Legal Schmegal

TUSD desegregation case sees a bevy of filings past the federal judge's December deadlines

December was supposed to be it, at least according to U.S. District Court Judge David S. Bury.

That was back in September when Bury responded to a request for a deadline extension by all parties involved in the Tucson Unified School District's almost 40-year-old desegregation lawsuit - TUSD, the U.S. Department of Justice (DOJ), the Mendoza plaintiffs representing Mexican-American students and the Fisher plaintiffs representing African-American students.

That was also before the district announced it had a $17 million deficit and began a public process that ended with the TUSD governing board approving the closure of 11 schools which knocks off less than $5 million.

This month, there's been a bevy of filings with Bury, mostly centered on school closures, last-minute objections and letters specifically against Mexican-American studies (MAS) filed this month by failed U.S. Congressional candidate Gabriela Saucedo Mercer, TUSD governing board member Mark Stegeman and Tucson resident Barney Popkin.

After last year's extension request, Bury responded with a series of new deadlines, including two in December — Dec. 10 was the deadline for release of the revised final desegregation plan filed with the court and Dec. 14 was the final deadline for all parties, including state Attorney General Tom Horne, to file responses to any objections and changes made to the plan that came from the public comment process.

Court-appointed desegregation special master Willis Hawley, charged with working with all the parties to develop a desegregation proposal, met the Dec. 10 deadline. Horne got in on the action and filed his objections, as did TUSD on the inclusion of culturally relevant curriculum (CRC) for Mexican-American and African-American studies, as well as other items in the proposal.

There was an attempt before the Dec. 14 deadline to direct TUSD legal to withdraw its objection to CRC curriculum at the Dec. 11 governing board meeting (See "Confusion Contusion," Dec. 20, 2012) by board member Adelita Grijalva. The process that took place that evening was confusing and TUSD issued a statement that the majority vote that took place was not a motion to withdraw the CRC objection. Grijalva said she'd bring the motion back at the Jan. 8 meeting, and by the end of the meeting legal confirmed it would file a notice of withdrawal of that particular objection.

In response to the school closures submitted by TUSD to bury for approval, Mexican American Legal Defense and Education Fund (MALDEF) attorneys representing the Mendoza plaintiffs filed an objection on Tuesday, Jan. 22, and was joined by another objection against school closures filed by Fisher plaintiffs' attorney Rubin Salter. The DOJ also filed a brief that outlined concerns specific to each school closure, but did not object.

The DOJ's failure to object, however, came with a premise, "on the assurance that the District understands its obligations under the existing and potential desegregation orders ..."

One concerns from MALDEF is "... At a meeting with District counsel, the District admitted that it has not undertaken any analysis that would provide guidance on how to make improvements for student transitions when schools are closed."

According to Salter, the reason he filed an objection on behalf of the Fisher plaintiffs against the closures was concern the district lacked much-needed information.

"It's like the cart before the horse," he said, "and by that I meant they don't know what attendance levels are going to be and what some of the (receiving) schools are like. They didn't give us enough information. They said students were going to better schools, which is not true in some instances."

One example in Salter's objection is TUSD's own explanation that it doesn't have an analysis of past closures and has only looked at the current student population and geographic areas.

"I am really concerned, especially about special education students and the needs of those children going from one school to another," he said. "I just think the district ought to have every issue addressed before they close the schools."

Besides the school closure objection filed by Salter on behalf of the Fisher plaintiffs, a letter from Lorraine Richardson was also submitted to Bury on behalf of the "Fisher committee," a group of four local representatives who work with Salter to represent the Fisher plaintiffs. Salter said he recognizes that this letter is well-past Bury's Dec. 14 deadline, but it includes objections they unsuccessfully tried to get into the current proposal.

In the letter, Richardson outlines a list of concerns — too administrator heavy in hiring plan; too focused on outside data rather than data collected by school, teachers, students or parents; no plan to hold teachers and others responsible for non-performance and other issues.

"Most of what we see in this plan is a bureaucracy to cover past and future administrators who are afraid of real responsibility and leadership for a school system that refuses to implement systemic change," Richardson wrote.

On the Fisher committee, we asked Salter for a history of the Fishers, the African-American plaintiffs who first filed the desegregation lawsuit in the 1970s. Unlike the Mendoza family, who regularly communicates with its representative, Sylvia Campoy, Salter said the Fishers left Tucson shortly after the lawsuit was first filed and no longer remain part of the picture.

"They were military people and they got transferred soon after the lawsuit was filed," Salter said. "This is a class action lawsuit and under the old (post-unitary status plan) there was a committee created called the Fisher committee to help with the drafting of the plan and it's continued to help."

The remaining letters sent to Bury focus on MAS. Mercer wrote in her letter it was discovered that the (Cabrera report) was done by a supporter of MAS and that's wrong, but she also said a professor at the University of Arkansas confirmed the study was flawed. "It is imperative that you not allow a few radicals and one man in Maryland to decide what is right for our community."

Stegeman's letter also expressed issue with the data Hawley used in support of MAS in the deseg proposal and isn't happy that it was written by two "well-known advocates for MAS," possibly referring to UA College of Education professors Nolan Cabrera and Jeff Milem.

"This raises the possibility that the Special Master sought to drive a particular conclusion rather than to seek an objective analysis," Stegman wrote.

And just in case you need one more anti-MAS rant, here's a comment from Popkin to Bury, "I urge you NOT to support the wrong-headed initiative to restore the racist, divisive, hateful, anti-American and illegal La Raza-based (MAS) program. The evil-minded MASP is again being proposed ..."

MALDEF attorney Nancy Ramirez said it's up to Bury to decide what to do with these latest letters filed almost a month after the final deadline set by the judge last year. "He may take them into consideration or he may not. I can't speak for Judge Bury."

Salter and others told the Weekly a decision on the deseg proposal could be made by Bury by mid-February, and on school closures by April.

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