Roy Fisher, et al v. Tucson Unified School District, et al

Filing

FILED OPINION (BETTY BINNS FLETCHER, SIDNEY R. THOMAS and NANCY GERTNER) REVERSED AND REMANDED., Judge: SRT Authoring, FILED AND ENTERED JUDGMENT. [7824419] [10-15124, 10-15375, 10-15407][COURT UPDATE - Replaced incorrect opinion. Resend NDA 7/19/11 by JI]

Case: 10-15124 07/19/2011 Page: 1 of 23

ID: 7824419 DktEntry: 65-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROY FISHER; JOSIE FISHER; MARIA
MENDOZA, EDWARD A. CONTRERAS,
Plaintiffs-Appellants,
v.
TUCSON UNIFIED SCHOOL DISTRICT,
Defendant-Appellee,
SIDNEY L. SUTTON; SALLY J.
SUTTON; JOHN R. CENTENO; MARY
KATHERINE CENTENO; LIBRADA G.
RUIZ; SIDNEY TAIZE,
Defendant-intervenors-Appellees,
v.
UNITED STATES OF AMERICA,
Plaintiff-intervenor.

9771







No. 10-15124
D.C. Nos.
4:74-cv-00090-DCB
74-cv-00204-DCB

Case: 10-15124 07/19/2011 Page: 2 of 23

9772

ID: 7824419 DktEntry: 65-1

FISHER v. TUCSON USD

ROY FISHER; JOSIE FISHER,
Plaintiffs-Appellants,
and
MARIA MENDOZA; EDWARD A.
CONTRERAS,
Plaintiffs,
UNITED STATES OF AMERICA,
Plaintiff-intervenor,
v.
TUCSON UNIFIED SCHOOL DISTRICT,
Defendant-Appellee,
SIDNEY L. SUTTON; SALLY J.
SUTTON; JOHN R. CENTENO; MARY
KATHERINE CENTENO; LIBRADA G.
RUIZ; SIDNEY TAIZE,
Defendant-intervenors-Appellees.



No. 10-15375





D.C. Nos.
4:74-cv-00090-DCB
74-cv-00204-DCB

Case: 10-15124 07/19/2011 Page: 3 of 23

ID: 7824419 DktEntry: 65-1

FISHER v. TUCSON USD

ROY FISHER; JOSIE FISHER; MARIA
MENDOZA; EDWARD A. CONTRERAS,
Plaintiffs-Appellees,
UNITED STATES OF AMERICA,
Plaintiff-intervenor-Appellee,
v.
TUCSON UNIFIED SCHOOL DISTRICT,
Defendant-Appellant,
and
SIDNEY L. SUTTON; SALLY J.
SUTTON; JOHN R. CENTENO; MARY
KATHERINE CENTENO; LIBRADA G.
RUIZ; SIDNEY TAIZE,
Defendant-intervenors.

9773





No. 10-15407
D.C. No.
4:74-cv-00090-DCB
OPINION



Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted
May 10, 2011—San Francisco, California
Filed July 19, 2011
Before: Betty B. Fletcher and Sidney R. Thomas,
Circuit Judges, and Nancy Gertner, District Judge.*
Opinion by Judge Thomas

*The Honorable Nancy Gertner, District Judge for the U.S. District
Court for Massachusetts, Boston, sitting by designation.

Case: 10-15124 07/19/2011 Page: 4 of 23

9776

ID: 7824419 DktEntry: 65-1

FISHER v. TUCSON USD

COUNSEL
Rubin Salter, Jr., Tucson, Arizona, for the Fisher plaintiffsappellants/cross appellees.
Cynthia Valenzuela Dixon, Mexican American Legal Defense
and Educational Fund, Los Angeles, California, Lois D.
Thompson, Jessica Freiheit Kurzban, and Jennifer Roche,
Proskauer Rose, LLP, Los Angeles, California, for the Mendoza plaintiffs-appellants/cross appellees.
Thomas E. Perez, Assistant Attorney General, Dennis J. Dimsey and Holly A. Thomas, Civil Rights Division, Appellate
Section, United States Department of Justice, Washington,
DC, for plaintiff-intervenor the United States.
Richard M. Yetwin, Heather K. Gaines, and Sesaly O.
Stamps, DeConcini McDonald Yetwin & Lacy, P.C., Tucson,
Arizona, for defendant- appellee/cross appellant Tucson Unified School District.

OPINION
THOMAS, Circuit Judge:
In 1974, African American and Mexican American students
sued the Tucson, Arizona, school system, alleging intentional
segregation and unconstitutional discrimination on the basis
of race and national origin. For some 30 years after the parties
settled in 1978, Tucson’s schools operated subject to a federally enforced desegregation decree. In a careful review of the
progress under the decree, the district court concluded that the
school district had failed to act in good faith compliance with
its desegregation obligations, but nonetheless declared the
Tucson school system “unitary” and terminated court jurisdiction. Because Supreme Court precedent requires continuing

