Arizona’s Solicitor General Robert Ellman presented the State’s request to intervene in the Tucson Unified School District’s desegregation case last week, before a three judge panel of the Ninth Circuit Court.
Judges Morgan Christen, a Governor Sarah Palin appointee to the Alaska Supreme Court and President Obama appointment to the Ninth Circuit, Judge Stephen Reinhardt, an appointee by President Jimmy Carter, and Judge Sidney Thomas, an appointee of President Bill Clinton, heard the arguments. Attorneys for TUSD, DOJ, and the Mendoza plaintiffs also offered arguments.
Only the Mendoza plaintiffs and to a lesser extent; the DOJ, argued against the State’s intervention. The District and the Fisher plaintiffs did not object to the State’s request.
The Fisher and Mendoza v. TUSD desegregation case has been playing out in the courts for nearly 40 years. In July 2011, the Ninth Circuit reversed the federal judge’s decision to end the court’s oversight of TUSD. The Ninth Circuit then found that TUSD had acted in bad faith by failing to be transparent and accountable to the community.
The lower court’s decision had granted what is called “Unitary” status to the District. In 2007, federal court Judge David Bury was anxious to return local control of the District to Tucsonans. The Ninth Circuit found that Bury admitted that he was “hard pressed without spending hours upon hours of rutting through the record to piece together the facts it needed to support a finding of full compliance,” however, he announced his intention, “to close this case and return the District’s schools to the State because oversight and control will be more effective placed in the hands of the public with the political system at its disposal to address any future issues.”
In response to the Ninth Circuit’s remand, Bury appointed a Special Master to oversee the case. Since then, chaos has reigned in the District as the warring factions fight each other and the Special Master for control.
TUSD attorney Mick Rusing advised the three judge panel, “TUSD’s world blew up in December of last year. We had all these rules – that we’re just to my mind – were unfathomable,” said Rusing referring to the fact that the initial rules were changed by Judge Bury at the request of the Special Master. Those new rules gave the District no ability to challenge the Special Master’s findings. Rusing said that decision was “unfathomable to someone’s been practicing law for thirty five years.” Rusing argued that the District was entitled to have “an engaged judge.”
Hawley, an ideologue invested in Ethnic Studies, worked with radicals in the district to make Ethnic Studies classes part of the USP. To the extent that Judge Bury has been involved, he allowed the addition of Ethnic Studies classes into the USP despite the fact that they were not a “Green factor” in the case. “Green factors” are points of law included by the court in the original finding that the District was segregated. The court found no such violations related to curriculum so it is inappropriate to use curricular remedies in TUSD’s federal desegregation case.
Bury did insist that the classes, developed by the District, meet state standards and comply with state law.
The law to which Bury was referring specifically, prohibits the teaching of resentment for other races, and ethnic solidarity. Federal Judge Wallace Tashima found that law to be constitutional. An appeal is pending on that decision and is scheduled to be heard in January by the Ninth Circuit.
Bury, who continues to abdicate the responsibility for overseeing the case, has rejected the State’s two requests to intervene in the desegregation plan.
Solicitor General Ellman argued that the State has a vested interest in overseeing what happens in Arizona schools and it is the State, not the courts, who has the jurisdiction to set education policy.
The fact that the classes were not a Green factor at the time the case was filed in 1974, buttresses the State’s assertion now that the courts do not have jurisdiction over what classes should or not be offered. The judges seemed acutely aware of the fact that the USP should address those Green factors only, however they were also cognizant of the fact that the District had agreed to work with the Special Master.
While the Mendoza plaintiffs had objected to Hawley at the time, the Fisher plaintiffs considered him to be the lesser of two evils. They believed that Hawley was less hostile to African Americans than the Mendoza’s first choice. As it stands, Hawley’s focus is almost solely on the needs of Hispanic students according to diverse sources.
Ellman argued that the State’s invention would ensure that any classes required would “meet academic standards, complied with Arizona law, and did not foster resegregation along ethnic and racial lines.”
Ellman told the panel that TUSD cannot represent the State’s interests in the case. “Arizona opposed the culturally relevant curricula because it believed that it exceeded the scope of the federal courts authority, but the Tucson Unified School District changed its position and now embraces that culturally relevant curricula requirement. Tucson Unified School District, respectfully, has no stake in protecting the scope of the State’s prerogative to set its own education policy.”
