Judge David Bury has issued a scathing response to TUSD’s Motion of Reconsideration of its adoption of the Revised Comprehensive Magnet Plan. On December 3, 2015, Tucson Unified School District outside counsel filed the Motion for Reconsideration and implied that the Court was confused.
Bury has displayed little faith in the District, since the Ninth Circuit Court remanded the desegregation case back to him due to its finding that the District acted in bad faith. His most recent ruling appears to indicate that he has lost patience as well.
With the assistance of Arizona State Sen. Steve Farley, TUSD Governing Board president Adelita Grijalva and Superintendent H.T. Sanchez fought desegregation on both the judicial and legislative fronts this year. When the court-appointed Special Master Willis Hawley suggested that some of the magnet schools were not attracting students in order to achieve segregation goals, Sanchez and Grijalva went so far as to pull parents, teachers, and students into the fight through a fear campaign.
The Mendoza plaintiffs’ representative Sylvia Campoy then worked with community members and the Special Master to craft an agreement. Sanchez and Grijalva tried to torpedo those efforts. In response, TUSD Governing Board member Michael Hicks alerted Bury to the fear campaign. Bury then accepted the stipulated Revised Comprehensive Magnet Plan and admonished the District in late November.
Sanchez and Grijalva then began a witch hunt of sorts against Hicks for his fight on behalf of both the Fisher and Mendoza plaintiffs.
Hicks called Bury’s latest ruling “reasonable.” He stated that he understood the judge’s frustration and hoped that the District’s administration would finally give up the fight for segregated classrooms and begin to work toward achieving unitary status. Until the District achieves unitary status, which according to USedulaw.com means “that students were no longer placed in racially separate schools,” the District will remain under the Court’s control.
Hicks stated on Sunday, “Clearly the judge understands what we are up against. Between Sen. Steve Farley’s effort to stop an audit of the desegregation funds, which we need in order to see where the desegregation money is going and has gone, and the District’s endless attempts to undermine the Special Master and the plaintiffs, our kids are being cheated of the attention they deserve. These games have to stop once and for all.”
Education expert, retired teacher Rich Kronberg said of the ruling, “It is clear that Judge Bury is very tired of TUSD’s current leadership group; Grijalva, Sanchez, and their lackeys Foster and Juarez, and their multiple attempts to fool him. TUSD’s administration and the cabal running the TUSD Governing Board ought to remember they have already burned Judge Bury once by their failures to properly implement a PUSP. I can almost see him thinking back to the day the Ninth Circuit Court of Appeals overturned the first PUSP he agreed to as he writes, “The Court was not confused…” and later when he writes, “The Court does not conflate the concept of integration initiatives with Improvement Plans.” Judge Bury is showing Sanchez and Grijalva and their crew that, in the words of The Who, he “won’t get fooled again.”
The ruling reads:
On November 19, 2015, the Court adopted the Revised Comprehensive Magnet Plan (Revised CMP), pursuant to the Special Master’s Report and Recommendation (R&R) and the Stipulation between the Plaintiffs Mendoza and the District. On December 3, 2015, the District filed a Motion for Reconsideration and Clarification. The District asserts that modifications made by the Court to the Magnet Stipulation include manifest errors because: “the Order states that the parties stipulated to transition plans (which they did not) and the Special Master recommended the Court order transition plans (which he did not).” (Motion for Reconsideration (Doc. 1.) The District argues that the transition plans must be stricken or further briefing must be allowed. The imposition of a May 2016 deadline for developing transition plans impedes the District’s discretion under the CMP of how and when to martial its limited resources. The District complains that the Court’s clarification of ¶ E somehow precludes it from performing the tasks anticipated in ¶ E as agreed to by the District and the Mendoza Plaintiffs.