Case: 10-15124 07/19/2011 Page: 5 of 23

ID: 7824419 DktEntry: 65-1

FISHER v. TUCSON USD

9777

court supervision under these circumstances, we reverse and
remand.
I
In the wake of the Brown decisions,1 federal courts fashioned and enforced desegregation decrees to ensure that
school districts that once operated “state-compelled dual systems” performed their “affirmative duty to take whatever
steps might be necessary to convert to a unitary system in
which racial discrimination would be eliminated root and
branch.” Green v. Cnty. Sch. Bd. of New Kent Cnty., Va., 391
U.S. 430, 437-38 (1968) (citations omitted).2 The test used to
determine when unitary status has been achieved, and accordingly when federal court oversight may end, is wellestablished:
The ultimate inquiry is “ ‘whether the [constitutional
violator] ha[s] complied in good faith with the
desegregation decree since it was entered, and
whether the vestiges of past discrimination ha[ve]
been eliminated to the extent practicable.’ ”
Missouri v. Jenkins, 515 U.S. 70, 89 (1995) (alterations in the
original) (quoting Freeman v. Pitts, 503 U.S. 467, 492 (1992)
(quoting Bd. of Ed. of Okla. City Public Schs. v. Dowell, 498
1

See Brown v. Bd. of Educ., 347 U.S. 483 (1954) (Brown I); Brown v.
Bd. of Educ., 349 U.S. 294 (1955) (Brown II).
2

See Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 459 (1979) (“ ‘If
school authorities fail in their affirmative obligations . . . , judicial authority may be invoked. . . . In default by the school authorities of their obligation to proffer acceptable remedies, a district court has broad power to
fashion a remedy that will assure a unitary school system.’ ” (second alteration in the original) (quoting Swann v. Charlotte-Mecklenburg Bd. of
Educ., 402 U.S. 1, 15-16 (1971))).

Case: 10-15124 07/19/2011 Page: 6 of 23

9778

ID: 7824419 DktEntry: 65-1

FISHER v. TUCSON USD

U.S. 237, 249-50 (1991))). The school district bears the burden of making these two showings. Id. at 88.3
The Supreme Court has underscored that the first showing,
regarding good faith, is central to a district court’s decision to
declare a school system unitary and withdraw its supervision.
In Freeman, the Court directed district courts to “give particular attention to the school system’s record of compliance”
because “[a] school system is better positioned to demonstrate
its good-faith commitment to a constitutional course of action
when its policies form a consistent pattern of lawful conduct
directed to eliminating earlier violations.” 503 U.S. at 491.
Indeed, “A history of good-faith compliance is evidence that
any current racial imbalance is not the product of a new de
jure violation.” Id. at 498.4 When a school district demon3

Acknowledging that school desegregation class actions “ ‘present[ ]
problems of considerable complexity,’ ” the Supreme Court has emphasized that responsibility for their resolution is shared. Swann, 402 U.S. at
12 (quoting Brown I, 347 U.S. at 495). “ ‘School authorities have the primary responsibility for elucidating, assessing, and solving these problems;
courts [ ] have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles.’ ” Id. (quoting Brown II, 349 U.S. at 299).
4
The Supreme Court has emphasized that the lingering effects of de jure
segregation, and not re-segregation caused by factors outside the school
district’s control, are the targets of properly tailored desegregation
decrees:
Once the racial imbalance [in student assignment] due to the de
jure violation has been remedied, the school district is under no
duty to remedy imbalance that is caused by demographic factors.
. . . [“I]n the absence of a showing that either the school authorities or some other agency of the State has deliberately attempted
to fix or alter demographic patterns to affect the racial composition of the schools, further intervention by a district court should
not be necessary[.]”
Freeman, 503 U.S. at 494 (quoting Swann, 402 U.S. at 32); see Manning
ex rel. Manning v. Sch. Bd. of Hillsborough Cnty., Fla., 244 F.3d 927, 941
(11th Cir. 2001) (“Put simply, a school board has no obligation to remedy
racial imbalances caused by external factors, such as demographic shifts,
which are not the result of segregation and are beyond the board’s control.” (citing Jenkins, 515 U.S. at 102; Pasadena City Bd. of Educ. v.
Spangler, 427 U.S. 424, 434 (1976); Swann, 402 U.S. at 22)).

Case: 10-15124 07/19/2011 Page: 7 of 23

ID: 7824419 DktEntry: 65-1

FISHER v. TUCSON USD

9779

strates good faith, it “enables the district court to accept [its]
representation that it has accepted the principle of racial
equality and will not suffer intentional discrimination in the
future.” Id. (citation omitted).
Just as important, the Court has stressed the breadth of the
second showing, regarding whether the school district has
eliminated the vestiges of past discrimination to the extent
practicable. It has instructed district courts to “look not only
at student assignments, but ‘to every facet of school
operations—faculty, staff, transportation, extra-curricular
activities and facilities.’ ” Dowell, 498 U.S. at 250 (quoting
Green, 391 U.S. at 435); accord Jenkins, 515 U.S. at 88. The
Court has emphasized that desegregation decrees must “address all these components of elementary and secondary
school systems.” Freeman, 503 U.S. at 486 (emphasis added).
Especially given that these so-called “Green factors may be
related or interdependent” such that “a continuing violation in
one area may need to be addressed by remedies in another,”
id. at 497, unitary status cannot be declared, and jurisdiction
cannot be terminated, when a school district lags in one or
more of them.
Guided by these principles, we turn to the case at bar. We
review the district court’s legal conclusions de novo. DirecTV,
Inc. v. Webb, 545 F.3d 837, 842 (9th Cir. 2008). Cognizant
that “[p]roper resolution of any desegregation case turns on a
careful assessment of its facts,” Freeman, 503 U.S. at 474,
and aware of the deference owed district courts in such cases,5
5

