Full opinion text
ORDER JUSTICE, Chief Judge. I. PROCEDURAL HISTORY Proceedings in the above-captioned civil action have been carried out within the ambit of a statewide desegregation suit instituted by the United States in this court on March 6, 1970. Leave to intervene, sought by the G. I. Forum and the League of United Latin American Citizens (LU-LAC), was granted on July 10,1972, permitting those parties to participate “for all purposes as representatives of all persons of Mexican-American descent or nationality in the State of Texas.” In their complaint in intervention, filed on that date, intervenors alleged, inter alia, that the defendants had failed “to take affirmative steps to correct segregatory and discriminatory educational practices throughout the State of Texas which deny Mexican-American and black children their right to equal educational opportunity . . .. ” Complaint in Intervention, ¶27. On June 4, 1975, the G. I. Forum-LULAC intervenors filed a motion for supplemental relief. An amended motion for relief, listing twenty-six individual Mexican-American children as party-plaintiffs, was filed on October 4, 1977. The United States filed its separate motion for relief on January 20, 1978. After the completion of extensive discovery, the final pre-trial order in this case was filed on November 20, 1978. Supplemental exhibit lists were subsequently tendered by the parties as amendments to that order. At the outset of trial, on December 3, 1979, it was announced that the defendants had withdrawn their prior objections to many of the proposed findings of fact listed by the plaintiff-intervenors in the pre-trial order. The agreed fact statements, introduced into evidence as Plaintiff-intervenors’ Exhibit No. 409, were stipulated to orally in open court by counsel for all parties. The non-jury trial consumed a total of eight days. In addition to the stipulated facts and live testimony adduced at trial, the parties submitted voluminous documentary evidence and deposition testimony for the record. Several months after the conclusion of trial, both the plaintiff and plaintiff-intervenors filed extensive post-trial briefs. In lieu of a brief, defendants filed a document denominated “Defendants’ Proposed Opinion”, one hundred and fourteen pages in length. A memorandum opinion, based upon this comprehensive trial and post-trial record, was entered on January 9, 1981. 506 F.Supp. 405 (E.D.Tex.1981). The defendants were found to have violated the constitutional and statutory rights of Mexican-American school children throughout the State of Texas. The parties were ordered to meet in an effort to formulate a proposed remedial decree. Since no agreement was forthcoming, the parties submitted separate plans of relief. Following the receipt and consideration of those submissions, an equitable decree was entered on April 17, 1981, in accordance with the previously-filed memorandum opinion. The order requires the State of Texas and its educational agencies to improve and expand their programs of bilingual instruction for Mexican-American public school students possessing limited proficiency in English. Specific remedial measures are to be phased into existence over a six-year period, beginning with the 1981-1982 school year. The defendants have levied a trichotomous attack upon the proceedings in this case to date. First, they seek to revamp the evidentiary record presented to the court at trial, some twenty months ago. Specifically, defendants contend that their legal representative, the Attorney General of the State of Texas, was not authorized to stipulate to various findings of fact proposed by the plaintiff-intervenors or to withdraw objections to various findings of fact and exhibits offered by the United States. Accordingly, defendants have moved to withdraw the stipulations from the record and to reinstate their objections to the plaintiff’s proposed facts and exhibits. Second, even if the stipulated facts were properly admitted at trial, defendants argue that the court transgressed its authority by addressing an issue not actually in dispute between the parties. According to defendants, pervasive, de jure discrimination against Mexiean-Americans in the field of public education and the state’s resulting duty to extirpate all vestiges of that discrimination under the Fourteenth Amendment played no part in this litigation and were not before the court for consideration. Since the resolution of that constitutional issue in the court’s memorandum opinion comprised one basis for the relief subsequently ordered, defendants have filed a motion demanding that the opinion be withdrawn and the remedial decree vacated. Finally, defendants have filed a motion seeking to stay the remedial order issued on April 17, 1981, in its entirety, pending appeal of that order. Defendants base their motion upon the strength of the contentions summarized above, along with a substantive attack upon the specific elements of relief prescribed. Under the applicable criteria for the entry of a stay pending appeal, defendants maintain that such an order is warranted. Each of these pending motions, described above, raises different legal issues. Yet all three motions assail the conduct of this litigation to date. In the interests of judicial economy, the three motions shall be disposed of by a single order. Such a consolidated approach will serve to place defendants’ multifarious contentions in context within the overall course of proceedings in this case during the past eleven years. II. MOTION TO WITHDRAW STIPULATIONS AND REINSTATE OBJECTIONS. A. Factual Background. At the outset of trial, defendants’ counsel stipulated in open court to some 456 statements of fact proposed by the plaintiff-intervenors. These stipulations were entered into evidence, without objection, as Plaintiff-intervenors’ Exhibit No. 409. Defendants’ counsel also withdrew previously-stated objections to a number of exhibits and findings of fact listed in the final pre-trial order by the United States. That withdrawal of objections had originally been announced by defendants’ counsel in a letter to the court dated October 31, 1979, and entered into evidence as Defendants’ Exhibit No. 76. These stipulated and uncontested facts, taken together, comprised a significant portion of the probative evidence introduced at trial. On September 15, 1980, more than nine months after the conclusion of trial, defendants filed a motion to “clarify” the stipulations contained in Plaintiff-intervenors’ Exhibit No. 409. Defendants contended, for the first time, that they had meant to concede only that the statements had, in fact, been made, rather than to admit the truth of the statements themselves. Defendants asked that the stipulations be treated in accordance with that restrictive interpretation. On December 31, 1980, a lengthy order was entered denying the requested relief. The history of the stipulations was explored in detail, beginning with the protracted negotiations among the parties which produced the agreement formalized at trial. The order recounted the unqualified use of the stipulations by all parties, both during trial and in post-trial submissions. Finally, the defendants’ affirmative reliance upon these same stipulations in a related