, this subchapter provides for the establishment of bilingual education and special language programs in the public schools and provides supplemental financial assistance to help school districts meet the extra costs of the programs. Id. Texas law requires TEA to evaluate and monitor multiple aspects of the state’s bilingual and special language programs. In 2003, the Texas legislature passed House Bill 3459 (“H.B. 3459”). Among other alterations to the Texas Education Code, H.B. 3459 altered the language of § 29.062(a) — which previously required TEA to monitor and inspect each school district’s bilingual and special language programs — to establish a performance based monitoring system. Id. at 29.062(a). Section 29.062(a) now mandates that TEA “evaluate the effectiveness of programs ... based on the academic excellence indicators adopted under Section 39.051(a).” Id. “Performance on the [academic excellence] indicators ... shall be compared to state established standards .... and must include:” inter alia, drop-out rates, graduation rates, and standardized test (now TAKS) passing rates. Id. at 39.051(b)(1)-(3). In line with the shift from onsite inspections to performance based evaluations, H.B. 3459 also limited TEA’s compliance monitoring function, stating that TEA “may monitor compliance with requirements applicable to a process or program provided by a school district ... only as necessary to ensure: (1) compliance with federal law and regulations.” Id. at 7.028 (emphasis added). Contrary to Defendants’ assertion (Defs.’ Post-Trial Br. 8), H.B. 3459 did not alter section 29.062(b); that section still requires TEA to monitor bilingual education and special language programs in the areas of “program content and design,” “program coverage,” “identification procedures,” “classification procedures,” “staffing,” “learning materials,” “testing materials,” “reclassification of students,” and TEA must monitor language proficiency assessment committees (“LPACs”), which undertake initial classification of LEP students. Id. at 29.062(b)(l)-(9). “If a school district ... fails to satisfy appropriate standards[, including the academic excellence indicators,] ... [TEA] shall apply sanctions” Id. at 29.062(e). In terms of educating LEP students, TEA must also establish a procedure for identifying school districts that are required to offer a bilingual or ESL program. Id. at § 29.053(a). By law, every Texas school district with twenty or more LEP students in the same grade level in the district must offer a bilingual education or ESL program. Id. at § 29.053(c). The agency also must “establish standardized criteria for the identification, assessment and classification of students of limited English proficiency eligible for entry into the program or exit from the program.” Id. at 29.056. Bilingual programs are distinct from ESL programs. Bilingual education programs use “both the students’ native language and English to teach content material while students are mastering English, with the ultimate goal of transition to all-English instruction.” Erica Higgs, Specialized High Schools for Immigrant Students: A Promising New Idea, 34 J.L. & Educ. 331, 335 (2005); see also, Tex. Educ. Code. § 29.055(a)-(b) (defining bilingual and ESL programs). In contrast, “ESL instruction teaches all courses in modified English- that is easier for [LEP students] to comprehend.” Id. Texas’s bilingual program is also implemented differently than its ESL program. In school districts with twenty or more LEP students in the same grade level, the statute mandates bilingual education in kindergarten through sixth grade; bilingual, ESL, or other approved language instruction in post-elementary through eighth grade; and ESL in secondary school. Id. at § 29.053(d). In practice, for LEP students in grades seven through twelve enrolled in an LEP program, school districts use ESL instruction for all LEP students not in special education and without parental denials. (1 Tr. 33; 3 Tr. 46; Intvs.’ Ex. 57.) For the 2005-2006 academic year, there were 376,170 LEP students in bilingual education programs and 280,324 students in ESL programs, 92% of the total 711,396 LEP population for that year. (Intvs.’ Ex. 57.) If LEP students in special education only (15,717 students), LEP students with parental denials (34,-971 students), and LEP students who are in no program (4,214), are added to the bilingual and ESL totals, then all 711,396 LEP students are taken into account. Id. In addition, Texas law mandates standards for bilingual — ESL program content and instructional methods, id. at § 29.055; facilities and class sizes, id. at § 29.057; and bilingual — ESL teacher certification, id. at § 29.061. 