Appendix — Sanchez v. Tucson Unified School District No. 1
Supreme Court brief1981
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NO. 8U-7¢59 | jz Supreme Court, U.S.
lz. FILED
IN THE NOV 10 1980
SUPREME COURT OF THE UNITED STATES
| cwaen wovax, m. cuene
OCTOBER TERM, 1980
ALBERTO SANCHEZ, et Glee
Petitioners,
vs.
TUCSON UNIFIED SCHOOL DISTRICT
NO. L, et al.; UNITED STATES
OF AMERICA; MARIA MENDOZA, et Biles
ROY and JOSIE FISHER, et al.,
SIDNEY L. SUTTON and SALLY SUTTON,
et al.,
Respondents.
ON WRIT OF CERTIORARI TO
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
APPENDIX
ARMAND SALESE, Esq.
239 North Church Avenue
Tucson, Arizona 85701
(602) 623-7536
Attorney for Petitioners
Alberto Sanchez, et al.
*
NO.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980
ALBERTO SANCHEZ, et al.,
Petitioners,
vs.
TUCSON UNIFIED SCHOOL DISTRICT
NO. L, et al.; UNITED STATES
OF AMERICA; MARIA MENDOZA, et al.,
ROY and JOSIE FISHER, et Gis
SIDNEY L. SUTTON and SALLY SUTTON,
et al.,
Respondents.
ON WRIT OF CERTIORARI TO
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
APPENDIX
ARMAND SALESE, Esq.
239 North Church Avenue
Tucson, Arizona 85701
(602) 623-7536
Attorney for Petitioners
Alberto Sanchez, et al.
TABLE OF CONTENTS
APPENDIX PAGE
A. Opinion of the United
States Court of Appeals
for the Ninth Circuit,
623 F.2d 1338 (1980) 1
B. Order of the District Court,
June 5, 1978, to propose a
desegregation plan 61
C. Order of the District Court,
July 17, 1978 setting date
for hearing on the
desegregation plan 65
D. Order of the District Court,
August 4, 1978 setting date
for hearing on settlement 72
E. Order of the District Court,
August 11, 1978, approving
desegregation plan 75
F. Order of the District Court,
August 11, 1978 denying
Motion for Subclassification 98
G. Order of the District Court,
August 14, 1978, approving
Notice of Settlement 105
H. Order of the District Court,
August 22, 1978 Denying
Request for Discovery 110
I. Order of the District Court,
August 31, 1978 Approving
Settlement 113
TABLE OF CONTENTS - APPENDIX (Cont'd)
Stipulation of
Settlement
Order of U.S. Court of
Appeals for the Ninth
Circuit Denying Motion
for Rehearing, filed
August ll, 1980
Notice of Proposed
Settlement
Report of All Defendants
other than Anita Lohr
Joint Motion for Entry
of Settlement Order
Rule 23, Federal Rules
of Civil Procedure
Code of Professional
Responsibility,
Canons 5 and 7
July 7, 1978 letter to
counsel for District
July 12, 1978 letter to
counsel for District
July 13, 1978 letter to
Plaintiffs from District
counsel
July 19, 1978 letter to
counsel for District
July 25, 1978 letter to
Plaintiffs from District
counsel
PAGE
125
151
153
165
173
180
185
189
193
195
210
219
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 78-3352
MARIA MENDOZA, ETC., ET AL.,
Plaintiffs-Appellees,
and
ALBERTO SANCHEZ, NADINE SANCHEZ,
BETTY SANCHEZ, GEORGE SANCHEZ,
ERNEST SANCHEZ AND JOYN SANCHEZ,
Plaintiffs-Appellants,
and
JULIA O. FLORES, BILLIE GUTIERREZ,
THERESA MEDINA, BETTY M. GRANILLO,
CAROI, CRUZ-POPKIN, BARNEY PAUL
POPKIN, CARMEN P. URRUTIA, MAN’ EL
ALVARADO, CAROLYN HACKWORTH,
GLORIA HAGLER, JOHNNY RANDOLPH-
KELLY, THELMA B. MANRIQUEZ,
ADOLFO A. SUAREZ, NAT WASHINGTON,
II, RALPH O. GOMEZ, JUAN BRITO,
MARCIA ALMEDA, EMILIA TALAMANTEZ,
ELLEN LEE, ESPERANZA SILVA,
ANTONETTE ROMO, RONALD Q. HUERTA
AND LUPE MONTANO,
Plaintiffs-Objectors-
Appellants,
é UNITED STATES OF AMERICA,
Plaintiff-Intervenor-
Appellee,
Vv.
TUCSON UNIFIED SCHOOL DISTRICT
NO. he ET AL.,
Defendants-Appellees.
OPINION
Appeal from the United States
District Court for the
District of Arizona
Before: CHOY and SNEED, Circuit Judges,
and EAST,* District Judge
Opinion of the United States
Court of Appeals for the Ninth Circuit
Filed June 27, 1980;
623 F.2d 1338
*Honorable William G. East, Senior United
States District Judge for the District of
Oregon, sitting by designation.
é EAST, District Judge
The plaintiff-objector-appellant Al-
berto Sanchez, appearing individually and
on behalf of his above-named minors, ap-
peals the District Court's orders entered
on August 11, 1978, which approved a sub-
mitted plan of desegregation, and August
31, 1978, which approved the settlement
arrangement for desegregation of the
Tucson School District No. 1. He also ap-
peals the District Court's order of August
11, 1978, which denied the certification
of a subclass and various other discovery
and post-August 1, 1978 orders of the
District Court. We affirm each of the
orders appealed from.
In this class action school desegrega-
tion appeal, certain members of the
minority class, including Sanchez, were
dissatisfied with part of the remedy nego-
tiated by attorneys for the class, the
United States, and the school officials.
Sanchez was allowed to retain separate
counsel and participate, although with a
minimal amount of preparation time, in
hearings on the School District's desegre-
gation plan and the class action settle-
ment. Sanchez also raises issues concern-
ing discovery, notice, and negotiation of
attorney's fees.
I. FACTS
In May of 1974, a school desegregation
action was commenced against the Tucson
Unified School District No. 1 by Black
elementary and junior high school students
(Fisher plaintiffs). That case is now on
appeal in the consolidated case, No. 79-
3378. Several months later, a separate
action was filed on behalf of the Dis-
trict's Mexican-American elementary, junior
high, and high school students (Mendoza
plaintiffs), here on appeal. In late 1975,
the Fisher and Mendoza plaintiffs were
certified as class representatives for
these Black and Mexican-American classes,
respectively. These two causes were con-
solidated in the District Court for hear-
ing and disposition.
Sidney L. Sutton, et al., a group of
white parents opposed to busing, entered
as intervenor-defendants in the Fisher
action in March, 1975.2/ In December,
1976, the United States was permitted to
intervene as a plaintiff in both actions.
1/ Sutton is an intervenor in the Fisher
case only, District Court No. 74-90,
and appeals a later order in that case
in consolidated appeal No. 79-3378,
Fisher v. Tucson Unified School Dis-
trict No. I, F.2d (9th Cir.
1980), decided today. However, Sutton
has no standing to participate in the
present appeal because he was not a
party to the Mendoza action, District
Court No. 74-204, or this appeal. Al-
berto Sanchez, appellant here, is a
party only to the Mendoza case, and his
appeal is properly understood as an ap-
peal only of the Mendoza case. Thus,
Sutton's attempt to raise additional
substantive objections to the August
3lst settlement order by a brief filed
in this appeal does not place those
issues properly before this Court.
The Mendoza amended complaint con-
sisted of seven counts, alleging (1) main-
tenance of a tri-ethnic segregated school
system; (2) discriminatory tracking; (3)
inferior curricula and facilities for
minorities; (4) discrimination in the hot-
lunch program; (5) discrimination in spe-
cial education programs; (6) failure to
take into account linguistic differences;
and (7) lack of bilingual notices. Prior
to trial, counts 2, 5 and 6 were stayed
and severed based upon HEW's approval of
the District's compliance plan to remedy
these problems; and counts 3, 4, and 7 were
dismissed pursuant to stipulation by class
counsel.
After substantial discovery, a con-
soOlidated trial of the Fisher and Mendoza
actions was held in January, 1977. On June
5, 1978, the District Court issued its
joint decision, finding that the School
District had failed to dismantle its former
?*>
dual school system for Blacks and non-
Blacks, and had continued since 1954 to
discriminate against Black elementary and
junior high school students. The Court
found no such dual school system had ex-
isted with respect to Mexican-American
students, nor did any continuing system-
wide practice of intentional discrimination
occur. The Court concluded that nine
schools suffered current effects of the
past intentionally segregative acts of the
School District, and ordered the District
to prepare a desegregation plan with re-
spect to these nine schools.
Post-trial motions were filed by
Fisher and Mendoza plaintiffs, joined by
the United States as an intervenor, to
amend the findings and conclusions, and a
hearing was held on June 28, 1978. Before
a ruling on these motions, plaintiffs and
the School District informed the Court that
they were in the process of discussing a
mutually acceptable plan for desegregation
of the nine schools, as well as resolution
of the other pending issues. Although the
Court withheld submission on these motions,
it nonetheless ordered the District to
submit its proposed plan for desegregation
by July 17, 1978. The order further in-
structed the District to consult with its
residents, and the plaintiffs' class men-
bers, in order to minimize objections to
the plan. Accordingly, the District held
a number of hearings and meetings, both for
the affected parents and for the District's
residents at large. At these meetings, the
District presented desegregation options
and solicited questions and comments. This
process culminated with the District timely
filing its plan for the nine schools on
July 17, 1978.2/ The District Court
scheduled a hearing on the plan for August
8, 1978, requiring that written objections
be submitted by August 4.
On August 4, 1978, the attorneys re-
ported to the District Court that their
discussions had been fruitful: a settle-
ment proposal on all remaining issues in
the lawsuits was ready for the Court's
consideration. The District Court
scheduled a settlement hearing for August
24, 1978, and ordered a proposed form of
notice be prepared. It did not disturb
27 The District actually submitted several
options, indicating the plan it pre-
ferred. The preferred plan "called for
alteration of numerous student atten-
dance zones, the closing of three old
and small inner-city schools and altered
transportation patterns for several hun-
dred Anglo, Black and Mexican-American
elementary and junior high school stu-
dents." Brief of Appellee Tucson Uni-
fied School District No. l, at 9
(footnote omitted.)
the upcoming August 8th hearing on the de-
segregation plan.
The stipulation of settlement adopted
the District's nine-school desegregation
plan, and included provisions for immediate
integration of three additional schools.