See Penick, 443 U.S. at 457 n.6; Anderson v. Sch. Bd. of Madison
Cnty., 517 F.3d 292, 296 (5th Cir. 2008) (“We have also recognized that,
given the unique factual circumstances present in school desegregation
cases, the district court’s factual findings are entitled to ‘great deference[,]’ ” particularly when “the district judge has ‘supervised the case for
many years.’ ” (quoting Flax v. Potts, 915 F.2d 155, 158 (5th Cir. 1990));
N.A.A.C.P., Jacksonville Branch v. Duval Cnty. Sch., 273 F.3d 960, 965
(11th Cir. 2001); Dowell v. Bd. of Educ. of Okla. City Public Schs., 8 F.3d

Case: 10-15124 07/19/2011 Page: 8 of 23

9780

ID: 7824419 DktEntry: 65-1

FISHER v. TUCSON USD

we review the court’s findings of fact—including its finding
of unitary status—for clear error pursuant to Federal Rule of
Civil Procedure Rule 52(a)(6). Webb, 545 F.3d at 842; see
Robinson v. Shelby Cnty. Bd. of Educ., 566 F.3d 642, 647 (6th
Cir. 2009) (clear error standard for review of unitary status
determination) (citing Manning, 244 F.3d at 940).6 “The clear
error standard is significantly deferential and is not met unless
the reviewing court is left with a ‘definite and firm conviction
that a mistake has been committed.’ ” Cohen v. U.S. Dist.
Court for N. Dist. of Cal., 586 F.3d 703, 708 (9th Cir. 2009)
(quoting Concrete Pipe & Prods. v. Constr. Laborers Pension
Trust, 508 U.S. 602, 623 (1993)).7 However, “Rule 52(a)
‘does not inhibit an appellate court’s power to correct errors
of law, including those that may infect a so-called mixed finding of law and fact, or a finding of fact that is predicated on
a misunderstanding of the governing rule of law.’ ” Thornburg v. Gingles, 478 U.S. 30, 79 (1986) (quoting Bose Corp.
v. Consumers Union of U.S., Inc., 466 U.S. 485, 501 (1984)).
1501, 1511 (10th Cir. 1993); Goldsboro City Bd. of Educ. v. Wayne Cnty.
Bd. of Educ., 745 F.2d 324, 327 (4th Cir. 1984) (“The Supreme Court has
said that appellate courts should give great deference to the district court’s
findings in school desegregation cases.”) (collecting cases); Arthur v.
Nyquist, 712 F.2d 809, 813 (2d Cir. 1983); Alexander v. Youngstown Bd.
of Ed., 675 F.2d 787, 796 (6th Cir. 1982) (citing Penick, 443 U.S. at 46971 (Stewart, J., concurring)); Hoots v. Pennsylvania, 639 F.2d 972, 979
(3d Cir. 1981) (citing Evans v. Buchanan, 555 F.2d 373, 380 (3d Cir.
1977) (en banc)).
6

Accord Anderson, 517 F.3d at 296; N.A.A.C.P., Jacksonville Branch,
273 F.3d at 965; Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d
305, 317 (4th Cir. 2001) (en banc); Coal. to Save Our Children v. State
Bd. of Educ. of State of Del., 90 F.3d 752, 759 (3d Cir. 1996); Keyes v.
Sch. Dist. No. 1, Denver, Colo., 895 F.2d 659, 666 (10th Cir. 1990).
7

We are left with such a conviction when the district court’s factual
finding is “illogical, implausible, or without support in inferences that may
be drawn from the facts in the record.” United States v. Hinkson, 585 F.3d
1247, 1263 (9th Cir. 2009) (en banc).

Case: 10-15124 07/19/2011 Page: 9 of 23

ID: 7824419 DktEntry: 65-1

FISHER v. TUCSON USD

9781

II
A
The 1974 lawsuits filed by the Fisher and Mendoza plaintiffs, representing the district’s African American and Mexican American students, respectively, were consolidated in
1975, and the United States was permitted to intervene as a
plaintiff in 1976. The consolidated case went to trial in 1977,
and in 1978 the district court found that the Tucson Unified
School District8 had acted with segregative intent in the past
and had failed its obligation to rectify the effects of its past
actions. See Mendoza v. Tucson Sch. Dist. No. 1, 623 F.2d
1338, 1341 (9th Cir. 1980) (as amended) (describing the
case’s early procedural history and the district court’s June
1978 order).9 The court approved the District’s proposed
desegregation plans and a Settlement Agreement submitted by
all parties. See id. at 1342-43.
The Settlement Agreement established and directed federal
court oversight of the School District; it has been the desegregation decree at the center of this case for the past 30 years.
In approving the Agreement, the district court described it as
“designed to remedy existing effects of past discriminatory
acts or policies.” The Agreement itself professed to “finally
resolve this litigation.”10 In the Agreement, the School District
stipulated that it would implement its proposed desegregation
8

Tucson maintained separate school districts for its primary and secondary students until 1977. We refer to the Tucson Unified School District as
the “School District” or “the District” throughout.
9
As the court below noted, this action therefore “falls squarely within
the confines of a de jure case for purposes of determining whether or not
[the School District] has attained unitary status.” See Penick, 443 U.S. at
456-58.
10
Furthermore, the Agreement provided that once it was implemented,
“[T]he rights and obligations of the parties shall be determined solely by
its terms and the terms of any subsequent stipulations or orders entered
herein pursuant to it.”

