Fisher v. Tucson Unified Sch. Dist.

• Decision Date: 19 July 2011
• Docket Number: Nos. 10–15124,10–15375,10–15407.,s. 10–15124
• Citation: 652 F.3d 1131,2011 Daily Journal D.A.R. 10888,11 Cal. Daily Op. Serv. 9067,271 Ed. Law Rep. 778
• Parties: 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.Roy Fisher; Josie Fisher, Plaintiffs–Appellants,andMaria 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.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,andSidney L. Sutton; Sally J. Sutton; John R. Centeno; Mary Katherine Centeno; Librada G. Ruiz; Sidney Taize, Defendant-intervenors.
• Court: U.S. Court of Appeals — Ninth Circuit

652 F.3d 1131

271 Ed. Law Rep. 778

11 Cal. Daily Op. Serv. 9067

2011 Daily Journal D.A.R. 10,888

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.Roy Fisher; Josie Fisher, Plaintiffs–Appellants,andMaria 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.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,andSidney L. Sutton; Sally J. Sutton; John R. Centeno; Mary Katherine Centeno; Librada G. Ruiz; Sidney Taize, Defendant-intervenors.

Nos. 10–15124

10–15375

10–15407.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 10, 2011.Filed July 19, 2011.

Rubin Salter, Jr., Tucson, AZ, for the Fisher plaintiffs-appellants/cross appellees.Cynthia Valenzuela Dixon, Mexican American Legal Defense and Educational Fund, Lois D. Thompson, Jessica Freiheit Kurzban, and Jennifer Roche, Proskauer Rose, LLP, Los Angeles, CA, 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, AZ, for defendant-appellee/cross appellant Tucson Unified School District.Appeal from the United States District Court for the District of Arizona, David C. Bury, District Judge, Presiding. D.C. Nos. 4:74–cv–00090–DCB, 74–cv–00204–DCB.Before: BETTY B. FLETCHER and SIDNEY R. THOMAS, Circuit Judges, and NANCY GERTNER, District Judge.^*

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 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, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968) (citations omitted).² The test used to determine when unitary status has been achieved, and accordingly when federal court oversight may end, is well-established:

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, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995) (alterations in the original) (quoting Freeman v. Pitts, 503 U.S. 467, 492, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992) (quoting Bd. of Ed. of Okla. City Public Schs. v. Dowell, 498 U.S. 237, 249–50, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991))). The school district bears the burden of making these two showings. Id. at 88, 115 S.Ct. 2038.³

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, 112 S.Ct. 1430. 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, 112 S.Ct. 1430.⁴ When a school district demonstrates 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, 111 S.Ct. 630 (quoting Green, 391 U.S. at 435, 88 S.Ct. 1689); accord Jenkins, 515 U.S. at 88, 115 S.Ct. 2038. The Court has emphasized that desegregation decrees must “address all these components of elementary and secondary school systems.” Freeman, 503 U.S. at 486, 112 S.Ct. 1430 (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, 112 S.Ct. 1430, 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, 112 S.Ct. 1430, and aware of the deference owed district courts in such cases,⁵ 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, 113 S.Ct. 2264, 124 L.Ed.2d 539 (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, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986) (quoting Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 501, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)).

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 District ⁸ 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 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...