Full opinion text
MEMORANDUM OPINION JUSTICE, Chief Judge. I. PROCEDURAL HISTORY. This civil action was instituted by the United States on March 6, 1970. The complaint charged that the defendant State of Texas and its agents, including the Texas Education Agency (hereinafter referred to as “TEA”), had created and maintained nine all-Black school districts throughout the state and had failed to provide equal educational opportunity without regard to race. The complaint further alleged that the State of Texas, through the TEA—as the chief supervisory body of public education in Texas and as the disburser of state educational assistance and federal funds—, had failed to oversee and supervise the school districts within' the state, to ensure that no child was denied the benefits of federally-supported programs on the grounds of race, color, or national origin. A trial was held in September, 1970. In an order entered November 24, 1970, the defendants were found to be in violation of both the Constitution and federal law. Accordingly, TEA was required to desegregate the all-Black districts and to submit a comprehensive enforcement plan to ensure equal educational opportunity for all students in the' state. D.C., 321 F.Supp. 1043 (1970). After the submission of a proposed plan and a series of hearings, an order was entered mandating that TEA implement a comprehensive enforcement plan, which was set forth in conjunction with the order. D.C., 330 F.Supp. 235 (1971). With minor modifications, the Court of Appeals for the Fifth Circuit subsequently affirmed the November 24, 1970, order. 447 F.2d 441 (1971). A revised order was issued on July 13,1971, to conform with the directives of the Court of Appeals. Justice Black thereafter denied a motion by the state defendants to stay implementation of this order, 404 U.S. 1206, 92 S.Ct. 8, 30 L.Ed.2d 10 (1971), and certiorari was subsequently denied by the Supreme Court. 404 U.S. 1016, 92 S.Ct. 675, 30 L.Ed.2d 663 (1972). Thus, the revised order of July 13, 1971, remains in effect in this action. Section G of the order, entitled “Curriculum and Compensatory Education”, required the TEA to carry out a study of the educational needs of minority children throughout the state and to report his findings to the court by August 15, 1971. The report was to include, inter alia, (a) Recommendations of specific curricular offerings and programs which will insure 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 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; (b) Explanation of presently existing programs funded by the State of Texas or by the Federal Government which are available to local districts to meet these special educational needs and how such programs might be applied to these educational needs; (c) Explanation of specific standards by which the defendants will determine when a local district, which has racially or ethnically isolated schools or which has students whose primary language is other than English, shall be required by the defendants to participate in the special compensatory educational programs available; and (d) Explanation of procedures for applying these standards to local districts including appropriate sanctions to be employed by the defendants should a district refuse to participate in special compensatory educational programs where it has been instructed to do so pursuant to application of the standards developed under subsection (c) above. TEA filed a timely response to the Section G requirements, in the form of an 86-page document entitled “T.E.A. Plan for Meeting Requirements of Section G” and a 17-page document entitled “Alternative Programs to Improve Curriculum for Minority Students”. In submitting these reports, the agency did all that it had been required to do under Section G. No other specific actions were immediately mandated by the order directing TEA to address the learning problems of students whose primary language was other than English. TEA’s proposals, as contained in these two documents, were never the subject of a hearing, nor was any order entered which approved or rejected them. Another pertinent section of the order of July 13, 1971, Part J(l), provided: This Court retains jurisdiction of this matter for all purposes, and especially for the purpose of entering any and all future orders which may become necessary to enforce or modify this decree. It is this provision which authorizes consideration to be given to the supplemental claims which have now been brought. A motion to intervene, filed by the GI Forum and the League of United Latin American Citizens (LULAC), was granted on July 10,1972, which allowed such parties to participate in this action “for all purposes as representatives of all persons of Mexican-American descent or nationality in the State of Texas.” On June 3, 1975, the GI Forum-LULAC intervenors moved for enforcement of Section G of the court’s prior order and for supplemental relief, claiming that Mexican-American students in the Texas public schools were being denied equal educational opportunity as required by law. In their demand for relief, the intervenors called for TEA to implement a plan which would provide all limited English proficiency students with bilingual instruction and compensatory programs, to overcome the effects of the unavailability of bilingual instruction in the past. An amended motion, naming twenty-six individual Mexican-American children as party plaintiffs, was subsequently filed. The United States has also moved for enforcement of Section G and for supplemental relief which is similar, though not identical, to that demanded in the motion filed by the GI Forum-LULAC intervenors. At the trial of the case, the parties submitted voluminous documentary materials and numerous stipulations of fact, which were received in evidence. Following trial, all parties submitted extensive post-trial memoranda. This memorandum opinion contains findings of fact and conclusions of law as to these claims, as authorized by F.R.CIV.P. 52(a). As noted above, the response of the court in 1971 to the special educational needs of limited English proficiency children was simply to require the report described in Section G. The trial of the case had primarily focused upon the existence of a dual school system in Texas based upon race. While evidence was received on the maintenance of separate schools for children of Mexican-American ancestry throughout the state, no expert testimony was offered on the related problem of ethnic-based language barriers. Thus, while it was determined that equal educational opportunity should be afforded to Spanish-speaking students, no record existed on which to base specific findings as to the extent of the language problem in the state’s public schools or how that problem could best be remedied. The study and report by TEA called for in Section G were intended to begin the process of eliminating the vestiges of discrimination against these children in the field of education by dealing directly with the language barrier. But the suggestion by plaintiffs that the comprehensive bilingual education program they now seek was somehow inherent in Section G and must now be implemented under the doctrine of res judicata is erroneous. Section G of the court’s 1971 order required only the filing of a report to propose remedial programs. That requirement was