case, United States v. Texas (Gregory-Portland Independent School District), 498 F.Supp. 1356 (E.D.Tex.1980), was described. Defendants’ concurrence in the proposed findings of fact, the court concluded, was a calculated element of trial strategy. Under applicable legal standards, the defendants did not meet their heavy burden of justifying the retraction or alteration of that deliberate decision long after the trial had ended. Some six months after the denial of their motion to “clarify” the stipulations entered at trial, the defendants launched a second attempt to eliminate those stipulations from the case. In a motion filed on July 6, 1981, defendants contended, for the first time, that their counsel was not authorized to stipulate to findings of fact proposed by the plaintiff-intervenors or to withdraw objections to exhibits and fact statements offered by the United States. Defendants argued that they cannot be bound by the unauthorized acts of their attorney. In the interests of justice, they urged that the stipulations be withdrawn and the objections to the United States’ exhibits and proposed findings of fact be reinstated. Alternatively, defendants asked that the use of these stipulated and admitted facts be restricted to this particular case. Defendants offered several affidavits in support of their motion. Susan J. Dasher, Esquire, who served as defendants’ trial counsel in her capacity as Assistant Attorney General of the State of Texas, asserted that “. . . the entering of the stipulations was not authorized by the policy-making officials of the Texas Education Agency [TEA] or my superiors at the Attorney General’s Office nor was such authorization sought.” At the same time, Attorney Dasher acknowledged that she reviewed the proposed findings of fact with TEA officials, and reached agreement with them “that we would not offer evidence to rebut such proposed findings.” David P. Ryan, Esquire, General Counsel of the TEA, stated in his affidavit that the stipulations introduced into evidence at trial were entered without his knowledge or consent. Thomas Anderson, Executive Assistant to the TEA’s Deputy Commissioner for Program Administration and Finance, stated that the agency reviewed the proposed findings of fact during the summer of 1978, resulting in the preparation of internal TEA memoranda which contained a suggested Agency response. According to Mr. Anderson, the Attorney General’s Office had a copy of those memoranda and never received any authorization to deviate from the positions expressed therein. On the basis of these affidavits, defendants contended that the Attorney General of the State of Texas, as trial counsel, did not adequately represent the interests of his clients. B. Attorney’s Authority to Enter into Evidentiary Stipulations at Trial. Complaints by clients concerning the unsatisfactory performance of their attorneys during the course of litigation have abounded throughout the entire history of Anglo-American jurisprudence. E. g., Short v. McCarthy, 3 Barn & Ald. 626; Wilcox v. Plummer, 4 Pet. (29 U.S.) 172, 7 L.Ed. 821 (1830). Although civil litigants are not always satisfied with the actions of their lawyers, it is well settled that they are generally bound by those actions. Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1972); Cooper v. Lewis, 644 F.2d 1077, 1082 (5th Cir. 1981). In Link, plaintiff appealed from the dismissal of his claim after his attorney failed to appear at the scheduled pre-trial confer^ ence. “There is certainly no merit to tbe contention that dismissal of petitioner’s claim because of his counsel’s/unexcused conduct imposes an unjust penalty on the client,” the Court observed. 370 U.S. at 633, 82 S.Ct. at 1390. Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent v/ith our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent and is considered to have “notice of all facts, notice of which can be charged upon the attorney”. Id. at 633-34, 82 S.Ct. at 1390. The justification for attributing the acts of an attorney to his client during litigation is readily apparent. In preparing pleadings, conducting discovery, participating in the formulation of a pre-trial order, examining witnesses, introducing evidence, filing motions, presenting argument, and carrying out a plethora of other responsibilities in the course of trial, an attorney necessarily serves as the agent of his client. Unless all of the attorney’s efforts on his client’s behalf are binding in a legal sense, the entire judicial process, including the outcome of that process, is devoid of validity with respect to the parties themselves. As with any other relationship governed by principles of agency law, not every action by an attorney is imputed to his client. For example, certain constitutional rights enjoyed by a criminal defendant are so fundamental and inherently personal that they cannot be waived by act of counsel. See, e. g., Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In the civil arena, attorneys have no implied authority to compromise or settle their clients’ claims or defenses. Holker v. Parker, 7 Cranch. (11 U.S.) 436, 452, 3 L.Ed. 396 (1813) (Marshall, C.J.); United States v. Beebe, 180 U.S. 343, 351-52, 21 S.Ct. 371, 374, 46 L.Ed. 563 (1901). A settlement approved by the parties’ attorneys is presumed valid, but can be subsequently declared void upon proof that either counsel lacked special authority from his client to enter into such an agreement. Id. Even in those circumstances, however, a client’s failure to protest an unauthorized settlement in a timely manner serves to ratify the agreement “. . . since it is a client’s duty, having actual or constructive knowledge of the settlement and its terms, to express his disapproval within a reasonable time . . . . ” Williams v. Intern. Ass’n. of Machinists & Aerospace, 484 F.Supp. 917, 919 (S.D.Fla.1978), aff’d. mem. 617 F.2d 441 (5th Cir. 1980). An attorney’s lack of authority to settle a civil case without his client’s specific consent is one of the few recognized exceptions to the general rule that the actions of a lawyer in his capacity as legal agent irrevocably bind the client he represents. The entering into evidentiary stipulations, before or during trial, falls squarely within an attorney’s sphere of authorized conduct. The Court of Appeals for the Fifth Circuit disposed of that issue in the case of Laird v. Air Carrier Engine Service, 263 F.2d 948 (1959). Writing for the Court, Judge Brown declared: An attorney has wide authority in the conduct of litigation. He is chosen to speak for the client in Court. When he speaks in Court, whether it be in a formal trial or in an informal pretrial, he speaks for and as the client. Those statements or agreements which dispense with proof of facts are made with respect to the impending trial and until withdrawn [by the court] are not merely evidence as in the case of an ordinary admission. They are absolutely binding. (Emphasis supplied.) 