It required the District in cooperation
with parents to examine future assignment
policies at several other elementary and
junior high schools, and to eliminate dis-
crimination in faculty assignments, em-
ployee training, and policies on testing
and discipline. Also included were pro-
visions for program improvements, regular
District progress reports, oversight, and
procedural details.
With respect to the lawsuit, the set-
tlement provided for dismissal of all re-
maining counts (numbers 2-7) in the Mendoza
complaint, and the parties agreed that there
would be no further attacks on the District
Court's June 5th order, nor on the desegre-
-10-
gation plan or the settlement. The settle-
ment also provided for $500,000 in at-
torney's fees for class counsel. The set-
tlement was concurred in by attorneys for
the District, the Fisher class, the Mendoza
class, and the United States Department of
Justice.
Meanwhile Sanchez took exception to
part of the proposed desegregation plan.
Specifically he objected to a provision
which called for the closure of three of
the nine affected schools, believing that
it unfairly burdened portions of the Mexi-
can-American class. Sanchez was also dis-
satisfied with class counsel's acquiescence
in the closure of the three schools, and on
July 27, 1978, he requested a substitution
of counsel. Substitution was ordered on
the following August 3.
On August 4, 1978, Sanchez filed a
motion to create a subclass comprised of
Mexican-American parents and their children
lie
residing in the attendance areas of
schools sought to be closed by the District.
Argument was heard on this motion on August
7. Also on August 7, Sanchez moved to con-
tinue the August 24th settlement hearing,
and for additional time to present objec-
tions and alternatives to the District's
desegregation plan. The settlement hearing
was postponed to the following August 30,
over the objections of the other parties,
but no relief was granted on his request
for additional time to object to the plan.
That same day, August 7, Sanchez filed and
served his first request for production of
documents.
Hearings on the desegregation plan
were held on August 8 and 9. The School
District presented testimony in support of
the plan. Due to the settlement, neither
the class representatives nor the Govern-
ment objected or chose to conduct cross-
examination, but sought to reserve such
o12-
Opportunity should the settlement be dis-
approved by the Court. The District's
witnesses were cross-examined by Sanchez,
and he was given the Opportunity to present
evidence. Both Sanchez and Sutton, appel-
lant in No. 79-3378, lodged their objec-
tions to the District's plan and presented
alternatives. The Court then heard com-
ments on the plan from members of the
public.
Two days later, on August ll, the
Court issued two orders. First, it ap-
proved the District's desegregation plans,
finding that they were in compliance with
the June 5th order--that they sufficiently
remedied the violations found to exist in
the nine schools. Second, the Court de-
nied Sanchez's motion for certification of
a subclass. It noted that the subclass's
reason for existing, objection to the
school closures, was mooted by the order
approving the desegregation plans. And in-
@-13<
sofar as its objection reached the settle-
ment itself, the settlement hearing under
Rule 23(e) would protect objecting class
members.
On August 14, 1978, the District Court
approved the form of settlement notice to
class members. Printed in both English and
Spanish, it was published in Tucson's two
daily newspapers. 2’ In addition, copies
of the notice were distributed to community
groups, merchants and churches in the class
members' neighborhoods. The notice con-
tained a brief history of the litigation,
a description of the Court's June 5, 1978
decision, a general summary of settlement
terms, and a notice of the settlement hear-
3/ The notice ran for seven days in one of
the papers and for six in the other.
On the first three days, in both papers,
the announcement appeared in the fine
print typical of legal notices. On the
remaining days, it was published in
standard type and highlighted with a
black border.
-14-
ing.
On August 16, Sanchez filed a motion
for discovery in the form of production of
documents and interrogatories. The motion
was granted on August 22, except as to the
issue of school closure, which had been
determined in the August llth order. Re-
sponses to the discovery were received on
August 25 and August 29.
Just prior to the settlement hearing,
the Fisher and Mendoza plaintiffs filed
memoranda in support of the settlement,
and Sanchez filed papers in opposition.
The settlement hearing was conducted on
August 30 and 31. The Court limited it at
the outset to the question of whether the
settlement was "fair, just, and adequate,"
and declined to entertain testimony on
issues which had already been litigated and
decided (e.g., school closures). Evidence
was taken from the parties at the hearing,
and individual class members were permitted
=15=
to present testimony. At the close of the
hearing on August 31, the Court approved
the stipulated settlement.
Sanchez has appealed the order of
August ll, the final order entered on
August 31 approving the settlement, and
several other post-August 1 rulings. San-
chez here questions the Court's refusal to
certify a subclass, the form, content and
alleged lack of notice, the Court's rulings
on discovery and scheduling of the proceed-
ings, and the propriety of negotiating
attorney's fees along with substantive is-
sues in the settlement of this litigation.
Our jurisdiction to review these issues
rests on 28 U.S.C. § 1291.
II. NATURE OF THE ISSUES.
The issues in this case center around
its status as a class action school desegre-
gation suit. Both its procedural context
as a class action and its substantive con-
text as a school desegregation suit shape
-16-
=
our review and the resolution of the ques-
tions presented.
A. Class Action.
Although this case is substantively a
school desegregation suit, the issues
raised by Sanchez concern the procedural
law of class actions. Sanchez does not ob-
ject to the findings and conclusions in the
Court's June 5th segregation decision, nor
does he substantively challenge the Court's
subsequent approval of the District's de-
segregation plan or approval of the settle-
ment itself. Rather, Sanchez suggests that
procedural infirmities surrounded the con-
sideration and ratification of the plan and
the settlement.
Representative suits carry with them
an accepted structural risk that conflicts
may arise between groups of class members.
It may be unavoidable that some class mem-
bers will always be happier with a given
result than others, but potential injustice
-l7-
arises as the distribution of benefits and
burdens in a class remedy becomes increas-
ingly unequal. Although maximizing the
overall gain is a valid pursuit in resolv-
ing a class action, a small minority of
the class members may not be asked to bear
an unduly disproportional share of the ac-
companying burdens. This possibility of
inadequate accommodation of the interests
of some or many of the class members, par-
ticularly absentee members, is a principal
structural danger in class suits. See In
re General Motors Corp. Engine Interchange
Litigation, 594 F.2d 1106 (7th Cir.), cert.
denied, 100 S. Ct. 146 (1979); Pettway v.
American Cast Iron Pipe Co., 576 F.2d 1157,
1213-16 (5th Cir. 1978), cert. denied, 439
U.S. 1115 (1979).
Recognizing these inherent risks in
class suits, the Rules of Civil Procedure
attempt to counter them by imposing pro-
cedural requirements on the conduct of such
-18-
actions. Fed. R. Civ. P. 23. See Pettway
at 1214. In addition, courts have af-
firmed the special responsibility placed
upon the trial judge to protect the rights
of absentee class members, as well as those
who are named plaintiffs. E.g., Grunin v.
International House of Pancakes, 513 F.2d
114, 123 (8th Cir.), cert. denied, 423 U.S.
864 (1975); Norman v. McKee, 431 F.2d 769,
774 (9th Cir. 1970), cert. denied, 401 U.S.
912 (1971). Overall fairness is the touch-
stone for evaluating the conduct and re-
solution of class actions, and the onus for
this evaluation is vested in the trial
court.
Class actions vary widely in their
circumstances, and the procedural protec-
tions and judicial responsibilities are
necessarily only generally defined. Broad
discretion is granted to the trial judge,
enabling him or her to respond fluidly to
the varying needs of particular cases.
-19-
Therefore, although certain factors must
be considered and certain procedures com-
plied with, much of the judicial oversight
of class actions is in the form of the
sound discretion of the District Court.
See Pettway, 576 F.2d at 1214; In re General
Motors, 594 F.2d at 1133. This will dic-
tate our review of the District Court's
actions.
Sanchez separately participated in
this suit as one whose interests at the
remedy stage of the litigation conflicted
with those of other class representa-
tives’/ and members of the class. As was
apparent at the hearings on the desegrega-
tion plan and the settlement, at least some
other class members share Sanchez's views.
Most of Sanchez's complaints in this Court
arise from the way the District Court ac-
4/ Alberto Sanchez was one of the original
named plaintiffs in the Mendoza action.
=20<
7%
commodated Sanchez's participation as an
objector in the remedy and settlement pro-
ceedings.
Thus, in examining the accommodation
accorded Sanchez, we are for the most part
reviewing the District Court's choices of
how the required procedures were to be
implemented. These are decisions within
the general responsibility for judicial
control and oversight of class actions,
and accordingly are within the Court's
broad discretion. Therefore, beyond as-
suring ourselves that Sanchez's constitu-
tional due process rights were not violated,
Our standard of review for these choices is
whether they reflect an abuse of discretion
by the District Court, in light of the cir-
cumstances and posture of the case. This
posture, i.e., the stage of the proceedings
and the questions being addressed, will in
part be determined by substantive school
Aesegregation law.
B. School Desegregation Context
Many of Sanchez's complaints charging
the District Gourd with failing to pro-
perly accommodate his objections to the
school closures are grounded on a funda-
mental misunderstanding of the purpose of
the school closure question following the
August llth order approving the desegrega-
tion plan. Sanchez's complaints that the
school closure issue was not properly con-
sidered in the procedures Surrounding the
settlement hearing assume the continuing
vitality of this issue after the August
llth order, and what remained to be con-
Sidered in the settlement proceedings, are
determined by the law governing school de-
segregation remedies in the federal courts.
When a federal court finds that a
public school system operates in a manner
infringing upon some students' federal con-
stitutional rights, the Court is empowered
to prescribe a suitable remedy. Keyes v.
> a
School District No. l, Denver, Colo., 413
U.S. 189 (1973); Wright v. Council of City
Of Emporia, 407 U.S. 451 (1972); Swann v.
Charlotte-Mecklenburg Board of Education,
402 U.S. 1 (1971). In the first instance,
however, the Court must give the local
school officials an Opportunity to devise
changes sufficient to bring the schools'
operations within the constitutional stan-
dards. Swann at 16. See Brown v. Board
of Education, 349 U.S. 294 (1955). If the
school officials present a plan which will
correct the violations found, and it does
not infringe upon other rights in the pro-
cess, the District Court must approve that
remedy even if the Court does not believe
it was the most desirable plan which could
= 230
have been selected.>/ See Dayton Board
of Education v. Brinkman, 433 U.S. 406
(1977); Milliken v. Bradley, 418 U.S. 717
(1974).