satisfied in a timely manner by TEA. Section G contained no specific guidelines concerning the scope or characteristics of any compensatory program. Given the paucity of evidence which had been received on the language problem at that time, such specificity would have been unwarranted. If the extensive relief now sought by plaintiffs is appropriate, it must be predicated upon the mass of evidence presented at trial. Accordingly, the plaintiffs’ claim for relief as a means of enforcing Section G of the court’s 1971 order will be denied. II. DE JURE DISCRIMINATION UNDER THE FOURTEENTH AMENDMENT. A. Scope and Impact of the Violation. The evidence presented on the motions for supplemental relief contains proof of pervasive, invidious discrimination against Mexican-Americans throughout the State of Texas. The extent of the discrimination is comparable in magnitude to the overwhelming evidence of state-supported racial segregation which was found more than ten years ago. United States v. Texas, 321 F.Supp. 1043 (E.D.Tex.1970), aff’d. 447 F.2d 441 (5th Cir. 1971). The serious injustices which the Mexican-American minority in Texas has endured at the hands of the Anglo majority is undeniable. Defendants, the State of Texas and the Texas Education Agency, stipulated to facts documenting this history of discrimination, and defendants’ counsel opened her case by conceding: “[T]he State of Texas does not have a happy record over the past.” Trial Transcript (TR) 21. Historical discrimination against Mexican-Americans in the United States has been conclusively established by prior court decisions. E. g., Keyes v. School District No. 1, Denver, Colo., 413 U.S. 189, 197-98, 93 S.Ct. 2686, 2691-92, 37 L.Ed.2d 548 (1973); Graves v. Barnes, 343 F.Supp. 704, 728 (W.D.Tex.1972) (three-judge court) (per curiam), aff’d in pertinent part, sub nom. White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). The extensive disabilities suffered by this minority group in Texas was aptly described in Graves v. Barnes as follows: Because of long-standing educational, social, legal, economic, political and other widespread and prevalent restrictions, customs, traditions, biases, and prejudices, some of a so-called de jure and some of a so-called de facto character, the Mexican-American population of Texas, which amounts to about 20%, has historically suffered from, and continues to suffer from, the results and effects of invidious discrimination and treatment in the fields of education, employment, economics, health, politics and others. Id. Both the Supreme Court and the Court of Appeals for the Fifth Circuit have recognized that Mexican-Americans comprise a distinct ethnic class for purposes of equal protection under the Fourteenth Amendment. Keyes, 413 U.S. at 197, 93 S.Ct. at 2691; Hernandez v. Texas, 347 U.S. 475, 479, 74 S.Ct. 667, 671, 98 L.Ed. 866 (1954); United States v. Texas Education Agency, 467 F.2d 848, 852 (5th Cir. 1972) (en banc), aff’d after remand 532 F.2d 380 (5th Cir. 1976), remanded sub nom. Austin Independent School District v. United States, 429 U.S. 990, 97 S.Ct. 517, 50 L.Ed.2d 603 (1976), aff’d. 564 F.2d 162 (5th Cir. 1977), cert. denied 443 U.S. 915, 99 S.Ct. 3106, 61 L.Ed.2d 879 (1979) (Austin Independent School District). In the field of public education, discrimination against Mexican-Americans in Texas has been particularly acute. Although ethnic segregation was not mandated by law, as was segregation by race, Tex.Const., Art. 7, § 7 (1876), segregation of Mexican-Americans is a historical fact in Texas public schools. Plaintiff-Intervenors’ Exhibit 409, # 701. Beginning in the early years of this century, the establishment of “Mexican schools” took root in the Rio Grande Valley and spread gradually throughout the state. By 1942, such segregated schools existed in at least 122 Texas school districts in fifty-nine different counties. Pl.-Int. Ex. 409, # 729. State and local education officials justified this practice of segregation, on the grounds that Mexican-American children spoke little English and were often late in arriving at school because their families engaged in migrant labor. See, e. g., Independent School District v. Salvatierra, 33 S.W.2d 790, 791-93 (Tex.Civ.App.—San Antonio 1930), cert denied 284 U.S. 580, 52 S.Ct. 28, 76 L.Ed. 503 (1931). In fact, the discrimination was not at all benign. No attempt was made to meet the special educational needs of these children, who had limited proficiency with the English language. Pl.-Int. Ex. 409, # 706. On the contrary, the “Mexican schools” were invariably overcrowded, and were inferior in all respects to those open exclusively to Anglo students. Pl.-Int. Ex. 409, # 748. In furtherance of this state policy, Mexican-American children were prohibited from speaking their native language anywhere on school grounds. Those who violated the “No Spanish” rule were severely punished. Pl.-Int. Ex. 409, # 710, 711. The statute and rules prohibiting the use of Spanish in the public schools were strictly enforced until 1968. Pl.-Int. Ex. 409, # 514. Rather than attempting to provide adequate schooling for Mexican-American children, Texas educators viewed public education as simply a vehicle for “Americanizing” the “foreign element”. Pl.-Int. Ex. 409, # 738. Both the language and cultural heritage of these children were uniformly treated with intolerance and disrespect. While many of these discriminatory practices were carried out primarily at the local level, the state itself was directly implicated as well. Official publications of the Texas State Department of Education, the predecessor of TEA, reflected a policy of Anglo racial domination over Mexican-American people, their language, and culture. Pl.-Int. Ex. 409, # 704. The state approved construction bonds which school board minutes indicate were explicitly designed for the construction or repair of segregated “Mexican schools”. Pl.-Int. Ex. 409, # 750. Even after the illegality of segregating Mexican-American children was clearly established in a 1948 federal court decision, Delgado v. Bastrop Independent School District, C.A. No. 388 (W.D.Tex.) (unreported), state education authorities cooperated to allow local districts to evade that mandate. Pl.-Int. Ex. 409, # 735. The legal consequences flowing from this pattern of discrimination must be ascertained through current constitutional standards. Recent Supreme Court decisions have established that proof of discriminatory intent or purpose is required to make out a violation of the Equal Protection Clause. Columbus Board of Education v. Penick, 443 U.S. 449, 464, 99 S.Ct. 2941, 2950, 61 L.Ed.2d 666 (1979); Dayton Board of Education v. Brinkman, 433 U.S. 406, 413, 97 S.Ct. 2766, 2772, 53 L.Ed.2d 851 (1977) (Dayton I). In the absence of such forbidden purpose, school policies which bring about discriminatory results are not unconstitutional. Keyes v. School District No. 1, Denver, Colo., 413 U.S. 189, 208, 93 S.Ct. 2686, 2697, 37 L.Ed.2d 548 (1973). Discriminatory purpose is most clearly evident where a dual school system, segregated on the basis of race, has been established by law. Such statutory discrimination is unconstitutional per se under Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I); United States v. Texas Education Agency, 564 F.2d 162,165, fn. 2 (5th Cir. 1977) (.Austin III). Most recent Equal Protection claims in the field of education have been brought against school systems where discrimination was effectuated by local acts and policies, rather than by law. E. g., Columbus Board of Education v. Penick; Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977) (Dayton I), after remand, 443 U.S. 526, 99 S.Ct. 2971, 61 L.Ed.2d 720 (1979) (Dayton II). Such discrimination, if intentional, is no less forbidden by the Constitution. Columbus Board of Education v. Penick, 443 U.S. at 457, fn. 5,99 S.Ct. at 2946, fn. 5; Cisneros v. Corpus Christi Independent School District, 467 F.2d at 147. But the post hoc determination of why these various acts and policies were undertaken in the past is often difficult. Discriminatory purpose may be inferred from the totality of relevant facts. Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2048, 48 L.Ed.2d 597 (1976). In order to prevail, the plaintiff must show that racial or ethnic discrimination was a purpose of the challenged conduct, though not necessarily the sole or dominant one. Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977). If the disparate racial or ethnic impact of a particular policy could readily have been foreseen at the time it was implemented, that fact is relevant proof on the issue of whether that policy had an impermissible purpose. Columbus Board of Education v. Penick, 443 U.S. at 464, 99 S.Ct. at 2950. Where systemwide discrimination is alleged, as in this case, proof of intentional discrimination within a substantial portion of that system creates a rebuttable presumption that the entire system is operating in violation of the Equal Protection Clause. Columbus Board of Education v. Penick, 443 U.S. at 458, 99 S.Ct. at 2947; Keyes, 413 U.S. at 203, 93 S.Ct. at 2695. Once impermissible intent is shown, the burden shifts to the defendant to prove that the same results would have occurred absent purposeful discrimination of any kind. Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); United States v. Texas Education Agency, 579 F.2d 910, 916 (5th Cir. 1978) (denying petition for rehearing) (Austin Independent School District). In determining the presence of a constitutional violation, the remoteness in time of purposeful discrimination is not a viable defense. Keyes, 413 U.S. at 210-211, 93 S.Ct. at 2698. If a school system engaged in intentional discrimination on the basis of race or national origin at any time in the past, it bears an affirmative duty to eliminate all vestiges of that discrimination, root and branch. Dayton II, 443 U.S. at 537, 99 S.Ct. at 2979; Keyes, 413 U.S. at 201, 93 S.Ct. at 2694; Green v. County School Board, 391 U.S. 430, 438, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968). It is not enough for the defendants to abandon their prior discriminatory practices. Dayton II, 443 U.S. at 538, 99 S.Ct. at 2979. All of the consequences of that unlawful conduct must be remedied. The failure or refusal to fulfill this duty to extirpate all remaining traces of intentional discrimination after the discrimination itself has ceased constitutes a separate violation of the Fourteenth Amendment. Columbus Board of Education v. Penick, 443 U.S. at 459, 99 S.Ct. at 2947. Courts applying these legal principles have found intentional or “de jure” discrimination against Mexican-American children in a number of school districts throughout Texas. E. g., United States v. Texas Education Agency, 600 F.2d 518 (5th Cir. 1979) (Lubbock Independent School District); United States v. Texas Education Agency, 564 F.2d 162 (5th Cir. 1977), cert. denied, 443 U.S. 915, 99 S.Ct. 3106, 61 L.Ed.2d 879 (1979) (Austin III); Morales v. Shannon, 516 F.2d 411, 413 (5th Cir. 1975), cert. denied, 423 U.S. 1034, 96 S.Ct. 566, 46 L.Ed.2d 408 (1976) (Uvalde public schools); United States v. Midland Independent School District, 519 F.2d 60, 64 (5th Cir. 1975). A separate segment of this action, involving a claim of unconstitutional segregation suffered by Mexican-American students in the Gregory-Portland Independent School District, was decided in United States v. State of Texas, 498 F.Supp. 1356 (1980) (Gregory-Portland Independent School District Intervention). There, intentional, statewide discrimination against Mexican-American students was found to have been practiced by TEA. It was also determined that TEA had failed to satisfy its obligation to eliminate the vestiges of that unconstitutional conduct throughout the state. While Gregory-Portland involved the continued segregation of Mexican-American students in school assignments, rather than their language-based learning difficulties, the court’s decision that deliberate ethnic discrimination by TEA existed throughout the state’s public schools bears directly upon the instant action. On the basis of the evidence in this case, a conclusion identical to that reached in the Gregory-Portland case is inescapable. There can be no doubt that a principle purpose of the practices described above was to treat Mexican-Americans as a separate and inferior class. Three distinct forms of deliberate discrimination were engaged in. First, these children were restricted on the basis of their ancestry to so-called “Mexican schools”. Second, they were provided with facilities, resources, and educational programs vastly inferior to those accorded their Anglo counterparts. Third, the native language and culture of these Mexican-American children were assailed and excluded in an effort to “Americanize” them. Viewed in the context of this concerted program of discrimination against students of Mexican ancestry, the policy of using English exclusively in the Texas public schools must be seen, not as neutral or benign, but rather as one more vehicle to maintain these children in an inferior position. Intentional discrimination against this minority group, supported by state policies and state funding, characterized public education throughout Texas for many years. The defendants have made no showing that the documented instances of discrimination were isolated aberrations or otherwise outside the responsibility of state authorities. Accordingly, it is found that Mexican-Americans in Texas have been subjected to de jure discrimination by the defendants, the State of Texas and the Texas Education Agency, in violation of the Equal Protection Clause of the Fourteenth Amendment. Having ascertained the existence of a constitutional violation, it is necessary to determine what consequences, if any, that violation has effected upon the victims of discrimination. The adverse impact of racial or ethnic segregation upon school children is well documented. As the Supreme Court observed more than a quarter-century ago, segregation “generates a feeling of inferiority as to their status in the community which may affect their hearts and minds in a way unlikely ever to be undone.” Brown v. Board of Education, 347 U.S. 483, 494, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954) (Brown I). Such treatment affects, not only educational achievement, but social and psychological development as well. See United States v. Texas Education Agency, 467 F.2d 848, 862, n. 21 (5th Cir. 1972) (en banc), aff’d after remand 532 F.2d 380 (5th Cir. 1976), remanded sub nom. Austin Independent School District v. United States, 429 U.S. 990, 97 S.Ct. 517, 50 L.Ed.2d 603 (1976), aff’d. 564 F.2d 162 (5th Cir. 1977), cert. denied 443 