Today we will investigate the latest Desegregation filing that TUSD has made with the federal courts (above). The filing was for Partial Unitary Status, which means they have partially fulfilled the Unitary Status Plan (aka Desegregation Order).
We will make the case that:
- TUSD will lose this case as they almost always do.
- This will cost us, the TUSD taxpayer, over a million dollars.
- TUSD should fire, or not renew its annual contract, with Steptoe and Johnson, the Phoenix lawfirm handling the Deseg Case for TUSD.
- TUSD should immediately pull back from this filing. If not items 1 and 2 will become true, yet this is all avoidable at this point.
We will begin with item 2, which will lead to item 3 above. Item 1 will follow and we conclude with our solution to this problem which is stated in item 4.
This filing for partial unitary status may cost TUSD over a million dollars
Below is just a one-month invoice from Steptoe for April 2016 (the earliest I have thanks to a FOIA request by Lillian Fox). The amount varies from month to month but it is around this range; as you can see the previous month was $87,688.40.
For two months the total amount due is $206,647.76.
Besides all the legal fees for the lawyers who charge by the partial hour, we have expenses such as the following scattered throughout the invoices.
In other words, these are the repeated fees that you find over and over again, all because HT Sanchez in his infinite wisdom decided to fire the old firm (because they thought he should not file for Unitary Status) and found a law firm that would file for around $100,000 per month.
But since Steptoe is out of Phoenix, we the TUSD taxpayers are paying for their attorney to drive down to Tucson, stay at the Marriott and pay for parking, repeatedly. In total, $4,400 has accrued just to pay them to travel to Tucson, hotel rooms, meals and parking.
Now compare this to the legal fees incurred by the attorneys for the Mendoza (Mexican-American) Plaintiffs.
For the ENTIRE YEAR of 2015 the attorney fees for the Fisher (African-American) Plaintiffs was $286,860, just over the amount Steptoe charges for two months of work.
For THREE months, April 1st to June 30th, 2016, their total costs were less than the amount Steptoe charges for just one month!
The latest invoice that MALDEF (Mendoza) sent to TUSD was in January and it was for the invoice you see above. Kristel Foster, even though she voted to pay Steptoe up to $5 million to fight the Mexican-American Plaintiffs, was the sole NO vote when TUSD had to pay MALDEF, something it HAS to do.
What does Kristel have against Mexican-American students in TUSD?
Today TUSD will vote to approve the payment for the Fisher attorneys for the entire 2016 year; a total of $145,000. Notice that this is less than the amount Steptoe costs for just two months of 2016.
Kristel Foster faces a dilemma tonight. Will she vote no against the African-American students like she did with the Mexican-American students in January, or will she vote yes and prove that she really is unfair when it comes to treating all parties the same?
Now with this huge filing by TUSD for partial unitary status, the Fisher and Mendoza attorneys will have to respond to fight it. This will cost much more money. Steptoe will easily spend the $1,000,000 they are allocated per year, and the Plaintiffs legal fees will easily ensure that the total cost to the TUSD taxpayer is well over a million.
And TUSD will lose. At least two board members, HIcks and Stegeman, have admitted to me that they know TUSD will most likely lose.
So why continue down this path of wasting millions of dollars? Not only is it a waste of money, but a huge waste of time and energy as all parties gather the evidence and put their cases together in the coming months.
TUSD should pull out from this filing that Steptoe did for them and…
Fire Steptoe, or stop using them on this case. Enough is enough!
TUSD is NOT anywhere near unitary status!
What exactly does it mean for a public school system that is under a desegregation court order to be granted unitary status? When a school district believes that it has fulfilled all of its legal requirements under its federal desegregation court order and that it can prove its compliance, a school district such as TUSD can petition the Court for unitary status. This is where TUSD is now and the filing is above.
The court then sets into motion a review of the District’s compliance using legal standards. Of course, the Plaintiffs will review the evidence which is provided and are able to dispute or agree with what is presented.
Fisher and Mendoza will do exactly that, and they almost always win!
