A most applicable quote from the July 19, 2011 Ninth Circuit Court of Appeals Opinion follows and another is found at the closure:
“We reverse the court below [the United States District Court] and order it to maintain jurisdiction until it is satisfied that the School District has met its burden by demonstrating – not merely promising—‘its good-faith compliance…with the [Settlement Agreement] over a reasonable period of time’…The court also must be convinced that the District has eliminated ‘the vestiges of discrimination…to the extent practicable’ with regard to all of the Green factors.” Fisher v. TUSD, 652 F.3d 1131, 1143-44 (9th Circuit Court of Appeals- 2009); emphasis in original.
[Three Sonorans note: Steptoe and Johnson is the aggressive law firm out of Phoenix that TUSD signed a $5 million contract to fight the desegregation case. TUSD continues to lose and it is costing taxpayers millions and hurting the students of Tucson Unified.]
May 2018 Desegregation Update
Dear Friends and Colleagues:
This is to bring to your attention a recent court filing in which TUSD asserts that all Court supervision of the District’s actions relating to the Mendoza Plaintiffs – that is the District’s 28,000 Mexican American/Latino students – should immediately cease (indeed, should have ended years ago) because, according to that TUSD filing, all discriminatory actions subject to Court oversight “ended in the 1960’s.” (Doc. 2099, filed 4/1/18 at 42.)
A Brief Summary of A LOT of Costly Legal History:
For years TUSD has argued that it has met its desegregation court-ordered requirements and that the Arizona Federal District Court’s supervision over TUSD should be lifted by granting it unitary status. The first time TUSD petitioned the Federal Court for unitary status was in late 2004 and by 2008 its petition was granted, largely based on a promise by TUSD that it would implement its Post Unitary Plan which had been stipulated to by all of the parties involved, including TUSD.
The Fisher and Mendoza Plaintiffs appealed the ruling to the Ninth Circuit Court of Appeals, which, in 2009 resulted in the desegregation case being remanded to the Arizona District Court, largely based on the District’s failure to demonstrate good faith effort, inclusive of its inability to show outcomes or evaluations relative to its desegregation efforts. This was in addition to the fact that desegregation case law does not support the lifting of a desegregation court order based on a ‘promise to implement a plan’ in the future.
As a result of the case being remanded, the District Court appointed a Special Master to the case and the Unitary Status Plan (USP) was jointly developed and stipulated by all of the parties in early 2013, and approved by the Court. As an important aside, during the time period between 2008 and 2012 the District did NOT implement its Post Unitary Status Plan as it had legally promised (and as the Court noted in a September 2011 Order, Doc. 1320), which speaks to both its absence of credibility and “good-faith” effort during that time period.
Some may be under the impression that it has been only the Plaintiffs who have held the position that TUSD has not complied with its court-ordered obligations but the record shows that the Federal District Court, the Ninth Circuit Court of Appeals, the Special Master, and historical desegregation audits have all held this opinion, which is important to keep in mind.
To the Heart of the Matter:
Last year TUSD again petitioned the Court for unitary status and the Court’s review process has since been underway. The process is arduous, which is required when legal standards are involved. The most recent court activity has involved the Defendant, TUSD, and the Plaintiffs’ filing their oppositions to the Special Master’s Annual Report and Recommendation (SMAR) in which he detailed areas of USP compliance and non-compliance. He has also provided “completion plans” within all of the areas of non-compliance.
It was fully expected that TUSD’s legal objections to the SMAR would contest that the Special Master did not find full compliance with the USP and that TUSD would repeatedly state its “good faith effort” in all areas pertaining to the USP – and the Mendoza Plaintiffs were prepared to counter those arguments. TUSD’s court filing of April 11, 2018 delivered, as anticipated.
However, what has come as an unexpected and unwarranted affront in its filing is TUSD’s introduction of an invalid and preposterous argument that “the Mendoza Case,” involving only the Mendoza Plaintiffs and the class of Mexican American/Latino students whom they represent, should immediately be terminated from the case, based on TUSD’s selective (mis)interpretation of the 1978 court order and Findings of facts and Conclusions of Law. (Should you be interested in reading the District’s filing, it is attached above.) According to TUSD’s new legal position, the Mendoza Plaintiffs have not had legal standing in the desegregation case since the Court issued its 1978 court order and its 1978 Findings of Fact and Conclusions of Law.
