IN RE: Alien Children of Texas Education Litigation

Case MDL No. 398 Document 2 Filed 05/18/15 Page 1 of 12
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Gian Eliya ? A B	BE GF viens I	BEFORE THE JUDICIAL PANEL EEL SE) SER
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MULTIDISTRICT LITIGATION Ea
IN RE ALIEN CHILDREN EDUCATION LITIGATION ) DOCKET NO. 398
OPINION AND ORDER co
BEFORE MURRAY I. GURFEIN, CHAIRMAN,* AND ANDREW A. CAFFREY, . :
ROY W. HARPER, CHARLES R. WEINER, EDWARD S. NORTHROP AND
ROBERT H. SCHNACKE, JUDGES OF THE PANEL.
| CURIAM
Presently before the Panel are seven actions pending oo
in three districts: four in the Southern District of Texas; BN EEE
two in the Western District of Texas; and one in the Northern - ER SO
District of Texas. The complaint in each action alleges
that Section 21.031 of the Texas Education Code (Vernon Co	I . :
Supp. 1976), together with related policies and practices }
" llof various local Texas education authorities, illegally : ‘
exclude certain alien children residing in Texas from receiving |a tuition-free public education there. |Section 21.031 basically provides that only children
between certain ages who are citizens of the United States
or legally admitted aliens and reside within Texas are
entitled to a tuition-free education in Texas' school system.’
* Judge Gurfein took no part in the decision of this
matter.
1/ The relevant portions of the statute are as follows: : i :
| (a) All children who are citizens of the United States| or legally admitted aliens and who are over the
| age of five years and under the age of 21 years |
on the first day of September of any scholastic	|
|
! |
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The Texas state courts upheld the constitutionality of Co
2 Section 21.031 in Hernandez v. Houston Independent School Co — :
3 District, 558 S.W. 2d 121 (Tex. Civ. App.-Austin 1977, Le
4 writ ref'd n.r.e.).2/ In September, 1978, however, a federal .
5 court in the Eastern District of Texas ruled, after several
6 preliminary hearings and a trial, that Section 21.031 violates a
the equal protection clause of the fourteenth amendment :
~
to the United States Constitution and therefore is unconsti-
8
tutional. Doe v. Plyler, 458 F. Supp. 569 (E.D. Tex. 1978).
° The federal court enjoined the enforcement of the statute
10 only insofar as it pertains to the Tyler (Texas) Independent EE
11 School District, the sole school district involved in Doe I
12
13 + Continued. i14 year shall be entitled to the benefits of the :
available school fund for that year. a. ;
15 Co
(b) Every child in this state who is a citizen of :
16 the United States or a legally admitted alienand who 1s over the age of five years and not
over the age of 21 years on the first day of
17 | September of the year in which admission is soughtshall be permitted to attend the public free Co
18 | school of the district in which he resides or So
in which his parents, guardian, or the person
19 having lawful control of him resides at the time
he applies for admission.
20 | (c¢) The board of trustees of any public free schooldistrict of this state shall admit into the public
21 free schools of the district free of tuition
all persons who are either citizens of the United
22 States or legally admitted aliens and who are
over five and not over 21 years of age at the a .
23 beginning of the scholastic year if such person
| or his parent, guardian or person having lawful
2a | control resides within the school district.	2/ The Hernandez decision is discussed in Doe v. Plyler,
25 | se F. Supp. 569, 573-74 (E.D. Tex. 1978). oo
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. Case MDL No. 398 Document g_ Filed 05/18/15 Page 3 of 12
’ 1 v. Plyler.’ Id. at 593. The State of Texas has appealed |
@. the decision in Doe v. Plyler to the Court of Appeals for
3 the Fifth Circuit, but no oral argument has yet been scheduled.