Case: 10-15124 07/19/2011 Page: 10 of 23

9782

ID: 7824419 DktEntry: 65-1

FISHER v. TUCSON USD

plans in a number of specified schools, cooperate with parents
to develop and examine future student assignment policies at
several additional schools, and eliminate discrimination in
faculty assignments, employee training, and in policies on
bilingual education, testing, and discipline. Id. at 1342. The
Agreement required the District to file annual reports describing its schools’ enrollments by race and ethnicity, detailing its
faculty and staff assignments, and summarizing all programmatic changes made pursuant to the Agreement and assessing
their effectiveness. Finally, the Agreement prohibited the District from engaging “in any acts or policies which deprive any
student of equal protection of the law” based on race or ethnicity, and required court review of District acts or policies
that “substantially affect the racial or ethnic balance in any
school.”
The Agreement provided that “[a]fter five full school years
of operation under” its terms “and the student assignment
plans adopted pursuant to” it, the District could “move the
[c]ourt to dissolve” it and dismiss the actions, subject to
objection by the plaintiffs or the United States as plaintiffintervenor. It was more than 25 years, however, before the
School District did so—and then only in response to the district court’s 2004 sua sponte order directing the parties to
show cause why the court should not declare the School District unitary and terminate its jurisdiction.11
B
In its Petition for Unitary Status, the District argued that it
had shown its good faith commitment and eliminated the ves11

The district court speculated that the School District’s reticence, and
the other parties’ complacence, was owing to the fact that in 1983 “the
state legislature enacted legislation which generated funding availability
for districts incurring costs pursuant to court ordered desegregation. This
opened the door for [the School District] to obtain millions of dollars in
local tax revenue.” See Ariz. Rev. Stat. § 15-910(G) (allowing appropriations for expenses incurred with respect to court desegregation orders).

Case: 10-15124 07/19/2011 Page: 11 of 23

FISHER v. TUCSON USD

ID: 7824419 DktEntry: 65-1

9783

tiges of discrimination to the extent practicable by measure of
the Green factors. It claimed to have achieved unitary status
and requested that the court dismiss the action and terminate
its oversight of the District’s operations.12
The Mendoza plaintiffs objected.13 They challenged the
District’s contentions regarding both prongs of the unitary status inquiry and opposed the termination of federal jurisdiction. Both the School District and the Mendoza plaintiffs
marshaled thousands of pages of evidence in support of their
conflicting positions.
After reviewing the parties’ arguments and extensive evidentiary submissions, on August 21, 2007, the district court
stated its first of two preliminary findings that the School District had achieved unitary status. As to the first prong of the
unitary status inquiry, the court concluded that it could not
“make the requisite finding as to . . . [w]hether the provisions
of the Settlement Agreement have been complied with in
good faith.” The court noted that “[g]ood faith means more
than mere protestations of an intention to comply with the
Constitution in the future,” and instead requires evidence of
“[s]pecific policies decisions, and courses of action.” The
court went on, however, to state that the School District could
demonstrate its good faith by working with the other parties
to develop so-called “post-unitary provisions”—“clearly stated” “goals . . . and requirements,” “measurements of success
and effectiveness,” and “periodic review and reporting to the
community regarding implementation, operation, and progress.” The court indicated that the adoption of a plan consisting of “transparen[t] . . . post-unitary provisions” that allowed
12

The School District specified, however, that it was not seeking the termination of federal court jurisdiction, so as not to jeopardize the funding
it received pursuant to Ariz. Rev. Stat. § 15-910(G).
13
The Fisher plaintiffs did not file a formal opposition to the District’s
Petition but in later proceedings objected to the District being declared
unitary.

Case: 10-15124 07/19/2011 Page: 12 of 23

9784

ID: 7824419 DktEntry: 65-1

FISHER v. TUCSON USD

for public monitoring would “establish [the District’s] good
faith commitment to the future operation of the school system
in compliance with the constitutional principles that were the
predicate for this Court’s intervention in this case.”
As to the second prong of the unitary status inquiry, the
court similarly concluded that it could not “make the requisite
finding as to . . . [w]hether the vestiges of de jure segregation
have been eliminated to the extent practicable.” However, it
stated that it “anticipate[d] that once compiled in a comprehensive report, the record will support a finding that the vestiges of de jure segregation have been eliminated to the extent
practicable for student assignments.” The court then ordered
the District to compile such a report.
Overall, the court concluded that the parties’ submissions
to date were such that it was “hard pressed without spending
hours upon hours of rutting through the record to piece
together the facts it need[ed] to support a finding of unitary
status.” But it nonetheless announced its intention “to close
this case and return [the District] schools to the state because
oversight and control will be more effective placed in the
hands of the public with the political system at its disposal to
address any future issues.”14
C
The School District responded to the district court’s order
regarding the second prong of the unitary status inquiry with
a Student Assignment Report purporting to show that it had
eliminated the vestiges of discrimination in student assignment. Included were two expert reports that the District
14

In its August 21, 2007, order, the district court also found unconstitutional the School District’s race-based student transfer policy in operation
at the time. Neither the Fisher plaintiffs nor the Mendoza plaintiffs challenge this holding on appeal, and the policy has since been repealed.
Accordingly, we do not address it.