The school district has the burden of convincing the court that it is in full compliance. If the Plaintiffs disagree that the District has met its legal obligations, the Plaintiffs are able to dispute the school district’s position. The Court then weighs the evidence and renders a decision.
The process may take several years, and recall that Steptoe wants this to drag out since they make $1,000,000 per year!
TUSD has filed for unitary status before, and it was a disaster.
In 2004, when Roger Pfeiffer was the TUSD Superintendent, the Federal Court issued an order which directed the parties to show cause why the Court should not declare the school district unitary and terminate its jurisdiction. Judge David Bury was appointed as a federal judge in March of 2002, only two years prior to issuing this order. His actions were instigated by the appearance of the Plaintiffs and TUSD, the Defendant, who went before the Court in addressing the Keen Elementary School proposed closure. The appearance by the parties brought the desegregation case to the forefront to the Court, a case which at the time had been under the Court’s jurisdiction for twenty-six years.
In response to the court order, in 2005 Tucson Unified School District Governing Board petitioned the Court for Unitary Status. This action was taken despite a comprehensive report that had been submitted and presented to the Board by the TUSD Independent Citizen’s Committee (ICC) which showed non-compliance with the desegregation court order in several areas.
The report showed significant disparity and adverse impact on African American and Latino students when compared to non-minority students.
The report was fundamentally ignored by those sitting on the Board at the time:
- Bruce A. Burke, President
- Adelita Grijalva, Clerk
- Judy Burns, Member
- Joel T. Ireland, Member, and
- Alex Rodriguez, Member.
Specifically, the report showed significant disparity in the following areas:
- Identification and Placement in GATE – under-representation of African American and Latino students)
- Enrollment in Advanced Placement – under-representation of African American and Latino students
- Placement in Special Education – Exceptional Education- over-representation of African American and Latino students
- Suspension Rate- over-representation of African American and Latino Students
- Academic Achievement- significant disparity in achievement levels for African American students and Latino students
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Other areas which were addressed in the ICC Report include:
- reduction in force at five “desegregation” schools: Carrillo, Drachman, Borton, Holladay, and Jefferson Park. Four of the five schools are magnet schools;
- the desegregation budget and the lack of transparency/accountability; and
- staff development pertaining to integration,
- quality of education and equal access.
The ICC report indicates that much of the information which was requested by the ICC was never provided; leaving many areas without a comprehensive compliance review.
Both the Fisher and Mendoza Plaintiffs opposed the District’s petition for unitary status and strenuously argued their position through numerous court filings.
Nonetheless, in 2007 and 2008 the Court ordered preliminary findings of unitary status and in 2009 accepted the Post Unitary Status Plan and lifted the court order. Both sets of Plaintiffs appealed the District Court’s ruling to the Ninth Circuit Court of Appeals submitting volumes of documents showing the District’s lack of good faith effort and non-compliance with the court order. DOJ joined the private Plaintiffs in their position opposing unitary status, before the Court.
After two years, in 2011 while the TUSD was about to ban its Ethnic Studies program, the Ninth Circuit Court of Appeals remanded the desegregation case to the District Court. The court records illustrate that the District’s undertaking to gain unitary status was falsely founded and the District Court’s judgement was severely flawed.
Yet, the legal exercise cost millions of dollars in legal fees, soaking up time and resources that should have been focused at the schools.
TUSD is now repeating its flawed actions by petitioning the Court for partial unitary status and moving at bullet speed to file for full unitary status in the near future. Kristel Foster bragged about the District’s intentions in this direction during her campaign to regain her seat on the Board. Essentially she said that the District was in compliance with the USP and that relationships between the District and the parties had improved.
Foster did this at the same time that she gallantly boasted about TUSD gaining student enrollment; a premise which has been found to be utterly untrue. Foster was telling voters that the District was in compliance with the court order, while at the time knowing that six magnet schools were about to lose their magnet status. (If she did not know, she should have known, since she should have cared enough about the status of the six schools to stay on top of the facts.) If she had the enrollment numbers in hand, which she stated at one of the forums that she had just received, she then could eyeball the magnet schools and immediately know that several had not met the integration requirements.
