Fisher, et al v. Tucson Unified, et al

Filing 1320

ORDER DENYING 1319 Request for Status Conference; DENYING 1313 Request for Settlement Conference or Appointment of Mediator; DENYING 1312 Request for Status Conference.Within 5 days,any party objecting to the appointment of a Special Master in this case shall file an Objection.Any Response due within 5 days. There will be no Replies. Within 20 days, parties shall file a Joint Memorandum that identifies the Special Master stipulated to by the parties. Within 30 days,parties shall joi ntly prepare and file a proposed form of Order for the appointment of the Special Master. Within 30 days, parties shall prepare/file memoranda re:appropriateness of partial judicial withdrawal and memoranda regarding the adequacy of the PUSP. Within 10 days,the Plaintiff-Intervenor shall file the brief requested by the Court.(See attached pdf for complete information). Signed by Judge David C Bury on 9/13/11. (SMBE)

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UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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Plaintiffs,
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v.
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United States of America,
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Plaintiff-Intervenor,
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v.
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Anita Lohr, et al.,
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Defendants,
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and
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Sidney L. Sutton, et al.,
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Defendants-Intervenors,
_____________________________________ )
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Maria Mendoza, et al.,
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Plaintiffs,
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United States of America,
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Plaintiff-Intervenor,
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v.
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Tucson Unified School District No. One, et al., )
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Defendants.
_____________________________________ )
Roy and Josie Fisher, et al.,

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CV 74-90 TUC DCB
(lead case)

ORDER

CV 74-204 TUC DCB
(consolidated case)

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July 7, 2011, the Ninth Circuit Court of Appeals remanded this case for continued

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judicial oversight of the Tucson Unified School District (TUSD), until Defendant TUSD has

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attained unitary status. The Ninth Circuit affirmed this Court’s conclusion that the record

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could not support a finding that Defendant TUSD had demonstrated good faith compliance

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with the Consent Decree. It reversed this Court’s finding that by adopting a Post Unitary

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Status Plan (PUSP), which was fashioned by a joint committee of the parties and experts to

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ensure public oversight of TUSD’s ongoing desegregation efforts, TUSD attained unitary

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status. The Mandate issued on August 10, 2011.

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On August 16, 2011, Plaintiffs Mendoza (Mendoza) requested a status conference

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and suggested that each party file a memorandum setting out its position as to how this matter

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should proceed.

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On August 16, 2011, TUSD requested the case be referred to a mediator, either a

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Magistrate Judge or the 9th Circuit Mediation program, for a settlement conference. TUSD

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believes aspects of the PUSP must be revisited due to changes in TUSD’s leadership, the

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PUSP was not designed for court oversight, it does not set forth a path for achieving unitary

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status, and the parties are not fully in agreement on its provisions. TUSD believes that

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appointment of a mediator will offer a forum where it can present to Plaintiffs a draft plan,

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proposed by TUSD, that will have as its goals the elimination of all vestiges of a segregated

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system and the attainment of unitary status within a reasonable time period.

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On August 17, 2011, Plaintiffs Mendoza filed an objection to a settlement

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conference or appointment of a mediator. Mendoza accuses TUSD of trying to escape the

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judicial oversight mandated by the Ninth Circuit and charges that TUSD is attempting to

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circumvent the current remedial plan, the PUSP, especially its provisions for accountability.