Case: 10-15124 07/19/2011 Page: 13 of 23

FISHER v. TUCSON USD

ID: 7824419 DktEntry: 65-1

9785

described as providing “a comprehensive review of the impact
of [its] student assignment plans and student transfer policies
from 1976 to [2007]” and as “support[ing] a finding that the
District [ ] operated in good faith with regard to student
assignment since the [Settlement Agreement] was entered.”15
In their response to the District’s Student Assignment
Report, the Mendoza plaintiffs presented a report by Dr.
Leonard B. Stevens arguing that the District “should not be
found unitary in student assignment, because it has failed to
meet its desegregation obligation.” In their response, the
Fisher plaintiffs presented a report by Dr. James T. Schelble
that challenged the court’s analytical model and alleged that
the District’s Student Assignment Report “clearly shows that
[it] has failed to satisfy the Court’s Order to document its
compliance with the terms of the [Agreement] addressing student assignment.”
The district court responded to the School District’s Student Assignment Report and the plaintiffs’ objections in an
order in which it made its second preliminary finding that the
School District had achieved unitary status. See Fisher v. Tucson Unified Sch. Dist. No. One, 549 F. Supp. 2d 1132 (D.
Ariz. 2008). Adopting as its own the facts stated by the
School District in its Report, the court found that the District
had satisfied the second prong of the unitary status inquiry:
“[T]he ethnic and race ratios required under the Settlement
Agreement desegregation plans were implemented and maintained for 5 years, and eliminated to the extent practicable the
vestiges of de jure segregation.” Still, even as it approved the
District’s progress with regard to student assignment—and
then only in the early years of its operation under the Settlement Agreement16—the court noted significant deficiencies
15

Dr. William A.V. Clark’s report described demographic change in the
district. Dr. David J. Armor’s report focused on the District’s student
assignment policies.
16
Interpreting the Settlement Agreement as binding the School District
“to affirmatively combat segregation” and “at the very least . . . to not

Case: 10-15124 07/19/2011 Page: 14 of 23

9786

ID: 7824419 DktEntry: 65-1

FISHER v. TUCSON USD

with regard to other Green factors17 and did not address certain Green factors at all, including transportation, extracurricular activities, and facilities.
As to the first prong, the court concluded that the School
District “failed to act in good faith in its ongoing operation
. . . under the Settlement Agreement.” The court was most
critical of the District’s efforts at gauging its progress toward
desegregation, finding that it had “fail[ed] to monitor, track,
review and analyze the effectiveness” of its programs and policies and therefore had not demonstrated a good faith adherence to the Settlement Agreement or the constitutional
principles that underlie it. The court focused on the District’s
shortcomings regarding student assignment, finding that it had
“failed to make the most basic inquiries necessary to assess
the ongoing effectiveness of its student assignment plans, policies, and programs.”18 But the court’s concerns extended to
exacerbate racial imbalances caused by [ ] demographic changes,” the
court found that after the first five years of its operation under the Agreement, the District’s student assignment programs, practices, and procedures “had no net effect on [ ] demographic segregation,” and in some
cases had even “exacerbated the inequities” such segregation caused.
17
The court criticized the District’s efforts with regard to faculty and
staff assignments, noting the overall underrepresentation of black teachers,
and the concentration of Hispanic faculty at certain schools such that they
were almost racially identifiable. The court also described the District’s
efforts with regard to disciplinary policies as sorely lacking, finding that
“[o]nly recently, in 2004” had it “charged a responsible party to [work] to
eliminate the over-representation of minority students in drop out, absenteeism, suspension, and expulsion rates.”
18
The court noted that the District’s “lack of good faith [was] proven by
the simple fact that [its] expert reports were only secured . . . to belatedly
support its Petition for Unitary Status,” and by the fact that it “fail[ed] to
present any evidence that over the past 27 years it monitored and reviewed
the effectiveness of its race and ethnic sensitive school boundaries, magnet
programs, and open enrollment.” The court made similar findings with
regard to the District’s programs for advanced and special education students.