In the present case, the District
Court in its June 5th decision found con-
tinuing constitutional violations at nine
Tucson schools, and it ordered the School
District to prepare a remedial plan. On
July 17, 1978, following public hearings,
the District filed with the Court several
plans to correct the violations, desig-
2/ This does not, of course, in any way,
- @iminish the District Court's obligation
to carefully scrutinize a school dis-
trict's proposal, to be sure that it
does in fact satisfactorily correct the
adjudged constitutional informities.
Too often have remedies been proposed
which merely perpetuate the segregative
status quo. See, e.g-, Green v. County
School Board, 391 U.S. 430 (1968);
Monroe v. Board of Commissioners, 391
U.S. 450 (1968). The Court's responsi-
bility to review and reject such thinly
veiled forms of continued discrimination
is at the very heart of its judicial
function. But when the school district
has submitted a plan which survives
this searching inquiry, it must be
accepted.
~~
nating the options it preferred. The
Court held hearings on this plan August 8
and 9. On August 1l, the Court issued an
order finding the options acceptable reme-
dies for implementation in September, 1978.
This plan included involuntary busing of
some students and the closing of three of
the nine designated schools.
The hearing on August 8 and 9 was
specifically and solely directed to the
question of whether the District's desegre-
gation plan remedied the constitutional
violations found in the June 5th order, and
whether it did so in a constitutional man-
ner. The District Court's understanding of
its role was consistent with the limited
remedial jurisdiction of the federal courts
in school desegregation cases. As the
Court noted in its August llth order:
"The remedy which this Court has
authority to order must work, it
must work now, and it must not
inflict additional burden on
plaintiffs and the classes they
~25-
represent, nor inflict further
racial or ethnic segregation
Or discrimination on such
Plaintiffs. This Court's
jurisdiction or power does not
extend any further than that.
Concerning all other interests,
parents and others must look to
their elected officials.
xk
"At present, the Court must rule
only on the issue of whether the
defendants' proposed plans for
the upcoming school year suf-
ficiently remedy the violations
heretofore found to exist with
respect to nine schools."
The District Court went on to observe that
the closing of the three schools was not
required by its June 5th Order, but that
those closures were compatible with it.
The Court's careful examination of the
school closures determined that they would
not place an undue burden on minority
Students. Finally, the District Court con-
cluded that the proposed plans were "ac-
ceptable remedies for the constitutional
violations heretofore found."
We believe the District Court properly
perceived its role in reviewing the desegre-
=26<
gation plan. The August llth approval of
the District's desegregation plan was an
independent judgment of the District Court
conclusively deciding the permissibility
of the plan, including the school closures,
for the 1978-79 school year. With this
understanding of the status of the school
closure issue as of August 11, we can pro-
ceed to examine the specific issues raised
by Sanchez.
III. SPECIFIC PROCEDURAL ISSUES
Sanchez argues that approvals of the
desegregation plan and the class action
settlement were done in violation of the
objectors' procedural rights. We address
his several assignments of error below.
A. Timing
Sanchez first objects to the short
period of time available to him to prepare
for the plan hearing and the settlement
hearing.
o2Fe
1. The Plan Hearing
The timing of the plan hearing is one
of the more troubling issues raised by
Sanchez. He correctly points out that he
was allowed very little time to prepare his
objections to the plan. The desegregation
plan was submitted on July 17, Sanchez
requested substitution of counsel on July
27, and the hearing was held August 8 and
9. In addition to objecting to the plan,
Sanchez was simultaneously advancing a
subclass motion and preparing discovery
requests.
We have no doubt that Sanchez received
sufficient opportunity to be heard to
Satisfy constitutional due process require-
ments. See Mullane v. Central Hanover Bank
& Trust Co., 339 U.S. 306 (1950). The
closer question is whether the District
Court abused its discretion in its
scheduling of the remedy hearings, given
its awareness that there were objections
o20—
from within the class.
The fact that the action before the
Court is a class suit imposes special re-
sponsibilities upon the trial judge. As
noted above, representative suits carry
with them inherent dangers of conflict and
compromise of absentee interests. Accord-
ingly, a Court overseeing a class suit
must constantly be sensitive to conflicts
within the class. See Note, Developments
in the Law -- Class Actions, 89 Har. L.
Rev. 1318, 1490 (1976) (judicial awareness
of differences within a class as a pro-
tection of absentee interests). The Court
must be well informed of the views of ob-
jectors, and serve as a guardian of ab-
sentee interests. Mandujano v. Basic
Vegetable Products, Inc., 541 F.2d 832
(9th Cir. 1976); Greenfield v. Villager
Industries, Inc. 483 F.2d 824, 832 (3rd
Cis. 1973). Cf. Norman v. McKee, 431 F.2d
at 774 (context of Rule 23(e)).
o29=
However, the desegregation plan was
not a settlement, and was not bound by the
more formal Rule 23(e) requirements. Fed.
R. Civ. P. 23(e). With respect to the
proposed plan, the District Court's re-
sponsibility was to assure itself that it
had before it all relevant arguments, ob-
jections, and considerations concerning the
plan. The extent, timing and even exis-
tence of the plan hearing rested largely
within the discretion of the trial court.
Review of a trial court's discretion
must always be done in light of the cir-
cumstances of the case. See Anderson v.
Air West, Inc., 542 F.2d 522, 524 (9th Cir.
1976). In addition, we are not to substi-
tute our ideas of fairness for those of the
trial court in the absence of evidence that
it acted arbitrarily, Patterson v. Newspaper
& Mail Deliverers' Union, 514 F.2d 767, 771
(2d Cir. 1975), cert. denied, 427 U.S. 911
(1976), and such evidence must constitute
-30-
a "clear showing" of abuse of discretion,
Flinn v. FMC Corp., 528 F.2d 1169, 1172
(4th Cir. 1975), cert. denied, 424 U.S.
967 (1976). In re Gypsum Antitrust Cases,
965 F.2d 1123, 1128 (9th Cir. 1977). Un-
less we find that the exercise of discre-
tion was arbitrary and constituted plain
error under the circumstances, we will not
reverse. See Bowles v. Quon, 154 F.2d 72,
73 (9th Cir. 1946).
It is significant that the settlement
and objections have com- at the remedy
stage of this litigation, and not during
pretrial proceedings as do many class
action settlements. Here, the District
Court was particularly well informed about
the action, having been intimately associ-
ated with it for over four years. This
association included a full trial on the
merits, familiarity with a voluminous
amount of evidence, and a lengthy and de-
tailed written decision. The Court was
@3}<
able to assess the relative merits and
significance of a given argument or objec-
tion, and determine the amount of detail
needed in the presentations. A further
element properly in the Court's considera-
tion was the desire to implement whatever
plan was approved at the start of the next
school year in September.
The District Court could also assess
Sanchez's opportunity to prepare his ob-
jections to the plan. First, Sanchez had
been involved in the case from its com-
mencement as one of the original named
plaintiffs in the Mendoza action, placing
him in a different position than that of a
passive, insulated class member. Second,
Sanchez requested substitution of counsel
on July 27, meaning that he and his at-
torney had at the minimum nearly two weeks
in which to prepare their objections to the
plan. Third, it was clear from the Dis-
trict Court's order establishing the August
=32-
8th hearing that it was not a settlement
hearing, but rather focused only on the
acceptability of the desegregation plan.
As discussed above, this was limited to an
examination of the adequacy of the Dis-
trict's plan in acceptably correcting the
constitutional violations found in the
Court's June 5th decision. There was no-
thing misleading in the Court's order, and
Sanchez should have been aware of the nar-
row focus of the August 8th hearing. Given
these considerations, the Court could pro-
perly decide that Sanchez could prepare a
presentation for the hearing sufficient to
inform the Court of potential constitu-
tional problems the plan might contain for
those who, due to a conflict of interests
within the class, were not adequately rep-
resented by class counsel on the issue of
school closure.
Thus, in light of these circumstances,
we cannot say the District Court abused its
=33-
discretion in not postponing the plan
hearing.
2. The Settlement Hearing.
Sanchez also contends that he was not
afforded adequate time nor sufficient dis-
covery to prepare for the August 30th set-
tlement hearing. Initially we conclude
that Sanchez's opportunity to be heard was
not so limited or so nominal that it vio-
lated due process requirements. See
Mullane, supra.
Our second inquiry is whether the
District Court abused its discretion in
not continuing the settlement hearing fur-
ther into the future. ©/ Fed. R. Civ. P.
23(e) provides: "A class action shall not
be dismissed or compromised without the
approval of the court ..." It further
6/ The Court granted one request by Sanchez
for a continuance, postpoing the hear-
ing date from August 24 to August 30.
=34¢<
7/
requires that notice of the settlement—
be sent to class members, and though not
mandatory, generally a hearing on the set-
tlement is he1a. 8/ Patterson v. Stovall,
5928 F.2d 108, 114 (7th Cir. 1976). See
Detroit v. Grinnell Corp., 495 F.2d 448
(2d Cir. 1974). Notice and hearing are
provided to assure that there are no un-
represented interests which are unfairly
treated by the settlement. Absent class
members are afforded an opportunity to come
forward and make the Court aware of any un-
disclosed inadequacies. See Norman v.
McKee, 431 F.2d at 774; Pettway, 576 F.2d
at 1214-16. Particularly at the settlement
stage, the Court must be keenly aware of
7/ Sanchez also contests the form of con-
tent of the notice given in this case.
See section III-C, infra.
8/ In school desegregation cases, however,
hearings on proposed remedies are almost
universally held, and it may well be an
abuse of discretion not to conduct one.
=35-
c its role as a "fiduciary [serving] as a
guardian of the rights of absent class
members." Grunin, 513 F.2d at 123.
The form which the Rule 23(e) pro-
cedural protections take is clearly left
to the discretion of the trial court. Fed.
R. Civ. P. 23(e). The Court must have be-
fore it sufficient information to assure
itself that there were not procedural de-
fects in the reaching of the settlement,
and that the substantive terms of the set-
tlement are fair and reasonable. Marshall
v. Holiday Magic, Inc., 550 F.2d 1173,
1178 (9th Cir. 1977); Norman, 431 F.2d at
774; Grunin, 513 F.2d at 123. Although the
Court must be particularly sensitive to any
sacrifice of minority interests, there will
generally have to be some compromise where,
as here, the remedy sought is pervasive
structural relief necessarily affecting all
class members. The trial court must be able
to determine if the balance struck is
-36-
is basically fair, looking to the benefits
to be achieved by the class as a whole, as
well as the distributive effects.
