The Tucson Unified School District begged the Ninth Circuit last month for relief from the Master Special, Willis Hawley, appointed by federal Judge David Bury in the nearly 40 year old desegregation case. This week, the Ninth Circuit denied that request.
The three judge panel also denied the State of Arizona’s request to intervene in the matter.
A source in the District said the judges “unfortunately did not comprehend the serious havoc being wrecked with no judicial oversight,” referring to the fact that the judge overseeing the case Judge David Bury, has virtually handed control of the case over to the Special Master. The District’s attorney told the justice that Hawley had become the “education Czar.”
Although the Ninth Circuit had remanded the case back to Bury for his haphazard acceptance of the original Unitary Status plan, this time the Court found no fault with Bury or that he abdicated his responsibility by placing the Special Master to lord over the District.
The panel wrote:
Here, after carefully reviewing the record, we find no clear error in the appealed orders or, more broadly, in the district court’s management of this case.
The district court reconsidered its initial decision not to allow briefing on the Special Master’s reports and recommendations concerning Action Plans. The District clearly has the opportunity to file objections, which can include as attachments documents the District believes reflect its good faith efforts to comply with the Unitary Status Plan, if they are not included as part of the Special Master’s submission.
Contrary to the District’s arguments, the district court does not appear to be “rubber stamping” the Special Master’s reports and recommendations. Rather, the record reflects that the district court has carefully reviewed the Special Master’s recommendations, and the parties’ positions, before ruling. We commend the district court for the attention it is giving to this time-consuming and challenging case, and we encourage the parties to work together to expeditiously implement the Unitary Status Plan.
The justices ignored the fact that it is not in the interests of the Special master or the District to work together. The desegregation case has been a cash cow for all involved, especially the Special Master with little of the tax dollars collected in the name of desegregation getting in the classrooms.
In its decision on the State of Arizona appeal of the denial of its request to intervene in the case by Bury, the justices found that they had jurisdiction, but the State essentially made the wrong arguments at the wrong time. It did not appear to make any assertion that the State did not have a right to control curricula.
The panel found:
In its motion to intervene, Arizona argued it should be permitted to intervene in order to ensure that any ethnic studies courses called for in the Unitary Status Plan would not violate state law. It provided a detailed discussion of A.R.S. § 15-112. Arizona asserted its interest “is ensuring that the interpretation and operation of state law is considered in the development of new ethnic studies curricula.”
Arizona maintained that any implementation of ethnic studies courses in violation of A.R.S. § 15-112 “would unconstitutionally usurp the State’s right to administer its laws.”
Arizona timely appealed only the district court’s February 6, 2013 order. That order denied a motion for reconsideration, not, as Arizona now contends, a motion to intervene.
The district court denied Arizona’s motion to intervene as untimely because it reasonably determined that allowing Arizona to intervene shortly before the filing date for the draft Unitary Status Plan could prejudice the existing parties. See League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1302, 1308 (9th Cir. 1997) (explaining timeliness is a threshold requirement for mandatory and permissive intervention, and courts determine timeliness by considering the stage of the proceedings, prejudice to other parties, and the reason for and length of the delay).
The court also noted that unless Arizona intended to assert “that any and all ethnic studies and/or curriculum will per se violate A.R.S. § 15-112, the Special Master has asserted an approach, which on its face does not appear to be contrary to Arizona law.” The district court granted Arizona leave to file an amicus brief voicing any objections it might have to the draft Unitary Status Plan.
Thereafter, the district court issued a revised scheduling order granting the parties’ request for an opportunity to work collaboratively to resolve objections to the initial Unitary Status Plan. In response, Arizona requested that the district court reconsider its denial of leave to intervene, arguing the revised scheduling order would deprive it of a meaningful opportunity to object to any curricular provisions in the draft Unitary Status Plan. The district court denied Arizona’s motion.
After the draft Unitary Status Plan was filed, Arizona filed an amicus brief objecting to language ultimately located in Section V.E.6 of the final Unitary Status Plan, which requires the Tucson Unified School District to “develop and implement culturally relevant courses.” Shortly thereafter, Arizona filed a second motion for reconsideration. The motion argued the district court should reconsider the denial of leave to intervene due to “a major change in circumstance that was unforeseeable at the time Arizona filed its Motion to Intervene,” namely, that the Tucson Unified School District’s newly elected governing board had voted not to renew its objections to Section V.E.6.
In its February 6, 2013 order, the district court addressed the arguments raised in Arizona’s amicus brief and also ruled on Arizona’s second motion for reconsideration. The court did not abuse its discretion by denying the second motion for reconsideration, but rather reasonably determined that the change in the Tucson Unified School District’s governing board did not warrant reconsideration because “there is no issue ripe for resolution until the culturally relevant courses are developed.”
The court also reasoned that the Tucson Unified School District had ample incentive to comply with state law.
Arizona argues that the district court mischaracterized its interest as ensuring that proposed ethnic studies courses would not violate state law, when Arizona’s interest is really in ensuring that the district court did not exceed the scope of its remedial authority and infringe on the State’s Tenth Amendment interest in setting education policy. But the latter argument was made by Arizona in its amicus brief, not in its motion to intervene. The interest Arizona asserted in its motion to intervene was ensuring that proposed ethnic studies courses would not violate A.R.S. § 15-112. Arizona did not argue in its second motion for reconsideration that its interest had changed; rather, it argued that the Tucson Unified School District no longer adequately represented its interest. The district court did not mischaracterize the interest asserted by Arizona in support of its request to intervene.
Arizona’s motion for judicial notice, filed on August 16, 2013, is denied. It does not conform to Federal Rule of Evidence 201. The motion for judicial notice is DENIED. The order denying reconsideration is AFFIRMED.