Anyone who actually knows a fraction of what goes on within TUSD recognizes that it has had severe problems in complying with the desegregation court order/Unitary Status Plan (USP). The communication from its former Superintendent has been anti-integration and anti-USP implementation. There have been several accounts of this through statements he has made in public meetings and actions he has taken in interfacing with the plaintiffs in addition to the actions/or lack of actions taken in implementing the USP.
Recently at a school board meeting, the Fisher representative spoke during the call to the audience and repeated, in her own colorful words, what the Mendoza representative said during a radio interview; HT Sanchez has been the worst of all the superintendents in the past four decades, and there is no way TUSD is even close to even partial unitary status. A current teacher recently told us that what was different under HT Sanchez was that never before had the Desegregation issue been used to place blame on everyhing bad that ever happened; the USP was never vilified and made into the evil enemy of progress in TUSD before HT Sanchez.
Demagnetization & Lack of Discipline
There are two very obvious areas which expose the District’s extreme lack of communication, attention and resources to critical USP areas: magnet schools and discipline.
The fact that 6 schools have lost their magnet status is not only tragic, it is symbolic of how little attention and care has been given to these schools. If the schools had been properly directed and supported each magnet school could have been exemplary. At least two of the schools have been without principals for a full year which is in itself screams out as an indicator of failure.
Add to this the fact that many of the six schools were not adequately staffed and that professional training in the area of discipline was totally absent from most of the school and it is clear that TUSD set these schools up to do nothing else but fail.
TUSD’s ongoing failure to adequately train site administrators and those involved in discipline practices has resulted in one school after another experiencing severe problems in this area. Within the last three years the administration has done an about-face in managing discipline from one extreme to another.
First, as reported by KGUN9, the TUSD administration signals schools to ignore discipline problems and to do what it takes to keep the numbers low and then when the schools start going into crisis over their lack of attention to discipline, TUSD changes its signal to come-down hard on students, also reported by KGUN9.
Areas such as multicultural education, which has had no director this past year besides us repeatedly bringing to the board’s attention during call to the audience, and culturally relevant pedagogy have also suffered from lack of staffing. The District appears to play games when deciding which positions to fill and which to leave without coverage. The point is: the list of non-compliance runs long and deep.
This reality is very likely true in all of the areas for which TUSD has recently petitioned the Court for unitary status:
- Extracurricular Activities,
- Family and Community Engagement,
- Accountability System.
Utterback had not had any type of parent engagement for the last several years. Only because of the USP requirements, in November of 2016 the first site-based committee met. Its first meeting had no parent involvement in its planning. The Current Interim Principal at Utterback had served as its Assistant Principal. Its Principal is on leave and has been on leave since before the current school year started. At the time that she was appointed as Interim Principal the individual in the position had not read the school’s magnet plan. Utterback’s stage and theater have required repair for the last several years, of which the District is aware. Yet, with blatant examples such as this one, the District has the audacity to claim that it has met its legal requirements in the areas of Family and Community Engagement and Facilities.
Holladay has experienced recent break-ins to the school because the glass which was placed in its windows is not comparable to more secure glass used at several other schools. Wooden boards which are an eye sore dress the school as a depressed and uncared-for school. As a result of the ease to which windows were broken, several computers were stolen. Pueblo has had problems with its AC unit since last year and it has not been repaired.
These are or have recently been magnet schools; the very schools that should have been receiving the needed resources for upkeep to their buildings.
The sad, frustrating, and angering fact is that example after example could be provided of TUSD’s ongoing lack of good-faith effort. Its failure to comply with the USP has been a constant. The former Superintendent figuratively thumbed his nose at the Court and Plaintiffs. TUSD’s relationship with the Plaintiffs has evolved to one of being very dismissive. Some who have been in attendance at the meetings which have been held with the Special Master, the Plaintiffs, and District administrators and legal counsel, have said that the former Superintendent showed up and attended some of these meetings for less than an half an hour and while there was on his Android busily texting or emailing.