The question presented here is not
whether the trial judge was correct in his
substantive determination of fairness, but
whether he abused his discretion in his
scheduling of the settlement hearing. Be-
cause the purpose of a settlement hearing
is to insure the opportunity for all rele-
vant facts and objections to be placed be-
fore it to intelligently evaluate the
settlement proposal. Detroit v. Grinnell
Corp., 495 F.2d at 462-63; Newman v. S*ein
464 F.2d 689, 692 (2d Cir.), cert. denied,
409 U.S. 1039 (1972). And in reviewing
this question, we must accord great weight
to the trial judge's views. He was close
to the litigants and the case, was far more
familiar with it than this Court, and in a
superior position to perceive what needed
to be known. Cf. Ace Heating & Plumbing
a%Fe
Co. v. Crane Co., 453 F.2d 30, 34 (3a Cir.
1971).
Here, Sanchez had at the minimum
nearly a month to prepare for the settle-
ment hearing, and his discovery requests
were grantea2/ (except as to the issue of
school closure which had been rendered
moot by the Court's August llth order) 229/
Sanchez had been involved in the case from
its inception, and there was a voluminous
9/ Sanchez received his requested material
on August 25 and 29. He could, however,
have chosen to use more expedient dis-
covery procedures, or requested ac-
celerated returns for his requests.
10/ Sanchez suggests that denial of dis-
covery on the issue of school closure
was improper, and that there exist
relevant and unsubmitted facts on this
issue. However, as discussed above,
the Court's August llth order approving
the desegregation plan properly af-
firmed its constitutionality and
rendered further proceedings on the
school closure issue moot. See section
II-B, supra. We understand from San-
chez's brief that given this view of
the Court's August llth order, he con-
cedes that the objectors would not be
entitled to discovery on the school
closure issue.
= 38-
resource of material already available.
As it was, the District Court postponed
the settlement hearing for one week on
Sanchez's motion over the settling coun-
sel's objection. Further, Sanchez has not
demonstrated to this Court any relevant
facts or objections which were not placed
before the District Court.21/
1l/ Sanchez argues that the desegregation
"plan was a part of the settlement, and
thus should have been open to attack at
che August 30th settlement hearing. To
Support his position, he points to the
fact that the class attorneys did not
object to the plan at the August 8-9
hearing, and that the plan was identi-
fied in the settlement. First, the
substance of the plan was reached two
weeks before the stipulation of settle-
ment, and there is no evidence that the
plan itself was a product of settlement
negotiation. Second, even if it were
the result of settlement negotiations,
this would not necessarily preclude the
District Court from independently as-
sessing whether the plan conformed to
the June 5th order. Ordinarily, some
sort of adversary proceedings would be
an important part of the process lead-
ing to a District Court's independent
judgment. Here, however, the trial
court judge was thoroughly familiar
with the case. Moreover, there was in
fact adversary presentation at the plan
-39-
In light of these circumstances, we be-
lieve that the District Court had suf-
ficient information before it from all
viewpoints to evaluate the fairness of the
settlement. Moreover, it appears that no
Significant objections were Suppressed by
the District Court's decision to deny any
further continuances of the settlement
hearing. We find no abuse of discretion
hearing by Sanchez and others. Finally,
as discussed in the text (see section
II-B, supra), the Court xuled upon the
question of the plan's constituion-
ality in its August llth order. Conse-
quentiy, it cannot be maintained that
the merits of the plan itself remained
an open question at the settlement
hearing.
o40=
in the scheduling of the settlement
hearing. +2/
12/ Sanchez relies heavily on Pettway v.
~ American Cast Iron Pipe Co., 576 F.2d
t ¥. ), cert. denied,
439 U.S. 1115 (1979), in arguing that
the presence of objectors to a settle-
ment should have invoked more accom-
modation by the District Court. Such
reliance is misplaced. In Pettway,
there was a far more pervasive class
rejection of a proposed settlement
which led the Fifth Circuit panel to
believe the trial court had abused its
discretion in approving the Title VII
class action settlement. There, each
of the active class representatives
objected to the settlement, the elected
members of a workers' committee ac-
tively overseeing the litigation re-
jected it, and at least 70 percent of
the class (and perhaps more) opposed
the settlement. Id. at 1214 & n.70.
While we do not suggest that the
quantity of objectors will determine
whether a settlement Proposal should
be rejected, that factor, among many
other factual distinctions, renders
Pettway a poor factual analogue to
this case. We do, however, find our
holding here to be consistent with the
general standards of class action law
discussed and applied in Pettway.
-4]-
B. Request for Subclass Certification
Sanchez moved for certification of a
Subclass, with himself as a class repre-
sentative, to include those class members
who would be directly affected by the
school closure provisions of the desegre-
gation plan.23/ The District Court denied
this certification motion simultaneously
with its approval of the plan, finding,
inter alia, that there was no longer any
need for a subclass formed to object to
school closures because the issue was
13/ The proposed subclass was described
as follows:
"([A]11 Mexican-American or His-
pano-American students or stu-
dents with Spanish Surnames with
grades K through 8 in Tucson
School District Number One, and
the parents, guardians and/or
next friends of those students,
who now attend or will in the
future attend a school subject
to or proposed to be, immedi-
ately or in the future, closed
by order of this Court or pro-
posed settlement by the parties."
o420
decided on the merits by the approval of
the plan, and, furthermore, the subclass
description was vague. We agree with the
District Court that after the August llth
order, the need for the subclass dis-
appeared.
Subclasses must meet the same require-
ments as a class. Weathers v. Peters
Realty Corp., 499 F.2d 1197, 1200 (6th Cir.
1974). Just as the determination of class
certification rests within the sound dis-
cretion of the trial court, James v. Ball,
613 F.2d 180, 186 (9th Cir. 1979); Mont-
gomery v. Rumsfeld, 572 F.2d 250, 255 (9th
Cir. 1978), so, too, does the determination
of the need for a subclass. It is appro-
priate to invoke subclassification when
there are or may be divergent views among
class members and when the Court believes |
that subclasses would materially improve
the presentation of all relevant consider-
ations.
=43-
Sanchez's arguments that the District
Court erred in denying his motion for sub-
class certification stem principally from
his misunderstanding of the Court's August
lith order. As discussed in section II-B
above, the August llth order finally de-
cided on the merits the question of
whether the schools sought to be closed by
the School District would in fact be closed.
Thereafter, the role that the school clo-
Sures were to play in the settlement hear-
ing became second order: Their existence
could be considered in terms of the overall
fairness of the settlement, but the fact of
the closures themselves were no longer open
to objection. Thus, the substantive ques-
tion of whether those three schools would
or could be closed was not, contrary to
Sanchez's argument, present at the settle-
ment hearing.
The foreclosure of this issue from the
settlement strikes at the heart of the sub-
=f
classification motion. The need for the
Subclass was premised upon the desire to
prevent the schools from being closed, a
desire apparently shared by a Significant
number of parents whose children attended
those schools. However, it is not at all
clear where the proposed subclass stood on
the overall fairness of the settlement,
given as irrevocable the decision to close
the schools under the District's plan. Nor
is it clear that their views on this ques-
tion differ from the interests of the class
as a whole. Finally, it does not appear
that the District Court was deprived of
any material viewpoints, objections, or
information for want of a subclass at the
settlement hearing.
For the foregoing reasons, we find
no abuse of discretion in the District
Court's denial of Sanchez' subclass motion.
=45—
C. Notice
Sanchez objects to both the form and
the content of the settlement notice. +4/
He contends that the failure to mail indi-
vidual notice to class members was a vio-
lation of due process. He asserts the
Same complaint about the tardiness and form
of the newspaper notice. With respect to
content, Sanchez notes that the notice did
not (1) advise that counts 2, 3, 5 and 6
of the Mexican-American complaint would be
dismissed with prejudice; (2) name the
specific schools to be closed under the
approved desegregation plan; or (3) reveal
14/ Sanchez also argues that notice was re-
quired before the August 8th and 9th
hearings on the desegregation plan. He
contends that because the plan ulti-
mately became a part of the settlement
proposal, the plan hearings became de
facto settlement hearings, requiring
all the commensurate procedural for-
malities, including notice. Because
we reject this view of the August 8th
and 9th hearings, see section II-B,
Supra, we also reject any claims that
notice to the class was required prior
thereto.
-46-
any formula for division of attorney's
fees among the class attorneys. He claims
that these omissions rendered the notice
defective.
Rule 23(e) 22/ requires that notice to
the class be given of any proposed class
action settlement. +6/ Although the rule
157 Fed. R. Civ. P. 23(e) provides:
"(e) Dismissal or Compromise. A
class action shall not be dismissed
Or compromised without the approval
of the court, and notice of the pro-
posed dismissal or compromise shall
be given to all members of the class
in such manner as the court directs."
16/ Appellees suggest that notice may not
have been required here at all, inas-
much as the action had already gone to
judgment on the merits. We disagree.
In many 23(b) (2) class actions, and in
school desegregation cases in particu-
lar, there are significant issues which
remain after judgment which do not lend
themselves to simple and straightfor-
ward resolution. The broad scope of
potential injunctive relief and the
variety of remedies available raise the
possibility that interests may be com-
promised. The procedural protections
attached to the initial action should
also be considered applicable to the
remedy phase in such circumstances, at
least as a matter of proper class ac-
tion administration.
=47=
accords a wide discretion to the District
Court as to the form and content of the
notice, due process requires its presence
and constitutional adequacy. Eisen v.
Carlisle & Jacquelin, 417 U.S. 156, 172-77
(1974); Grunin, 513 F.2d at 121. To meet
this standard, the notice given must be
“reasonably calculated, under all the cir-
cumstances, to apprise interested parties
of the pendency of the action and afford
them an opportunity to present their ob-
jections." Mullane, 339 U.S. at 314.
Further, in applying Rule 23(e), this Court
has noted that it reasonably demands that
notice be given "in a form and manner that
does not systematically leave an identi-
fiable group without notice." Mandujano,
541 F.2d at 835.
l. Form
The notice of settlement approved by
the District Court was published 13 times
in a seven day period in the two major
=4Ge
Tucson newspapers, 17/neginning eight days
before the August 30th and 3lst settlement
hearing. The notice was printed in both
English and Spanish, and copies were pro-
vided to the local broadcast media, and
were distributed to numerous locations
throughout the minority community which
are frequented by large numbers of class
members .+8/ Further, the trial court ob-
served in its notice order that there was
a "great amount of local publicity concern-
ing all prior orders and proceedings."
All members of the class necessarily lived
within Tucson School District No. l, an
area served by the newspapers carrying the
notice, and were subject to all of the ad-
ditional publicity generated by the suit.
17/ See note 3, supra.
18/ Copies of the notices were delivered
to many local merchants, churches,
community centers, etc.