3. PBMAS: Compliance Monitoring a. The Previous District Effectiveness Compliance (“DEC”) Monitoring System Texas law requires TEA to evaluate the effectiveness of school districts’ compliance with requirements of Chapter 29 of the Texas Education Code, Texas’s bilingual-ESL statute. Id. at § 29.062. From 1995 to 2003, TEA monitored Chapter 29 compliance via the District Effectiveness and Compliance (“DEC”) system. (Def. Ex. 3, at 1-2.) Under DEC, TEA conducted on-site monitoring of special programs, such as bilingual-ESL programs, in every school district within a five-year cycle and subsequently in a six year cycle. Id. at 1. Once onsite to monitor a bilingual-ESL program, TEA officials had to evaluate several substantive components (e.g., design, materials, and in-class implementation) of the district’s bilingual-ESL program. Tex. Educ.Code § 29.062 (Vernon 2002) (current version at Tex. Educ.Code § 29.062 (Vernon 2008)). The DEC program was never effectively implemented. By 1996, the Texas State Auditor’s Office found that TEA had performed onsite monitoring in only 186 districts (18%) from 1991 through 1994, and 202 districts had not been visited in over six years. (Intvs.’ Ex. 26 at 15-16.) The auditor found that “[n]onperformance of these monitoring visits reduces the Agency’s ability to ensure that Bilingual Education Program funds are spent appropriately, that districts are properly classifying students, and that districts are providing equal educational opportunities for bilingual students.” Id. at 16. The auditor made similar findings in 1998 and in 2002. (Intvs.’ Ex. 27 at 5-6; Intvs. Ex. 28 at 6-7.) b. PBMAS System In 2003, TEA replaced the DEC with the Performance Based Monitoring Analysis System (“PBMAS”). (3 Tr. 160-61.) The 2003-2004 school year was a transition year from old to new monitoring systems, and 2004-2005 marked the first year of PBMAS in Texas schools. Id. The 2006-2007 school year was the third year of full implementation of PBMAS. i. PBMAS Monitoring Contrary to DEC, PBMAS does not use onsite visits as the primary monitoring tool to evaluate Chapter 29 compliance. Instead, PBMAS is essentially a result and data-driven system that evaluates performance in four program areas: bilingual education and ESL, career and technology education, No Child Left Behind Act of 2001 (“NCLB”), 20 U.S.C. § 6301, et seq., and special education. Id. PBMAS annually generates a set of performance indicators on a district level. Most of the indicators are based upon student passage rates on a statewide achievement test known as TAKS, Texas Assessment of Knowledge and Skills. (Defs.’ Ex. 3 at 6-7.) Each year the state sets standards for student passage rates in five subject areas and compares districts’ performance to these standards to generate indicators. (Defs.’ Ex. 2 at 7; Defs.’ Ex. 3 at 7.) For instance, in the 2006-2007 academic year, the state target passage rate was 40% for mathematics, 60% for reading and English language arts, 35% for science, 60% for social studies, and 60% for writing. (Defs.’ Ex. 3 at 7; see also Defs.’ Ex. 2 at 7 (listing target rates for the 2005-2006 academic year).) TEA assigns each district a performance level based upon the deviation of the district’s passage rates from these passage rate standards. If a school district meets or exceeds the accountability standard for a given subject, their performance level is zero; the performance level is one for results that are between 0.1 and 5 percentage points below the accountability standard; the performance level is two for results that are between 5.1 and 10 percentage points below the accountability standard; and the performance level is three for results that are greater than 10 percentage points below the standard. (Defs.’ Ex. 3 at 7.) In terms of LEP students, PBMAS evaluates the bilingual and ESL program area through nine bilingual-ESL indicators divided into twenty-seven subparts. (Defs.’ Ex. 3 at 23-38.) Twenty-three of these indicators are derived from district TAKS passage rates categorized by bilingual or ESL programs, subject areas, and the languages in which TAKS was administered. Id. at 23-32. The other indicators are derived from the percentage of LEP students taking TAKS or special education tests, the LEP annual drop-out rate, the LEP graduation rate, and LEP reading proficiency. Id. at 32-38. ii. Gaps and Masking in PBMAS data (a) Under-identifying LEP students TEA does not verify data or monitor school districts where significant statistical data indicates that school districts are likely under-identifying LEP students. This under-identification impacts the veracity of the data at the core of the PBMAS monitoring system. In 2005-2006, on a statewide basis, 4.9% of LEP students were reported as receiving parental denials to participation in bilingual and ESL programs. (Intvs.’ Ex. 1 # 46.) However, in 2005-2006, some school districts reported five times or more the rate of denials than the statewide average. (Intvs.’ Ex. 4.) For instance, Bastrop ISD reported 198 denials, a 23.21% rate of denial of bilingual-ESL education; Brazosport ISD reported 148 denials, a 12.44% rate of denial; Borger ISD reported 50 denials, a 21.65% rate of denial; Crowley ISD reported 200 denials, a 18.62% rate of denial; Crosby ISD reported 74 denials, a 31.76% rate of denial; Clint ISD reported 699 denials, a 17.11% rate of denial; El Paso ISD reported 5,094 denials, a 26.64% rate of denial; Garland ISD reported 1,860 denials, a 14.13% rate of denial; Fairfield ISD reported 206 denials, a 19.79% rate of denial; Harlandale ISD reported 314 denials, a 14.75% rate of denial; Grand Prairie ISD reported 772 denials, a 15.93% rate of denial; Kingsville ISD reported 109 denials, a 27.11% rate of denial; Killeen ISD reported 803 denials a 32.79% rate of denial; Lewisville ISD reported 589 denials, a 11.82% rate of denial; Lubbock ISD reported 155 denials, a 18.49% rate of denial; Los Fresnos CISD reported 424 denials, a 18.49% rate of denial; North East ISD reported 581 denials, a 16.79% rate of denial; Mount Pleasant ISD reported 321 denials, a 16.96% rate of denial; Port Arthur ISD reported 506 denials, a 43.55% rate of denial; Plainview ISD reported 162 denials, a 27.05% rate of denial; Torinollo ISD reported 220 denials, a 38.0% rate of denial; Uvalde CISD reported 100 denials, a 24.51% rate of denial; and Wichita Falls ISD reported 86 LEP denials, an 11.48% rate of parental denials. Id. In contrast, many districts with large numbers of LEP students reported large raw numbers of denials, but the rate of denial fell at or below the state average; Houston ISD, for instance, had 2,232 parental denials of bilingual-ESL education, a 3.80% rate of denial. Id. Importantly, the numbers in many of these districts are large enough to not be anomalies, as may occur, for instance, if one family with many children had decided not to enroll their children in bilingual-ESL education in a small district. In light of expert testimony and common sense, it appears that in at least some of these schools, parents may not be well informed of the advantages of bilingual-ESL programs or may be subject to coercion. (1 Tr. 45-47.) However, Defendants “do[] not, independent of the Districts, verify parental denials.” (Intvs.’ Ex. 1 #48.) As the director of PBMAS testified, TEA does not verify which students are placed in bilingual-ESL programs, and there is not a specific indicator for parental denials. (4 Tr. 6-7.) Though the rate of parental denials may be part of a focused data analysis after an intervention has been initiated, outside of interventions that are triggered by data, which would by distorted by under-identification of LEP students, TEA would never review under-identification in any district. Id. Defendants contend that Intervenors only offer “anecdotal hearsay” that districts are under-identifying LEP students and that districts under the PBMAS system have more incentive to include LEP students in bilingual-ESL education. (Defs.’ Post-Trial Br. 27-28.) However, the Court finds that the data, the same type of data relied upon by the PBMAS system, are not anecdotal hearsay. Moreover, whether or not the districts have increased incentive to accurately identify students does not conclusively demonstrate that they have actually done so. The Court finds that some districts are under-identifying LEP students and that TEA has not verified LEP identification in these suspect districts, undercutting the veracity of the data employed by the PBMAS system. (b) Performance standards are not based on equal achievement with non-LEP students The bilingual-ESL indicators do not compare the performance of LEP students to the performance of English proficient students. (Intvs.’ Ex. 1 # 35.) Instead, to determine the performance level for bilingual or ESL students within a district, bilingual-ESL indicators are compared to the target passage rates that are assigned by the state. (Defs.’ Ex. 2 at 7; Defs.’ Ex. 3 at 7.) (c) Data combined across multiple grade levels Under PBMAS, many of the indicators are derived from the sum of TAKS scores across multiple grade levels. For instance, the indicators for TAKS passage rates in mathematics and reading-English language arts for students in bilingual education, ESL, and LEP year-after-exit are derived from the sum of all students’ TAKS scores from grades 3-11. (Intvs.’ Ex. 1 # 38; Defs.’ Ex. 4 at 23-38.) The indicator for science is based upon the combined TAKS scores at grades 5, 10, and 11. Id. The indicator for writing is based upon the combined score of grades 4 and 7. Id. The LEP drop-out rate indicator is based upon combined drop-out rates from the middle school grades 7 and 8 and the high school grades 9-12. (Defs.’ Ex. 4 at 35.) However, as Defendants’ witnesses testified, students are much more likely to drop-out of high school than middle school. For instance, TEA’s Associate Commissioner Cloudt testified that “you have very few drop-outs grade 7 through 8 to begin with ... the vast majority of drop-outs in our state drop-out in grades 9 through 12 versus grades 7 and 8.” (Intvs.’ Ex. 81 at 71:9-10, 24-25, 72:1, 150:22,151:6; see also Intvs.’ Ex. 1 # 39, # 40.) PBMAS’s current data aggregation likely results in masking the drop-out rates in grades 9-12. (1 Tr. 60-61, 115, 139-40, 185-87; Defs.’ Ex. 38 at 132, 141; Intvs.’ Ex. 6 at 10-11; see also 2 Tr. 200 (testimony from State Board of Education member indicating that including grades 7 and 8 in the dropout calculation would likely distort the data).) (d) District-wide aggregated data without information on specific campuses Because they are based upon district-wide aggregated student data, PBMAS only evaluates district-wide data, not data for individual schools. (Intvs.’ Ex. 1 #37.) As a result, based upon PBMAS performance definitions, 277 schools attended by 54,963 LEP students were performing at a performance level lower than the stage of intervention required by only a district-wide data analysis. (Intvs.’ Ex. 99 at 6; 5 Tr. 170.) Of these 277 schools, 248 were middle or high schools, and 48,069 LEP students attended these middle and high schools. Id. Though some indicators in the other program areas monitored by PBMAS— career and technology education, NCLB, and special education — relate to LEP student performance, interventions based upon unsatisfactory performance in these programs are not intended to ensure bilingual-ESL programs’ compliance with state or federal standards. (3 Tr. 143-50; 4 Tr. 63-64.). TEA stages interventions separately for each program, and the agency has not intervened in districts that have substandard achievement across programs and has not developed any substantive guidelines to identify such districts. (4 Tr. 63-64.) iii. Intervention TEA identifies districts for intervention through a formula based upon substandard performance on the various indicators. Each stage of intervention requires an increasing amount of action by the district. (Defs.’ Ex. 5 & 6; see also U.S. Post-trial Br. 10 (chart for intervention stages).) The Court will briefly define the triggering indicator performance level for each stage of intervention and then describe the required action each district must take under each increasing stage of intervention. (a) Performance level triggers Intervention stage 1A is triggered if one indicator is at performance level 3 (i.e. student passage rates for that indicator are 10% or more below the standard) and one to three indicators are at performance level 2. (Defs.’ Ex. 5 & 6.) Intervention stage IB is triggered if one indicator is at performance level 3 and at least four indicators are at performance level 2. (Defs.’ Ex. 5 & 6.) Alternatively, intervention stage IB is triggered if two indicators are at performance level 3 and two indicators are at performance level 2. Id. Intervention stage 2 is triggered if two indicators are at performance level 3 and at least three indicators are at performance level 2. Id. Alternatively, stage 2 intervention can be triggered if three or more indicators are at performance level 3. Id. The standards that trigger the highest level of intervention, intervention stage 3, have recently changed. Under the criteria adopted for the 2005-2006 school year, on-site visits were necessary if TEA detected “substantial or imminent program effectiveness concerns ... based on current and/or longitudinal data.” (Defs.’ Ex. 6.) To make this determination, however, TEA did not employ any quantitative formula or objective standards. See id. Moreover, in the 2004-2005 and 2005-2006 school years, TEA did not identify any district warranting a stage 3 intervention and thus did not conduct any onsite visits. (3 Tr. 185). In the middle of trial, TEA indicated for the first time that it added two criteria to trigger stage 3 interventions for the 2006-2007 school year. Under the first new criterion, TEA will conduct an onsite review of a school district if it has been under stage 2 interventions for three continuous years. Id. at 189. Under the second new criterion, TEA will conduct an onsite review if a school district has six or more PBMAS indicators rated at performance level 3. Id. at 190. Using the new criteria, TEA selected 21 districts for stage 3 intervention in the Fall of 2006. Id. 185. (b) Intervention action Districts must complete a focused data analysis (“FDA”) and continuing improvement plan (“CIP”) at intervention stages 1A, IB, and 2. A FDA is a self-evaluative measure that requires the assembly of a team of district officials and community stakeholders, who “determine possible causes for areas of performance concerns” and “gather information to develop the continuous improvement plan.” (Defs.’ Ex. 8 at 1-2.) To complete an FDA, districts generally must examine PBMAS indicators rated 2 or 3 but may analyze other information or complete the “BE/ ESL Optional Program Effectiveness Review.” Id. at 1. Districts develop continuous improvement plans after completing the FDA. (See Defs.’ Ex. 11.) TEA provides districts a basic template for all CIPs, which requires the districts to articulate: (1) desired results with respect to identified areas of improvement; (2) anticipated measurable evidence of change; (3) activities to achieve desired results; (4) resources needed to implement activities; (5) timeline; and (6) follow-up activities if the initial plan does not work. (Defs.’ Ex. 9.) Under intervention stages IB and 2, districts submit completed FDAs and CIPs to TEA for a desk review. (Defs.’ Ex. 4.) The primary purpose of the desk review is to evaluate the effectiveness of the CIP, specifically focusing on whether it adequately targets the issues identified by the FDA. (3 Tr. 175, 181-84.) Once a CIP is approved, TEA monitors the district’s progress based on the CIP goals and time-line. (3 Tr. 182-83; Defs.’ Ex. 4.) If the CIP is not approved, however, the district is required to revise and resubmit it. (Defs.’ Ex. 4.) To that end, districts can solicit technical assistance from regional education service centers or other individuals outside of the school district. Id. If the CIP is not approved a second time, TEA responds with additional “oversight, intervention, and/or sanctions.” Id. Stage 2 interventions require districts to hold a public meeting in addition to completion of a FDA and CIP. (Defs.’ Ex. 5 & 6.) These meetings provide an opportunity to gather information and feedback from the public through comments and testimony. (Defs.’ Ex. 10.) Comments and findings from the meeting are then submitted to TEA, which considers the information as part of the desk review process. (Defs.’ Ex. 4.) At the next and highest level of intervention, stage 3, TEA initiates a “targeted on-site review” of the substandard school district. (Defs.’ Ex. 5 & 6.) As of the date of trial, TEA had never conducted such an onsite review of any school district under PBMAS but planned to do so in the 2007-2008 school year. (3 Tr. 185, 189.) The focus of these onsite investigations will purportedly vary with the identified performance concerns in the district. Id. at 190-91. At trial, TEA indicated that two to six monitors will comprise a site visit team (4 Tr. 37), which can interview district and school officials, conduct focus groups, observe classrooms, and inspect student records, among other possible activities. (3 Tr. 191; 4 Tr. 42-43.) These teams may make inquiries at specific campuses, but the ultimate purpose of the visit will be to address district problems. (4 Tr. 42-43, 63.) A school district’s chronic failure to meet TEA’s standards can result in a series of sanctions, the most severe of which is the dissolution of that district, accompanied by its annexation to an adjoining, district. Tex. Educ.Code §§ 29.062(e), 39.131(a), 39.132. However, TEA has an inadequate number of biling-ual-ESL certified monitors to conduct onsite visits. The director of PBMAS, Dr. Laura Taylor, testified that at the time of trial, though there were eleven monitors available to monitor bilim gual-ESL programs, PBMAS had no monitoring staff certified in bilingual-ESL education. (4 Tr. 5.) One bilingual-ESL certified monitor was scheduled to begin within a week of Taylor’s October 23, 2006 testimony. (4 Tr. 38.) The number of interventions at every intervention stage has increased each year since the transition year of 2003-2004, though only 21 interventions have been planned for stage 3 onsite monitoring. (3 Tr. 184-85, 191-92; 4 Tr. 49-50.) In the 2006-2007 school year, TEA staged 328 school districts for intervention based on under-performance in their bilingual-ESL programs. (4 Tr. 32.) Of those 328 school districts, 21 districts were staged for on-site inspection; the other interventions, therefore, consisted of focused data analy-ses and continuing improvement plans. Id. At the close of trial, TEA had yet to go onsite to these 21 school districts. Id. at 9. However, a TEA official testified that these onsite reviews would occur in the fall of the 2006-2007 school year. Id. 9-10. 4. Other monitoring Although PBMAS is the primary means, it is not the sole means by which TEA monitors LEP students in Texas schools. TEA monitors the adequate yearly progress down to the campus level of LEP students served in bilingual-ESL programs under Title I of the No Child Left Behind Act of 2001, 20 U.S.C. § 6301, et seq. (3 Tr. 145-49.) TEA also monitors annual measurable achievement objectives (“AMAO”) as required under Title III of NCLB. Id. However, a school or district’s failure to achieve adequate yearly progress under NCLB does not mean that the bilingual-ESL program will be investigated. (5 Tr. 44.) In addition, TEA monitors LEP student performance under the Texas accountability rating system. Under the accountability rating system, each school is assigned a state accountability rating, in which the data is disaggregated into categories, including socioeconomically disadvantaged students. (3 Tr. 204-05.) However, the accountability rating system does not disaggregate student performance for LEP students, initiate further action based upon the failure of LEP students as a disaggregated group, nor does it hold schools or districts accountable for failure to comply with standards and regulations governing LEP education. (3 Tr. 199, 205-06, 209-12, 216, 219.) B. Achievement of LEP Students 1. Drop-out rates LEP students in Texas dropped out of school at a rate greater than the “all-students” category statewide. (Intvs.’ Ex. 1 # 9.) In 2003-2004, the annual dropout rate for seventh and eighth grade LEP students was 0.5%, twice that of all students, 0.2%. (Intvs.’ Ex. 1 # 10.) In the same academic year, for grades seven through twelve, LEP students dropped out at an annual rate of 2.0%, more than twice the rate for all students, 0.9%. (Intvs.’ Ex. 1 # 11.) And this percentage likely under-represents the drop-out rate in grades nine through twelve, where drop outs are more prevalent than in grades seven and eight. (1 Tr. 60-61,115, 139-40,185-87; 2 Tr. 200; Defs.’ Ex. 38 at 132, 141; Intvs.’ Ex. 6 at 10-11; Intvs.’ Ex. 81 at 71:9-10, 24-25, 72:1, 150:22-151:6.) For students who would have graduated with the class of 2004, 16.3% of LEP students dropped out of school statewide compared with 3.9% of all students. (Intvs.’ Ex. 1 # 12.) For those originally in the class of 2005, only 55.2% of LEP students graduated with their class, whereas 84% of all students graduated with their class. (Intvs.’ Ex. 38 at 145.) 2. Retention rates Retention rates, the percentage of students who are held back from advancing a grade level, have consistently been higher for LEP students than for other students. In grades kindergarten through six the percentage margin between LEP retention rates and non-LEP students’ retention rates gradually increased from 0.9% in 1994-1995 to 2.1% in 2003-2004. Comparison of LEP and non-LEP Students’ Retention Rates Kindergarten through Sixth Grade (Intvs.’ Ex. 41 at 39.) Year LEP rate Non-LEP rate Margin 1994-1995 2.9% 2.0% 0.9% 1995-1996 2.8% 2.1% 0.7% 1996-1997 2.7% 2.1% 0.6% 1997-1998 3.2% 2.3% 0.9% 1998-1999 3.6% 2.5% 1.1% 1999-2000 3.8% 2.5% 1.3% 2000-2001 3.9% 2.6% 1.3% 2001-2002 3.9% 2.5% 1.4% 2002-2003 4.1% 2.6% 1.5% 2003-2004 4.6% 2.5% 2.1% For grades seven through twelve, the margin between non-LEP and LEP student retention rates were consistently disparate, beginning at a margin of 6.2% in 1998-1999 and ending at a rate of 7.5% in 2003-2004. Comparison of LEP and Other Students’ Retention Rates Seventh through Twelfth Grade (Intvs.’ Ex. 41 at 42.) Year LEP rate Non-LEP rate Margin 1998-1999 13.2% 7.0% 6.2% 1999-2000 12.8% 6.8% 6.0% 2000-2001 12.7% 6.8% 5.9% 2001-2002 13.0% 6.5% 6.5% 2002-2003 12.7% 6.5% 6.2% 2003-2004 13.8% 6.3% 7.5% 3. LEP students’ TAKS passage rates The state’s standardized achievement test, TAKS, demonstrates marginal success for LEP students in elementary grades and failure in the secondary grades. LEP test scores are compared to “all students,” which includes LEP students, rather than to non-LEP students. (3 Tr. 199.) The all-students achievement is generally lowered by LEP students’ inclusion, and therefore, an accurate comparison of LEP students to their non-LEP peers is distorted. Id. a. Elementary LEP student passage rates The TAKS data on elementary grades, where bilingual education is used exclusively, demonstrates that LEP students may be marginally overcoming language barriers. i. Third grade comparison For third grade LEP students taking TAKS in English, 63% passed the reading test in 2003 compared with 81% of all students, 77% in 2004 compared with 88% of all students, 78% in 2005 compared with 89% of all students, and 81% in 2006 compared with 89% of all students. (Defs.’ Ex. 15.) From 2003 through 2006, the achievement gap between LEP students and all students was never below 8 percentage points in reading, though it steadily decreased. Id. In mathematics, 62% of LEP students taking the test in English passed in 2003 compared with 74% of all students, 75% in 2004 compared with 83% of all students, 72% in 2005 compared with 82% of all students, and 75% in 2006 compared with 82% of all students. Id. From 2003 through 2006, the achievement gap between LEP students and all students was never below 8 percentage points in mathematics, though it steadily decreased. Id. Third grade LEP students who took TAKS in Spanish generally fared worse than the all-students category and LEP students taking the test in English. In reading, 67% passed in 2003 (all students 81%, LEP in English 63%), 78% in 2004 (all students 88%, LEP in English 77%), 74% in 2005 (all students 89%, LEP in English 78%), and 76% in 2006 (all students 89%, LEP in English 81%). Id. In mathematics, 57% passed in 2003 (all students 74%, LEP in English 62%), 68% in 2004 (all students 83%, LEP in English 75%), 67% in 2005 (all students 82%, LEP in English 72%), and 69% in 2006 (all students 82%, LEP in English 75%). Id. In 2006, at the third grade level, students who had exited the program two years previously (“non-LEP monitored +2”) performed better than students overall, with 95% passing the reading test compared to 89% for ah students, and 90% passing the math test compared to 82% for ah students. Id. However, the TAKS passage rates for current LEP students under the all tests standard for 2005 and 2006 are less encouraging. In 2005, only 62% of third grade LEP students taking the test in English passed all the TAKS subject areas and only 54% of those taking the test in Spanish passed, compared with 76% for all students. (Defs.’ Ex. 51.) In 2006, only 65% of third grade LEP students taking the test in English passed ah the TAKS subject areas and only 55% of those taking the test in Spanish passed, compared with 77% for all students — at best, an achievement gap of 12 percentage points. Id. ii. Fourth grade comparison For fourth grade LEP students taking TAKS in English, 49% passed the reading test in 2003 compared with 76% of ah students, 60% in 2004 compared with 81% of ah students, 58% in 2005 compared with 79% of all students, and 63% in 2006 compared with 82% of all students. (Defs.’ Ex. 15.) From 2003 through 2006, the achievement gap between LEP students and all students was never below 19 percentage points in reading, though it decreased. Id. In mathematics, 49% of LEP students taking the test in English passed in 2003 compared with 70% of ah students, 64% in 2004 compared with 76% of all students, 68% in 2005 compared with 81% of ah students, and 72% in 2006 compared with 83% of all students. Id. From 2003 through 2006, the achievement gap between LEP students and all students was never below 11 percentage points in mathematics, though it decreased. Id. In writing, 53% of LEP students taking the test in English passed in 2003 compared with 78% of all students, 73% in 2004 compared with 88% of all students, 80% in 2005 compared with 90% of ah students, and 83% in 2006 compared with 92% of ah students. Id. From 2003 through 2006, the achievement gap between LEP students and ah students was never below 9 percentage points in writing, though it decreased. Id. Fourth grade LEP students who took TAKS in Spanish had mixed results in comparison to all students and LEP students taking the TAKS in English. In reading, 59% passed in 2003 (all students 76%, LEP in English 49%), 66% in 2004 (ah students 81%, LEP in English 60%), 69% in 2005 (all students 79%, LEP in English 58%), and 76% in 2006 (ah students 82%, LEP in English 63%). Id. In mathematics, 48% passed in 2003 (ah students 70%, LEP in English 49%), 62% in 2004 (all students 78%, LEP in English 64%), 64% in 2005 (all students 81%, LEP in English 68%), and 69% in 2006 (all students 83%, LEP in English 72%). Id. In writing, 82% passed in 2003 (all students 78%, LEP in English 53%), 88% in 2004 (all students 88%, LEP in English 73%), 87% in 2005 (all students 90%, LEP in English 80%), and 90% in 2006 (all students 92%, LEP in English 83%). Id. In 2006, at the fourth grade level, students who had exited the program two years previously (non-LEP monitored +2) outperformed students overall, with 91% passing the reading test compared to 82% for all students, 93% passing the math test compared to 83% for all students, and 97% passing the writing test compared with 92% overall. Id. However, the TAKS passage rates for current LEP students under the all tests standard for 2005 and 2006 are less encouraging. In 2005, only 49% of fourth grade LEP students taking the test in English passed all the TAKS subject areas and only 56% of those taking the test in Spanish passed, compared with 70% for all students. (Defs.’ Ex. 51.) In 2006, only 55% of fourth grade LEP students taking the test in English passed all the TAKS subject areas and only 63% of those taking the test in Spanish passed, compared with 74% for all students — at best, an achievement gap of 11 percentage points. Id. iii. Fifth grade comparison For fifth grade LEP students taking TAKS in English, 32% passed the reading test in 2003 compared with 67% of all students, 34% in 2004 compared with 73% of all students, 37% in 2005 compared with 75% of all students, and 48% in 2006 compared with 60% of all students. (Defs.’ Ex. 15.) From 2003 through 2006, the achievement gap between LEP students and all students was never below 12 percentage points in reading, though it decreased. Id. In mathematics, 40% of LEP students taking the test in English passed in 2003 compared with 65% of all students, 47% in 2004 compared with 73% of all students, 58% in 2005 compared with 79% of all students, and 63% in 2006 compared with 81% of all students. Id. From 2003 through 2006, the achievement gap between LEP students and all students was never below 18 percentage points in mathematics, though it decreased. Id. In science, 10% of LEP students taking the test in English passed in 2003 compared with 39% of all students, 22% in 2004 compared with 55 % of all students, 31% in 2005 compared with 64% of all students, and 46% in 2006 compared with 75% of all students. (Defs.’ Ex. 15.) From 2003 through 2006, the achievement gap between LEP students and all students was never below 29 percentage points in science and the margin increased. Id. Fifth grade LEP students who took TAKS in Spanish had mixed results in comparison to all students and LEP students taking the TAKS in English. In reading, 51% passed in 2003 (all students 67%, LEP in English 32%), 60% in 2004 (all students 73%, LEP in English 34%), 60% in 2005 (all students 75%, LEP in English 37%), and 65% in 2006 (all students 80%, LEP in English 48%). Id. In mathematics, 37% passed in 2003 (all students 65%, LEP in English 40%), 44% in 2004 (all students 73%, LEP in English 47%), 44% in 2005 (all students 79%, LEP in English 58%), and 47% in 2006 (all students 81%, LEP in English 63%). Id. In science, 6% passed in 2003 (all students 39%, LEP in English 10%), 20% in 2004 (all students 