263 F.2d at 953. Even in a criminal case, where a defendant’s personal rights must be assiduously protected, the Court of Appeals has held that defense counsel clearly has the authority to make judicial admissions on behalf of his client during the course of trial. United States v. Cravero, 530 F.2d 666, 671-72 (5th Cir. 1976). Recognizing that an attorney, as agent, has the authority to enter into stipulations and agreements respecting evidence to be offered at trial is basic to the fair and efficient conduct of litigation. Courts must be able to rely upon attorneys to represent the interests of their clients in preparing the pre-trial order and narrowing the factual issues which remain in dispute. Most litigants lack the knowledge, experience, and specialized legal training to make informed decisions respecting trial strategy and the admission of evidence. Accordingly, those decisions are necessarily entrusted to the presumed expertise of their lawyer-agents. A client may restrict the authority of his attorney to act in this or any other specified respect. But such special limitations upon the usual scope of the lawyer-client relationship must be made known to the other parties and to the court at the time these issues arise during the course of litigation, not nineteen months after the conclusion of trial. Thus, under applicable federal law, the defendant’s attorney clearly possessed the initial authority to stipulate to proposed findings of fact and withdraw objections to certain exhibits in executing deliberate trial strategy. That conclusion is unavoidable in light of the authoritative precedent cited above, as well as the reasoning which underlies that precedent. The authority of trial counsel to act in these respects is also a necessary corollary to Rule 16, F.R.Civ.P., which provides that issues to be tried shall be limited “to those not disposed of by admissions or agreements of counsel ...” (emphasis supplied). C. Legal Standards for Withdrawing Stipulations and Reinstating Objections. The fact that the actions taken by defendants’ counsel at trial were within the authorized scope of the attorney-client relationship does not, in itself, preclude the relief now sought from those actions. Evidentiary stipulations may be modified or set aside in order to prevent manifest injustice. Rule 16, F.R.Civ.P.; Sherman v. United States, 462 F.2d 577, 579 (5th Cir. 1972). The Court of Appeals has held that a district court has an affirmative obligation to relieve counsel from pre-trial stipulations where manifest injustice would otherwise result. Central Distributors, Inc. v. M. E. T., Inc., 403 F.2d 943 (5th Cir. 1968). The burden on a party seeking relief from a stipulation freely entered into before or during trial is a heavy one. As a general rule, such stipulations are controlling and conclusive, resolving all factual issues according to their contents and framing those issues remaining to be tried. See Downs v. American Employers Insurance Co., 423 F.2d 1160, 1164-65 (5th Cir. 1970). A formal admission by counsel in open court, made a part of the record and used as a foundation for judgment, is a most solemn and binding act. King v. Edward Hines Lumber Co., 68 F.Supp. 1019, 1021 (D.Or.1946). Accordingly, evidentiary stipulations may not be tinkered with absent a clear and convincing demonstration that manifest injustice would otherwise result. City of Lakeland, Florida v. Union Oil Co. of California, 352 F.Supp. 758, 768 (M.D.Fla.1973). In determining whether relief from stipulations is warranted, a court should consider the effect of such relief upon the rights of the parties as well as its impact upon the disposition of business by the court. Central Distributors, Inc. v. M.E.T., Inc., 403 F.2d at 946. As litigation proceeds from the pre-trial phase into trial and beyond, the burden on one seeking to alter or withdraw stipulations of fact necessarily increases in order to protect the integrity of the process to date. Thus, “if a party fails to seek relief from a stipulation until after trial has begun, that factor does not preclude relief but it must be considered.” Chatzicharalambus v. Petit, 430 F.Supp. 1087, 1090 (E.D.La.1977). If a party allows an unreasonable amount of time to elapse before protesting an agreement made by his attorney, the client may be found to have constructively ratified that agreement. Williams v. Intern. Ass’n. of Machinists & Aerospace, 484 F.Supp. 917 (S.D.Fla.1978), aff’d mem. 617 F.2d 441 (5th Cir. 1980). D. Application of Legal Standards to Defendants’ Motion for Relief. Under the stringent standards described above, defendants have not even approached the requisite showing to warrant relief. This motion to withdraw stipulations and reinstate objections to exhibits and fact statements was filed more than nineteen months after defendants’ counsel reaffirmed these agreements in open court on the first day of trial. The inordinate delay which preceded this claim warrants a finding of constructive ratification on the part of defendants. At the very least, the passage of nineteen months greatly exacerbates the deleterious impact which granting relief would exert upon the rights of the plaintiffs and the disposition of business by the court. The withdrawal of these stipulations, placing a number of key factual issues into dispute for the first time, would necessitate the retrial of this action and the reformulation of a memorandum opinion. Countless hours of time expended by the court and counsel in litigating this case over the past two years would be rendered null. It would be necessary that the parties set out to re-gather evidence, draft a new pretrial order, and completely re-try the case. The drastic consequences of providing defendants with the relief sought augments their burden of demonstrating that such relief is necessary to prevent manifest injustice. Defendants have failed to show that the conduct of their trial counsel has caused them to suffer any injustice whatever. The evidentiary stipulations and agreements, as noted above, were well within the authorized scope of counsel’s responsibilities in conducting the trial. Defendants’ strategy, discussed more fully in the prior order concerning these stipulations entered on December 31, 1980, was apparently to concede past wrongdoing on the part of the State of Texas and argue that adequate steps were being undertaken, without judicial intervention, to rectify those historical violations. In hindsight, following the entry of a memorandum opinion and remedial order, defendants apparently regret these tactical decisions made by their legal representative at trial. They believe that the outcome of the case might have been more favorable to them had these stipulations not been entered into. If they were accorded the luxury of a second trial, they would, no doubt, employ a different strategy. But the fact that an attorney makes a perceived strategic miscalculation does not constitute “manifest injustice” under Rule 16. As the Court of Appeals declared in Bury v. McIntosh, 540 F.2d 835, 836 (5th Cir. 1976) (per curiam), “the merits or demerits of an attorney’s representation in a civil action are not grounds for invalidating a verdict.” Exceptional circumstances could be conceived of in which an attorney’s performance was so deficient that the representation he afforded his client was equivalent to no representation at all. Under such circumstances, it might be manifestly unfair to subject the client to the abject incompetence of his counsel. This, however, is not such a case. Defendants’ counsel