Berlin is asking Alfredo C. Marquez, senior U.S. District Court judge, to appoint him legal counsel to Maria Mendoza, who 28 years ago joined in a lawsuit that exposed the Tucson Unified School District's segregated schools and widespread discrimination.
Trial in the cases, which were consolidated for African-American and Mexican-American students and their families, began in January 1977. TUSD entered a settlement after Judge William Frey, in his June 1978 findings, said TUSD "had failed to dismantle its former dual school system for Blacks and non-Blacks, and had continued since 1954 [the Supreme Court's landmark school desegregation ruling in Brown v. Board of Education came on May 17, 1954] to discriminate against Black elementary and junior high school students."
Judge Frey also found "no such dual school system had existed with respect to Mexican-American students, nor did any continuing system-wide practice of intentional discrimination occur." But Judge Frey also concluded "that nine schools suffered current effects of the past intentionally segregative acts of the School District" and ordered the district to "prepare a desegregation plan with respect to these nine schools."
The settlement required TUSD or, more specifically, its taxpayers to pay $500,000 to be split among the attorneys, including Mendoza's lawyer, Michael Zavala, and Rubin Salter, the lawyer for the African-American plaintiffs.
And for 23 years, TUSD has ridden unfettered taxes to attempt to desegregate its schools. Its annual desegregation budget, propped up by property taxes outside the limits imposed by state law, has ballooned from less than $1 million to $62.3 million this year, threatening to hit 20 percent of the total district budget. Meanwhile the district, according to critics including Berlin, has done little to wipe out segregation from its schools.
The court settlement also called for a citizens committee to monitor TUSD's desegregation efforts. Berlin has been a member of that committee, called the Independent Citizens Committee, for eight years.
His entry into TUSD desegregation and school politics originated, as he tells it, from an offer he made to Joel T. Ireland, a lawyer and failed congressional candidate who has exerted considerable power over TUSD as a four-term member of the TUSD board.
On a stroll at the conclusion of a trial where they lined up against each other, Berlin says he told Ireland that he was at a point in his career when he wanted to do something else, including public service. He wanted to give back, he says.
Ireland nominated Berlin to the Independent Citizens Committee, a move that, like most Ireland ideas, sailed through with swift approval by the full TUSD board.
With the federal court sidelined with no direct power to monitor TUSD's desegregation efforts, the Independent Citizens Committee had the key role.
Does it share the responsibility for TUSD's failure?
"Good question," says Berlin, who has chaired the committee for two years.
Berlin at first offered a defense that underscored the committee's function. "On the other hand, I think it would be fair to say that it could report more strongly, more clearly, and become more visible."
Berlin, who moved out of TUSD four years ago and lives and works out of a Skyline Drive foothills address, stepped up efforts to make the committee more recognized last summer as his sponsor, Ireland, won approval to jack up TUSD taxes 8.3 percent to puff up desegregation spending by 15 percent. Ireland scoffed at the tax increase, which targeted all non-residential property, as a "fantasy" increase because he and other homeowners were exempt, protected by state law that caps property taxes for homeowners.
Berlin proudly authored op-ed pieces for the dailies and in November wrote a motion heavy with third-person references asking for appointment as Mendoza's lawyer.
"Mr. Berlin is uniquely qualified to represent the Mendoza plaintiffs," Berlin wrote as a headline to one section. "He has been on the ICC for eight years and its chairman for the last two; he is experienced with complex litigation; and he has recently been schooled in public administration."
Berlin notes in his motion that his service on the ICC has been interrupted by "a sabbatical year (1997-'98) at Harvard University's John F. Kennedy School of Government, where he was in the school's flagship Mid-Career Program and was the awarded the degree of Master in Public Administration. This recent professional training with respect to public administration will be invaluable in relation to the school district's problems with compliance.
"Presently, Mr. Berlin is in the process of transition in his career, moving away from litigation and more toward public policy and administration. Thus, at least for the next year, Mr. Berlin's involvement as counsel for the Mendoza plaintiffs is as good a 'fit' for him as it is for the case and for the Mendoza class."
