This isn’t the first Latino State of the State the Mexican American Legal Defense and Education Fund has done in Arizona. According to MALDEF president and general counsel Thomas A. Saenz, the last one was in Phoenix in 2012, but as Tucson Unified School District continues to delay implementation of its court-ordered desegregation plan and legally challenge parts of a plan it agreed to in 2013, it made sense to bring the Latino State of the State to the district’s backyard on Thursday, Sept. 4.
The free event, from 4:45 to 8 p.m., takes place at the Arizona History Museum, 949 E. 2nd Street, with a panel discussion 4:45 to 6:30 p.m. and a reception from 6:30 to 8 p.m. To RSVP, contact Stephanie Loera at sloera@maldef.org or call 213-629-2512 ext. 143. News anchor José Ronstadt, of Phoenix’s Noticias 22 MundoFox, is the moderator for the evening, joining Saenz with panelists M. Beatriz Arias, vice president of the Center for Applied Linguistics; Dulce Matuz, president of the Arizona Dream Act Coalition; Francisco Heredia, director of One Arizona; Lois D. Thompson, partner with Proskauer Rose LLP and attorney working with the plaintiffs on the TUSD desegregation case.
The Tucson Weekly recently talked with Saenz to ask about the event and the district’s 40-plus year desegregation case:
Is the purpose of this year’s Latino State of the State to call attention to TUSD’s continuing challenge of its court-ordered desegregation plan?
It certainly played a significant role in our deciding to do it in Tucson. We did it in the capital two years ago, but this time we wanted to be in Tucson precisely because of this long-standing case in which TUSD could be a national leader in creating greater equality and opportunity for the Latino community. Achieving that objective requires the district to put more commitment behind complying with the unitary status plan, which lays out very important measures to make sure there is greater integration and greater opportunity.
Are you concerned that the district is behind in many of the plan’s deadlines and continues to challenge parts of the plan in court, while complaining about the plaintiff legal fees?
It is a concern and we do want to ensure the public is aware of these issues and understands the opportunity there is to ensure that Tucson if it wants be ahead of the curb, it can be a real leader, but things need to change.
Are there other desegregation cases around the country?
We may have one or two cases in Texas, but really that’s it. Nationwide the Supreme Court majority has cut back consent decrees that involve too much race conscious action. Usually that associated with busing or admission to magnet programs … it’s all part of what I would say is a broader color-blindness agenda on the part of the majority that’s cut down on these cases.
However Tucson is different, right?
Yes, in Tucson what the Ninth Circuit concluded is that they recognized there were still recent indications that the district was not taking the steps and indeed was taking the contrary steps to root out what has been intentional segregation going back decades ago.
In your work have you ever seen a district continue to react to a court-ordered desegregation plan as TUSD has?
No. I’ve been involved in many cases related to education consent decrees. It’s easy for a district to point a finger at these decrees whenever they are called to take action. This is a plan that is detailed and lengthy. Most people don’t have an understanding of what’s in the plan and what’s expected of the district. With respect to this particular decree, there is a process in place and the district is failing but not because of ambiguity. This is a decree the district agreed to (after working on it with the plaintiffs for more than six months). Now the district has second thoughts after initially implicitly agreeing to take certain steps. Maybe they didn’t anticipate opposition in certain corners of the district or in it bureaucracy. These decrees are easy to scape goat. But why blame something else?
Some say it’s because there’s a lack of clarity in the plan?
This has not been about lack of clarity but the district’s failure to do things clearly laid out in the plan.
What makes this case seem particularly unprecedented is that you have US District Judge David C. Bury really coming down hard on the district, accusing TUSD of not being collaborative and being more aggressive and legalistic.
You have a case now in which the district’s own court-appointed special master, whose job it is to work with everyone involved and is a national deseg expert specifically chosen by the African-American student plaintiff representatives, was provided his own legal counsel. Is this also what makes this particular case so unusual?
Yes. The selection of a special master, look everyone had input on who we wanted. But you hope to find someone highly qualified who can have a strong relationship with everyone involved. It’s important to find someone who is accessible. Like everyone involved, the district has a responsibility to have a good working relationship with the special master. Instead they have framed him as an outsider who is an adversary. It’s an impediment to ending the case sooner.