of record at trial was the Attorney General of the State of Texas, a competent representative of the State in a plethora of suits tried in both state and federal court. The Texas Education Agency, with its own in-house counsel, chose to entrust its interests to the representation of the Attorney General. Significantly, the Attorney General has never repudiated the actions of his authorized assistant who served as lead counsel at trial. No justification has been offered to provide extraordinary protection to the TEA or any other state agency from the consequences of tactical decisions made by the Attorney General of the State of Texas, as legal representative of such agency at trial. If the defendants are dissatisfied with the quality of representation they received at trial, as exemplified by the evidentiary stipulations and agreements entered into by their counsel, they have a clear remedy under state law in the form of an action for legal malpractice. Link v. Wabash Railroad Co., 370 U.S. 626, 633-34, n. 10, 82 S.Ct. 1386, 1390, n. 10, 8 L.Ed.2d 734 (1962); Bury v. McIntosh, 540 F.2d 835, 836 (5th Cir. 1976) (per curiam). Such a separate suit, rather than the post hoc nullification of all prior proceedings in the original action, serves as a just and expedient mechanism for resolving disputes between attorney and client concerning the attorney’s acts or omissions in the course of litigation. Since the defendants have failed to demonstrate clearly and convincingly that the relief they seek is necessary to prevent manifest injustice, their motion to withdraw evidentiary stipulations and reinstate objections to exhibits and fact statements shall be denied. III. MOTION TO VACATE ORDER AND WITHDRAW OPINION. Defendants’ second assault upon the proceedings in this case impugns the underlying fairness of the judicial process. Defendants allege that the memorandum opinion and remedial decree entered by the court were predicated upon constitutional violations committed by defendants which were improperly taken into account. Specifically, defendants contend that the issue of de jure discrimination against Mexican-American school children under the Equal Protection Clause of the Fourteenth Amendment was outside the scope of plaintiffs’ claims, as expressed by their pleadings. Accordingly, defendants argue, the court lacked authority to consider the existence of such discrimination and its lingering effects in framing a memorandum opinion and prescribing appropriate relief. Defendants have moved that the memorandum opinion be withdrawn and the remedial decree vacated. The proper disposition of that motion requires a careful examination of the tortuous progress of this case, from the filing of the initial complaint on March 6, 1970, through the granting of equitable relief on April 17, 1981. A. Relevant Procedural History, 1970-1978. As noted above, this civil action was filed in 1970, stating claims under Title VI of the Civil Rights Act of 1964 and the Fourteenth Amendment to the United States Constitution. Although the focus of trial in September, 1970, and the resulting equitable relief was on the state’s failure to desegregate its public schools on the basis of race, the remedial order did recognize “the special educational needs of students whose primary language is other than English” and the importance of developing “specific educational programs designed to compensate minority group children for unequal educational opportunities resulting from past or present racial or ethnic isolation . .. . ” Thus, the issue of providing compensatory instruction to overcome the effects of unlawful discrimination was embodied in this case from the outset, more than ten years ago. On July 10, 1972, the G. I. Forum and LULAC were granted leave to intervene and filed their complaint in intervention. The complaint alleged continuing violations by the defendants of the constitutional rights of Mexican-American public school children throughout the State of Texas. Specifically, intervenors claimed that the defendants ... have contributed to and have failed to investigate adequately and to take affirmative steps to correct segregatory and discriminatory educational practices throughout the State of Texas which deny Mexican-American and black children their right to equal educational opportunity .... Complaint in Intervention (July 10, 1972), ¶ 27. The intervenors demanded that the court order ... prompt, affirmative and effective action by Defendants in dismantling dual school systems in Texas, in ending all forms of invidious and discriminatory treatment which is found to be in violation of due process and equal protection guarantees of the Constitution of the United States in the public schools under the jurisdiction and control of Defendants, in requiring school districts to institute special programs to compensate minority children for past and present discriminatory treatment and in meeting the educational needs of all children presently excluded from effective participation in public educational programs in Texas because their primary language is other than English. Id., Prayer for Relief, ¶ 5. This pleading, filed more than seven years prior to trial, clearly put the defendants on notice that the constitutional issues they protest now were at the very heart of the plaintiff-intervenors’ legal claims. On June 4, 1975, the G.I. Forum-LULAC intervenors filed a motion to enforce the court’s prior remedial decrees entered in this case and for supplemental relief. In their motion, the intervenors set forth two additional grounds for relief not mentioned in their original complaint in intervention filed three years earlier. First, they stated a cause of action under Title VI of the Civil Rights Act of 1964, based upon the Supreme Court’s decision in Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974). Second, they alleged that the defendants had violated § 204(f) of the Equal Educational Opportunities Act of 1974, codified at 20 U.S.C. § 1703(f). The Lau decision and the enactment of the Equal Educational Opportunities Act, both taking place during 1974, gave the plaintiff-intervenors two powerful litigation weapons which had not been available in 1972. Accordingly, the focus of the suit shifted in 1975 to these new avenues of relief. Yet the motion for supplemental relief filed during that year did not purport to eliminate the constitutional issues of equal protection and compensatory education raised by intervenors’ original pleading. On the contrary, constitutional violations were specifically alleged in five separate paragraphs of that motion. The motion also made reference to the Keyes case [Denver School District Number One, 396 U.S. 1215, 90 S.Ct. 12, 24 L.Ed.2d 27] where, according to the intervenors, the district court had “ordered the defendants to implement a bilingual/bicultural program for Spanish-speaking children in the Denver schools, as part of its overall desegregation order, to eliminate the effects of past discrimination against Mexican-American students.” (emphasis supplied), Motion for Supplemental Relief (June 4, 1975), ¶ 9. The defendants had no doubt that the intervenors were claiming that constitutional violations had taken place. On November 3, 1976, defendants filed an