~~
We believe this form of notice was
reasonably calculated to reach the members
of the class. A party's Capability to
provide individual notice does not make
such notice mandatory when notice by pub-
lication will suffice. In a class action
seeking a structural injunction, notice
is intended to encourage those with di-
vergent views to come forth, helping the
trial court to identify possible inade-
quacies in the settlement. In general, in
such cases seeking a structural remedy,
publication notice sufficiently accom-
plishes this major purpose. See Develop-
ments, supra, at 1566. Here, in particular,
there was widespread actual notice of the
settlement and the hearing as a result of
the published notice and other sources,
and a number of class members did in fact
come forward to object. It being reason-
ably concluded that this form of notice
would be effective, and with the subsequent
-50-
indications that it did in fact reach
large numbers of the class, we find no
abuse of discretion or violation of due
process in the form of notice provided
here.
2. Content
Nor do we find any infirmity in the
content of the notice provided. Notice in
a class suit may consist of a very general
description of the proposed settlement.
Grunin, 513 F.2d at 122. It "must present
a fair recital of the subject matter and
Proposed terms." Holiday Magic, Inc., 550
F.2d at 1177. Here, the specific omissions
which Sanchez notes are not fatal to the
document.
The content of this notice provides a
fair and general summary of the settlement.
It first identified the members of the
class to whom it was directed, briefly men-
tioned the background of the case, described
the Court's June 5th desegregation order,
-5l1-
and identified the nine schools requiring
desegregation. The notice then went on to
describe the proposed settlement. It
cited the options under which the nine
schools would be operated; identified the
additional three schools which would have
assignment patterns altered; identified
additional schools whose assignments would
be studied; mentioned additional procedural
points of the settlement; and disclosed
that a $500,000 attorneys' fee (including
costs) had been agreed upon and incor-
porated. The notice also informed the
reader where a copy of the stipulation of
settlement and the desegregation plan could
be obtained, announced the time and place
of the settlement hearing, and concluded
by inviting any class member to file writ-
ten objections or to appear and be heard
by the Court.
Sanchez relies on In re General Motors
Corp. Engine Interchange Litigation, 594
@82=
F.2d 1106, in arguing that the failure to
disclose the division of the agreed-upon
attorneys’ fees rendered notice defective.
We do not find this case factually analo-
gous to General Motors. The General
Motors case was procedurally complex--
many class actions had been consolidated,
the Attorneys General of most states were
participating as well as private attorneys,
and only a small committee conducted the
settlement negotiations, perhaps without
authority to do so. We do not believe
that the same potential for abuse and undue
influence existed here. Moreover, the
total amount of fees to be paid here was
disclosed, and only two sets of attorneys
were to participate in its division. While
disclosure as to apportionment of the ne-
gotiated attorneys' fees may have been de-
Sirable, we cannot say it was an abuse of
discretion to approve the settlement notice
without such a provision.
=53-
Sanchez further objects to the notice
because it does not specify that three
schools will be closed under the desegre-
gation plan. The notice merely states
that these schools “will be operated.
in accordance with [certain options] of
the plans submitted to the court on July
17, 1978." Again, this argument loses
force when the school closure question is
viewed in proper perspective. If the
merits of school closure were subject to
debate at the settlement hearings, this
omission might well be fatal. However,
because the school closures only assumed
a subordiante role at this hearing, they
could be described in the same general
terms applicable to other portions of the
settlement notice. The notice generally
describes the terms of the settlement in
sufficient detail to alert those with ad-
verse viewpoints to investigate and to come
forward and be heard. We find the content
-54-
of the settlement notice to be adequate.
D. Attorneys' Fees
Finally, Sanchez complains that the
simultaneous negotiation of attorneys'
fees and substantive issues in the settle-
ment discussions was improper. He de-
scribes possible trade-offs between
additional benefits to the class and
attorneys' fees, and argues that these are
improprieties which should weigh toward
reversal.
Although we find the scenarios of-
fered by Sanchez to be no more than sug-
gestive of mere potential conflicts, we
cannot endorse the procedure used here to
reach agreement on attorneys' fees. Nego-
tiation is necessarily a give and take
process, and all active elements are
weighted in the balance. We cannot indis-
criminately assume, without more, that the
amount of fees have no influence on the
ultimate settlement obtained for the class
~88—
when, along with the substantive remedy
issues, it is an active element of nego-
tiation. See Prandini v. National Tea Co.,
557 F.2d 1015, 1021 (3d Cir. 1977). Nor
do we believe that this potential conflict
disappears simply because there is no fund
Or money damanges being negotiated. Finan-
cial consequences of injunctive relief are
a significant consideration to the insti-
tution negotiating a remedy, and the po-
tential conflictt2/ between class counsel
19/ We do acknowledge, however, that danger
of impropriety may not be as great here
as when there is one fund from which
both the class award and the attorneys'
fees are to be apportioned. In such a
case, where the defendant is indif-
ferent as to the allocation, the con-
flict is more direct. These are
appropriate circumstances for the
District Court to take into account.
See, text following note 18, infra.
Cf. Schlensky v. Dorsey, 574 F.2d 131,
150 (3d Cir. 1978) (simultaneous nego-
taition permitted in shareholders’
derivative suit because defendant had
interest in maximizing class recovery).
-56-
and the members of the class remains. 22/
Whether the existence of this poten-
tial conflict requires a trial court to
reject a settlement proposal depends upon
the circumstances of each case. The pre-
sence of simultaneously negotiated
attorneys' fees should cause the court to
examine with special scrutiny the benefits
negoitated for the class. It would rarely
be an abuse of discretion for a trial court
to reject a settlement proposal where such
combined negotiation took place. But re-
jection of a settlement is not automatic-
ally required in such cases--there may be
circumstances present which appear to
neutralize the potential for impropriety.
20/ We do not make any findings that there
were in fact improprieties in the ne-
gotiation of this settlement. However,
"(t]he court does have the duty to see
to it that the administration of jus-
tice has the appearance of propriety
as well as being so in fact." Pran-
dini v. National Tea Co., 557 F.2d
1015, 1021 (3d Cir. 1977).
-57-
Such a judgment is appropriately within
the sound discretion of the trial judge
who can be sensitive to the dynamics of
the situation. Thus, while we strongly
discourage the simultaneous negotiation of
attorneys' fees and substantive issues in
class action settlement negotiations,
accord, Prandini, 557 F.2d at 1021, we do
not believe rejection of a resulting set-
tlement in every case is appropriate.
This case, while presenting the evil
of simultaneously negotiated attorney fees,
also contains such neutralizing elements.
The United States Department of Justice
has been an active participant in this
case on the side of the plaintiff class
since before the trial on the merits. It
participated in the negotiations leading
to settlement, and placed its imprimatur
on the ultimate proposal. The participa-
tion of a government agency in such pro-
ceedings serves to protect the interests
-58-
of the class against possible improper
dealings. Its concurrence in the approval
of a settlement is properly an element for
the Court to consider. Holiday Magic, Inc.,
5950 F.2d at 1178. See Developments, Supra,
at 1563. We believe this participation to
be a significant factor in quieting the
potential for unfair treatment of minority
interests within the plaintiffs' class.
While the Justice Department's involvement
is not determinative of any issue, it
weighs favorably in issues focusing on po-
tential unfairness to absentee interests.
Further, we believe it to be of some miti-
gating value that there was statutory
authorization for an award of attorneys'
fees to plaintiffs. See 20 U.S.C. § 3204
(formerly 20 U.S.C. § 1617). Again, while
this is not determinative, and not a justi-
fication for class action parties to engage
in simultaneous negotiation in the future,
we believe it is a mitigating factor pro-
-59-
perly considered in this case. Under these
circumstances, we do not believe that the
trial judge abused his discretion in ap-
proving the settlement.
CONCLUSION
Sanchez has raised issues concerning
the conduct of the class action proceedings
in this school desegregation suit. Gen-
erally, we believe Sanchez has misunder-
stood the nature of the District Court's
approval of the desegregation plan, as it
related to the issues of school closures.
Specifically, as discussed above, we find
no due process violations or abuse of dis-
cretion in the trial court's decisions on
timing, discovery, subclass certification,
notice, or settlement approval in light of
the attorneys' fees negotiations. All
other contentions raised by Sanchez have
been considered and found to be meritless.
The District Court orders appealed from
are affirmed.
AFFIRMED.
-60-
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
FISHER, et al,
Plaintiffs,
UNITED STATES OF AMERICA
Plaintiff-
Intervenor,
Vs.
LOHR, et al,
Defendants,
and
SIDNEY L. SUTTON, et al,
Intervenors-
Defendants.
MENDOZA, et al,
Plaintiffs,
UNITED STATES OF AMERICA,
Plaintiff-
Intervenor,
vs.
TUCSON SCHOOL DISTRICT
NUMBER 1, et al,
Defendants,
-6)-
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No. CIV 74-90-
TUC-WCF
No. CIV 74-204-
TUC-WCF
ORDER
FILED: June 5, 1978
IT IS ORDERED that:
l. The attached Findings, Conclu-
sions, Schedules and Exhibits are hereby
adopted as the Court's Findings of Fact and
Conclusions of Law in these consolidated
actions, subject, however, to the provisions
of Rule 52(b), Federal Rules of Civil
Procedure,
2. Defendants shall propose a plan
designed to eliminate any vestiges of racial
and ethnic segregation or discrimination,
based on race or ethnicity, which have been
found by the Court.
3. Such plan shall be developed and
submitted to the Court with all due speed
SO as to be subject to hearing and review
and thereafter commence with the beginning
of the 1978-79 academic year, if possible.
4. Defendants are hereby enjoined
from any acts or policies which deprive any
Student of equal protection of the law
whether by intentional segregation or
-62-
discrimination based on a student's race
or ethnic grouping.
5. Defendants are hereby enjoined
until further order of the Court, from
undertaking the construction of new
schools or of permanent additions at
existing schools without the specific
authorization of the Court.
6. Counsel shall file concise
memoranda within ten (10) days of the
date of the filing of this Order, setting
forth the views of the parties as to a
proper and expeditious manner in which to
proceed hereafter in these cases.
7. Hereafter, and until further order
of the Court, all acts and/or policies of
the District which substantially affect
the racial or ethnic balance in any school
in the District and/or which are discrimin-
atory because based on race or ethnicity of
any students in the district schools, shall
be subject to Court review in these cases.
-63-
8. The Court shall retain jurisdiction
Over all aspects of these cases until such
time as any arid all effects of any and all
discriminatory and/or segregative acts or
policies of the District have been erased
Or until such time as the cases and/or the
issues raised therein have otherwise been
disposed of according to law.