Besides painting the special master as an outsider, the other focus has been challenging his fees and the plaintiff’s attorney’s fees, too, like MALDEF, representing Mexican-American students and Tucson attorney Ruben Salter, representing African-American students.
When the district files objections, files the kind of opposition that you see, we have an absolute ethical obligation which requires us to insure the unitary status plan has been implemented effectively. This is largely in hands of district.
Arizona has proven to be a unique state for MALDEF to work, yes?
Arizona is unique. In Tucson, the way the district and its Latino students, teachers and community became a statewide target. There’s a very difficult atmosphere throughout the state that have conspired together to put us where we are. MALDEF wouldn’t be involved in Tucson if it weren’t for Sylvia Campoy. She is a true hero and has put herself in great difficulty to continue to make sure the best interests of TUSD’s students is paramount. It’s further testament to her commitment. It’s also a mission of MALDEF, one we endorse and embrace.
What will the panelists focus on?
I think we are going to focus on the issues around ethnic studies and the importance of taking measures to integrate. Certainly the central theme is also how Arizona has certainly been hostile to a significant portion of its population. We hope people can see this education decree as a way to turn that tide and see how TUSD can be a leader and an example.
Will anyone representing TUSD be there?
They’ve been invited, as has the general public, to attend in person.
This article appears in Aug 28 – Sep 3, 2014.
What is glaring about the criticism lobbed at TUSD for objecting to portions of the plaintiffs’ claims for attorneys fees is that critics do not point to any specific matter with which they take issue. Who thinks that TUSD should simply pay whatever is demanded no matter how unrealistic?
The fact is that Judge Bury AGREED with TUSD that the hourly rate claimed by the plaintiffs’ out-of-state attorneys ($550 and $425) was too high. Instead, he awarded a rate of $350, which is in line with the rate charged by Tucson attorneys. That mostly accounts for the 30% reduction in the amount awarded (a savings of more than $200,000).
The judge also AGREED with TUSD and denied the Fisher plaintiffs’ claim for attorney fees for work done between 1983 and 2004. As a taxpayer, I call TUSD’s objections good stewardship of public funds. In light of Judge Bury’s decision, TUSD would have abdicated its responsibility to tax payers had it not objected.
Of course the attorneys have put in a lot of hard work and deserve to be paid. TUSD has not argued otherwise. But with vague criticism of nothing more than TUSD’s objecting to the fees, there is no information being disseminated to readers and the mistaken impression is given that TUSD acted unreasonably.
On the ethnic studies issue, I would like to know why TUSD hasn’t put in the same type of recruitment efforts for ethnic studies classes that it has put into AP classes? (See HT’s last district update.) To the contrary, last year when Tucson High gave parents and students a list of class choices prior to registration, none of the USP-mandated classes were listed. (I know because my child brought home the list.) It smells like a deliberate effort to keep the number of students low.
Why bother with all of this, too many Latino students aren’t graduating anyway. This isn’t going to help them. Only attendance and hard work will make the difference.
That was a long interview with zero specifics. After reading lots of articles on this issue, I’ve yet to see one that says, specifically, what deadlines are being missed for what specific actions. I’d like to know where my tax dollars are going.
The missed deadlines are not hard to find. There are deadlines for culturally relevant courses which have been highlighted in articles and forums. There are deadlines for disciplinary changes, hiring and other issues. All of these deadlines are in the Unitary Status Plan, which is on the TUSD website. At this point, because some are SO missed, it reads like a wish list! What is clear is that if TUSD wants to be a better steward of taxpayer money, it would take the case out of litigation and speed up the implementation of the USP. The argument about plaintiff legal costs only obscures the one about TUSD’s legal costs–over which it has complete power. A lawyer from the new legal firm presented their work to the TUSD Board recently. The legal team had filed some 12 times without positive result. Intransigent Court? Or unbelievable strategy guaranteed to up the legal costs while leading to no constructive result?I at least left the presentation feeling more than ever that the District legal team that is handling this case have gotten ahold of a cash cow and are milking it for all its worth. Meanwhile another generation of students in TUSD do not receive the benefits of equal opportunity and equity that our country promises to all.