application for the convening of a three-judge court, pursuant to 28 U.S.C. § -2281. “It is clear,” defendants declared, “that Movants [plaintiff-intervenors] allege constitutional violations by Defendants and request injunctive relief to cure those alleged violations . .. . ” Application for Three-Judge Court (Nov. 3, 1976), p. 2. (Emphasis in original.) Opposing the transfer of the case to a three-judge court some six years after the commencement of suit, plaintiff-intervenors agreed to file an amended motion for supplemental relief, deleting all explicit references to constitutional violations. The amended motion was filed on October 4, 1977, relying on the court’s prior remedial orders, Title VI of the Civil Rights Act, and § 204(f) of the Equal Educational Opportunities Act as grounds for relief. The United States filed its motion for supplemental relief, also without reference to the Constitution, on January 20, 1978. Although' plaintiff-intervenors’ original complaint in intervention, filed back in 1972, had never been formally withdrawn or superseded, it could be concluded that the constitutional issues raised in that pleading were voluntarily excluded from the case by the plaintiff and plaintiff-intervenors in late 1977 and early 1978. If trial had been held at that time, it might have been restricted accordingly to the statutory claim raised in the amended motions for supplemental relief. On June 8, 1978, the defendants’ application for a three-judge court to try this case was denied. In its written order, the court pointed out that the plaintiff-intervenors had excised their constitutional claims, making a three-judge court clearly inappropriate “at this stage of the proceedings.” The order proceeded to discuss several reasons why a three-judge court might not be necessary “even if the motion in intervention retained the constitutional issues.” At the conclusion of the order, the court stated that renewed consideration of the three-judge question would be appropriate “when the constitutional question ripens.” The Court does not mean, however, to indicate that when and if the constitutional question should emerge, a three-judge court would necessarily be required. The question whether a state statute, which requires certain relief to a disadvantaged class, in fact conflicts, for three-judge court purposes, with the Constitution by virtue of the Constitution’s requiring more drastic relief, seems sufficiently sui generis to merit additional reflection at the appropriate time. Thus, while the constitutional issues were deemed to be outside the scope of the litigation on June 8, 1978, the possibility that those issues might be subsequently reinstated was evident to the court and communicated to all parties through the text of this order. The defendants’ contention that the court erroneously addressed their Equal Protection violations in its memorandum opinion and remedial decree rests almost entirely upon the significance of the denial of their motion for a three-judge court. Defendants point out that no amended pleadings were filed following the order entered on June 8, 1978. “Thus,” they argue, “the defendants were clearly led, indeed compelled, to believe that this litigation did not involve constitutional claims.” Motion to Vacate Order and Withdraw Opinion (July 6, 1981), p. 3. That is the essence of their motion. B. Relevant Procedural History, 1978-1980: The Rest of the Story. The glaring flaw in defendants’ argument is that it conveniently ignores the subsequent events which brought the constitutional issues back into the case for resolution. Defendants have presented an incomplete, and hence distorted, account of the relevant facts. An examination of the course of litigation during the two years which followed the denial of defendants’ application for a three-judge court confutes the asserted grounds for relief. 1. The Final Pre-Trial Order. On November 20, 1978, following protracted negotiations among the parties, the final pre-trial order was filed with the United States District Clerk. That extensive order, some 195 pages long, included the factual and legal contentions to be tried, along with lists of trial witnesses, exhibits, and deposition testimony. All of the parties enumerated constitutional issues among those they intended to litigate at trial. The plaintiff-intervenors proposed eighteen conclusions of law, including the following: The historical acts of segregation and linguistic bias by the Defendants as proven in multiple court cases and administrative determinations create an obligation on the Defendants to eliminate root and branch the vestiges of such policies. Given these findings, it is appropriate for this Court to order bilingual instruction for all LESA’s [Limited English-Speaking Ability Students] in the State. Final Pre-Trial Order (November 20, 1978), p. 146. Allegations of unconstitutional conduct committed by defendants pervaded the contentions of law and fact put forth by the United States. Some ten pages of the pretrial order (pp. 83-92) listed proposed findings of fact chronicling the long history of pervasive, intentional discrimination against Mexican-American students throughout the State of Texas. The allegedly deleterious impact of such discrimination upon the educational performance of Mexican-American students was set out on pages 93 through 95 of the order. In its contentions of law, the United States asserted: “[n]ot only is the State responsible for inactivity in meeting the needs of Mexican-American students, but also for its participation in a long history of discrimination against Mexican-Americans in its schools, including affirmative discrimination against the use of the native language of Mexican-American students by both teachers and students.” Final Pre-Trial Order (Nov. 20, 1978), p. 148. On the issue of relief, the United States maintained that the court and parties should be guided by the equitable principles applied in school desegregation cases, citing three such cases decided by the Supreme Court under the Fourteenth Amendment. Id. at 149. Recognizing the reluctance of courts to become involved in the formulation of educational policy, the United States asserted that such policy was counterbalanced by “the stringent standards courts impose when discrimination on the basis of race or national origin is at stake. In this case, the defendants have participated in a long historical pattern of discrimination.” Id. at 150. In light of the numerous references to constitutional claims under the Equal Protection Clause, raised by both plaintiff and plaintiff-intervenors in the pre-trial order, the contention that defendants lacked notice regarding the presence of those issues in the case is wholly untenable. Moreover, the defendants themselves set forth contentions of law with respect to the connection between past discrimination and compensatoiy bilingual instruction. “Bilingual education is not a substitute for desegregation,” defendants declared in their portion of the pre-trial order. Id. at 153. “A meaningful desegregation plan,” they acknowledged, “must provide for the transition of Spanish-speaking children to the English language.” Id. Thus, while the constitutional issues of Equal Protection had been excised from this case in June, 1978, those issues had been re-injected by the time the final pre-trial order was filed on November 20, 1978. 