U.S. 915, 99 S.Ct. 3106, 61 L.Ed.2d 879 (1979). Other forms of discrimination, such as suppression of a child’s native language and culture and the maintenance of inferior facilities for a particular minority group, compound the gravity of the consequences: Children who have been thus educationally and culturally set apart from the larger community will inevitably acquire habits of speech, conduct, and attitudes reflecting their cultural isolation. They are likely to acquire speech habits, for example, which vary from the environment in which they must ultimately function and compete, if they are to enter and be a part of that community. This is not peculiar to race; in this setting, it can affect any children who, as a group, are isolated by force of law from the mainstream. Milliken v. Bradley, 433 U.S. 267, 287, 97 S.Ct. 2749, 2760, 53 L.Ed.2d 745 (1977) (Milliken II). The general principles outlined above apply graphically and disastrously to Mexican-Americans in the state of Texas. Subjected to pervasive, intentional discrimination throughout most of this century, members of this minority group have been severely disabled in their struggle for equal educational opportunity. Defendants have conceded that “the long history of educational neglect of, and discrimination against, Mexican-Americans in Texas has had an adverse impact [on] the educational success of Mexican-American students.” FINAL PRETRIAL ORDER at 93. More specifically, defendants acknowledge that negative stereotypes transmitted to Mexican-American students contribute to low achievement, and that “the 1918 ‘English Only’ law had a severe and debilitating effect on the education of Spanish-speaking children for over 50 years.” Pl.-Int. Ex. 409, # 8, 709. While many of the overt forms of discrimination wreaked upon Mexican-Americans have been eliminated, the long history of prejudice and deprivation remains a significant obstacle to equal educational opportunity for these children. The deep sense of inferiority, cultural isolation, and acceptance of failure, instilled in a people by generations of subjugation, cannot be eradicated merely by integrating the schools and repealing the “No Spanish” statutes. See Milliken II, 433 U.S. at 288, 97 S.Ct. at 2761. In seeking to educate the offspring of those who grew up saddled with severe disabilities imposed on the basis of their ancestry, the State of Texas must now confront and treat with the adverse conditions resulting from decades of purposeful discrimination. The effects of that historical tragedy linger and can be dealt with only by specific remedial measures. Id. Defendants recognize the continuing effects of their past de jure discrimination against Mexican-Americans. They stipulate that “the use of an all-English ethnocentric curricula which LESA [Limited English-Speaking Ability] children have been taught by monolingual English teachers and English textbooks has resulted in low achievement, frustration, and humiliation for Mexican-American children.” Pl.Int. Ex. 409, 707. Defendants acknowledge further that negative stereotyping and racial isolation are forms of discrimination which still affect the educational experience of Mexican-American students and contribute to their low achievement. Pl.-Int. Ex. 409, # 8, 702. The severe educational difficulties which Mexican-American children in Texas public schools continue to experience attest to the intensity of those lingering effects of past discriminatory treatment. Some forty-four percent of Mexican-American students suffer from severe reading retardation. Pl.Int. Ex. 409, # 46. In a study of all sixth graders in the seven largest urban school districts in Texas, Anglo students were reading at an average grade achievement level of 6.21, while Mexican-American students lagged far behind at 4.81. Pl.-Int. Ex. 409, # 9. As a result of low achievement in reading and other academic subjects, Mexican-American students are compelled to repeat grades far more frequently than Anglo students. More than twenty-two percent of Mexican-American first graders are retained in the same grade, compared to only seven percent of Anglo children. Pl.-Int. Ex. 409, # 47. Not surprisingly, these Mexican-American students, finding themselves behind their grade level peers in achievement, as well as older in age, leave school at a relatively high rate. Nearly one-half, or forty-seven percent, of Mexican-American pupils abandon school before graduation, compared to only fifteen percent of the Anglo students who fail to finish high school. More than one-half of Anglo students enter college, compared to only sixteen percent of their Mexican-American classmates. Pl.-Int. Ex. 409, # 41. The educational problems of this minority group contribute significantly to their inability to compete successfully for the professional and technical jobs which provide some measure of comfort, status, and power in American society. The Supreme Court’s assertion in Brown v. Board of Education, (Brown I), that “it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education”, 347 U.S. at 493, 74 S.Ct. at 691, is probably even more accurate now than it was then. See Gov.Ex. B7 at 1,14. The unemployment rate of Mexican-Americans in Texas is nearly twice that of non-minority adults, Pl.-Int. Ex. 409, # 5, but this is only another manifestation of the underlying problem. Without adequate educational training and credentials, these individuals are restricted to the least challenging and rewarding occupations which society offers. Thus, while they may ultimately be employed in some fashion, many Mexican-Americans continue to suffer throughout life from the educational opportunities they were denied as children. The crippling educational deficiencies afflicting the main body of Mexican-Americans in Texas presents an ongoing ethnic tragedy, catastrophic in degree and disturbing in its latency for civil unrest and economic dislocation. A Mexican-American public school enrollment estimated at 813,-325 registered in the 1980-81 school year, and a steady increase to 941,875 by 1983-84 is projected. Gov. Ex. K14. Unless the state succeeds in overcoming the vestiges of past discrimination and educates these children effectively, some one million members of this group will soon grow to maturity, unable to participate fully in or contribute meaningfully to this nation’s society. That the defendants’ unconstitutional practices have contributed substantially to the special learning problems encountered by Mexican-American children and that vestiges of that past discrimination remain, producing deleterious results today, is uncontested. Defendants have conceded the direct, causal relationship between their past actions and current conditions in the Texas public school system. In particular, the defendants’ treatment of these children as inferiors, prohibited from using their native language within the schools, was an act of purposeful discrimination with profound consequences. In effect, defendants’ past conduct created a learning disability which will continue to impede Mexican-American children until it is completely eradicated. The record in this case demonstrates pervasive, systemwide discrimination against Mexican-American children in the field of education. The systematic nature of the violation constitutes proof, in itself, that current language-based learning problems