The Legal Department in TUSD is a “loose cannon” with NO Board oversight!!! It is the Board’s responsibility to implement the Unitary Status Plan.
Students in TUSD should NOT be restricted to neighborhood Schools. All Schools should have open enrollment so as to provide choice as to where Parents want to send their Child (Children). This will provide an opportunity for Parents living in a neighborhood with an underperforming School to move their Child (Children) to another School; transportation provided if necessary via Sun Tran or the District at no cost to the Parent.
Superlative schools have superlative parental support and backup. During desegregation in Boston they found that the Columbia Point school in an all black neighborhood (project) was superlative. They even had their own radio station and it was because all the parents worked together. It was next to U of Mass, Urban Campus and I believe they even had extra AP classes taught by the University.
Only a school which is 51% ethnic can be considered segregated. A school that is 100% white is NOT segregated. That’s the way the law reads. What will happen when whites become a minority? That means whites will not have to share their schools or property taxes with anyone!
TUSD Governing Board meetings within the last few months have included two specific legal presentations on desegregation by TUSD legal counsel to the Board; although, to be clear, there was little legal information or analysis presented.
>The first presentation took place on June 10, 2014 with internal legal counsel raising the issues of ‘what it costs to be overseen’ (monitored) in the desegregation case. Legal counsel presented a series of visual slides which broke out the costs for the Special Master, desegregation experts, the Implementation Committee and other associated costs. Legal counsel dramatically stated, ‘It’s become where the communication is almost driving us into the ground!’ (Communication as was referenced pertained to meetings, emails, requests for information and other correspondence.) The Board was also told by the Superintendent that it is as though the District has two superintendents; the Special Master and him and as if the District has two boards; the Governing Board and the Plaintiffs. Both the attorney and Superintendent expressed that they ‘had never seen anything like it’. The truth is; they haven’t; neither of them has worked as legal counsel or superintendent in implementing or providing legal counsel relative to a court-ordered desegregation plan. The TUSD Superintendent formally worked as the Interim Superintendent for Ector County in Texas and was appointed to that position in the fall of 2010, which was after the District was released from its court-ordered desegregation obligations. Negotiations between the parties was undertaken without the involvement of this individual, according to several individuals from the Ector County community. The current TUSD Chief Legal Counsel was not involved in any known desegregation case in Denver while in her former position.
For the District to hone in on the costs associated with external monitoring while spicing the information up with the use of such theatrics and melodrama serves no entity but the District. The goal seems to be to paint the District as the victim in this situation while further demonizing those who are responsible for monitoring TUSD’s compliance with the USP. It illustrates the District’s problem with being monitored and their lack of understanding as to the roles of each of the parties. There is but one Governing Board and Superintend and, as the guilty party in this case, it is time for TUSD to own up to this very fact and to stop the constant deflection of blame. It is not reflective of collaborative conduct.
During the presentation- monitoring costs for the District were not illustrated; either suggesting that there is no internal monitoring or that TUSD does not want to outline their specific costs. Yet, anyone attending Governing Board meetings has become quite aware that specific-project management TUSD staff is tracking all meetings, teleconferences, emails, written communications, etc. associated with desegregation and involving the Special Master, and/or the Plaintiffs. Is it now that the external monitors are being monitored by the guilty party?
The REAL question in this regard is how much has it cost NOT to have optimal court monitoring during the 35 years previous to the 2013 Court order? The mindset of the “cost” relative to monitoring is upside down when it comes to TUSD. TUSD has received and spent in excess of two BILLION dollars relative to desegregation; a miniscule fraction of which has been utilized for monitoring and/or Plaintiffs’ legal fees. The real cost is- the human cost- which cannot be assessed by a single number. Given all of the evidence on record, it is abundantly clear that the District has failed in addressing the many systemic inequities which adversely impact Hispanic and African American students. While Court documents have more than revealed this time and time again, TUSD’s own commissioned April 2014 states: “Page 180 of the April Curriculum Audit states:
“The court has given adequate general and specific guidance as to what must be done to provide equity and equal access to all district students, in particular African American and Hispanic students, plaintiffs in the 1974 suits. In spite of the guidance, the data show—and court records substantiate—that the district has failed to provide evidence of efforts to implement the court’s directives.”
