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394 Notes to Chapter 8 evidence that the defendants knowingly discriminated. For example, the State Board of Education was shown empirically based investigations that documented the White/minority gap in TAAS exit-level exam pass rates before it arbitrarily set the cut (i.e., pass) score on the exit exam at 70. This assertion by plaintiffs, plus two other evidential points, are—as noted by Saucedo (p. 415)—“all elements of a claim of intentional discrimination based on circumstantial evidence” (see Arlington Heights v. Metropolitan Housing Development Corporation, 1977). 91. Quoted in Saucedo (2000, p. 416). Order granting in part and denying in part defendants’ motion for clarification, GI Forum v. Texas Education Agency, Civil Action No. SA-97-CA-1278 (W.D. Tex. 1997). Order is on file with Leticia M. Saucedo. Also, see Prado (1999). 92. These three elements were also germane to the Title VI claim in AMAE v. California (1996), which was previously discussed in this chapter. 93. Portions of this overview (as well as accompanying notes) draw, with revisions , from Valencia and Bernal (2000b, pp. 425–433, 436–437, and 440). 94. Our summary of opinions (Valencia & Bernal, 2000b) is based not only on our understanding of views expressed through direct means (e.g., depositional and trial testimony by witnesses, both expert and nonexpert; reports and documents submitted as evidence) but also on our broader sense of the substantive issues that helped shape this significant educational case. We need to underscore, however, that the framework of issues presented in Table 8.2 is based on our perceptions . The framework does not necessarily reflect the views of all experts (and nonexperts) and counsel involved in the GI Forum v. TEA case. 95. There is considerable literature available to support this major position of structural inequality in schooling. Regarding African American students, see, for example, Feagin & Feagin (1999), Kozol (1991), and Lomotey (1990). With respect to Mexican American students, see, for example, Donato (1997), Moreno (1999), San Miguel (1987), San Miguel & Valencia (1998), and Valencia (1991, 2002c). 96. This section regarding my argument draws, with minor revisions, from Valencia (2000, pp. 446–447). 97. Plaintiffs advanced a very similar argument in Debra P. v. Turlington (1979). 98. It appears that the defendants’ ahistorical position regarding discrimination hit its mark with the court. In his order regarding defendants’ motion for summary judgment, Prado (1999) wrote, The United States Supreme Court, in United States v. Fordice, 505 U.S. 717 (1992), held that plaintiffs alleging that a state practice that was rooted in prior discriminatory policies could be prohibited without a finding that the State, in engaging in the practice, acted with a discriminatory purpose. See Fordice, 505 U.S. at 734 n.8. Because Plaintiffs have alleged that the TEA [Texas Education Agency] here acted against a backdrop of prior discrimination , the Defendants argue that they must, as in Fordice, demonstrate Notes to Chapter 8 395 that the discriminatory effects of the TAAS test are rooted in Texas’ history of discriminatory educational practices. The Court disagrees. First, it is unclear whether Plaintiffs are bringing a specific “Fordice” claim. To the extent that they are, the Court agrees with Defendants that such a claim must be rejected. While Plaintiffs have demonstrated that a history of discrimination exists in the State, they have not shown that the TAAS test itself is rooted in that history. See Fordice, 505 U.S. at 729–30 & n.4. . . . There is no evidence that the implementation of the TAAS test, which is a tool to identify problems in education and hold schools and students accountable for those problems, stems from this discrimination. The Plaintiffs are not limited to Fordice in bringing their equal protection claim, however. A finding that the challenged practices are not rooted in prior segregation simply means that the Plaintiffs may proceed with their claim under traditional equal protection standards. Id. at 737 n.6. Thus, the Plaintiffs are required to demonstrate intentional discrimination and may attempt to do so by relying, in part, on circumstantial evidence, including a history of prior discrimination by the state actor. In that event, however, the history of prior discrimination is relevant only insofar as it supports an inference of intent, which remains the threshold showing. The Court finds that the evidence presented here does not support an inference of intent. (pp. 7–8) 99. For a similar understanding of the OTL construct, see Husen (1967). For a review of the notion of OTL, see Anderson (1985...

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