During the last meeting according to accounts from those present, he actually remained in the room for a few hours but for most of the time sat away from the group and went into his texting/emailing mode. He made it clear in many ways that he was not interested in the subject of desegregation or in dealing with those involved. His only interest in the case has been to get rid of it by any possible means.
In the last four years TUSD has had three, and soon to be four individuals, in the position of Chief Legal Counsel. (Todd Jaeger has been offered the superintendent position with Amphitheater Public Schools and will be leaving the position.)
TUSD has had three outside legal firms contracted to work on the desegregation case in the last four years with overlapping costs involved with each transition. An additional attorney has been added to the TUSD counsel to also work on the case. In the same amount of time, it has had two administrators assume the role of director or sr. director of desegregation.
Within the legal department itself the following positions support the District in legally combatting the USP, in one form or another:
- the Chief Legal Counsel,
- a student equity compliance liaison,
- the Sr. Director of Desegregation,
- her staff of three which are made up of
- one legal counsel,
- one program coordinator and
- one desegregation program manager,
- in addition to a legal counsel position which is yet to be filled.
Add to this the muscle of the Steptoe and Johnson law firm, housed in Phoenix, which was selected by the former superintendent to ‘get TUSD out of the desegregation case.’ The contract was approved by the Governing Board for a five year contract at $5,000,000. The firm lists three attorneys on their legal filings P. Bruce Converse, Paul K. Charlton and Timothy W. Overton.
Aside from the fact that there has been constant change and lack of continuity, it is obvious that the TUSD legal bureaucracy which has evolved under the Sanchez era and which has been set up to “take on” the desegregation case has become a ballooned enterprise, onto itself funded by millions of desegregation dollars to create records and documents to convince the Court of the District’s compliance with the USP.
What is written in the documents would read as fiction to those who are actually involved in the programs, schools, and services. But the documents are not provided to the schools, programs, or service areas. Think about it. If the District had implemented the USP in good faith effort and had obvious evidence to show its compliance, why would it take an overstuffed enterprise to make its case?
What is so corrupt about what is happening is that desegregation dollars, in the millions upon millions, are being used to fight justice instead of being channeled to programs, schools, and services to actually support compliance with the USP.
Meanwhile, the Fisher Plaintiffs with two attorneys on the case and the Mendoza Plaintiffs with primarily one MALDEF attorney and one pro-bono attorney are obligated to take on the gorged TUSD beast/enterprise in the best interest of the African American and Latino students who they represent. If the District were in compliance with the USP, it would be recognized by many, including the Plaintiffs.
The Plaintiffs have been successful before in surfacing the facts before the Court and they will probably be successful again. However, at what cost in more delay to what should be happening in actually implementing the USP and at what financial cost in diverting millions of desegregation dollars from supporting the USP?
What is taking place is really a political power struggle. Most on the Board have been convinced by the former superintendent that the Court is interfering with their freedom to operate the District as they please. But if those on the Board want to free themselves from the Court’s supervision, perhaps the best thing to actually do is comply with the court order.
Until it does this, unitary status should NOT BE!
And thus we conclude with our case, summarized in Items 1-4 above, that TUSD should NOT be filing for Unitary Status, even partially. TUSD will lose, but in the process of losing the Plaintiffs will be collecting evidence and putting their case together, so even if TUSD decides not to fight this then, their rebuttals will be costing the district six-figures, all so that TUSD can just give up then?
Instead of giving up when Fisher and Mendoza strike back, the current TUSD board should immediately withdraw their filing for Unitary Status, tell Steptoe and Johnson their services are no longer needed, and in doing so TUSD will save the district millions of dollars, and in the process TUSD and both of the Plaintiffs can redirect that time, money and energy to helping the students by following the USP which TUSD itself agreed to as one of the parties.
Also published on Medium.