Friends and Colleagues:
This is to update you on the District’s petition for partial unitary status; the Mendoza Plaintiffs’ objection to the petition (shared with you previously), which was joined by the Fisher Plaintiffs’; the Special Master’s recent filings with the Court regarding unitary status (see below); and, finally, the Court’s most recent order in this matter.
On May 10th Special Master Hawley filed a motion with the Court, requesting an additional 30 days to provide a report and recommendation (R & R) regarding the District’s petition for unitary status in six areas. The motion states:
SPECIAL MASTER’S REQUEST FOR EXTENSION OF TIME TO RESPOND TO MENDOZA OBJECTIONS
The Mendoza objections to the District’s bid for partial unitary status are broad in scope. Before I can make a reasonable response to these objections, I will need to pursue issues of major consequence. This will require a minimum of 30 days. I am therefore seeking a change in the timeline for submission of the Report and Recommendation now scheduled for May 12, 2017. The details of the revised filing schedule will be developed in consultation with the parties and will be submitted to the court for approval no later than May 19.
Accordingly, the Special Master respectfully requests that the Court extend the time for the submission of a Report and Recommendation concerning partial unitary status to May 19, 2017.
The May 11 filing by Dr. Hawley states:
RECOMMENDATION OF SPECIAL MASTER TO DEFER ACTION
After careful consideration of the breadth of the Mendoza objections, joined by the Fisher plaintiffs, to the District’s bid for partial unitary status, any responsible response to the Mendoza plaintiffs would require the Special Master to essentially review the activity of the District on virtually all of the requirements of the USP. Such a review is premature.
The Special Master therefore recommends that the Court defer action on the District’s proposals for partial unitary status without prejudice. This recommendation should not imply that the District has failed to meet the criteria for partial unitary status with respect to transportation, extracurricular activities, family and community engagement, facilities, technology, or the evidence based accountability system.”
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On May 17, 2017, the Court issued an order (see above) in response to the Special Master’s filings, which adopts his recommendation to defer action. However, the Court’s decision seems to be based on the assumption that TUSD is intending to file for complete unitary status in the immediate future. The order points out that the Court is awaiting the Special Master’s Annual Report as well as a great deal of pending information from him and once received, the Court recognizes that there will likely be objections to the Report and comments/inquiries on the pending information.
The Court order states,
“… within seven days of the filing the Special Master and the parties shall meet and confer to develop the timeline and deadlines for filing the Special Master’s Report and Recommendation regarding the status for attainment of unitary status in TUSD and that the Special Master shall file the briefing schedule and filing deadlines with the Court within 14 days from the date of the order.” It also states, “Given the time constraints faced by the Special Master and the Court, the Court finds that deciding whether to grant partial unitary status would be an ineffective use of Court resources so close in time to when the question regarding attainment of unitary status in total is scheduled to commence. The better approach is for the parties to use the briefs as a starting point for discussion.”
Since much of the order is driven by the assumption that TUSD will be filing a petition for complete unitary status in the immediate future it is my hope that this critical point will very soon be clarified and that, in fact, TUSD itself recognizes the folly in claiming full compliance with the USP anytime in the immediate or near future. To pursue any other avenue will result in additional loss of time in actually implementing the USP and will, of course, once again rack up attorney fees which could and should be better directed to the District’s efforts to actually comply with the court order rather than simply continue to go through the motions.
The Special Master states that his recommendation should not imply that the District has failed to meet the criteria for partial unitary status. However, his recommendation indicates that he does not currently have the verified evidence required to show that the District is in compliance with the USP. For those who follow this issue carefully either inside or outside of TUSD, non-compliance seems most obvious and tangible.
I have become increasingly alarmed about the added time and costs in dealing with the District’s litigious pattern, the most recent of which is its petition for partial unitary status. Over the last four years, it has been one costly court battle after another and, for the most part, TUSD’s legal challenges have not been upheld either by the Federal District Court or by the Ninth Circuit Court of Appeals. Many of you have shared the same concern with me.
It is not at all clear that the Board has received any verifiable evidence of compliance within the six areas over which it is seeking unitary status, other than the administration’s written and spoken word, which stops drastically short as evidence which has been validated. (The same is true, however, for all areas of the USP.) Most certainly, the Plaintiffs in the case have not received what can be recognized as provable information or data. The recent loss of the magnet status for six magnet schools based on the District’s anemic efforts in supporting the schools, along with its long-standing problems in complying with the USP’s requirements in the area of discipline should force the Board to look much deeper into any claims by the administration of USP compliance and hopefully, recognize that its focused efforts are better spent on implementing the USP. These are only two areas out of many of compliance concern.
It seems most appropriate to share with you one of TUSD’s most recent actions which illustrates its highly questionable good faith efforts in supporting its magnet and transition schools. The Mendoza Plaintiffs’ review of TUSD’s May 2017 proposed magnet and transition school plans, when compared to its previous proposal of March 2017, shows an approximate removal of $1,500,000 in desegregation funding from the schools. The Mendoza Plaintiffs have noted the funding and resource starvation of TUSD to its magnet schools in the past (including in their court filings) but to once again witness the current ease with which TUSD continues to extract resources and funding from these schools, from one proposal to another, is in direct contrast to good faith effort. Moreover, TUSD’s May 2017 documents do not readily show the extraction of funding. Instead of presenting clear comparative cost items and figures it is left to the Plaintiffs to cross reference several documents and conduct their own analysis as they have done time and time again in the past. Of course, the Mendoza Plaintiffs have objected to the drastic extraction of funding and have outlined a number of inquiries in this regard. In the midst of the back and forth pertaining to unitary status, this one illustration paints a pretty clear picture of TUSD’s good faith effort in complying with the USP.
As I have stated before, the Mendoza Plaintiffs passionately desire that TUSD obtain unitary status, however, doing so must be done through a bona fide effort in its implementation of the USP and based on verifiable evidence of its full compliance.
Also published on Medium.