suffered by these children was caused, at least in part, by prior unlawful actions by defendants. See Dayton Board of Education v. Brinkman, 443 U.S. 526, 537, 99 S.Ct. 2971, 2979, 61 L.Ed.2d 720 (1979) (Dayton II). Defendants bear the burden of demonstrating that current conditions would be unchanged in the absence of their discriminatory conduct. Id.; Keyes v. School District No. 1, Denver, Col, 413 U.S. 189, 211, fn. 17, 93 S.Ct. 2686,2699, fn. 17, 37 L.Ed.2d 548 (1973); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 26, 91 S.Ct. 1267, 1281, 28 L.Ed.2d 554 (1971). No such showing was made at trial. Accordingly, the learning difficulties of Mexican-American students attributable to defendants’ actions must be redressed, and the remaining vestiges of past discrimination must be eradicated. It may well be that the learning difficulties suffered by Mexican-American children are caused in part by factors other than defendants’ intentional discrimination. Any such factors, if proven, would be outside the bounds of plaintiffs’ claim and thus beyond the scope of an appropriate remedy. See Dayton Board of Education v. Brinkman, 433 U.S. 406, 420, 97 S.Ct. 2766, 2775, 53 L.Ed.2d 851 (1977) (Dayton I). But the harms which have been identified here stem directly from defendants’ unconstitutional conduct. It is undisputed that the prejudice openly manifested toward this minority group, its language and culture, throughout most of Texas’ history since statehood, has left deep wounds which continue to infect the learning process. That specific cause must be recognized and the resulting harm directly addressed through appropriate remedial action. Milliken v. Bardley (II), 433 U.S. 267, 282-290, 97 S.Ct. 2749, 2758-2762, 53 L.Ed.2d 745 (1977). B. The Defendants’ Failure to Remedy the Violation. (1) Overview of the State’s Remedial Program. The State of Texas first recognized the need to change its policies in educating Mexican-American children in 1969, When the legislature repealed the 1918 “English Only” law and permitted, for the first time, bilingual education by local school districts “in those situations when such instruction is educationally advantageous to the pupils.” Tex.Ed.Code Ann., § 21.109 (Vernon 1970). Four years later, the state legislature enacted the Texas Bilingual Education Act of 1973. Tex.Ed.Code Ann., § 21.451 et seq. (Vernon 1980 supp.). The introductory policy statement of this law stated: The legislature finds that there are large numbers of children in the State who come from environments where 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 children whose native tongue is another language. The legislature believes that a compensatory program of bilingual education can meet the needs of these children and facilitate their integration into the regular school curriculum... . § 21.451. The statute required local school districts to determine the number of limited English-speaking students in their district, such students being defined as “children whose native tongue is a language other than English and who have difficulty performing ordinary classwork in English.” § 21.452, 21.453(a). School districts with twenty or more of these children in any single language classification in any one grade were required to implement a bilingual education program for their benefit. § 21.453(b). Such a program was required to encompass grades one through six, to be brought to effect in phases, i. e., a grade at a time, beginning with the first grade during the 1974-75 school year. Supplemental state funding was authorized to be paid to school districts operating bilingual programs mandated by this statute. § 21.460. In 1975, the Texas Legislature amended the 1973 law to reduce the overall scope of required bilingual programs. While adding a provision for bilingual instruction in kindergarten classes, the legislature eliminated mandatory bilingual programs in grades four, five, and six. Bilingual instruction in the fourth and fifth grades was made optional for school districts, with supplemental funding to be provided by the state. No state funds were to be available for bilingual education in grades six through twelve. The amendments enacted in 1975, together with the 1973 Bilingual Education Act, remain in effect, unchanged, to this date. During the course of this litigation, the State Board of Education approved a new State Plan for Bilingual Education which embodies the provisions of the statute. Gov. Ex. D-13. The plan, adopted on November 11, 1978, contains detailed regulations concerning the identification of limited English-speaking ability students, the components of bilingual programs, and procedures for transferring a child from bilingual instruction into the regular curriculum. The new plan also requires school districts to provide special English language development programs to students in grades one through twelve who have limited English-speaking ability but are not receiving bilingual instruction. Although this "plan had not been fully implemented throughout Texas schools by the time this case was tried, it must be treated as the state’s current response to its duty to eradicate the vestiges of past discrimination against Mexican-Americans and be evaluated on that basis. (2) Concept of Bilingual Education and Related Remedial Programs. Both the state’s existing education policies toward Mexican-American students and plaintiffs’ claims in this action focus on the use of bilingual instruction. An understanding of the concept of bilingual education is a prerequisite to evaluating the programs currently in operation throughout the state. A bilingual education program is defined by Congress in the “Bilingual Education Act”, 20 U.S.C.A. § 3221, et seq. (1980 supp.), as: a program of instruction, designed for children of limited English proficiency in elementary or secondary schools, in which, with respect to the years of study to which such program is applicable—(i) There is instruction given in, and study of, English and, to the extent necessary to allow a child to achieve competence in the English language, the native language of the child of limited English proficiency, and such instruction is given with appreciation for the cultural heritage of such children, and of other children in American society, and, with respect to elementary and secondary school instruction shall, to the extent necessary, be in all courses or subjects of study which will allow a child to progress effectively through the educational system. § 3223(a)(4)(A). It is stipulated that “[bjilingual-bicultural education is based on the widely recognized premise that the most effective way to teach children who speak a language other than English, the majority language, is through their mother tongue as a vehicle for instruction.” Pl.-Int. Ex. 409, # 1115. If the learning process is initiated in English, a language which the child cannot understand, the child will be likely to fail in his subjects in school and suffer permanent damage to his learning potential. Pl.