9. Count Eight of the amended
complaint in CIV 74-204-TUC-WCF is
dismissed as to all defendants; the action
is dismissed as to all defendants sued
in their individual Capacities. There is
no just cause for delay. The Clerk shall
forthwith enter judgment accordingly as
to Count Eight and as to the defendants
in their individual Capacities.
DATED this 5th day of June, 1978.
s/William C. Frey
William C. Frey
United States District Judge
-~64-
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
FISHER, et al,
Plaintiffs,
UNITED STATES OF AMERICA
Plaintiff-
Intervenor,
vs.
LOHR, et al,
Defendants,
and
SIDNEY L. SUTTON, et al,
Defendants.
MENDOZA, et al,
Plaintiffs,
UNITED STATES OF AMERICA,
Plaintiff-
Intervenor,
vs.
TUCSON SCHOOL DISTRICT
NUMBER 1, et al,
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Intervenors- )
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~65—
Nos.
CIV 74-90-TUC-WCF
CIV 74-204-TUC-WCF
ORDER
FILED: July 19, 1978
W.J. Furstenau, Clerk
United States District Court
for the District of Arizona
By s/s
Deputy Clerk
IT IS ORDERED that:
On or before Monday, July 17, 1978,
at 5:00 P.M., the defendants shall file a
Proposed plan or plans designed to elimin-
ate any vestiges of racial and ethnic
segregation or discrimination based on
race or ethnicity which have been found by
the Court. If alternatives are presented,
the defendants shall indicate an order of
preference. The defendants shall, without
delay, take reasonable steps to inform
the residents of the District of the con-
tents of the proposed plan or plans and of
any action by the School Board for the
formation or creation of a citizens advisory
group or for allowing other citizen
participation and comment.
Counsel for plaintiffs shall, without
delay, take all reasonable steps to assist
in informing the members of the respective
classes of the contents of the defendants’
Proposed plan or plans, and shall make
provision to hear objections and suggestions
by members of the classes they represent.
Before 5:00 P.M., Wednesday, August 2,
1978, plaintiffs shall file any objections
to defendants' proposed plan or plans together
with any proposed additions, amendments or
alternative plans of plaintiffs. Plaintiffs
shall further set forth the extent to which
members of their respective Classes agree
Or disagree with their objections or pro-
posals.
Before 5:00 P.M., Friday, August 4,
1978, the defendants shall reply to. any
objections and/or proposed additions,
amendments or alternative plans filed by
plaintiffs. Defendants may revise any of
their proposals by changing preferences, by
-67-
amending proposed plans, by offering addi-
tional proposed plans or otherwise. They
may report the results of any public
participation programs which they may have
instituted and may adopt or reject such
proposals.
In addition to participating in
any programs set up by the defendants or
the plaintiffs in this case, residents of
the School District, and particularly
parents of children who may be directly
affected by any plan of desegregation may
individually, or in groups through a spokes-
man or attorney, address to the Court, in
writing, comments on any plan or plans pro-
posed by the School Board or by the plaintiffs.
Any written comment addressed to the Court
should be reasoned and/or constructive in
nature and should include suggestions or
alternatives explaining how the plans may
be improved. All comment should be signed,
and should be mailed or hand delivered to:
-68-
School Desegregation Plan
Clerk, United States District Court
U.S. Courthouse
95 East Broadway
Tucson, Arizona 85701
On August 8, 1978, commencing at
8:30 o'clock A.M., there will be a hearing
in this Court concerning the proposed plans.
Residents of the District who wish to be
heard in open Court concerning their ob-
jections and/or alternatives to the pro-
posed plans shall include a request in their
written comments. All written comment
and requests to be heard must be received
no later than 5:00 P.M., Friday, August 4,
1978. Those responding shall state whether
they have children attending District No.
1 schools and which schools they attend.
Those who speak at the hearing shall be
prepared to be sworn as witnesses and may
be cross-examined by the attorneys for the
parties to this action.
At the August 8th hearing, defendants
shall present their Proposed plan or plans and
-69-
shall offer evidence in Support thereof.
Plaintiffs shall then present their objec-
tions to defendants' plan or plans as well
as any amended or alternative plans and
shall offer evidence in support of their
contentions. Following the presentation
of evidence by the parties, members of the
public shall be given an Opportunity to
be sworn and to offer statements not to
exceed ten (10) minutes in length. Speakers
shall be heard in this order:
1. Those who have requested in
writing an opportunity to speak and who are
parents of children who may be directly
affected by the desegregation plan;
2. Others who have requested in
writing an opportunity to speak;
3. If time allows, others who
appear at the hearing.
All parties to this action and their
attorneys are responsible for the public
-70-
dissemination of this Order and for explain-
ing the opportunities herein provided by
the Court for public comment and participa-
tion.
IT IS FURTHER ORDERED that the Clerk
of this Court forthwith mail a copy of this
Order to all counsel of record herein.
DATED this 17th day of July, 1978.
s/William C. Frey
William C. Frey
United States District Court
aFla
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
FISHER, et al, )
Plaintiffs, ;
UNITED STATES OF AMERICA
Plaintiff-
Intervenor,
Vs. Nos.
LOHR, et al, CIV 74-90-TUC-WCF
Defendants, CIV 74-204-TUC-WCF
and
SIDNEY L. SUTTON, et al, ORDER
Intervenors-
Defendants.
MENDOZA, et al,
Plaintiffs,
UNITED STATES OF AMERICA,
Plaintiff-
Intervenor,
vs.
TUCSON SCHOOL DISTRICT
NUMBER 1, et al,
Defendants,
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=7 20
FILED: August 4, 1978
Clerk, U.S. District Court
District of Arizona
By s/s
Deputy Clerk
A proposed settlement having been
filed in these consolidated actions, it is
necessary that members of the plaintiff
classes be given notice of the proposed
settlement and an Opportunity to object
thereto or otherwise be heard thereon.
IT IS ORDERED that a hearing is
scheduled regarding the proposed settle-
ment in the United States Courthouse, 55
East Broadway, Tucson, Arizona, on Thursday,
August 24, 1978, commencing at 9:00 A.M.
Any class members desiring to object to
the proposed settlement or otherwise be
heard may appear and be heard.
IT IS FURTHER ORDERED that counsel
Supporting the proposed settlement prepare
a notice to the classes which explains
the proposed settlement and the opportunity
=F3=
to object to the proposed settlement; counsel
shall supmit the notice to the Court for
approval.
IT IS FURTHER ORDERED that the
Clerk of this Court forthwith mail a copy
of this Order to all counsel of record
herein.
DATED this 3rd day of August, 1978.
s/s
William C. Frey
United States District Judge
=F§a
APPENDIX E
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
FISHER, et al,
Plaintiffs,
)
)
)
UNITED STATES OF AMERICA )
)
)
)
)
Plaintiff-
Intervenor,
vs.
Nos.
LOHR, et al,
CIV 74-90-TUC-WCF
Defendants,
CIV 74-204-TUC-WCF
and
SIDNEY L. SUTTON, et al, )ORDER APPROVING
DESEGREGATION
Intervenors- PLANS
Defendants.
Plaintiffs,
UNITED STATES OF AMERICA,
Plaintiff-
Intervenor,
vs.
TUCSON SCHOOL DISTRICT
NUMBER 1, et al,
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MENDOZA, et al, )
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Defendants, )
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-75<
FILED: August 11, 1978
In this Court's Order of June 5, 1978,
these defendants in these consolidated
cases were ordered to propose a plan de-
signed to eliminate any vestiges of racial
and ethnic segregation or discrimination,
based on race or ethnicity, which were found
by the Court to exist in nine schools. The
Plan was to be developed and submitted with
all due speed so as to be subject to hearing
and review and thereafter commence with the
beginning of the 1978-79 academic year, if
possible.
Various plans have been offered by the
defendants for the upcoming school year, and
their preferences have been indicated.
Although all named plaintiffs were given
the opportunity to object to the defendants'
plans and to offer alternative plans of
their own, only Alberto Sanchez has done so.
All other named plaintiffs have en-
tered into a proposed settlement with the
defendants which resolves all issues raised
=760
in these consolidated cases. As part of the
settlement, the plaintiffs, other than
Sanchez, have raised no objections to the
plans offered by the defendants as to the
nine schools included within the Court's
June 5, 1978 Order. As part of the pro-
posed settlement, the defendants have
agreed to provide better racial and ethnic
balance in certain other schools start-
ing in 1979, and have further agreed to
institute various programs designed to
improve the quality of education.
Because of a difference of Opinion
between plaintiff Sanchez and all other named
plaintiffs concerning what an acceptable
remedy may be, he has asked to have a
"sub-class" certified which he would repre-
sent in all further proceedings in these
actions. This issue is addressed ina
separate Order.
Hearings were held on August 8th
and 9th, 1978, at which defendants presented
@FJ=
evidence supporting their plans for the
nine schools. Plaintiff Sanchez and the
intervenor-defendants Sutton, et al.,
objected to parts of the plans and pre-
sented alternatives. Thereupon, parents of
children in the affected schools and the
public at large were provided an oppor-
tunity to present evidence, object to the
defendants' plans and offer alternative
plans. Over 25 people appeared and spoke
on behalf of themselves, their children,
friends and neighborhood and school groups.
During the course of these hearings,
the Court attempted to explain to the
participants the limited jurisdiction of
the federal courts in these types of cases,
and it is appropriate to repeat those
limitations here. Under our federal system,
the powers of government are divided
between the United States, the individual
states, and the people themselves. The
administration of schools is a matter
-F8-
firmly within the control of the individual
states.
Arizona has delegated substantially
all of its powers to the school districts,
Superintendents of schools, officers and
elected trustees of school districts,
such as the defendants in these cases.
With very few limitations, they virtually
have full authority concerning public
education. The people control these
decisions through the exercise of their
right to elect officials, to engage in
free debate and to petition the
officials for redress of grievances. The
United States may control such local
school district decisions Only insofar as
the Fourteenth Amendment and other
constitutional provisions allow.
The jurisdictional grants by Congress
and other complaints filed by the plaintiffs
in these actions afford this Court the
authority to protect the interests of
=7Ge
the plaintiffs in receiving an equal educa-
tional opportunity. To the extent that
intentional racial or ethnic segregation
or discrimination has been found, this
Court has authority to order remedies.
The remedy which this Court has authority
to order must work, it must work now, and
it must not inflict additional burden on
plaintiffs and the classes they represent,
nor inflict further racial or ethnic
segregation or discrimination on such
plaintiffs. This Court's jurisdiction or
power does not extend any further than that.
Concerning all other interests, parents and
others must look to their elected officials.