TUSD is under higher scrutiny by the Court to implement the USP to address these issues and TUSD obviously protests to any credible monitoring in an assortment of ways.
>The second Board presentation took place on August 12, 2014 during which legal counsel from the District’s legal firm, Rusing Lopez and Lizardi, provided another desegregation update to the Governing Board, utilizing a slide visual presentation. (The material was not made available to the public as part of the agenda, prior to the Board Meeting.) Chart after chart were used to illustrate the degree of communication between the District and the parties while legal counsel repeatedly made the argument that such efforts showed the District’s collaboration with the various parties in the case. At the same time, legal counsel made it clear that in dealing with the USP and the parties, the District will only deal with USP issues which are directly associated with the compliance of the USP, which of course, would be left up to interpretation, but certainly not the sole interpretation of the wrong-doer. It is as though the guilty party in this case believes that they are the ones calling the shots; forgetting or ignoring the fact the Court has ultimate say.
The attorney presented a lengthy list of Court filings that TUSD has made in requesting to appear before the Court for evidentiary hearings and oral arguments, stating that such had been denied. Board Member feedback basically questioned why there would be have to be such an effort to document collaboration, if, in fact it were taking place as well as why TUSD had not ‘gotten the message’ relative to all of its filings.
The attorney reported that the Court had recently issued an order granting the Special Master to hire an attorney. This was followed by a string of arguments in opposition to the order, inclusive of case law citations in support of the District’s position, along with the fact that the District would be filing a request for the Judge to strike specific statements form the Court order which made reference to the District’s lack of collaboration in dealing with the Special Master and Plaintiffs. It became clear that the presentation was designed to counter the opinion articulated by the Court and the Class Plaintiffs.
The July 15, 2014 Court Order states: “Since the adoption of the USP, there have been staff changes at TUSD and a change in counsel. This past year, TUSD has decidedly moved away from collaboratively working with the Plaintiffs and the Special Master to resolve issues. This shift requires a corresponding shift by the Special Master away from his collaborative operation style: more R&Rs will likely be presented to the Court by adjudication, and if TUSD’s past filings are any example of what is to come, the R&Rs will likely be presented to the Court for adjudication, and if TUSD’s past filings are any example of what is to come, the R&Rs will include legal challenges both procedural and substantive. The Court agrees with the Class-Plaintiffs and the Intervenenor-Plaintiff that given the recent shift in the case, legal counsel is necessary to assist the Special Master. The Court finds these changes have stymied the expeditious implementation of the USP, upon which a three-year operational period hinges for attaining unitary status. The Court finds appointing counsel for the Special Master is urgently needed for the Special Master to move this case forward.” (“R&Rs” refer to reports and recommendations.) (The Court order is attached for your reference.)
The Court order loudly rings true and the Court order should remain intact. Ultimately truth has a way of prevailing.
Since December 2014 there has been an increase in the TUSD filings of legal briefs and appeals – both with Federal District Court and with the Ninth Circuit Court of Appeals. These serve to delay the USP implementation and are costly. From December 2013 through April 2014 the legal fees for the law firm handling the desegregation case exceeded a quarter of a million dollars. For a four twelve month period the projected costs will near a million dollars. TUSD’s legal challenges set off a domino effect and when the Defendant (and in this case, the guilty party) is challenging one issue after another, the Plaintiffs’, in the best interest of the students they represent, must respond to such challenges through their legal counsel. It is ironic that the District then complains about the legal costs involved with the desegregation case- pointing only to the Plaintiffs. It is as ironic that any one from the social justice/civil rights community would do so.
Let’s go back to the reason the Ninth Circuit Court of Appeals overturned Judge Bury’s prior effort at a Post-Unitary Status Plan. The court did not find that TUSD acted in good faith. The lack of good faith resulted in embarrassment for Judge Bury.