The Court was not confused when it “. . . approve[d] the Stipulation (Second) to continue tracking progress towards integration being made by schools currently in the CMP, as recommended by the Special Master, which requires: the simultaneous development of transitional plans to ensure that if at such time these schools are removed from the CMP any extraordinary programs which have been developed in the quest for magnet status are not lost and to ensure that the academic needs of students at these schools, especially underachieving students, are met, programmatically and fiscally, upon the loss of magnet status.” (Motion for Reconsideration (Doc. 1872) at 3 (quoting Order (Doc. 1870) at 6.) First, the Stipulation requires the District to aggressively seek to increase integration at all of its magnet schools and programs, (Stipulation (Doc. 1865) ¶ D), and for Dr. Becky Montano, . . ., [to], at a minimum, provide a progress report to the District, the Plaintiffs, and Special Master no less frequently than quarterly, beginning the fourth calendar quarter of 2015, id. ¶ G. The Court approved the provision in the Stipulation which requires tracking the progress of integration being made by the schools currently in the CMP. There is no need to clarify the Court’s order regarding the development of transitional plans. “‘The Special Master [did] not recommend that the Court require such plans,’” (Motion for Reconsideration (Doc. 1872) at 3) (quoting R&R (Doc. 1865) at 4) (emphasis in R&R), but the District ignores the preceding sentence: “The District should develop transition plans for all magnet schools and programs should their magnet status be withdrawn during the 2016-17 school year,” (R&R (Doc. 1864) at 4.) The Court required the District to do this for the magnet schools1 subject to the Stipulation; the Court was not confused.
The District ignores the fact that the Fisher Plaintiffs were not a party to the Stipulation. The Fisher Plaintiffs, like the Court, were concerned that all the evidence currently compiled in this case reflects these schools will in all likelihood be unable to retain magnet status. The Court could not approve the Stipulation without requiring the development of transitional plans for these schools to ensure the students attending them will continue to benefit from the USP if magnet status is withdrawn. See USP (Doc. 1713) § V: Quality of Education (requiring equal academic opportunities for African American and Latino Students as follows: § A (access and support in advanced learning experiences); § C (dual language programs to be academically rigorous); § E(1)(6)(7) (student engagement and support, and adoption of strategies to improve academic achievement and educational outcomes)).
The District objects to the Court’s modification of ¶ E, which as stipulated to by the parties stated: “By March 1, the District shall develop and propose initiatives to increase the number of students attending integrated schools within the District.” In addition, the Court required “that TUSD research and propose alternative, more integrative, magnet themes or programs and to assist the schools in assessing the strength of their existing magnet programs and themes in comparison to any stronger more integrative programs.” (Order (Doc. 1870) at 10.) Plaintiffs Mendoza join in the Motion for Reconsideration only as to this part. The addition made by the Court in no way precludes the District from developing and proposing by March 1, initiatives to increase the number of students attending integrated schools within the District. The Court intended only for the District to consider, within the context of these initiatives, the integrative strength of various magnet strategies. The Court does not require the District to propose magnet alternatives for each school; the Court does not conflate the concept of integration initiatives with Improvement Plans.
Finally, further briefing is not required. The issues were fully briefed and presented to the Court. (Order (Doc. 1870) at 2-4 (describing procedural posture of case for adopting CMP). The 30-day response time referenced by the District applies in the event the Special Master recommends “magnet status be withdrawn,” (Order (Doc. 1753) at 18), which he has not done. The Court will not remove its references to the 70% USP definition of integration, which must be the underpinning for any integration benchmark set in an Improvement Plan.
The Court denies the Motion for Reconsideration. The Court did not patently misunderstand the parties nor make an error of apprehension. There has been no major or significant change in controlling law, nor any change in the facts, considered by the Court before it issued its Order on November 19, 2015. This is not the rare circumstance warranting reconsideration. Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983); see also, Sullivan v. Faras-RLS Group, Ltd., 795 F. Supp. 305, 308-09 (D. Ariz. 1992). There is no manifest error of law or fact nor any newly discovered evidence. School Dist. No. 1J, Multnomah County, Oregon v. AcandS Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). The District should not ask the Court to rethink what it has already thought through–rightly or wrongly. Above the Belt, Inc., 99 F.R.D. at 101; See Refrigeration Sales Co. v. Mitchell-Jackson, Inc., 605 F. Supp. 6, 7 (N.D. Ill. 1983).
IT IS ORDERED that the Motion for Reconsideration (Doc. 1872) is DENIED.
DATED this 10th day of December, 2015