As I gave this matter some thought, I first wondered whether my calling attention to TUSD’s assertion would give it any level of undeserved dignity but quickly remembering the importance of the use of sunlight as a disinfectant, I decided to make it the focus of this desegregation update. Moreover, many of you have encouraged me to share developments in this matter broadly and have given me a multitude of reasons for doing so. Thus, I begin with the District’s filing. In it, TUSD writes:
“…, the District also generally objects to the R&R [that is, the Special Master’s Report and Recommendation] to the extent that it does not recommend immediate and complete termination of court supervision in CV 74-204 (the Mendoza case), on the grounds that, since Judge Frey [the federal court judge who was assigned to the case in 1978] expressly found that the District has never operated a dual school system with respect to Hispanic students, the Green factors and the requirement of good faith compliance with a comprehensive decree do not apply in this case. Since it is undisputed that the specific conduct that Judge Frey found to be discriminatory with respect to Hispanic students is no longer occurring, and has not occurred for decades, that all that is required, and the decree, and supervision, in that cased should be terminated. This objection is set forth in more detail in Section I(C) below.” (Doc. 2099 at 5.)
There is phenomenal irony in the above quoted TUSD stance, which refers to “I.C./1-C” as the outlined-location in its filing wherein TUSD provides its argument on why “the requirement of good faith compliance” with the consent decree (the USP) should not apply to the Mendoza Plaintiff Class. For those of us who have lived much of TUSD’s history, the following historical fact will jangle memories and for others, it is history worth learning about.
Some decades ago TUSD practiced what it labeled 1-C. classes. If you were a child with a “Spanish” surname you were required to take a test in 1st grade and if you used Spanish for many or all of your responses, you then became classified a “1-C.” student which meant that you would be in first grade for two years instead of one year. It was an automatic grade retention based on an assessment that took only a few minutes to administer. There was no appeal process for parents. In many, if not all instances, the child was not asked to respond in English but was merely shown a picture and asked, “What is this?” If a child felt more comfortable speaking Spanish and answered “manzana” when shown a picture of an apple, the child was scored in the negative, even if s/he also knew to identify the item as an “apple.”
All of the “Spanish” surnamed students who scored low on the assessment were placed in 1-C. classes which were comprised of nothing but Mexican American/Latino students. This was blatant segregation based on national origin and linguistic background and it was punitive on the same basis. It robbed children from advancing by one grade level. The “1.C.” correlation between where TUSD’s argument falls within its legal brief to oust the Mendoza Plaintiffs and the class of students they represent from the desegregation case- 1.C– and the historical relevance of 1.C. is not only ironic; it is instructional. It is a part of TUSD history which did take place; no matter how many attorneys and law firms are hired to say otherwise and no matter TUSD’s institutional denial.
Equally important, the most recent TUSD filing ignores key developments and rulings in the desegregation case that occurred after Judge Frey ruled on the case in 1978. For example, Judge David Bury, the United States District Court Judge now overseeing the case, wrote in 2013:
“According to the District, the only findings of fact and conclusions of law establishing the constitutional violation at issue in this case were those dated June 4, 1978.…This is an old argument seen and rejected by this Court in 2006….The Ninth Circuit’s ruling [of 2009] …established unequivocally that the District had not attained unitary status….[T]he Ninth Circuit…found the contrary because: the ‘District failed the good faith inquiry and [this Court’s findings] raised significant questions as to whether the District had eliminated the vestiges of racial discrimination to the extent practicable.’” (Order dated 2/6/2013, Doc. No. 1436.)
In addition, the USP is what is known as a consent decree – agreed to by all parties and entered as a Court order. As Judge Bury noted in another order, a consent decree exists as a matter of contract and once it is in place,
“Defendants [like TUSD] must prove ‘full and satisfactory compliance with the decree….’ In other words, the inquiry goes beyond whether the vestiges of de jure segregation have been eliminated to the extent practicable.” (Order dated 8/21/2007, Doc. 1239.)
As long as TUSD denies both its history and the facts of the desegregation case, and refuses to systemically address its deficiencies, it will fail to serve its students and its community as it has its Mexican American/Latino students for decades.
The Mendoza Plaintiffs want nothing more than for the District to obtain unitary status by systemically meeting its compliance requirements so that the remedies are long term and institutionalized. Short cuts, which appear as nothing more than TUSD check-off lists which produce short-term actions, and legal finagling do not serve students or the community in the short or long term.
The Court has stated that the “TUSD [Governing] Board is the appropriate venue for the community to obtain information regarding this case and the best venue for the community to provide input and express concerns regarding this case….The Board directs and oversees the school district and the USP” (Order dated 11/19/15, Doc. 1870.) Therefore, I encourage you to direct any concerns you may have about the position the District has taken pertaining to the Mendoza Plaintiffs in its recent Court filing or about its progress in implementing the USP to the Governing Board.
As always, thank you for your continued interest and support. (If you are no longer interested in receiving these updates please let me know. Also, if you have recommended names/emails you would like me to add to those receiving these updates, please send the information to me.) This email address is used only for desegregation updates.
“…in 1978 the district court found that the Tucson Unified School District had acted with segregative intent in the past and had failed its obligation to rectify the effects of its past actions. See Mendoza v. Tucson Sch. Dist. No. 1. 623 F.2d” Ninth Circuit of Appeal ID: 782441 DktEntry: 65-1
Mendoza Plaintiff Representative