Federal Courts may not intrude into
the business of the states any further than
necessary to protect federal constitutional
guarantees or rights of the people and in
strict compliance with the limited grants
Of jurisdiction and authority rendered by
Congress.
-80-
In Dayton Bd. of Ed. v. Brinkman,
433 U.S. 406 (1977), the Supreme Court of
the United States held that the power of the
federal courts to restructure the oper-
ation of local and state governmental
entities was not"plenary" but could be
exercised only on the basis of a constitu-
tional violation, and the scope of the remedy
had to be tailored to fit the nature and
extent of the constitutional violation.
If there are various plans by which
the constitutional violations properly can
be remedied, this Court must defer to the
local officials to choose which plan to
use. So long as racial and ethnic discri-
mination is not a factor, the defendants
in this case can consider and give all other
factors whatever weight they deem appropriate.
Defendants are free to do many things
with which the Court may not agree, but which
are outside of the area of the Court's
jurisdiction or authority in these cases.
-8l-
Further, even within the area of
the Court's jurisdiction there are limita-
tions on the considerations relevant to
this Order. We are not at this time or in
this Order concerned with the proposed
Settlement agreement. It will be fully
considered at a later hearing; one which is
now scheduled for August 24, 1978. At
present, the Court must rule Only on the
issue of whether the defendants' proposed
Plans for the upcoming school year suffi-
ciently remedy the violations heretofore
found to exist with respect to nine schools.
What may be done next year or thereafter is
not important except to the extent that
Present actions may prevent certain options
in the future. The fact that the plans
may not be complete and permanent remedies
also is presently unimportant so long as
the plans are substantial beginnings and
good faith efforts considering the limited
time before the next school year commences.
-§2=
With all of the limitations on the
Court in mind, the Court has determined
that the plans Proposed by the defendants
are acceptable remedies for the constitu-
tional violations heretofore found.
One plan treats Brichta, Manzo and
Tully elementary schools, another treats
Roosevelt, University Heights, Jefferson
Park and Cragin elementary schools and
the third treats Spring and Safford junior
high schools.
With regard to Brichta, Manzo and
Tully elementary schools, the defendants
prefer "Option II" of the four options
which they presented to the Court. Many
Students who are now bussed to Brichta are
driven a slightly further distance to
Manzo and Tully. Those students who pre-
sently walk to Brichta continue to do so.
The school attendance areas for Manzo
school students would remain unchanged.
Although, the composition of Manzo school
~83-
Students would remain heavily minority,
the Court finds that the improvement is as
much as would have existed at Manzo absent
constitutionally objectionable School
Board actions in previous years. The same
is true with respect to Tully.
The objections heard by the Court from
the public were that the preferred plan of
defendants is inadequate to achieve real
integration, that the plan is merely
temporary and may lead to more than one
change of school for some children when this
plan must be revamped, and that other
plans can better perform the functions
of integration and quality education. The
Court would be less than candid if it did
not note that some offered alternatives have
attractive qualities; however, that is not
the issue here.
None of the objections presented to
the Court go to the adequacy or inadequacy of
"Option II" to remedy the segregative effects
~84-
found by the Court to have been caused by
past intentional acts of the defendants. The
Court finds that such limited effects
would be adequately remedied by this plan.
The defendants will comply with the Court's
Order of June 5, 1978, by instituting
"Option II". The plan's effect on quality
Of education, neighborhood cohesiveness
and the children's emotions is of necessity
left to the defendants’ judgment.
Nothing in this Order prevents the
parents and all parties to this action from
seeking and/or instituting a different
plan or plans in the future as long as it is
also compatible with the Court's findings
and conclusions.
With regard to Roosevelt, University
Heights, Jefferson Park and Cragin elementary
schools, the defendants submitted seven
options and Originally stated their pre-
ference for "Option II". As part of the
proposed settlement and apparently in
some compromise, the defendants endorsed
-85-
"Option III" instead. At the recent hearings,
evidence to support both was introduced
and the relatively small difference between
them was not the subject of any objections.
Their comparability and sufficiency must
be considered.
Both plans call for Roosevelt and
University Heights to be Closed. Some
Roosevelt area students would walk to
Roskruge; however, most would be bussed to
Cragin or Blenman. Those University Heights
Students living west of Euclid would be
bussed to either Jefferson Park or David-
son, depending on the option put into effect.
All other University Heights area students
and those Jefferson Park students living
west of Campbell would attend Jefferson
Park. Children living east of Campbell
would walk to either Blenman Or Cragin.
Children living north of the Rillito River
would be bussed to Davidson and Whitmore
instead of Jefferson Park and Cragin.
-86-
There is no doubt that both of these
two plans have sufficient integrative effect to
comply with the June 5, 1978, Order of the
Court. Neither is there any serious
question of the school closings being
compatible with the Court's Previous findings
concerning effects or vestiges of past segre-
gation. However, such closures are not
dictated by the Court's findings or conclu-
sions. There is no doubt however that
closure of these schools and a redistribu-
tion of the students as presently contem-
plated, prior to the institution of these
lawsuits would have been a positive factor
in favor of defendants. The plaintiffs
justifiably complained of the retention of
these schools, notwithstanding the fact
that it was done at least in part, if not
in whole, to accommodate members of the
plaintiffs' classes. The only question
before this Court with respect to these
plans is whether they may place an undue
-87-
burden on the minority students they are
meant to benefit. The Court expressed
doubts and some misgiving about this.
Those doubts and misgivings have been
dispelled by a careful analysis by the Court
of the legal principles involved, the
objections and the plans; particularly
in view of the longer range possibilities
such plans afford.
At the recent hearings it was made
clear to the Court by parents that they
indeed have affection and concern for their
schools, think highly of the present
teachers and programs, and do not feel that
they live in "dying" or decaying neighbor-
hoods. They present evidence calling the
reasons for closure into question, and they
request more time to find more evidence and
to present better alternatives.
If Roosevelt stays open it will have
178 students from its present area in
attendance, and 97 Students from 8 miles
away. There are 5 Crossing guards for child-
ren attending Roosevelt -- more than for
any other school. This is because the child-
ren must cross Stone, Drachman (Interstate
210, the commercial route of Interstate 10),
Speedway, Sixth Avenue and Main Avenue in
Order to reach Roosevelt. The defendants
are free to consider such factors and to
consider the potential harm to students and
potential legal liability on the District.
The school itself is in an area which is
immediately surrounded by Pima Community
College, motels, business Operations and
"adult" entertainment with little residen-
tial use, This is true to a lesser extent
of the larger area which has had its student
population reduced from a high of 349
Students to the present 178. The potential
for a "revitalized" family type neighborhood
for the Roosevelt area appears slim indeed.
The school is old and would need
extensive improvements for continued and
-89-
expanded use. There was evidence that the
school district can probably sell the
building for a substantial sum, and could
Save operating expenses by Closing the
school and having fewer under utilized
schools to operate. The school board
certainly has the authority and perhaps a
duty to close the school unless the impact
on minorities is discriminatory. The fact
that there are other under utilized
schools within the District is not rele-
vant to the issue presently before the
Court.
The Roosevelt area children who will
walk to Roskruge are not adversely
affected. The children who will go to
Cragin and Blenman will have to be bussed
4 miles; however, they will attend larger,
more updated schools with more educational
programs available, and they will attend
better integrated schools. The Court can-
not say in light of all the factors here
-90-
involved that it is racially discriminatory
to compel one group of children to ride a
bus 4 miles in order to prevent another
group from needing to ride 8 miles. More-
over, the Court is informed that a new
school closer to Roosevelt than Jefferson
Park is to be seriously considered for the
future, and the Court can hereafter order
detailed consideration if it becomes neces-
sary within the scope of the issues in-
volved in these cases. Parents surely will
have an opportunity to participate and to
express themselves in such consideration.
Roosevelt does not have to be closed
as far as the Court is concerned, but under
the circumstances the Court will not pre-
vent it, and it appears doubtful that the
Court has a legitimate option to do so.
As found by the Court on June 5, 1978,
the defendants appropriately ordered the
closure of University Heights near the
commencement of these actions. Because of
=9j-
the instant actions, the District stayed
the closure order. Now the defendants
want to exercise their authority and carry
through their initial determination which
adds most of the University Heights area
to Jefferson Park. Since all children
living east of Euclid are within walking
distance of Jefferson Park, the Court does
not find that any minority students are
discriminated against by such. In "Option
II" the children west of Euclid are barely
Out of walking distance to Jefferson Park
and are provided transportation to school.
Certainly the 4th, 5th and 6th grade stu-
dents who participate in after-school
adtivities can adequately walk or ride bi-
cycles home west of Euclid. "Option II"
must be approved.
In "Option III" those students west of
Euclid will be bussed to Davidson, and
there may be some disruption of parental
involvement and after school activity. The
-92-
7%
Court must consider whether this incon-
venience shows an undue burden on minority
students when the reasons for closure of
University Heights are considered. While
there is dispute over the estimated costs
of roof repair, there appears no dispute
that substantial repars must be undertaken
on the roof of University Heights if it
remains open. Some clasrooms are too small
according to modern standards and the site
is inadequate. The University of Arizona
is expanding into the eastern portion of
the school's attendance area north of
Speedway; there are parking lots, the law
school, the medical school, and most likely
more of the school's attendance area will
be absorbed by the University. Apartments
in the area are generally to accommodate
University students with no children, even
though some graduate students do have
school age children.
The Court realizes that the people
-93-
want to maintain the present status of
their schools despite these problems and
further considers that the area may pos-
sibly improve and gain a few families with
elementary age children in the future;
however, the decision to close University
Heights is not irrational, or motivated by
racial or other unconstitutional considera-
tions, nor is it so burdensome on minority
students that this Court can legitimately
prevent it. For this Court to be per-
Suaded to exercise its power so as to
thwart the closure of either Roosevelt or
University Heights would be to usurp the
authority and function of the District of-
ficials by considering matters beyond the
scope of the issues involved in these
cases.
In regard to junior high schools, the
defendants propose to close Spring, send
its students mostly to Maxwell, partly to
Safford and partly to Mansfeld.
-94-
Although Safford and Mansfeld students
and parents object to language in the plan
and the proposed settlement agreement which
Suggests that Safford and Mansfeld be
closed in the future, no real objection
was voiced to the plan as it will operate
in the coming school year. Future closure,
it appears, can and must be studied by all
concerned over the next few years. Again,
however, and with respect to the objec-
tions or concerns expressed to the Court
about possible closure of Safford and Mans-
feld, the previous remarks of the Court
about its limitations are appropriate.