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On August 18, 2011, Plaintiffs Fisher (Fisher) objected to filing a memorandum

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outlining its procedural position until after the Court conducts a status hearing. Fisher

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objects to Defendant TUSD being given responsibility for drafting a new plan without any

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input from Plaintiffs because TUSD has acted in bad faith, even as to the PUSP. For

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example, TUSD has ignored even the most basic reporting requirements under the PUSP, it

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failed to hire the internal compliance officer for more than a year and a half, failed entirely

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to hire an external compliance monitor, and continues to provide only limited disclosure of

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information on the distribution and expenditure of desegregation funds. TUSD has failed to

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make the periodic updates regarding the development of the site plans called for in the PUSP,

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failed to address the issue of under-representation in minority-student AP, Gifted programs

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and intercultural proficiency as well as disproportional suspensions and achievement as

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required in the PUSP. The Fisher members to the PUSP Committee complain that generally

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they have made repeated inquires and have received no replies from TUSD regarding various

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aspects of PUSP. Fisher strenuously objects to TUSD’s abandonment of the PUSP or any

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downward departure from the minimal level of accountability found in the PUSP and

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envisions that a remedial desegregation plan should incorporate and increase specific

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obligations and accountability currently effective under the PUSP. Fisher calls for a

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desegregation expert to be appointed to guide the development and implementation of a

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desegregation plan.

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The Court agrees with Fisher, but believes that an appointment of a Special Master,

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pursuant to the Federal Rules of Civil Procedure, Rule 53, is most appropriate to address

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effectively and timely this post-trial matter. Fed. R. Civ. P. 53(a)(1)(C) & (b)(2)(A). The

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PUSP was formally adopted by the TUSD Board and accepted by Order of this Court. Until

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a unitary status Plan is developed to replace the PUSP, it remains in place. A change in

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TUSD administration or Board membership does not invalidate it. The Court will require

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any desegregation plan to be designed similar to the PUSP in respect to transparency and

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accountability. The Court intends to move expeditiously within the next 30 days to appoint

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a Special Master, with expertise in the area of school desegregation.

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The parties shall meet and confer regarding the appointment of a Special Master and

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should attempt to agree on the individual to be appointed. See Fed. R. Civ. P. R. 53(a)(2)

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(parties may stipulate to appointment of Special Master that is not a “totally disinterested”

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party). Given the lack of good faith exhibited by TUSD in this case, the Court intends

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funding for the Special Master to be paid by TUSD, but the parties should agree on fee

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parameters and whether it is appropriate to pay the Special Master from desegregation

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money. If unable to agree on a Special Master appointment, each party shall propose at least

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two names of candidates for a Special Master, who will be charged to perform the tasks

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proposed below.

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Additionally, the parties should attempt to agree on the provisions required to be in

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the contents of the Order of appointment, such as the scope of the reference, the issues to be

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investigated, the circumstances under which ex parte communication with the Court or a

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party will be appropriate, the time-frame and format for delivering the master’s record of

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activities and final Report to the Court. Fed. R. Civ. P. R. 53(b)(2). The parties should

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consider whether or not to stipulate that the Special Master’s findings of fact are to be

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accepted as final, leaving only questions of law for de novo review by the Court. Fed. R.

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Civ. P. R. 53(g)(4).

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In order for the parties discussions to be more productive, the Court provides the

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following outline regarding requirements for the Special Master’s Report. The Report will

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be the Plan for TUSD to attain unitary status proposed by the Special Master after

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considering the positions of all parties, including the Plaintiff-Intervenor the United States.

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See Fisher v. Tucson TUSD, 2011 WL 2806556, at *7 n. 24 (9th Cir. July 19, 2011) (noting

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that the United States expressed the view that TUSD had not attained unitary status). The

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Plan shall include specific substantive programs and provisions to be implemented by TUSD

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and an implementation time schedule including benchmark dates covering at least the initial

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completion of the Plan, implementation time schedules for all proposed Plan programs or

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provisions, review and revision deadlines, and identify the final unitary status deadline. The

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Plan must include review and evaluation criteria for each required program or provision.

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The initial Plan shall include a recommendation, supported by findings of law and

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fact or stipulation of the parties, as to whether partial withdrawal of judicial oversight is

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warranted for any Green factor.