4 The complaint in each action before the Panel also
5 challenges the constitutionality of Section 21.031. In
addition, each complaint alleges that certain policies
6
and practices relating to Section 21.031 and adopted by
7
an independent school district?’ are unconstitutional and/or
8 in violation of certain laws or treaties.’ Plaintiffs
9 in each action are "undocumented immigrant children," or
10 their parents, who reside in Texas. Texas and/or the Texas
11 Education Agency (TEA) are involved in all actions, either
12 as defendants or defendant-intervenors. The complaints
® in two of the Southern District of Texas actions and in3
the Northern District of Texas action each name a separate
14
15 -_
3/ The court had earlier certified this action as a class
16 action on behalf of all school-aged children of Mexican
origin residing within the boundaries of the Tyler school
district who neither possessed nor were in the process
17 of securing documentation that they were legally in the
United States ("undocumented immigrant children"). Id.
18 at 571 n.l1, 574.
19 4/ The complaint in one of the Southern District of Texas
actions alleges that the Texas Education Agency (TEA) "has
20 not implemented state-wide regulations or guidelines requiring
school districts to implement uniform interpretations of
Section 21.031. School districts throughout the State
21 of Texas give varying interpretations to this statute.”
22 5/ Plaintiffs allege that these policies and practices
violate, inter alia, 42 U.S.C. §1983; 42 U.S.C. §2000(4d);
23 the Universal Declaration of Human Rights, adopted by the
iiUnited Nations General Assembly in 1948; and the Protocol
| of Buenos Aires, a 1970 treaty among the ratifying states
o of the Organization of American States.25
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|
1 independent school district, and its supervisor and board ®
2 | education (the school district defendants), as additional -	3 defendants. A fourth and a fifth independent school district,
4 | cogetner with their supervisors and boards of education,
. are named as defendants in, respectively, the two remaining
Southern District of Texas actions and the two Western
° District of Texas actions.
4 Each of the actions was commenced as a class action.
8 The classes sought generally consist of all undocumented
9 immigrant children of school age who live with a parent
10 or guardian within, respectively, one of the independent
11 school districts involved in this litigation. While the
12 classes sought in the two Western District of Texas actions
are identical, as are the classes sought in two of the
) r3 Southern District of Texas actions, there is no overlap
14 among the classes sought in actions pending in different
15 districts. The class sought in the Northern District of
le Texas action recently was certified. No class action determi-
17 nations have yet been made in the other actions.
18 The Southern District of Texas actions were filed
19 in late 1978. Three of these four actions have been consoli-
0 dated for discovery purposes, and a motion to consolidate
» fourth action with these three actions is pending.
21 | piscovery has commenced in these actions, and several deposi-
22 tions have been taken. Texas has stated to us that a hearing
23 "on the merits" in these four actions presently is scheduled
24 Igor early December, 1979. ®
23 || |
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- 1 The Western District of Texas actions were filed in, |
@- respectively, June and July 1979, and have been consolidated. |
| 3 Defendants have been enjoined from enforcing Section 21.031
in the school district involved in these actions pending
* further order of the court, and a hearing on plaintiffs’
° motion for a preliminary injunction presently is scheduled
6 in the near future.
7 The Northern District of Texas action was commenced
8 in April, 1979. A hearing on plaintiffs' motion for a pre-
9 liminary injunction recently was held in this action and,
10 the school district defendants assert, a "substantial"
11 amount of documentary evidence and oral testimony was presented
by plaintiffs and the school district defendants. The
12 school district defendants further represent that Texas
C4 "has been effectively severed from and [did] not actively
14 [participate] in and may not be affected by the preliminary
15 injunction proceedings ... in the Northern District of
16 Texas. "2/ The motion for preliminary injunction was denied
17 on September 13, 1979, and we have been advised by the
18 defendants that the action has been set for trial commencing
on November 26, 1979. The record before us does not reveal
+ whether Texas is scheduled to participate in the trial,
20 however.
21
22 |
23
6/ A motion by Texas to intervene as a defendant in this
4 action was granted on August 22, 1979.
|) i
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| -.
1 Texas and the TEA originally moved the Panel to transfer
2 all actions,’ but did not specify a transferee district.
3 At the hearing on this matter, however, Texas and the TEA
4 | staces that they favor transfer of only the claims against
~ |= and the TEA to either the Southern or the Eastern2
| District of Texas. The school district defendants in the	9)
Western District of Texas actions and in two of the Southern
7
District of Texas actions joined in Texas' original motion
8 for transfer, but have taken no position concerning transfer
9 to anv particular district.