Ellman advised the panel, “The idea that requiring culturally relevant curricula doesn’t actually impair any Arizona interests is palpably wrong, because, now that you have an order from the District Court that actually requires the District to adopt it, there has already been an encroachment on the State’s education policy prerogative. So the damage is already done.”
Thomas Saenz, an attorney with the Mexican American Legal Defense and Educational Fund, mischaracterized not only the District’s position, but the State’s when he claimed, “The problem with the State’s intervention at this point is that it would unduly delay the further progress of this now 40-year-case, because they are taking a position, we believe an extreme position, that any and all ethnic studies curriculum violates the State’s law. We don’t think that’s an appropriate reading of the law, but this is not the appropriate venue to decide. The District Court is not the appropriate venue to decide.”
Holly Thomas, the attorney for the DOJ did not deny the State’s interest but focused instead on procedure. “Arizona expressed an interest in ensuring that the ethnic-studies curricula in the unitary status plan did not violate state law,” said Thomas. “That interest is both remote and it’s speculative, and therefore does not meet the requirements for intervention.”
Holly also mischaracterized the situation when she told the panel that the “Mexican-American studies program that Arizona repeatedly talks about in its pleadings was canceled by TUSD. It has not been resurrected, and indeed the District Court has made clear that that program will not be reinstated.”
To the contrary, the developer of TUSD ‘s “Culturally relevant” classes, in a heated argument with former TUSD Mexican American Studies teachers stated that the MAS classes “are back. They’re back,” Augustine Romero shouted during an outbreak session at the National Association of Multi-Cultural Educators (NAME) conference held in Tucson in early November.
Judge Christen corrected Thomas and reminded her that the classes were – in fact – back in some form as per the Special Master’s decision.
When asked by Christen, “So what happens if they do adopt something like that (meaning the outlawed classes), then what does the state do?” Thomas responded, “If the time comes that the State feels that any ethnically relevant curriculum violates state law, it is free to intervene again in the future.”
One education expert noted that the State was remiss in failing to submit as evidence the many articles about the Romero-Arce fight at the NAME conference. Romero’s claims that the new classes have the same goals, the same coursework, and the same pedagogy as the MAS classes that were found to violate the law prove that the State’s interest has been directly involved. One court watcher expressed concern that the State’s failure to include “this information is legal negligence that flies in the face of common sense and the State’s interest.”
Rusing had the toughest job before the panel. He had to defend the District, which has traditionally come before the courts with unclean hands, while persuading the judges that the current situation is untenable. He told the panel that Bury had “abdicated its role as the decision-maker.”
Rusing focused his arguments primarily on TUSD’s objections to the Special Master’s meddling in the admissions policy for University High School. Rusing complained that “non-receptiveness of the District Court to give us hearings to allow us to file briefings, cuts us off at the knees combined with the other expansive efforts of the Special Master, who is now really an advocate; he’s become the education tsar, not the desegregation expert helping to consult with us together, collectively to get Unitary status, but someone who is an advocate.” Rusing continued, “He has a lawyer! I mean things are really insane.”
Rusing advised the panel, “These things are impacting people on a daily basis.” Rusing argued that the Special Master has stepped beyond his bounds.”
“What we have seen,” said Rusing, “is the District Court remove himself from this litigation and the Special Master move in and expand and use a standard that is not the standard that he is supposed to use. He is supposed to talk about compliance with the USP, desegregation; those sorts of things. That is what he is an expert at. He is not supposed to quibble with us as to whether we have green or red uniforms for our soccer team. That is outside of his balliwick.”
At the time, the Ninth Circuit remanded the case to Bury, Judge Thomas wrote, “Decades of Supreme Court precedent dictate that, where good faith lacks and the effects of de jure segregation linger, public monitoring and political accountability do not suffice. We reverse the court below 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…”
As it stands, the people of Arizona would like to see TUSD act in good faith and in compliance with the courts and the State of Arizona.
It is unknown when the judges will reach their decision on the State’s request for intervention.
Listen to Ellman’s arguments:
Listen to Rusing’s arguments: