Half-century-old Tucson school segregation case returns to the Ninth Circuit

(CN) — Former students and parents of the Tucson Unified School District in Tucson, Arizona, argued before the Ninth Circuit Wednesday that the district still hasn’t complied with a 45-year-old desegregation order.

The district, which operates 89 schools serving more than 48,000 preschool to high school students, has been under “demanding, detailed and relentless supervision” since 1978, school district attorney Ben Cooper reminded the three-judge appeals panel Wednesday morning in a federal courthouse in San Francisco.

A federal judge in Arizona released the school district from that supervision in July 2022 when he decided it had made a good faith effort to rid the district of “remaining vestiges of discrimination.” The plaintiffs in the 1974 lawsuits disagreed, and appealed the decision two months later.

“TUSD did not follow the court order,” plaintiff attorney Ernest Herrera told the panel. “The school district failed to monitor, track, review or analyze the effectiveness of its programs and policies.”

Herrera, representing a group of Mexican-American former students, conceded that the district has complied with some of the goals set out by the desegregation plan, but has made no effort to investigate or explain why it hasn’t achieved other goals. That, he said, is evidence of a lack of good faith.

Cooper disagreed.

“Perfection is not the standard,” he said. “Outcome is not a factor. There are a lot of things that affect outcome,” other than the school district’s efforts.

The standard for both compliance with the desegregation order and a good faith effort, he explained, is an effort “to the extent practicable.”

“You have to seek to close the gap,” he said. “The district is fully committed to doing the best it can for all the kids.”

Robin Salter, representing a group of Black former students, said the district’s efforts lacked good faith because it tried to eliminate its alternative education program, which replaced traditional suspensions, and other out-of-school disciplinary measures intended to improve students’ education while under discipline.

The district “would have eliminated the whole program if [U.S. District Judge David Bury] had not stepped in,” Salter said, adding that Black students in the district are still three times more likely to be disciplined than their white peers.

Test scores among Black and Mexican-American students still lag behind, Herrera told the panel, proving those students still aren’t being given necessary resources, and that many schools in the district are still segregated by the standards set in the original order.

The 1978 order requires that the percentage of students of a particular demographic in a particular school not be 15% higher or lower than the percentage of that demographic that lives in the area from which that school accepts students.

But Judge Bury widened that margin to 25% in 2021, allowing for easier compliance.

“If you relax it that much, then you’re not really meeting it,” Herrera offered.

The plaintiffs laid out in their opening brief multiple examples in which they believe the district has failed to comply with court orders. In addition to its discipline programs, those include student achievement, hiring and retention of minority faculty and staff, transportation and transparency.

But Cooper maintained that the district is doing everything it can.

“What more could be done?” he asked. “What T’s haven’t been crossed? What I’s haven’t been dotted?"

He continued: “The plaintiffs’ central complaint is that the district could do better. Every district could do better. Regardless of whether it’s ever been segregated.”

The case stems from two lawsuits filed in 1974 on behalf of students and parents in the school district, claiming racial segregation and discrimination. A federal judge found after a 1977 trial that the district acted with segregative intent, and ordered the desegregation the following year.

Judge Bury ended the court oversight once in 2008, though he wrote in his ruling that the district had “failed to make a good faith effort to combat the demographic changes in the district,” and “exacerbated the inequalities of these racial imbalances because of its failure to assess program effectiveness.”

The Ninth Circuit reversed that order in 2011, citing Bury’s own language as its main reason.

Bury found in 2021 that the district was close to compliance, lacking only in transportation and transparency. He found it in compliance in those regards the following year.

The panel was made up of Joe Biden-appointed U.S. Circuit Judge Jennifer Sung and Donald Trump-appointed U.S. Circuit Judges Daniel Collins and Danielle Forrest. The panel didn’t indicate when it will rule.

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