10 | Plaintiffs in the Southern District of Texas actions
11 and in the Northern District of Texas action do not oppose
12 transfer of their claims against Texas and/or the TEA,
and the former plaintiffs suggest that either the Southern C	13 !
or the Eastern District of Texas would be an appropriate
14
transferee forum for these claims. All these plaintiffs
5
1 do oppose transfer of their claims against the school district
16 defendants, however.
17 The school district defendants in the Northern District
18 of Texas action oppose transfer of that action. |
19 No other parties before us have responded.’
20 7/ Texas recently advised the Panel of six additional
potentially related actions, three pending in the Southern
21 District of Texas and three pending in the Eastern District
of Texas. These actions were each recently filed, and
99 will be treated as potential tag-along actions pursuantto Rules 1, 9 and 10, R.P.J.P.M.L., 78 F.R.D. 561, 562,
567-69 (1978).
23 |
| 8/ Plaintiffs in two of the potential tag-along actions
24 q pending in the Eastern District of Texas, see note 7, supra, || have filed a brief with the Panel and were allowed to present
oral arguments at the hearing on this matter, although |25 | these two actions were not set for hearing. These plaintiffs |
| oppose transfer of any actions or claims in this litigation. |	ilBecause these plaintiffs, as well as the other parties |
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1 We find that the claims in these actions against Texas
@. and/or the TEA involve common questions of fact and that
3 centralization of these claims in the Southern District
4 of Texas for coordinated or consolidated pretrial proceedings
5 will serve the convenience of the parties and witnesses
g and promote the just and efficient conduct of the litigation.
We also conclude, however, that the claims in each action
’ against the school district defendants involve only minimal,
8 if any, common questions of fact, and that inclusion of
2 those claims in the coordinated or consolidated pretrial
10 proceedings herein ordered would not accomplish the goals
11 of Section 1407. Accordingly, we sever those claims and
12 remand them to their respective transferor districts.
C The school district defendants in the Northern Districtof Texas action are the only parties in any of the actions
Le currently before us that have opposed transfer of not only
15 claims against school district defendants, but also claims
16 against Texas .2/ These defendants contend that because
17 Texas has had only a "minimal interest" in the injunction
18 proceedings already conducted in that action, see page
19 8 /	Continued.
20 in these plaintiffs' actions, will have an opportunity
fully to brief and orally argue the question of transfer,
21 see note 7, supra, we will not further consider these
plaintiffs' arguments at this time.
22 9/ The TEA is not a party in this action. See page 5,
supra.
23
@25
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1 5, supra, the school district defendants' "interests should
2 not be injured and subordinated to the State of Texas by
3 consolidation of the case now pending in the Northern District
4 of Texas with other cases before this Panel." These defendants
do not discuss the possibility of bifurcating the claims
° against them and the claims against Texas.
© We are convinced that the course of action suggested
7 by most parties -- coordinated or consclidated pretrial
8 | oroceedings under Section 1407 concerning only the claims
9 against Texas and/or the TEA -- is the most appropriate
10 manner in which to proceed in this litigation.+9/
11 Initially, we find upon the basis of the record before
us that the claims in each action against the school district
+ defendants do not appear to share questions of fact. We
13 jose in particular that the TEA admitted at the Panel hearing ’14 that it has not promulgated uniform regulations concerning
15 the implementation of Section 21.031, see note 4, supra,
16 and we are persuaded by the unrefuted representations before
17 us that discovery in each action concerning the school
18 district defendants in all likelihood will be unique because
19 (1) the individual school districts have different exclusionary
20
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21° |
22 2 We leave to the discretion of the transferee judge[whether to include the claims against the school district
23 defendants in the Southern District of Texas actions in	the Section 1407 proceedings. |
=| | ®25
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’ 1
® policies; (2) the characteristics of plaintiffs are2 different: +t/ and (3) the population size affected by the
3 exclusionary policies are different. Thus the efficient
4 conduct of pretrial proceedings concerning these claims
5 would not be enhanced by Section 1407 transfer of the claims.