2. The Trial of the Case. This case was tried in accordance with the final pre-trial order of November 20, 1978, as amended by supplemental exhibit lists and stipulations entered into on December 3,1979, the first day of trial. Those stipulations pertained, in large part, to the history of intentional discrimination against Mexican-Americans within the Texas public schools. E. g., Pl.-Int. Ex. 409, Nos. 701, 704, 706, 710, 711, 729, 735, 748, 750. Defendants also stipulated to the harmful, lingering effects of that discrimination. E. g., Pl.-Int. Ex. 409, Nos. 8, 702, 707, 709. Far from being unaware of these evidentiary stipulations or their content, defendants’ counsel began her opening statement by conceding: “Your Honor, it’s true that we have stipulated to large parts of this case.” T. 21. In addition to these stipulations, the record reveals numerous exhibits introduced into evidence at trial which buttressed plaintiffs’ constitutional claims. E. g., Pl.Int. Ex. Nos. 165, 186-199, 437. Defendants did not object to any of this evidence on the basis of relevance or any other grounds. Thus, apart from the repeated references to Equal Protection violations in the pre-trial order, those constitutional issues were put before the court through a variety of evidence introduced at trial. 3. Defendants’ Proposed Opinion. Following the completion of trial, the parties were accorded leave to file written submissions advocating the appropriate resolution of the various issues to be decided by the court. On May 19, 1980, defendants filed a 114-page document styled “Defendants’ Proposed Opinion”, stating exactly how the defendants thought the case should be decided. The bulk of defendants’ submission consisted of a theoretical and factual analysis of educational programs for children of limited English proficiency within the State of Texas. In the last five pages of their opinion, the defendants examined what they viewed as the relevant legal standards in a section entitled “Compensatory Education Under the Fourteenth Amendment.” Defendants’ Proposed Opinion (May 19, 1980), pp. 110-114. The defendants observed that constitutional claims for bilingual instruction could be raised on two different theories. First, plaintiffs could argue that there is an independent Equal Protection right under the Fourteenth Amendment to bilingual education. Alternatively, plaintiffs could make a claim for compensatory bilingual instruction in the context of a desegregation remedy. “This Court,” defendants concluded, “is treating a challenge under the latter approach. Indeed, this case arises under the very same docket that fashioned bilingual/bicultural relief in the de jure segregation context of the San Felipe Del Rio School District.” Id., at 110-111. Defendants proceeded to argue that the relief sought by plaintiffs was inappropriate, since the de jure discrimination complained of had been substantially remedied by prior court order and state action. Id. at 111. Demanding that the court utilize “the analysis which educational challenges under the Fourteenth Amendment require,” defendants discussed a number of constitutional decisions which supported their position. Id. at 111-114. The conclusion of the defendants’ memorandum opinion declared: “[T]his Court cannot find that the existing bilingual education program in the State of Texas violates the equal protection clause of the Fourteenth Amendment to the United States Constitution.” Id. at 114. Thus, the opinion which the defendants proposed for adoption by the court, based upon the evidence introduced at trial, focused on the very same constitutional issue they now maintain was illegitimately injected into the case by the actual memorandum opinion entered on January 9, 1981. Defendants’ plain recognition that the compensatory education issue was in controversy, manifested by the pre-trial order, proceedings at trial, and defendants’ own proposed memorandum opinion, belies their recently conceived claim of prejudice and surprise. Placed within the context of the entire course of litigation, the particular episode singled out by defendants exerted no permanent effect upon the scope of this case. C. Application of Relevant Legal Standards. The history of proceedings, as described in detail above, demonstrates that, as a factual matter, the defendants were cognizant that a Fourteenth Amendment compensatory education claim was at issue. But defendants contend that all constitutional issues, including that one, were forever excised from the case when their application for a three-judge court was denied in June, 1978. The validity of that argument depends upon an application of relevant legal standards to the subsequent course of events already described. 1. The Binding Effect of the Final PreTrial Order. The dispositive role of the final pre-trial order in framing the issues to be tried is derived from the text of Rule 16, F.R.Civ.P.: Pre-Trial Procedure; Formulating Issues The court shall make an order which recites the action taken at the [pre-trial] conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. The Court of Appeals has consistently stressed that the pre-trial order is necessarily controlling, binding all parties in accordance with its terms. E. g., Hodges v. United States, 597 F.2d 1014, 1017 (5th Cir. 1979); Funding Systems Leasing Corp. v. Pugh, 530 F.2d 91, 95 (5th Cir. 1976). The proper interpretation of the pre-trial order and the allowance of modifications to avoid manifest injustice are within the sound discretion of the trial judge. Hodges v. United States, 597 F.2d at 1018; Burdis v. Texas 6 Pacific Ry. Co., 569 F.2d 320, 323 (5th Cir. 1978). One derivative legal principle of particular importance in this case is that the pre-trial order supersedes all prior pleadings, serving, in effect, as the operative complaint and answer in the case. As the Court of Appeals has reiterated on several occasions, the pre-trial order becomes “the governing pattern of the lawsuit.” E. g., Morales v. Turman, 535 F.2d 864, 867 n. 7 (5th Cir. 1976), reversed on other grounds, 430 U.S. 322, 97 S.Ct. 1189, 51 L.Ed.2d 368 (1977); Steed v. Central of Georgia Ry. Co., 529 F.2d 833, 837 (5th Cir. 1976), cert. denied 429 U.S. 966, 97 S.Ct. 396, 50 L.Ed.2d 334; Pacific Indemnity Company v. Broward County, 465 F.2d 99, 103 (5th Cir. 1972). In Morales, the Court specifically noted that the pre-trial order was to be looked to for the purpose of determining whether it was necessary to conduct trial before a three-judge court in compliance with 28 U.S.C. § 2281. Morales, 535 F.2d 867, n. 7. Thus, the inclusion of constitutional issues among the proposed findings of fact and conclusions of law listed by all of the parties within the final pre-trial order in this case necessarily placed those issues within the compass of litigation. Once the final pre-trial order was filed on November 20, 1978, the more limited set of claims set out in the plaintiff-intervenors’ amended motion for supplemental relief and referred to in the order denying defendants’ application for a three-judge court was superseded and rendered meaningless. Defendants’ contention that the obsolete motion for supplemental relief continued to limit the scope of trial even after the filing of the final pre-trial order is wholly without merit. 