-Int. Ex. 409, # 909. Providing bilingual instruction to Spanish-speaking children with limited proficiency in English enables them to learn reading, mathematics, and other basic cognitive subjects in a language they comprehend at the same time that their skills in English are being developed. Dr. Courtney Cazden, Professor of Child Development and Language at Harvard University, articulated the concept more fully: “The theory is a very simple one and straightforward one, that children must be taught in a language that they understand, and that is the only possible kind of equal education.” TR 114. Dr. Cazden expressed the view that reading, “the foundation of all future education”, must be introduced in the child’s native language. TR 115. As she explained: [I]f children learn to read in a language that they know, then they are facing one task at that time, namely figuring out the written system; but if a teacher attempts to teach a child to read in an oral language that is not familiar, then the children face the double task of trying to figure out the written system, but even if they figure out and pronounce a word it has no meaning so that is clearly and unequal educational system. TR 119. While bilingual education in the earliest grades is necessary to provide Mexican-American children with basic learning skills, its importance does not diminish for students of limited English proficiency in the higher grades. As Dr. Cazden further testified: [I]t seems to me the situation at the Grade 4 level and beyond is even more serious, first, because the concepts being dealt with in the older grades get progressively more complicated, and therefore, it’s harder to understand them if your knowledge of the language of instruction is limited, and secondly, the instruction itself, as you go through the older grades, * * * gets more completely verbal. TR 133. Concurrence in this opinion came from Dr. Rudolph Troike, a sociolinguist and the former director of the Center for Applied Linguistics. He asserted that “in some respects it’s even more critical that they receive instruction in Spanish [in higher grades], since they are already operating at a level where the cognitive content of the instructional material that’s being mediated through the language is much heavier than it is at earlier grade levels.” TR 205. Since bilingual instruction is designed to fill an educational vacuum until a particular child is able to function adequately in an all-English classroom, no single fixed duration for an effective bilingual program exists. The time necessary to learn English varies from student to student, founded on a variety of social factors. Gov. Ex. D7 at 83. The parties stipulated that “[t]hree years of bilingual education is inadequate for many students to achieve the level of proficiency needed to compete effectively in English.” Pl.-Int. Ex. 409, # 1121. Most of the experts who testified at trial proposed functional time limits for bilingual programs based upon the particular progress of each student. Dr. John McFarland, Dean of Education at Texas Women’s University, suggested that “[a] student who needs help in two languages should have bilingual education until he is comfortable in both languages, can read in both languages with understanding and comprehension and analytically and can write well in both languages.” TR 355. Thus, Dr. Cazden proposed that students be given access to sufficient years of bilingual education at any grade level to function effectively in English language curriculum. TR 172. The primary alternative to bilingual education for children of limited proficiency in English is the so-called “English as a Second Language” (ESL) program. Children enrolled in ESL programs receive subject matter instruction in English within the regular curriculum. During the course of the school day, these children are taken out of the classroom and given special instruction in the English language. Gov. Ex. B6 at 22. According to Dr. Troike, ESL is essentially a special English class added to the standard school program. TR 202. The principle criticism of ESL as a substitute for bilingual instruction is its failure to provide students speaking foreign languages with meaningful education in cognitive subject areas until after they have learned sufficient English to participate in their regular classes. While a student enrolled in ESL is likely to benefit substantially during the time special English instruction is being provided, the remainder of the school day, spent without comprehension in English-only classes, may be largely wasted. By the time a student’s proficiency in English has improved sufficiently to allow for meaningful participation in regular classes, he has fallen far behind his peers. (3) Effectiveness of Compensatory Bilingual Education. The widespread success of bilingual instruction in meeting the special educational needs of Mexican-American students was amply documented by the evidence presented at trial. Defendants stipulated that the dropout rate for Mexican-Amerieans in Texas has decreased where bilingual programs have been properly implemented. Pl.-Int. Ex. 409, # 908. A study by the Abernathy Independent School District showed that the test scores of bilingual participants were substantially better than those of a control group of children outside the program. Pl.-Int. Ex. 409, # 1137. James Vasquez, Superintendent of the Edgewood Independent School District, testified that “the attitude of kids toward school has improved tremenduously since the implementation of the bilingual programs in our school—and there is no doubt in my mind that the kids have become more verbal.” TR 324. James Lehman, Superintendent of the Eagle Pass Independent School District, reported a “significant growth pattern” at a school in his district attributable to bilingual instruction. TR 405. These and similar testimonials to the effectiveness of bilingual education in Texas correspond with similar findings made on the national level. Dr. Troike described several recent studies which found that bilingual programs brought Spanish-speaking children “for the first time in recorded history to or above national norms.” TR 201. The United States Commission on Civil Rights, in a comprehensive 1975 report, entitled “A Better Chance to Learn”, concluded that “bilingual-bicultural education is the program of instruction which currently offers the best vehicle for large numbers of language minority students who experience language difficulty in our schools.” Gov. Ex. B7 at 137. The record in this case demonstrated the particular psychological benefits of bilingual education to children saddled with a history of discrimination. The United States Commission on Civil Rights reported that the use of the child’s native language in daily educational programs counteracts feelings of inferiority and contributes to the development of self-esteem essential for educational development. Id. at 35-36. Dr. Cazden explained that “the status of Spanish in the schools as a whole is a very important statement to the child about how he and his culture are seen in the community.” TR 180-91. Dr. Rudolph Troike concluded that teaching a Spanish-speaking child exclusively in English communicates a powerful message to the child that he or she is a second-class citizen. TR 203-205. Giving credence to the extensive and uncontradicted evidence in this case, it is determined that bilingual instruction is uniquely suited, as a vehicle for compensating Mexican-American children in Texas for learning difficulties engendered by pervasive discrimination. Defendants have failed to demonstrate that any alternative medium of instruction would be equally effective. (4) Detailed Description of the State’s Remedial Program. The utility of bilingual instruction in helping students of limited English proficiency to participate successfully in the regular school curriculum is not in dispute in this case. Texas recognized the vital role played by bilingual instruction in enacting the 1973 Bilingual Education Act. Tex.Ed. Code Ann. § 21.451 et seq. (Vernon 1980 supp.). Defendants have stipulated to the importance of teaching basic cognitive skills in a child’s native language. Pl.