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Court releases TUSD from desegregation oversight, nearly 50-year-old lawsuit ends

Tucson's largest school district 'has acted in good faith to eliminate the vestiges of discrimination' — Federal judge on case for 2 decades

Nearly 50 years after a desegregation lawsuit began, the Tucson Unified School District has been released from oversight after successfully following court orders during a decades-long legal battle, a federal judge ruled this week.

The case has wound through the courts during that half-century, through multiple appeals and plans and reversals of decisions, with four separate federal judges devoting parts of their careers on the bench to overseeing the process of dismantling the systemic discrimination within Tucson's largest school district, and with millions of dollars spent on attorneys and millions more on changes to schools and curriculum.

In the latest move — and perhaps the final word — U.S. District Judge David C. Bury wrote a complex 18-page decision, ruling that TUSD has "demonstrated a good faith commitment to eliminate the vestiges of past discrimination." Bury wrote the district has successfully followed a plan — known as a "unitary status" plan — since 2013.

En español: Corte libera a TUSD de la supervisión de la desagregación, el fin de un pleito de casi 50 años

That plan was based on a decision two years earlier by the 9th Circuit Court of Appeals, who ordered Bury — who had tried to wind up the case in a 2009 decision — to again take oversight of the case until satisfied the district "demonstrated its good faith compliance" with a settlement agreement "over a reasonable period of time" and Bury was convinced TUSD has "eliminated the vestiges of past discrimination to the extent practicable."

In a court order signed Tuesday and filed Wednesday, Bury wrote that he recognized compliance with the USP was "an ambitious undertaking and difficult going at times," and added TUSD has "substantially complied with the USP."

TUSD has "accepted the principle of racial equality," Bury wrote.

The lawsuit began in 1974 when Maria Mendoza claimed Tucson's largest school district was effectively "tri-ethnic" because it treated Black, Hispanic and white students differently.

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Mendoza was later joined by Roy and Josie Fisher, who filed their own challenges on behalf of Black students, along with Edward Conteras.

Four years later, a court ruled that while TUSD had "dismantled" the racial segregation of Black and white students as required under Arizona law in the 1950s, "there existed some intentional segregation" of Black and Mexican-American students from white students at the district.

Dr. Gabriel Trujillo, the superintendent of TUSD praised Bury's decision, writing that the court's order "formally recognized the good faith effort, and success, that our district has exhibited over the years in addressing the vestiges of past segregation."

"And most importantly, the order relinquished supervision, control, and authority by the court over the Tucson Unified School District and returned full control and authority to our duly elected Governing Board," Trujillo said. "Our administration and district community are proud of the work we do every day to ensure we remain committed to the principles of equity and opportunity for every child and young person in the district and will continue our commitment to this important work under the direction of TUSD Governing Board."

TUSD Board President Adelita Grijalva said Bury's decision means the board can now "make decisions about the direction of the district."

She said follow-up questions remain about what Bury's decision means for the district, however in an interview with Tucson Sentinel on Friday, Grijalva said the district would be able to make "programmatic decisions"— including school additions and closures, changes to the student code of conduct, and set the district's budget without the court's approval.

There have been times, she said, when the plaintiffs from the lawsuit had "more authority than the elected board," she said. She added the district and the court had been able to "work well together," but added that some times it's been "a little frustrating, and Bury's decision means the five people who "were duly elected to serve as school leaders" can now direct the future of the district.

Representatives for the plaintiffs in the case did not immediately respond to the Sentinel's requests for comment on the court decision.

Until 1951, Arizona law required districts to segregate Black students. In 1951, when the law changed to allow but not mandate racial segregation, TUSD shuttered its one school for Black elementary students and sent those kids to neighborhood schools.

Even so, vestiges of segregation remained evident decades later.

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Mendoza filed a lawsuit on behalf of her son, a junior high student in 1974, claiming TUSD was still discriminating against minority students. That lawsuit was later combined into a class action with suits filed by others, and the U.S. government joined as a plaintiff.