6 On the other hand, we find that the claims in these
. actions against Texas and/or the TEA share questions of |
fact concerning whether the equal protection clause of
8
the fourteenth amendment applies to undocumented aliens
9
and, if so, whether Section 21.031 is supported by a rational
10 basis. For example, some of these factual questions were
11 considered by the court in Doe v. Plyler, supra, 458 F.
12 Supp. at 573, and include the following: "(1) the historical
CJ framework of illegal immigration from Mexico to the United
14 sa (2) the general characteristics of illegal immigrants;(3) school financing in Texas; and (4) the [immigration
15
and] educational needs of Mexican children." Section 1407
16
pretrial proceedings concerning these claims are therefore
17 necessary in order to prevent duplicative discovery, eliminate
18 the possibility of conflicting pretrial rulings, and substantially
19
11/ Concerning this factor, some of the parties before
20 us state as follows:
In some cases the plaintiff children are in the
21 CC ; :
process of obtaining immigration law documentation
i and are by local practice of Immigration & Naturalization
22 Service District offices immune from deportation even
though the school district has found them to be aliens
23 not "legally admitted." In other cases, the plaintiff
children are presently undocumentable. Factually
there is a need to examine the local policy of the
| Immigration & Naturalization Service and each of the
| Southern, Northern and Western District of Texas Cases
> are located within a different district office of
| the Immigration & Naturalization Service. FPI—MAR——3.27-79-6M.178!

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1 ree the time and efforts of the parties, the2 witnesses and the federal judiciary. We observe that the
3 transferee judge has authority to invoke procedures whereby
4 discovery already completed in any action and relevant
5 to the other actions can be made applicable to those actions.
6 See In re Airport Car Rental Antitrust Litigation, 448 |
. F.Supp. 273, 275 (J.P.M.L. 1978), See also In re The Upjohn
Company Antibiotic Cleocin Products Liability Litigation,
8 lox F.R.D. 482 (E.D. Mich. 1979); Manual for Complex Litigation,
9 Parts I and II, §§3.11 (rev. ed. 1977).
10 On the basis of the record before us, no district
11 emerges as clearly the most appropriate transferee forum
12 for this litigation. On balance, however, we conclude
13 that the Southern District of Texas is preferable. Four
14 of the seven actions before us (as well as three potential
tag-along actions) already are pending there, and Houston
1° is a convenient forum for all parties in this litigation.
16 IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C.
17 §1407, the actions listed on the following Schedule A and
18 pending in districts other than the Southern District of
19 Texas be, and the same hereby are, transferred to the Southern
20 District of Texas and, with the consent of that court,
21 assigned to the Honorable Woodrow B. Seals for coordinated
5 or consolidated pretrial proceedings with the actions already
’ pending there and listed on Schedule A.
23
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25 |
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i 1 | IT IS FURTHER ORDERED that, pursuant to 28 U.S.C.
@. §1407(a), the claims against all defendants other than
3 Texas and/or the Texas Education Agency in the actions
4 listed on the following Schedule A and pending in districts
other than the Southern District of Texas be, and the same
° hereby are, separated and remanded to their respective
© transferor districts for further proceedings.
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|
. 1 DOCKET NO. 398
SCHEDULE A
2
® SOUTHERN DISTRICT OF TEXAS3
Sandra Cardenas, et al. v. Dr. Lee Civil Action
4 Meyer, et al. No. H-78-1862
Jasper Garza, et al. v. Billy Regan | Civil Action
5 No. H-78-2132
6 Mayra Martinez, et al. v. Billy Regan, Civil Action
et al. No. H-78-1797
7 Elvia Mendoza v. Dr. Johnnie Clark, Civil Action
8 et al. No. H-78-1831
NORTHERN DISTRICT OF TEXAS
9
A. Boe, et al. v. Linus Wright, et al. Civil Action
10 No. 3-79-0440-D
11 WESTERN DISTRICT OF TEXAS
J. and R. Roe, et al. v. William Holm, Civil Action
12 et al. No. MO-79-CA-49
3 Joaquin Coe, et al. v. William Holm, Civil Action
et al. No. MO-79-CA-54
14
15
16
17
18
19
20
21
22
23
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