55%, LEP in English 22%), 23% in 2005 (all students 64%, LEP in Enghsh 31%), and 31% in 2006 (ah students 75%, LEP in Enghsh 46%). Id. In 2006, at the fifth grade level, students who had exited the program two years previously (non-LEP monitored +2) performed as well as students overall, with 79% passing the reading test compared to 80% for all students, 83% passing the math test compared to 81% for ah students, and 74% passing the writing test compared with 75% overall. Id. However, the TAKS passage rates for current LEP students under the all tests standard for 2005 and 2006 are less encouraging. In 2005, only 19% of fifth grade LEP students taking the test in Enghsh passed all the TAKS subject areas and only 13% of those taking the test in Spanish, compared with 55% for all students. (Defs.’ Ex. 51.) In 2006, only 28% of fifth grade LEP students taking the test in Enghsh passed ah the TAKS subject areas and only 16% of those taking the test in Spanish, compared with 64% for all students — at best, an achievement gap of 36 percentage points. Id. iv. Sixth grade comparison For sixth grade LEP students taking TAKS in Enghsh, 26% passed the reading test in 2003 compared with 71% of all students, 34% in 2004 compared with 79% of all students, 51% in 2005 compared with 85% of all students, and 64% in 2006 compared with 91% of all students. (Defs.’ Ex. 15.) From 2003 through 2006, the achievement gap between LEP students and ah students was never below 27 percentage points in reading, though it decreased. Id. In mathematics, 27% of LEP students taking the test in Enghsh passed in 2003 compared with 60% of ah students, 35% in 2004 compared with 67% of all students, 41% in 2005 compared with 72% of all students, and 54% in 2006 compared with 79% of all students. Id. From 2003 through 2006, the achievement gap between LEP students and all students was never below 25 percentage points in mathematics, though it decreased. Id. Sixth grade LEP students who took TAKS in Spanish had mixed results in comparison to all students and LEP students taking the TAKS in Enghsh. In reading, 60% passed in 2003 (ah students 71%, LEP in Enghsh 26%), 58% in 2004 (all students 79%, LEP in Enghsh 34%), 59% in 2005 (all students 85%, LEP in Enghsh 51%), and 66% in 2006 (all students 91%, LEP in Enghsh 64%). Id. In mathematics, 28% passed in 2003 (all students 60%, LEP in Enghsh 27%), 36% in 2004 (all students 67%, LEP in Enghsh 35%), 44% in 2005 (all students 72%, LEP in Enghsh 41%), and 52% in 2006 (all students 79%, LEP in Enghsh 54%). Id. In 2006, at the sixth grade level, students who had exited the program two years previously (non-LEP monitored +2) outperformed students overall, with 94% passing the reading test compared to 91% for all students and 81% passing the math test compared to 79% for all students. Id. However, the TAKS passage rates for current LEP students under the all tests standard for 2005 and 2006 are less encouraging. In 2005, only 31% of sixth grade LEP students taking the test in Enghsh passed all the TAKS subject areas and only 43% of those taking the test in Spanish, compared with 69% for all students. (Defs.’Ex. 51.) In 2006, only 45% of sixth grade LEP students taking the test in English passed all the TAKS subject areas and only 50% of those taking the test in Spanish, compared with 78% for all students-at best, an achievement gap of 28 percentage points. Id. b. Secondary LEP student failure rates Though not overwhelming, elementary LEP students demonstrated marginal progress, particularly among students who had exited the LEP program. But LEP students in secondary schools, who are educated in ESL programs, fare much worse on the TAKS test in comparison to all students. i. Seventh grade comparison For seventh grade LEP students taking TAKS in English, 21% passed the reading test in 2003 compared with 72% of all students, 28% in 2004 compared with 75% of all students, 33% in 2005 compared with 81% of all students, and 29% in 2006 compared with 79% of all students. (Defs.’ Ex. 15.) From 2003 through 2006, the achievement gap between LEP students and all students was never below 47 percentage points in reading, and the gap in 2006 was greater than that in 2004 and 2005. Id. In mathematics, 15% of LEP students taking the test in English passed in 2003 compared with 51% of all students, 24% in 2004 compared with 60% of all students, 25% in 2005 compared with 64% of all students, and 33% in 2006 compared with 70% for all students. Id. From 2003 through 2006, the achievement gap between LEP students and all students was never below 36 percentage points in mathematics, and it increased slightly. Id. In writing, 26% of LEP students taking the test in English passed in 2003 compared with 76% of all students, 52% in 2004 compared with 89% of all students, 52% in 2005 compared with 88% of all students, and 56% in 2006 compared with 90% of all students. Id. From 2003 through 2006, the achievement gap between LEP students and all students was never below 34 percentage points in writing, though it decreased. Id. In 2006, at the seventh grade le