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In addition to substantive program recommendations, the Report must include a

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financial plan. In addition to creating a unitary status Plan with financial integrity, the Plan

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should provide for public accountability through specific provisions for transparency which

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identify all funding sources, federal, state and local, and the amounts flowing to the Plan’s

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specific components. The Plan shall include recommendations for budgetary oversight and

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reporting formats including a review schedule to ensure parents and students can see these

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dollars at work and identify Plan limitations that result from budgetary restraints.

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The Special Master shall provide the initial Report to the Court, which will include

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the Unitary Status Plan, Supplemental Benchmark Reports and Review and Revision

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Reports, and a Final Unitary Status Report to the Court. In addition, the Supplemental

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Reports will make a finding as to whether the Plan is on schedule or if there have been

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delays, and if so, the Report shall explain the reason or cause for the delay and identify the

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responsible party, if there is one. Each Report will recommend any action to be taken by the

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Court.

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The Special Master shall be paid by a schedule that is linked to finished products so

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that periodic payments are made at the completion of the initial Report, each Supplemental

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Report, and the Final Unitary Status Report, upon the Court’s finding that a Report has met

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the requirements and criteria of the Special Master’s appointment.

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Finally to expedite the resolution of this case, all parties, including the Plaintiffs-

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Intervenors are directed to prepare briefs to be provided to the Special Master, which

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outlines their positions regarding any Green factors which are not at issue in this case where

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partial withdrawal of judicial oversight is appropriate and their positions regarding the

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adequacy of the PUSP as a starting point for the Plan and identify the areas in the PUSP

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which should be incorporated, omitted , supplemented, and/or improved to make it a Plan for

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unitary status. The Plaintiff-Intervener, the United States, shall provide an explanation of its

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role in this case, specific to the preparation of the Unitary Status Plan and whether it can

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provide any special expertise to assist the Special Master and/or at a minimum assist in

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identifying an individual to serve as a Special Master in the case.

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Accordingly,

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IT IS ORDERED that the Request for a Status Conference (Doc. 1312) and Request

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for Direction by holding Status Conference (Doc. 1319) are DENIED.
IT IS FURTHER ORDERED that the Request for a Settlement Conference or
Appointment of Mediator (Doc. 1313) is DENIED.

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IT IS FURTHER ORDERED that within 5 days of the filing date of this Order,

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any party objecting to the appointment of a Special Master in this case shall file an Objection.

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Any Response shall be due within 5 days. There will be no Replies.

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IT IS FURTHER ORDERED that within 20 days of the filing date of this Order

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the parties shall jointly file a Memorandum (Joint Memorandum) with the Court that

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identifies the Special Master stipulated to by the parties, or if the parties are unable to agree

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on an appointment, the names of individuals proposed for appointment as Special Master in

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the case.

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IT IS FURTHER ORDERED that the curriculum vitae be attached for any
individual proposed for appointment as Special Master in this case.

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IT IS FURTHER ORDERED that the Joint Memorandum shall reflect whether the

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parties agree, and if not the differing positions of the parties as to the fee parameters for the

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Special Master and whether desegregation money may be used to pay the Special Master.

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IT IS FURTHER ORDERED that within 30 days of the filing date of this Order

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the parties shall jointly prepare and file a proposed form of Order for the appointment of the

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Special Master, which satisfies the requirements set out in Fed. R. Civ. P. R. 53(b)(2) and

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specifies whether the parties shall stipulate that the Special Master’s findings of fact are to

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be accepted as final, Fed. R. Civ. P. R.53(f)(3).

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IT IS FURTHER ORDERED that within 30 days of the filing date of this Order

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the parties shall prepare and file memoranda regarding the appropriateness of partial judicial

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withdrawal and memoranda regarding the adequacy of the PUSP. Each party may file one

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brief per subject which may not be longer than 15 pages. There will be no Responses or

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Replies.

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IT IS FURTHER ORDERED that within 10 days of the filing date of this Order
the Plaintiff-Intervenor shall file the brief requested by the Court.
DATED this 13th day of September, 2011.

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