This time around, TUSD’s lack of good faith, in particular its failure to use the desegregation money in ways that will improve the academic performance of minority students, is not going unnoticed. TUSD’s leadership team has failed to appreciate the different circumstances that are guiding Judge Bury’s actions. Every time TUSD has failed to respond positively to the direction provided by Special Master Hawley…most particularly its defense of magnet programs that have not improved student performance and have increased segregation…it has dug an even deeper hole for itself.
The TUSD Governing Board has acted as if it is absolutely unaccountable to anyone for its continued failure to spend resources in ways that promote student learning. The current superintendent and the current Board president have not put student learning at the forefront of TUSD’s agenda. They talk a good one about students, but their real priorities are found in their budget. (TUSD spent only 49.2% of its budget in the classroom according to the latest audited figures.) So long as they spend too much on useless programs and even more useless administrators and too little in their classrooms, it is clear the priorities do not include student learning. Judge Bury appears to be figuring that out.
Just to be clear to Sylvia’s last point, if anyone “complains about the legal costs,” it was not me. What I complained of was the implication of unreasonableness JUST BECAUSE TUSD raised opposition to the hourly rates claimed by the out-of-state attorneys. This is standard fare in fee petitions and TUSD prevailed. But as to the necessity of the time spent, I made no criticism. In fact, I specifically stated that the attorneys have worked hard and deserve to be paid.
I agree with Betts that there are many missed deadlines and voiced my own criticism of the implementation of one aspect of the USP. That aside, where TUSD disagrees with the parties, it would be helpful for critics, including board members, to describe why that disagreement is unreasonable, rather than just label it as such.
What I took from the presentations made by TUSD counsel is that the disagreements are not primarily about whether TUSD has implemented the USP (although there are some failures), but disagreements as to how to implement it. Also that TUSD is required to show what it has done to execute the USP in good faith. Judge Bury has prohibited TUSD from offering that evidence into the record, so the district is forced to attempt to document that effort every time there is a disagreement. If the 9th Circuit once again is called on to evaluate whether TUSD has made a good faith effort, what can TUSD show the court if the record in the district court is bare? (The district court record is all that the appeals court will usually consider.)
It is interesting that there is more information in the comments than in the post. Perhaps an article with diverse perspectives is in order.
More facts:
The USP states (V.A.2.a): “The ALE Coordinator shall have responsibility for: … developing annual goals, in collaboration with relevant staff, for progress to be made in improving access for African American and Latino students, including ELL students, to all ALE programs. These goals shall be shared with the Plaintiffs and the Special Master and shall be used by the District to evaluate effectiveness.”
The R&R from the Special Master objects that (in the ALE Access and Recruitment Plan) 1) Goals were not set for each separate program (e.g. Self-Contained Gate vs. Advanced Placement); 2) Goals are too low (Lois Thompson reiterated this point at the State of the State last night); and 3) Goals are not set for ELLs.
Here is a quote from the R&R:
“It does seem that the District’s goals are embarrassingly low…The plaintiffs do not offer
an alternative based on research or expert opinion…The District has selected a target that its consultant suggests should be a minimal goal. The plaintiffs want parity. Splitting the difference—that is 90 percent–is arbitrary but not much different than selecting the lowest possible number that might be justified, as the District did.”
In this case, the consultant, Dr. Donna Ford, is an expert on minority participation in ALEs. But the opinion of the plaintiffs (not experts on minority participation in ALEs), with (admittedly) no research or expert opinion behind it, is given equal weight by the Special Master in devising (admittedly) arbitrary goals to address an issue (the size of the goals) which the USP does not in any case mention.
So yes, the ALE plan is late, and the district is therefore out of compliance on this issue. But the reason it is late is not because it did not do what is asked for in the USP, but because the plaintiffs do not like the goals, even though the USP explicitly states the ALE Coordinator (not the plaintiffs or Special Master) has the responsibility for setting these goals. Likewise the other issues raised in the R&R are not requirements in the USP.