Case: 10-15124 07/19/2011 Page: 15 of 23

FISHER v. TUCSON USD

ID: 7824419 DktEntry: 65-1

9787

other areas, as well.19 The court concluded that “[e]ven if the
data presented by the [District] were more persuasive, the
[District’s] lack of good faith is established by [its] failure to
monitor the effectiveness of its ongoing operations to meet”
desegregation goals.
Nonetheless, having concluded that the School District
failed the good faith inquiry and having raised significant
questions as to whether the District had eliminated the vestiges of racial discrimination to the extent practicable, the
court announced its intention to grant the District’s Petition
for Unitary Status and terminate its jurisdiction. It stated that
“successful desegregation will exist when the [District] is
accountable to the public for its operation . . . in compliance
with . . . principles of equality. In other words,” the court continued, the District “will attain unitary status upon the adoption of a Post-Unitary Plan that ensures transparency and
accountability to the public regarding the operation of a nondiscriminatory school system.” The court ordered the parties
to meet and confer to finalize such a plan and held that,
“[o]nce the [Plan] is adopted by the [District],” it would
“grant the Petition for Unitary Status.”20
19

As with student assignment, the court found that the District had
“failed to make the most basic inquiries necessary to assess the effectiveness of its recruitment, hiring, promotion, and placement of minority faculty to satisfy the provisions of the Settlement Agreement requiring
regular review to guard against discrimination or inequities.” The court
further observed that the District had “failed to respond” to “legitimate
and important” concerns that had been raised over staff cuts affecting predominantly minority schools. With regard to disciplinary policies, the
court found that “the District [had] not undertaken a comprehensive analysis of suspension and expulsion data by ethnicity and race.” Similarly,
with regard to student achievement, the court found that except for an
analysis conducted in 1982, the District had “failed to review student
achievement as a measurement for program effectiveness” despite the fact
that “ongoing review of program effectiveness is the only way to ensure
that . . . program changes address demographic segregation and the quality
of education for minority students.”
20
In anticipating its grant of the Petition, the district court rejected the
District’s request that it continue to exercise limited jurisdiction (without

Case: 10-15124 07/19/2011 Page: 16 of 23

9788

ID: 7824419 DktEntry: 65-1

FISHER v. TUCSON USD

Over the ensuing year, a committee consisting of representatives of the Fisher and Mendoza plaintiffs, experts, and District staff drafted a “Post-Unitary Status Plan,” which the
District’s Governing Board adopted with amendments.21 In a
further order, the district court began its review of the Plan by
stating that its “responsibility” was “to guard the public
against future injury and restore true accountability to the
public education system by returning it to the control of local
authorities as soon as possible.” The court wrote approvingly
of most of the Plan’s provisions, although it again expressed
“concerns,” which it stated that it shared with the Fisher and
the Mendoza plaintiffs, “regarding the Green factors at issue
in this case and expressly addressed in the [Settlement Agreement].”22
oversight). Stating that the request was motivated by the District’s fear of
losing appropriations provided by the state legislature pursuant to Ariz.
Rev. Stat. § 15-910(G), the court found “that any benefit from its continued involvement in this case in the form of funding is offset by the disadvantages that result from suspension of public accountability that occurs
during such periods.”
21
The Fisher and Mendoza plaintiffs challenge certain aspects of the
“Post-Unitary Status Plan” and the procedure by which it was adopted.
Because we conclude that the lower court erred when it declared the District unitary, we do not reach any questions regarding the adequacy of the
so-called “post-unitary” proceedings.
22
Namely, the court pointed to the “seriousness of the disparities that
exist in the [D]istrict between the racial and ethnic makeup of the students
and the faculty” and recognized that the Governing Board had rejected
some proposed remedies “as being discriminatory against nonminority
candidates.” However, the court stated that, “[I]n the event the measures
agreed to by the parties to address faculty diversity are unsuccessful, the
data and evidence compiled pursuant to the Plan will enable” proper
reconsideration by the District. The court again rested its confidence in the
public’s ability “to monitor the effectiveness of the Plan in improving faculty diversity and to participate in any public hearings held by the Governing Board to resolve any dispute over the statistical goals for staff
diversity.”
As we discuss below, the district court used the wrong standard to
assess the School District’s progress in the area of faculty assignments.
See post at n.29.

Case: 10-15124 07/19/2011 Page: 17 of 23

FISHER v. TUCSON USD

ID: 7824419 DktEntry: 65-1

9789

Nonetheless, after it answered the plaintiffs’ objections, the
court ordered the Plan approved, declared the District unitary,
and announced the end of “all federal juridical oversight” of
the District.23 The Fisher and Mendoza plaintiffs timely
appealed.24 The School District cross-appealed to the extent
the district court’s orders were adverse to it.
III
[1] The district court’s own findings are fatal to its determination that the School District has achieved unitary status.
Supreme Court precedent is clear: in making a declaration of
unitary status and terminating federal jurisdiction, a district
court must determine that the School District has “complied
in good faith with the desegregation decree since it was
entered” and has eliminated “the vestiges of past discrimination . . . to the extent practicable.” Jenkins, 515 U.S. at 89
(quotation omitted); see Freeman, 503 U.S. at 492; Dowell,
498 U.S. at 249-50. Nowhere are these requirements
described as anything other than mandatory prerequisites to a
determination of unitary status.25 And of course they must be
23
In addition, the court again affirmed that it would not maintain limited
jurisdiction over the matter. Addressing the plaintiffs’ request that it “retain jurisdiction over the case until further advances are made by the District” with regard to a two-year pilot student assignment program, the
court acknowledged the “desire to shield the Plan from Governing Board
interference” but concluded that the Plan’s “Monitoring of Progress and
Compliance” provisions were sufficient to “place[ ] the responsibility for
[its] success . . . squarely on [the Governing Board’s] doorstep.”
24
The United States as plaintiff-intervenor did not appeal. It did, however, accept our invitation to express its views on this matter and argues
that the court below should be reversed.
25
See, e.g., Freeman, 503 U.S. 490 (“one of the prerequisites to relinquishment of control . . . is that a school district has demonstrated its commitment to a course of action that gives full respect to the equal protection
guarantees of the Constitution” (emphasis added)); id. at 498 (“The
requirement that the school district show its good-faith commitment to the
entirety of a desegregation plan” guarantees “that parents, students, and