-Int. Ex. 409, # 909, 1115. The principle issue which divides the parties is whether the specific program designed and implemented by defendants is adequate to eliminate the vestiges of widespread discrimination against Mexican-Americans described above. In order to resolve that issue, a detailed examination of the state’s compensatory education programs must be undertaken. (a) Program Content. As noted above, the state of Texas currently mandates bilingual instruction in kindergarten through third grade for children of limited English proficiency, if at least twenty such students sharing a common native language are at the same grade level within a single school district. On paper, the bilingual program to be accorded those students who qualify contains the basic elements set forth in the federal Bilingual Education Act, 20 U.S.C.A. § 3221, et seq. (1980 supp.), and explicated in the documentary materials received in evidence. The state’s bilingual education statute describes the required program as follows: (a) The bilingual education program established by a school district shall be a full-time program of instruction (1) in all subjects required by law or by the school district, which shall be given in the native language of the children of limited English speaking ability who are enrolled in the program, and in the English language; (2) in the comprehension, speaking, reading, and writing of the native language of the children of limited English-speaking ability who are enrolled in the program, and in the comprehension, speaking, reading, and writing of the English language; and (3) in the history and culture associated with the native language of the children of limited English-speaking ability who are enrolled in the program, and in the history and culture of the United States. Tex.Ed.Code Ann. § 21.454 (Vernon 1980 supp.). Administrative regulations issued by the TEA enumerate the instructional components of the bilingual program: (1) The basic concepts initiating the child into the school environment are taught in the language he brings from home. (2) Language development is provided in the child’s dominant language. (3) Language development is provided in the child’s second language. (4) Subject matter and concepts are taught in the child’s dominant language. (5) Subject matter and concepts are taught in the second language of the child. (6) Specific attention is given to develop in the child a positive identity with his cultural heritage, self-assurance, and confidence. Pl.-Int. Ex. 383, § 32.52.011. The state's recently-adopted plan for bilingual education thus requires that substantive instruction be provided in both Spanish (the dominant language) and English (the second language), with the division in time spent on each dependent upon the particular student’s relative proficiency in both languages. Gov. Ex. D-13. Unfortunately, the monitoring conducted by the TEA throughout the state has revealed that these laudable guidelines are frequently ignored by local school districts. A few examples should suffice to demonstrate the wide gap between theory and practice in this field: • A TEA visit to Lockhart Independent School District in 1975 found that the bilingual program was conducted primarily in English. • A TEA visit to Aransas Pass Independent School District in 1977 found that no substantive courses within the bilingual program were being taught in Spanish. • In 1977, the North Forest Independent School District’s bilingual program offered no instruction in Spanish language or reading. • In 1979, the TEA reported that there was no teaching of substantive content in Spanish in the Laredo Independent School District. • A 1978 TEA monitoring report found very little native language instruction in the Fort Worth Independent School District bilingual program. Defendants stipulated to the existence of these and similar deficiencies in local bilingual programs in at least twenty-five additional school districts throughout the state. Pl.-Int. Ex. 409, # 801-809, 1207-1234. These districts are failing to provide the minimum level of bilingual instruction required by state law. As a result, many of the state’s Mexican-American children entitled to bilingual education are not receiving the compensatory programs they need to keep up with their Anglo counterparts. (b) Program Coverage. A far more serious weakness in the state’s existing bilingual program is the limited scope of its coverage. Bilingual instruction is required only in kindergarten through grade three, and only in those school districts with twenty or more Spanish-speaking students of limited English proficiency in a single grade. Some state funding is provided for optional bilingual instruction in grades four and five. No state assistance of any kind is available for bilingual programs in grades six through twelve which, as a practical matter, precludes any such programs from being offered in the middle and upper grades. There was considerable dispute at trial over the exact number of limited English proficiency students in the Texas public education system, but all parties agreed that a large number of these children were not being provided with bilingual instruction under current state policy. A report issued by the TEA in 1979 indicated that 198,613 children of limited English proficiency had been identified, statewide, in grades kindergarten through twelve, of whom 89,600 (about forty percent) were not in bilingual programs. Pl.-Int. Ex. 406. Fewer than half of the 19,622 identified children of limited English proficiency in grades four and five (where bilingual instruction is optional) were enrolled in such programs. In grades six through twelve, none of the 64,-622 limited English proficiency students identified by TEA were receiving bilingual instruction. In 1975, fifty-seven school districts with a majority of Spanish-speaking, limited English proficiency children in their student populations provided no bilingual instruction, since there were no more than twenty such students in any one grade. Pl.