2. Trial of Constitutional Issue by Consent. Even if the final pre-trial order in this case had not contained references to the use of bilingual instruction as a remedy for unconstitutional discrimination against Mexican-Americans in the Texas public schools, that issue would have been properly before the court by virtue of the conduct of the parties, during and after trial, as described above. Trial by consent is recognized and expressly authorized by Rule 15(b), F.R.Civ.P. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. The chief problem of interpretation inherent in the rule lies in determining whether all of the facts and circumstances in a particular case warrants a finding of implied consent. One relatively clear situation of implied consent to place an unpleaded issue before the court is where that issue is addressed by all parties at trial. National Surety Corp. v. Charles Carter & Co., Inc., 539 F.2d 450, 458 (5th Cir. 1976). Similarly, once evidence has been introduced substantially without objection, the relief to be granted and issues to be resolved in accordance with that evidence is not confined to those expressly pleaded. Duke v. Sun Oil Co., 320 F.2d 853, 864 n. 18 (5th Cir. 1963). In expanding the scope of litigation through the introduction of evidence at trial, a party need not announce its intentions or justification for doing so, unless challenged. Wansor v. George Hantscho Co., Inc., 570 F.2d 1202, 1208 (5th Cir. 1978). In Wansor, the Court of Appeals held that the submission of a strict liability claim unstated in the pleadings or pre-trial order was not error since plaintiff introduced evidence on that issue at trial, without objection. “Rule 15(b) does not lose its vitality,” the Court noted, “because, in addition to the facts introduced without objection, the pleader failed to include a tag identifying the reasons giving such facts their legal significance.” Id. Just as the introduction of evidence at trial may expand the scope of the litigation under Rule 15(b), evidentiary stipulations entered into by all parties can exert the same effect. In Gibbs v. Randolph, 250 F.2d 41 (5th Cir. 1957), the parties stipulated that the defendant had made some payment to plaintiff. Yet defendant had never asserted that the payment constituted any sort of set-off against plaintiff’s claim. Nevertheless, the Court of Appeals held that the set-off was properly treated as a defense at trial. The stipulation, the Court observed, was at least the equivalent of the receipt of the evidence made unnecessary by the stipulation. This was an amendment by the express or implied consent, F.R.Civ.P. 15(b), of the stipulating parties, neither of whom put any reservations or restrictions on the use or significance of the stipulation. 250 F.2d at 43. Even the injection of new issues by parties, without objection, in their post-trial submission has been deemed to constitute implied consent to resolve those issues under Rule 15(b). In Rath Packing Co. v. Becker, 530 F.2d 1295 (9th Cir. 1975), affirmed on other grounds sub nom. Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 64 (1977), the trial court rendered judgment invalidating a federal regulation. Neither the pleadings nor pretrial order had raised the validity of the regulation as an issue. Moreover, no evidence respecting the validity of the regulation was introduced by any party at trial. The issue was raised for the first time by plaintiff in its post-trial brief. Defendant, who filed a reply brief, did not object to the plaintiff’s insertion of a new theory. The Court of Appeals upheld the lower court’s decision to consider the validity of the regulation on its merits: By failing to object, Rath may be deemed to have acquiesced in an expansion of the issues by the court from those set forth in the pretrial order. Furthermore, the issue, as discussed below, is one of ‘facial’ invalidity under the 5th Amendment which does not require a fully developed evidentiary basis for its resolution.... Since a controversy presently exists between the parties on the issue, and since the judgment of the district court turned in large part on its resolution of this issue, we proceed to the merits of the controversy. 530 F.2d at 1308. The principal limitation upon an expansive interpretation of implied consent under Rule 15(b) is that such consent will not be found to exist where its recognition would result in substantial prejudice to a party. Two criteria identified by the Court of Appeals in determining the existence of such prejudice are whether the complaining party had a fair opportunity to litigate the issue at trial and whether such party could offer additional probative evidence on that issue if the case were re-tried. International Harvester Credit v. East Coast Truck, 547 F.2d 888, 890 (5th Cir. 1977). Thus, the concept of prejudice in this context is a refinement of the fundamental right of due process. A party must have actual or constructive knowledge of the scope of proceedings, as well as an adequate opportunity to present evidence on all issues embraced therein, before being deemed to have implicitly consented to litigate matters outside the pleadings and pre-trial order. An application of these legal principles to the facts and circumstances described above demonstrates that the constitutional issues in this case were tried by the consent of the parties under Rule 15(b). Evidence bearing directly upon those issues was introduced without objection. Defendants stipulated to numerous statements of fact which were relevant only in establishing intentional discrimination against Mexican-American children as a predicate for compensatory bilingual education programs. Finally, defendants raised the question of a Fourteenth Amendment violation in general, and the desegregation issue in particular, in their proposed memorandum opinion submitted after trial. In all of these respects, defendants manifested an acquiescence in and affirmative reliance upon the resolution of constitutional issues by the court. The history of this litigation presents a far more compelling justification for finding consent by implication than many of the other cases, cited above, where courts have treated issues not contained within the pleadings or pre-trial order, pursuant to Rule 15(b). Implied consent cannot be found, however, if defendants would thereby suffer substantial prejudice. Defendants maintain that they could produce probative evidence on the absence or limited nature of any constitutional violations should they be accorded another opportunity to do so. Yet the defendants have already stipulated to pervasive, historical discrimination against Mexican-Americans throughout the State of Texas and to the debilitating consequences flowing from that discrimination. Surely the defendants would not propose to introduce evidence to rebut their own stipulations! The only significant facet of the constitutional claims which could be in dispute at a subsequent trial is the appropriate remedy for proven violations. Yet that issue was litigated vigorously by defendants at the eight-day