Case: 10-15124 07/19/2011 Page: 18 of 23

9790

ID: 7824419 DktEntry: 65-1

FISHER v. TUCSON USD

so, for “[a] school district which has been released from an
injunction imposing a desegregation plan no longer requires
court authorization for the promulgation of policies and rules
regulating matters such as assignment of students and the
like” and, so long as it does not violate the Equal Protection
Clause, is not bound to follow through on the promises it has
previously made. Id. at 250.
[2] Here, the district court determined that the School District “failed to act in good faith in its ongoing operation . . .
under the Settlement Agreement.” And even by reference to
only certain of the Green factors, the court stated concerns
about whether the District had sufficiently eliminated the
effects of past de jure segregation. The court found that the
School District had failed to make “the most basic inquiries
necessary to assess the ongoing effectiveness of its student
assignment plans;” had “exacerbated the inequities” of racial
imbalances through its “failure to assess program effectiveness;” had “failed to respond” to “legitimate and important”
concerns about staff cuts at minority schools; had “failed to
comply” with the Settlement Agreement’s requirement that it
regularly review recruitment, hiring, and promotion in order
to “guard against discrimination or inequities;” had never “undertaken a comprehensive analysis of suspension and expulsion data by ethnicity and race;” had not given “time and
attention” to how the African American Studies Department
could aid the quality education of minority students; and had
failed to review program effectiveness in order to ensure quality education for minority students.
[3] The district court’s decision to declare the School Disthe public have assurance against further injuries or stigma . . . . We stated
in Dowell that the good-faith compliance of the district with the court
order over a reasonable period of time is a factor to be considered in
deciding whether or not jurisdiction could be relinquished.” (emphasis
added) (citing Dowell, 498 U.S. at 249-50)).

Case: 10-15124 07/19/2011 Page: 19 of 23

FISHER v. TUCSON USD

ID: 7824419 DktEntry: 65-1

9791

trict unitary on the basis of these findings cannot be reconciled with Supreme Court precedent. There is no authority for
the proposition that a failure to demonstrate past good faith
can be cured, and federal jurisdiction can be terminated, if a
plan that merely promises future improvements is adopted. To
the contrary, it is only “[a] history of good-faith compliance”
that “enables the district court to accept [a school district’s]
representation that it has accepted the principle of racial
equality and will not suffer intentional discrimination in the
future.” Freeman, 503 U.S. at 498 (emphasis added).26 To be
sure, district courts possess ample discretion to fashion equitable relief in school desegregation cases, to tailor that relief
as progress is made, and to cede full control to local authorities at the earliest appropriate time. See id. at 486-92. Yet
under our controlling precedent, the district court’s extensive
findings as to the School District’s lack of good faith show
that that time has not yet come to pass for Tucson. The district
court’s declaration of unitary status “is predicated on a misunderstanding of the governing rule of law” and is clearly erroneous. Thornburg, 478 U.S. at 79 (quotation omitted).
[4] In its cross-appeal, the School District argues that the
district court’s error instead lies in its determination that the
District has not demonstrated good faith. However, the district
court’s factual conclusion is amply supported by the record.
The District has produced no evidence to rebut the lower
court’s finding that the District failed to collect and analyze
the data that would reveal whether its desegregation efforts
were working. As such, the District has no means to show that
its “policies form a consistent pattern of lawful conduct
directed to eliminating earlier violations.” Freeman, 503 U.S.
at 491. Indeed, as the district court found, because the School
26

See also Dowell, 498 U.S. at 249 (“A district court need not accept at
face value the profession of a school board which has intentionally discriminated that it will cease to do so in the future. . . . [I]n deciding
whether to modify or dissolve a desegregation decree, a school board’s
[past] compliance . . . is obviously relevant.”).

Case: 10-15124 07/19/2011 Page: 20 of 23

9792

ID: 7824419 DktEntry: 65-1

FISHER v. TUCSON USD

District “has been incapable of making logical or meaningful
changes to its . . . policies, practices, or procedures related to
desegregation,” any progress “would have been mere coincidence.” Good faith requires more.
We are well aware that “federal supervision of local school
systems was intended as a temporary measure to remedy past
discrimination” and therefore that desegregation decrees “are
not intended to operate in perpetuity.” Dowell, 498 U.S. at
247-48. Indeed, “Returning schools to the control of local
authorities at the earliest practicable date is essential to restore
their true accountability in our governmental system.” Freeman, 503 U.S. at 490. After all, “ ‘local autonomy of school
districts is a vital national tradition.’ ” Id. (quoting Dayton Bd.
of Educ. v. Brinkman, 433 U.S. 406, 410 (1977)).27
Yet these principles do not permit a federal court to abdicate its responsibility to retain jurisdiction until a school district has demonstrated good faith and eliminated the vestiges
of past discrimination to the extent practicable. Decades of
Supreme Court precedent dictate that, where good faith lacks
and the effects of de jure segregation linger, public monitoring and political accountability do not suffice. Only once a
school district has “shown that [it] has attained the requisite
degree of compliance” may a court craft “an orderly means
for withdrawing from control.” Id. Rightly so, for “the court’s
end purpose must be to remedy the violation and, in addition,
27