-Int. Ex. 409, # 338. The number of limited English proficiency students reported by TEA was probably an underestimation, because of the deficiencies in the state’s procedures for identifying such children, described in detail below. Figures reported by Dr. James O’Malley, Senior Research Associate at the National Institute for Education, were considerably higher. On the basis of a recent sampling, Dr. O’Malley estimated that there were 438,000 children in Texas of limited English proficiency between the ages of five and fourteen, inclusive. TR 504. The vast majority of these children are Mexican-American. The state itself projects a Hispanic enrollment in the public schools of 941,875 by 1983-84. If, as Dr. O’Malley suggests, some seventy percent of these children will be limited in English proficiency, approximately 660,000 Mexican-American children will be in need of compensatory education. Projecting forward the fact that approximately forty percent of limited English proficiency students are excluded from bilingual programs under current state policy, it can be estimated that 264,000 limited English proficiency Mexican-American students will be without bilingual instruction within the next three years, unless changes are made. Defendants maintained at trial that their policy of requiring bilingual instruction in grades kindergarten through three in those districts containing large numbers of Spanish-speaking students, with optional programs at local discretion in grades four and five, was adequate to meet compensatory educational, needs. While conceding that bilingual education for all children in all grades would be desirable in an ideal world, defendants pointed to budgetary constraints and limited availability of bilingual staff as necessitating a more modest approach. The state's new bilingual education plan endeavors to pick up the slack by requiring an English language development program to be provided to all limited English proficiency students in the Texas public schools who are not receiving bilingual instruction. Pl.-Int. Ex. '383, § 32.52.012. But the extensive expert testimony offered at trial demonstrated that bilingual education must be provided for children unable to learn in English, until each child is capable of making the transition to a regular, English language classroom, if learning disabilities borne out of pervasive historical discrimination are ever to be overcome. Dr. Cazden, observed: “It is essential that a full plan be available K through twelve for those children who need it.” TR 162. Dr. Angel Gonzales, Director of Bilingual Education for the Dallas Independent School District, agreed, TR 275-76, as did Dr. Mary Galvan, Member of a TEA Bilingual Task Force. TR 697. James Lehman, Superintendent of Schools for the Eagle Pass Independent School District, testified to a tremendous need for bilingual education in grades seven through twelve. TR 402. None of this testimony was contradicted or refuted. The rationale for requiring a bilingual program of some description at all grade levels, as noted above, derives from the fact that the period of time needed to develop sufficient proficiency in English varies from child to child. See supra at 419. Defendants likewise did not dispute that fact. As already stated, they conceded that three years of bilingual instruction, as required by current state law, is inadequate for many students to achieve the level of competence needed to compete effectively in English. Pl.-Int. Ex. 409, # 1121. Moreover, thousands of limited English proficiency children in the Texas public school system never receive any bilingual instruction whatever. As pointed out by the defendants’ own witness, Dr. Robert Tipton of the TEA Division of Bilingual Education, many foreign language-speaking children initially enroll in the Texas public schools at different ages and at different intervals in the school year, depending upon when they first enter the state. TR 1163. Under current state policy, a Mexican-American child with no knowledge of English who enters a Texas school in the sixth or a higher grade is necessarily thrown into an all-English classroom, without the benefit of bilingual instruction. Similarly, limited English proficiency students who happen to reside in smaller school districts, with no more than twenty such students in any single grade, receive no bilingual instruction under existing programs. The state’s attempt to rectify these deficiencies by providing an English language development or ESL program in lieu of bilingual instruction is wholly inadequate. As Dr. Galvan testified, an ESL program is ineffective where it is implemented outside the context of a bilingual program. TR 733-34. As already mentioned, children enrolled in such programs cannot fully comprehend the material being taught in the English language classroom they remain in during most of the school day. During the time they are absent from their regular classroom for special instruction in English, their classmates are moving ahead with substantive instruction. Thus, each day the Mexican-American children participate in this makeshift English language development program, they fall further and further behind their classmates in mathematics, science, social studies, and the other subjects they must master in order to progress. When these students fall so far behind that they cannot compensate for the time lost, or gain upon their peers, they either give up and drop out of school or hopelessly struggle on, effectively disabled by the Texas education system. While the ESL program, examined in a vacuum, might appear to contribute more educational benefit than harm, its incongruity with the remainder of the school curriculum renders it inadequate in meeting the special needs of Mexican-American students at all grade levels of the state’s public schools. (c) Identification of Limited English Proficiency Students. In order to qualify for remedial assistance as described above, a child must first be identified as having limited proficiency in English. Bilingual instruction and ESL are not provided to all Spanish-speaking students, but only to those who are expected to have difficulty learning in an all-English classroom. The accuracy of this initial assessment mechanism is vital to ensuring that special help is provided to those children who need it. Defendants stipulated at trial that each local school district employs its own procedures to identify children of limited English proficiency. Pl.-Int. Ex. 409, # 213. The methods used are never validated by TEA or any other state agency. Pl.-Int. Ex. 409, # 206. The accuracy of student counts carried out by the local school districts are likewise not verified. Pl.-Int. Ex. 409, # 407, 428; Pl.-Int. Ex. 434 at 25; Gov. Ex. A-7 at 42. Monitoring reports by TEA indicate that numerous school districts have identified limited English proficiency students solely by the subjective opinions of teachers. Pl.Int. Ex. 409, # 215, 216, 220, 222, 223. In districts which employ testing mechanisms to measure English language proficiency, Spanish-surnamed students may be the only ones tested. Yet the defendants conceded that Spanish surname is not an accurate indicator for identifying students in need of remedial instruction. Pl.-Int. Ex. 409, # 202. Children are present in Texas schools with Anglo surnames who are, in fact, Spanish-speaking. Gov. Ex. A-9, at 21. It is manifest that such students, who may have limited proficiency in English, should not be overlooked during the identification process. The new Texas State Plan for Bilingual Education contains guidelines which would improve the accuracy of identifying limited English proficiency students throughout the state. Gov. Ex. D-13. The plan requires that, upon registration for school, all students with foreign surnames receive a “home language” survey, to determine whether the child has a native language other than English. The survey is also to be distributed to other children, based upon staff observation or parental interview. Gov. Ex. D-13 at 1. All students who return a survey form indicating a home language other than English are to be administered an Engli