If that fell short, Berlin also footnoted himself: "The Court may recall Mr. Berlin's involvement, early in his career, in the litigation of scores of Dalkon Shield cases. That work ... culminated in a unique and successful Alternate Dispute Resolution that became a model for the efficient resolution of thousands of claims through the manufacturer's bankruptcy."
Berlin added that his "experience and education" not only "equipped him" with knowledge of the Fisher-Mendoza settlement and TUSD desegregation but with "an understanding of class action litigation in the context of enforcing children's civil rights, and with an awareness of how to work with the issues of public administration, politics and institutional culture that beleaguer the defendant.
"Although Mr. Berlin would like the opportunity to act in that capacity, he is unable to do so without assurance that his reasonable fees and costs will be paid as they accrue."
Reasonable, for Berlin, is $250 an hour.
It is a fee that TUSD's lead counsel, Richard Yetwin of DeConcini McDonald Yetwin and Lacy, said in an interview is reasonable only in the context that Berlin must pay for his Harvard degree.
While Berlin says his fees are in line with the market rates, Yetwin says they are excessive.
"In this case, the prevailing market rate for school desegregation-related issues is substantially less than $250 per hour," Yetwin said in a brief filed for TUSD to oppose Berlin's appointment. "Undersigned counsel, who has over 27 years experience in desegregation and other school related cases, charges TUSD $164 [an] hour for work in this case."
The 1978 settlement called for TUSD to pay "counsel for all plaintiffs and all their attorneys' fees and costs, both past and future, except to the extent of any attorney's fees and costs incurred by plaintiffs in the future as a result of [TUSD's] failure to comply with the terms of the conditions agreed to."
Berlin says that entitles him to fees. Yetwin says it closes the door. Yetwin also enlisted the help of an affidavit from his former partner, J. William Brammer Jr., now a judge on the Arizona Court of Appeals in Tucson.
MENDOZA, WHOSE CHILDREN long ago left TUSD, has nonetheless been recognized by the federal court has having on interest in the case. She has been without a lawyer since Zavala, a champion in her eyes but less than mediocre in the eyes of many Mexican-Americans, including those who have served on TUSD's board, was suspended then disbarred in 1997. Boozed up and on amphetamines and pot, Zavala died on a chair in front of his television set on June 24, 1997.
His sponsor, the Mexican American Legal Defense and Education Fund, has sought to leave the case, and another local lawyer, Julia Leon, was suspended from practice. Mendoza's original views have put her at odds with new plaintiffs, Mexican-Americans who are fed up with TUSD busing and policies that deny many Mexican-American students the ability to attend neighborhood schools.
The message on the marquee at Roskruge Bilingual School last fall was both revealing and repulsive in seeking "non-minority" students for several openings.
Berlin, as did the Independent Citizens Committee, noted TUSD's "failure to meet the criteria for racial and ethnic balance in certain designated 'deseg schools,' including five of eight elementary, four of 10 middle and three of six high schools. Only 50 percent met the criteria. Moreover, these designated 'deseg schools' don't include such clearly segregated schools as Cavett Elementary (more than 95 percent minority) and Sabino High (almost 85 percent Anglo)."
Further, the achievement gap between minorities and non-minorities has not been cut, while minorities are more likely to be suspended and for longer periods.
Berlin says TUSD is "on the horns of a dilemma," that it has become addicted to the desegregation fund's unlimited taxes to bail out its deficit-ridden budgets. "It is this dependency that has complicated and compromised" TUSD's "motivation to comply with the" desegregation court settlement.
Berlin also is fighting charges of conflict of interest--both legally and in the court of public opinion. He says he is in the clear because the information he receives on the Independent Citizens Committee is not confidential. State law prohibits government employees and appointees from using confidential information they receive because of their position for future profit. He likely will have problems with other provisions of the statute that forbid officers from turning around to represent clients before the organization they served.
The Independent Citizens Committee voted--Berlin abstained--to support his appointment, and Evelyn Yanagihashi, the chair, signed a declaration for the court to support Berlin. It also states that Berlin "is uniquely qualified."
That has touched off another battle in this desegregation war. Jane Butler, TUSD's in-house counsel, arrogated control and fired off a nasty letter to Yanagihashi and the committee saying TUSD now viewed the committee as an adversary and would cut off all aid and information.
A court hearing on Berlin's request has not been scheduled.