As Justice O’Connor noted in her Jenkins concurrence:
[I]n the school desegregation context, federal courts are specifically admonished to “take into account the interests of state and
local authorities in managing their own affairs,” Milliken v. Bradley, 433 U.S. 267, 281 . . . (1977) . . . , in light of the intrusion
into the area of education, “where States historically have been
sovereign,” United States v. Lopez, 514 U.S. 549, 564 . . . (1995),
and “to which States lay claim by right of history and expertise,”
id.[ ] at 583 . . . (Kennedy, J., concurring).

Jenkins, 515 U.S. at 113 (O’Connor, J., concurring).

Case: 10-15124 07/19/2011 Page: 21 of 23

FISHER v. TUCSON USD

ID: 7824419 DktEntry: 65-1

9793

to restore state and local authorities to the control of a school
system that is operating in compliance with the Constitution.”
Id. at 489 (emphasis added) (citation omitted). Thus, “when
a school district has not demonstrated good faith,” the
Supreme Court has “without hesitation approved comprehensive and continued district court supervision.” Id. at 499
(emphasis added) (citations omitted).
[5] Accordingly, we do not hesitate to do so here. We
reverse the court below and order it to maintain jurisdiction
until it is satisfied that the School District has met its burden
by demonstrating—not merely promising—its “good-faith
compliance . . . with the [Settlement Agreement] over a reasonable period of time.” Id. at 498.28 The court must also be
convinced that the District has eliminated “the vestiges of past
discrimination . . . . to the extent practicable” with regard to
all of the Green factors. Id. at 492 (quotation omitted).29
[6] The district court, of course, retains “the discretion to
order an incremental or partial withdrawal of its supervision
and control.” Id. at 489. Specifically,
28

See also Dowell, 498 U.S. at 248 (“Dissolving a desegregation decree
after the local authorities have operated in compliance with it for a reasonable period of time properly recognizes that ‘necessary concern for the
important values of local control of public school systems dictates that a
federal court’s regulatory control of such systems not extend beyond the
time required to remedy the effects of past intentional discrimination.’ ”
(citation omitted) (quoting Spangler v. Pasadena City Bd. of Educ., 611
F.2d 1239, 1245 n.5 (9th Cir. 1979) (Kennedy, J., concurring))); Anderson, 517 F.3d at 297 & n.3.
29
With regard to faculty and staff assignments, it is important to emphasize that the “proper comparison [is] between the racial composition of
[the District’s] teaching staff and the racial composition of the qualified
public school teacher population in the relevant market.” Hazelwood Sch.
Dist. v. United States, 433 U.S. 299, 308 (1977) (citation omitted). The
School District acknowledges as much, although admits that it has never
made this inquiry. The district court erred when it instead compared the
racial and ethnic composition of a school’s faculty and staff to that of its
students.

Case: 10-15124 07/19/2011 Page: 22 of 23

9794

ID: 7824419 DktEntry: 65-1

FISHER v. TUCSON USD

[w]hile retaining jurisdiction over the case, the court
may determine that it will not order further remedies
in areas where the school district is in compliance
with the decree. That is to say, upon a finding that
a school system subject to a court-supervised desegregation plan is in compliance in some but not all
areas, the court in appropriate cases may return control to the school system in those areas where compliance has been achieved, limiting further judicial
supervision to operations that are not yet in full compliance with the court decree. In particular, the district court may determine that it will not order
further remedies in the area of student assignments
where racial imbalance is not traceable, in a proximate way, to constitutional violations.
Id. at 490-91 (emphasis added).30 We leave it to the district
court to decide whether partial withdrawal is warranted in this
case. The court’s “sound discretion” should be informed by
these factors:
whether there has been full and satisfactory compliance with the [Settlement Agreement] in those
aspects of the system where supervision is to be
withdrawn; whether retention of judicial control is
necessary or practicable to achieve compliance with
the [Agreement] in other facets of the school system;
and whether the [S]chool [D]istrict has demonstrated, to the public and to the parents and students
of the once disfavored race[s and ethnicities], its
30

The School District retains “the burden of showing that any current
imbalance is not traceable, in a proximate way, to the prior violation.”
Freeman, 503 U.S. at 494. But “as the de jure violation becomes more
remote in time and . . . demographic changes intervene, it becomes less
likely that a current racial imbalance in a school district is a vestige of the
prior de jure system.” Id. at 496. Still, good faith remains paramount: “The
causal link between current conditions and the prior violation is even more
attenuated if the school district has demonstrated its good faith.” Id.

Case: 10-15124 07/19/2011 Page: 23 of 23

ID: 7824419 DktEntry: 65-1

FISHER v. TUCSON USD

9795

good-faith commitment to the whole of the [Agreement] and to those provisions of the law and the
Constitution that were the predicate for judicial
intervention in the first instance.
Id. at 491.
We remand for further proceedings in light of our opinion.
We do not reach any of the additional arguments raised by the
parties.
REVERSED AND REMANDED.