"Defendants have maintained their tri-ethnic school system by means of discriminatory construction policies, segregatory zone lines, racially imbalanced feeder patterns, free transfer policies, tracking, and discriminatory staff assignments," Mendoza claimed.

TUSD also discriminated in class offerings, such as providing predominately white schools with college prep and four years of foreign language instruction, but not doing so at schools with mostly Hispanic students, the suit claimed, calling such practices "intentional segregation and unconstitutional discrimination."

In 1978, U.S. District Judge William C. Frey found that the effects of segregation remained in the district, and approved a desegregation plan that was agreed to by the school district, the plaintiffs and the Justice Department.

That plan called on Tucson schools to “eliminate the vestiges of past discrimination” through a number of measures, such as reassigning students through busing programs and eliminating discrimination in teacher assignments and training, student testing and discipline. The system had to report to the court annually on its progress and on school enrollment and staff assignments by race and ethnicity.

Judge Frey died in 1979, and the case was for a time transferred to District Judge Mary Anne Richey, who died in 1983.

Under the court-ordered desegregation plan, the school system was allowed to petition to end the agreement after five years, but it took 25 years before such a request was made — and then only after the judge asked the school system and the plaintiffs if there was any reason why the settlement should not be dissolved.

For many of those years, the case was overseen by U.S. District Judge Alfredo C. Marquez, who declared a conflict of interest during a telephone conference with attorneys in the case in 2003, and removed himself from the case.

The case was then assigned to District Judge Frank R. Zapata — who promptly declared that he also had a conflict in the case, which was then shifted to Bury.

While Bury, who had only recently been appointed to the bench by President George W. Bush, had been a longtime partner in a law firm that did work for TUSD, he did not find that he had a conflict.

In 2005, the school district petitioned the court for a declaration of unitary status and termination of court oversight.

Bury ruled in 2009 that the school district had not shown it had acted in good faith on desegregation and that it had failed to “monitor, track, review and analyze the effectiveness” of desegregation programs and policies. He also “raised significant questions” about whether the district had eliminated the vestiges of desegregation.

Despite that, he declared the Tucson school system had "unitary status," saying that “successful desegregation will exist when the district is accountable to the public” for its operations once more.

The plaintiffs appealed, and the 9th Circuit reversed that ruling in 2011, citing a lack of plans to monitor racial imbalance. The appeals court "did not hesitate" to remand the case to Bury, and a special master, Willis Hawley, was appointed to oversee the creation of a plan to ensure that TUSD is maintaining "unitary status" and not discriminating.

"We order it (the lower court) to maintain jurisdiction until it is satisfied that the school district has met its burden by demonstrating — not merely promising — its good-faith compliance,” the 9th Circuit ruled.

 That unitary status plan was proposed in 2012, but years of further legal wrangling ensued, complicated in part by the controversy over the Mexican American Studies courses that caught the eye and ire of many Republican politicians in Arizona.

In 2018, Bury ordered that some of TUSD's operations be removed from court oversight, saying that the district had achieved "partial unitary status." TUSD attorneys said that move was "like a gold star on the report card," without much practical effect.

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Even so, the attorneys for the plaintiffs appealed in 2020, asking the 9th Circuit to reverse that order.

Earlier this year, Bury again signaled he wanted to end his supervision of the district and wind up the case, informing both sides that he was finding that TUSD had achieved full unitary status, except for some transparency and reporting measures.

While the Mendoza and Fisher plaintiffs objected to ending court supervision, Bury's order this week granted a judgment in favor of the district.

"Once the district attains unitary status the Governing Board is the appropriate entity, not the court, for providing further oversight," he wrote, further noting that "what matters at this juncture is whether the district has acted in good faith to eliminate the vestiges of discrimination."

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Kevin Asher/TucsonSentinel.com

A pro-Ethnic Studies demonstrator outside TUSD headquarters in 2011.