trial held in December, 1979. Indeed, most of defendants’ exhibits, live testimony, and post-trial proposed opinion stressed the beneficial aspects of the state’s existing educational programs and the drawbacks of instituting bilingual instruction on a wider scale. Defendants have not shown that they could present any significant new evidence on these points to augment the efforts they have already made. Virtually all legal precedent interpreting and applying a rule such as 15(b) is necessarily sui generis in nature because it reflects judicial responses to unique fact situations. One case merits special attention, however, because the contentions of the petitioner therein closely resemble those asserted by defendants in this case. In Kuhn v. Civil Aeronautics Board, 183 F.2d 839 (D.C.Cir.1950), the administrative agency rendered a decision based on an issue not stated in the complaint or elsewhere in the record. The petitioner claimed that because he was unaware of the presence of that particular issue in the case, he joined in a stipulation which served to resolve it. The inference was that if he had been apprised of the issue, he would have not joined in the stipulation and would have introduced evidence supporting a contrary position. Writing for the Court, Judge Bazelon noted: If it is clear that the parties understand exactly what the issues are when the proceedings are had, they cannot thereafter claim surprise or lack of due process because of alleged deficiency in the language of particular pleadings. Actuality of notice there must be, but the actuality, not the technicality, must govern. 183 F.2d at 842. The Court proceeded to reject petitioner’s allegation of unfairness and prejudice, based upon his conduct prior to and during trial. Noting that petitioner had not previously alleged surprise or sought to introduce additional evidence, even after the expanded scope of the litigation was readily apparent, the Court concluded that any such claims had long since been waived. An examination of the proceedings in this case, in light of the considerations underlying Kuhn, fails to support defendants’ claim of substantial prejudice. Undoubtedly, defendants would not adopt the same strategic decisions carried out during trial if they could replay the entire proceeding. They might refuse to stipulate to most of the elements of a Fourteenth Amendment violation. They might object to the introduction of evidence supporting a finding of intentional discrimination and its remaining effects. They might seek to demonstrate through evidence of their own that intentional discrimination had not occurred or that its impact had been ameliorated. They might redraft their proposed memorandum opinion. But under our system of jurisprudence, neither the State of Texas nor any other litigant has the right to try its case over and over again until it is satisfied with the result. If the defendants have suffered any prejudice, it was through their own tactical choices, not the decision of the court to address an issue which had been placed into controversy. Any remaining doubt about the propriety of finding that the constitutional issues were tried by consent under Rule 15(b) is dispelled by two other provisions of the Federal Rules of Civil Procedure, Rule 1 and Rule 54(c). Rule 1, one of the least frequently cited, but most important, of all the rules, requires that they be construed “to secure the just, speedy, and inexpensive determination of every action.” Rule 54(c) provides: “Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” These two rules, taken together, instruct the courts to embrace the entire scope of a legal dispute and provide a remedy which will address all proven, compensable wrongs. Although procedural forms constitute an integral part of the judicial process, to be vigorously enforced, they should not serve as impediments to achieving an efficient and just resolution of disputes through the trial mechanism. The Equal Protection issues were an integral part of this case from its inception and remained inherently in controversy, almost without interruption, before, during, and after trial. It is the underlying purpose of Rule 15(b) that such issues be squarely addressed, not held in abeyance for a second proceeding. Those same principles of judicial economy and fairness infuse Rule 1 and Rule 54(c) as well, further supporting the inescapable conclusion that the constitutional issues were tried by implied consent. D. Statutory Bases for the Memorandum Opinion and Remedial Decree. Contrary to defendants’ assertions, the equitable relief ordered on April 17, 1981, was based upon a variety of grounds, not merely a finding of unconstitutional conduct under the Fourteenth Amendment. The defendants’ failure to eliminate the vestiges of past intentional discrimination practiced against Mexican-Americans constituted a statutory violation of the Equal Educational Opportunities Act, 20 U.S.C. § 1703(b). Moreover, as set forth in detail in the memorandum opinion, 506 F.Supp. at 431-34, defendants have failed to take appropriate action to overcome language barriers impeding Mexican-American students with limited proficiency in English, as required by § 204(f) of the Equal Educational Opportunities Act, 20 U.S.C. § 1703(f). Although the recent decision of the Court of Appeals in Castaneda v. Pickard, 648 F.2d 989 (5th Cir.), interpreting that provision, was not available at the time the remedial order was framed, an analysis of the prescribed relief demonstrates its consistency with Castaneda. See Section IV. E.2., infra. Thus, even if the Equal Protection claims had been permanently removed from the case, the evidentiary record provided ample grounds for the issuance of the remedial decree on April 17, 1981. E. The Necessity of Convening a Three-Judge Court. In their motion to vacate the remedial order and withdraw the memorandum opinion, defendants argue, in a footnote, that the constitutionality of their practices under the Fourteenth Amendment could only have been determined by a three-judge court. Since that constitutional issue was within the scope of the litigation, by virtue of the final pre-trial order and by implied consent of the parties, the substance of defendants’ contention must be addressed. If plaintiffs’ claims were cognizable only before a three-judge court, then the undersigned judge lacked jurisdiction to consider the merits of those claims. The three-judge court statute on which defendants rely was formerly codified at 28 U.S.C. § 2281 and read as follows: An interlocutory or permanent injunction restraining the enforcement, operation, or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application thereof is heard and determined by a district court of three judges under section 2284 of this title. In 1976, this statute was repealed by Act of Congress. P.L. 94-381, 90 Stat. 1119 (August 12, 1976). The legislative history of the repeal set forth four grounds for eliminating the three-judge court requirement in cases of the type described in § 2281. First, the convening of three-judge courts imposed a heavy burden upon limited judicial resources. Second, the ambiguity of the statute created widespread uncertainty about the necessity of a three-judge court in parti