9th Circuit Dismisses Tucson Unified School District’s Appeal To End Desegregation Order

9th U.S. Circuit Court of Appeals (Photo by Ken Lund Creative Commons)

TUCSON – The Court of Appeals for the Ninth Circuit dismissed a request by Tucson education officials to end a decades-long desegregation case because the District failed to make that request in a lower court.

The order from the Court grants a request to block efforts by the Tucson Unified School District (TUSD) to be released from a court-supervised desegregation plan first imposed on the District in the 1970s.

“The Mendoza Plaintiffs and I are very pleased about the Ninth Circuit Court of Appeals’ dismissal of TUSD’s improper and ill-advised appeal,” said Sylvia Campoy, a tireless advocate for desegregation, who has served as the representative for the Latino families. “TUSD’s time and tax-based resources have once again been misdirected in flawed and costly litigation. For forty years TUSD has continuously denied any of its wrong doings relative to its desegregation court order while it has resisted it in many, many ways. This behavior is the reason that TUSD still finds itself under the Court’s supervision today. Denial of a problem does not solve it. Parents and teachers from throughout the District continuously tell me that the Unitary Status Plan – desegregation court order – is often used as the Administration’s scapegoat for many problems within the District. TUSD’s denial and resistance relative to its desegregation court order has heightened during the last ten years and particularly during the last six years, as indicated by TUSD’s stream of costly litigation and its five million dollar contract with a Phoenix law firm for the purpose of “getting-out- from-under the court order,” which is an often stated objective articulated by the Administration and individual Board members.”

“It has only been through landmark court civil rights cases, along with desegregation court orders, that equality has been afforded to Latino, African American and other student populations who otherwise would have been denied their constitutional rights within our public schools. This is applicable to TUSD. I understand that some within our community seem to have grown weary and agitated with the forty-year-old TUSD desegregation case and while I agree that our largest local school district should have “fessed-up” to its wrong-doings and fully complied with the court order long, long ago, it remains imperative that TUSD be held accountable for complying with the desegregation court decree,” continued Campoy. It is the positive systemic changes which will be left in place as a result of the desegregation court decree that will most benefit current and future students. Such changes have not come about by happenstance or by relying on the District to do what is right, independent of any external forces. Many of the most positive changes within TUSD have come about only because of the desegregation court order. The work is not yet done, despite what the District touts to the courts and to the community. The Mendoza Plaintiffs and I are particularly appreciative of the dedicated and phenomenal legal work which MALDEF and Proskuer, LLP have performed on behalf of 29,000 Latino students. Because of their work the Arizona Federal District Court and the Ninth Circuit Court of Appeals have been held TUSD accountable.”

“The District has consistently tried to end court supervision because such supervision is expensive (to the students and taxpayers), and it makes little sense for a federal court to run TUSD by way of a “Special Master” who lives in New England and visits Arizona perhaps once a year for budget studies–not to tour our 86 schools,” said TUSD Governing Board member Rachael Sedgwick.

“TUSD did meet the legal standard for desegregation, in my opinion, and the District has actively sought to fulfill the thousands of orders issued by the court (despite that some were contradictory), based on Plaintiff recommendations,” explained Sedgwick. “TUSD, in my view, would very much like to focus on achieving equity for all students in the classroom rather than focusing on MALDEF or the Ninth Circuit, or any other entity that does not directly help our students to improve academic achievement rates. But we are not able to–this case will not allow it.”

“The District has consistently tried to short circuit its way to an end of court supervision, and this improper appeal is just the latest example,” said Thomas A. Saenz, MALDEF president and general counsel. “TUSD should focus on achieving equity for all students in the classroom, and cease the shenanigans in the courtroom.”

MALDEF (Mexican American Legal and Defense Fund) has represented Latino plaintiffs in the desegregation case since it was first filed in 1974. Later MALDEF’s case was combined with a lawsuit filed on behalf of African American students who first claimed there was a longstanding pattern of racial segregation in Tucson Unified school operations and curriculum.

In 1978, a court agreed that there was intentional discrimination against Latino and African American students, and ordered schools desegregated under court supervision.

The plaintiffs have long argued that TUSD has in the intervening decades resisted desegregation efforts and failed to comply with mandates issued by the Ninth Circuit Court of Appeals in 2011, when it ordered TUSD to remain under court supervision. The District court approved a second desegregation plan in 2013 known as the Unitary Status Plan (USP). Tucson Unified has argued that it has complied with the plan.

In September 2018, U.S. District Court Judge David Bury ruled that the District had only partially complied with the USP desegregation plan. TUSD appealed Bury’s ruling to the Ninth Circuit, arguing that Bury “refused” to declare that the District had met all of the plan’s mandates and that it should be released from court oversight.

In January of this year, attorneys asked the Ninth Circuit to dismiss TUSD’s appeal by arguing that Judge Bury could not have “refused” to declare TUSD in full compliance with the plan because the District never made such a request. Therefore, attorneys argued, the Ninth Circuit lacked jurisdiction to rule on the case.

On Monday, a three-judge panel agreed that the Ninth Circuit lacked jurisdiction and granted the request to dismiss TUSD’s appeal. The District must now return to the district court and prove that it is in full compliance with the 2013 desegregation plan.

“It is unfortunate that the istrict wasted time and resources pursuing a litigious and misguided path toward resolution of this case rather than to devote those resources to furthering strategies to improve the educational outcomes of its Latinx and African American students,” said Juan Rodriguez, MALDEF staff attorney.

Additionally, MALDEF filed a separate notice of appeal with the Ninth Circuit in October 2018 challenging Bury’s order granting the District “partial unitary status”, on the grounds that TUSD has failed to act in good faith and has not eliminated the vestiges of past racial discrimination to the extent practicable. That appeal is not part of the request granted on Monday and will still proceed.

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1 Comment

  1. That’s it, keep dumping millions into the District under the guise of Deseg and see where it actually goes. Worst case of fiscal responsibility ever!

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