Spring parents object to losing their
neighborhood junior high school; however,
all children will live within approximately
four miles of their new junior high, and
this distance is not at all excessive when
compared to other children around the dis-
trict. The receiving junior highs will
have much better racial balances and will
-95-
have more students, which allows a broader
range of programs. The Court finds no
detriment to the plaintiffs' classes suf-
ficient to warrant preventing the defen-
dants' "Option Vv" from being adopted.
Some of the arguments regarding the
benefits of keeping Spring as a minority
dominated haven for parents who want such
a school cannot be taken into account con-
sistently with the Constitution of the
United States or the issues decided by
this Court.
IT IS ORDERED that the options pre-
ferred by defendants are approved as being
in compliance with this Court's Order of
June 5, 1978, for operation in the 1978-
1979 academic year.
IT IS FURTHER ORDERED that all parties
shall study the operation of these plans
of desegregation, formulate additional
plans for future years, and shall without
undue delay recommend preferred plans for
-96-
future implementation. A report shall be
made to the Court by all parties hereto of
the operation of the approved plans as
soon as possible following the end of the
first term of the 1978-79 school year.
Such report shall contain, but not be
limited to, such matters as minority stu-
dent acceptance and progress, successes
and/or failures or problems resulting from
the plans and any parental matters result-
ing from such plans.
IT IS FURTHER ORDERED that the Clerk
of this Court forthwith mail a copy of this
Order to all counsel of record‘herein.
DATED this llth day of August, 1978.
cet
William Cv Frey
United States District Judge
-97-
APPENDIX F
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
FISHER, et al,
Plaintiffs,
UNITED STATES OF AMERICA
Plaintiff-
Intervenor,
vs.
LOHR, et al,
Defendants,
and
SIDNEY L. SUTTON, et al,
Intervenors-
Defendants.
MENDOZA, et al,
Plaintiffs,
UNITED STATES OF AMERICA,
Plaintiff-
Intervenor,
vs.
TUCSON SCHOOL DISTRICT
NUMBER 1, et al,
Defendants,
-98-
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N
Cc
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IV 74-90-TUC-WCF
IV 74-204-TUC-WCF
RDER DENYING
ERTIFICATION
F A SUBCLASS
°%S
FILED: August 1l, 1978
W. J. FURSTENAU, CLERK
U.S. DISTRICT COURT FOR THE
DISTRICT OF ARIZONA
BY /s/
DEPUTY CLERK
Plaintiff Sanchez has filed a motion
to create a sub-class "consisting of all
Mexican-American or Hispano-American stu-
dents or students with Spanish surnames
within grades K through 8 in Tucson School
District Number One and the parents,
guardians and/or next friends of those
students, who now attend or will in the
future attend a school subject to or
proposed to be, immediately or in the near
future, closed by order of this Court or
proposed settlement of the parties".
Originally, a class of all Mexican-American
students who attended school in the dis-
trig and their parents was created, and
plaintiff Sanchez was certified as one of
the representatives of the class.
-99-
Once a decision was rendered concern-
ing the liability of the district, settle-
ment negotiations were commenced and
eventually led to the point that the clo-
Sure of some minority dominated schools
became probable. At that point, a dif-
ference of opinion arose between plaintiff
Sanchez and other named plaintiffs, and he
sought and was allowed separate counsel
for himself. He also sought to represent
a sub-class. Hearings were held and memo-
randa were filed.
A review of the pleadings and testi-
mony shows that the views of plaintiff
Sanchez and those of the overall class of
plaintiffs are divergent only insofar as
the proposed remedial plan is concerned.
His objections can be summarized as follows.
Closure of Roosevelt, University Heights
and Spring places the burden of desegrega-
tion unevenly upon the Mexican-American
Sub-class proposed. Closure also promotes
-100-
Or maintains segregated residential pat-
terns and segregated schools. Other
plaintiffs would likely assert the same
positions if it were not for the proposed
settlement.
There are at least two sufficient
reasons for denying plaintiff a sub-class.
First, plaintiff Sanchez and many other
Proposed sub-class members have already
objected to the defendants' plans for clo-
Sure, and the matter has now been decided
against them. This is not merely a pre-
liminary examination of the merits, but a
full ruling on the merit of their position.
It would be a futile act to now create a
sub-class of such objectors.
Secondly, the other plaintiffs have
only agreed to these closures as part of
an overall settlement. Concessions of
viable issues are necessarily made in set-
tlements and Title 28, United States Code,
Federal Rules of Civil Procedure 23(e) ade-
-101-
quately provides for class members who ob-
ject to certain concessions. There will
be a hearing on the proposed settlement at
which all class members will have an Op-
portunity to be heard.
If the proposed settlement is approved,
plaintiff Sanchez can appeal the approval
and this Order. If it is not approved and
if it appears that there are real legal
conflicts among the class, a further motion
for sub-class certification could be filed.
It further appears that the proposed
Sub-class is too vague to be a meaningful
class and to assume that there are common
issues of fact and law applicable to such
a proposed class different from those of
the class in general, assumes too much.
An additional defect in the motion is
that there is no showing that the other
plaintiffs and their attorneys do not ade-
quately represent the interests of the
whole class, including the proposed sub-
-102-
F%
class.
The evidence presented by plaintiff
Sanchez fails to show any real conflict or
antagonism to the interests of the pro-
posed sub-class, merely differences of
opinions with some of the proposed sub-
class as to the remedy this Court should
adopt. If dissatisfaction of a class mem-
ber, or group of such members, with ac-
tions taken on their behalf could rise to
the status of a conflict of interest, there
would be few class actions without a multi-
tude of sub-classes. Mandujano v. Basic
Vegetable Products, Inc., 541 F.2d 832 at
835 (9th Cir. 1976) cited by plaintiff San-
chez seems to recognize this and is of no
aid to him. That case appears also to
recognize that there will be dissident class
members with respect to a settlement and
that their interest can be adequately pro-
tected without the creation of a sub-class
even where they have separate counsel.
-103-
IT IS ORDERED that the motion of
plaintiff Sanchez to create a sub-class
is denied.
IT IS FURTHER ORDERED that the Clerk
of this Court forthwith mail a copy of
this Order to all counsel of record herein.
DATED this llth day of August, 1978.
/s/
William C. Frey
United States District Judge
-104-
APPENDIX G
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
FISHER, et al,
)
)
Plaintiffs, )
)
UNITED STATES OF AMERICA )
Plaintiff-
Intervenor,
Nos.
CIV 74-90-TUC-WCF
CIV 74-204-TUC-WCF
vs.
LOHR, et al,
Defendants,
ORDER APPROVING
and NOTICE OF
PROPOSED
SIDNEY L. SUTTON, et al, SETTLEMENT
Intervenors-
Defendants.
MENDOZA, et al,
Plaintiffs,
UNITED STATES OF AMERICA,
Plaintiff-
Intervenor,
vs.
TUCSON SCHOOL DISTRICT
NUMBER 1, et al,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
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)
)
)
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Defendants,
-105-
:
FILED: August 14, 1978
A proposed settlement has been filed
in these consolidated actions. Pursuant to
Title 28, United States Code, Federal Rule
of Civs) Procedure 23(e) it is necessary
to give notice to the members of the
plaintiff classes of the proposed settle-
ment and of their right to object.
Plaintiff Sanchez has objected to
the form of the notice because it does not
contain what he considers to be a sufficiently
detailed explanation of the options men-
tioned therein. He also objects to the
short period of time allowed between
dissemination of the notice and the hearing
on objections to the proposed settlement.
Because of the great amount of local
publicity concerning all prior orders and
proceedings in this case, it appears that
the form of notice is sufficient. For the
same reason, and because school will commence
in three weeks, the Court also feels that
-~106-
—_—
the time allowed for objections is suffi-
cient.
IT IS ORDERED that:
1. The attached form of notice in
English is approved for Signature by a
Clerk of this Court. A Spanish
translation of such notice shall be
prepared and agreed upon by counsel for
the Mexican-American Class of plaintiffs
and defendant Tucson United School District
No. 1; same shall be submitted to the
Clerk of this Court for Signature no
later than 10:00 A.M., Wednesday,
August 16, 1978,
2. Said notice both in English
and Spanish shall be published by
Defendant Tucson Unified School District
No. 1, ina newspaper or newspapers of
general circulation in Tucson, Arizona,
on five (5) different days commencing as
soon as possible after 10:00 A.M.,
Wednesday, August 16, 1978, and ending on
-107-
Or before August 28, 1978.
3. The parties and their counsel
shall cooperate and use their best efforts
in disseminating the notice by other
means so as to reach as many members of
the plaintiff classes as is reasonably
possible.
4. The costs of translation of the
notice shall be billed to the Clerk of
this Court.
5. Objections to the proposed
settlement shall be heard in Court on
Wednesday, August 30, 1978, commencing
at 8:30 A.M.
6. Counsel for all parties to the
Proposed settlement agreement herein
shall make a written report to the
Court by 8:30 A.M., Wednesday, August 30,
1978, of the effort made to disseminate
the notice to the class members.
IT IS FURTHER ORDERED that the
-108-
Clerk of this Court forthwith notify
all counsel of record herein by telephone
of the entry of this Order and mail a
copy of this Order to all counsel of
record herein.
DATED this 14th day of August,
1978.
s/William C. Frey
William C. Frey
United States District Judge
-109-
APPENDIX H
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
FISHER, et al,
Plaintiffs, -
)
)
|
UNITED STATES OF AMERICA )
)
)
)
)
Plaintiff-
Intervenor,
Nos.
vs. JCIV 74-90-TUC-WCF
)
LOHR, et al, )CIV 74-204-TUC-WCF
Defendants, ORDER
and
SIDNEY L. SUTTON, et al,
Intervenors-
Defendants.
MENDOZA, et al,
Plaintiffs,
UNITED STATES OF AMERICA
-
OE SF LP CP PS EP CP CP CP Wet Cad tea ad ee ae ed te ea ten tt ee ep
Plaintiff-
Intervenor,
vs.
TUCSON SCHOOL DISTRICT
NUMBER 1, et al,
Defendants,
-110-
FILED: August 22, 1978
IT IS ORDERED:
The Motion of plaintiff Sanchez for
Discovery is denied as to Item 1] contained
in his motion. The issue as to the desegre-
gation plan adopted by the Court is now
moot by virtue of the Court's Order of
August 1l, 1978.
The said Motion for Discovery is
granted as to Items 2, 3, 4, and 5.
Plaintiff Sanchez shall forthwith proceed
with reasonable interrogatories, deposi-
tions and requests for production and/or
admissions.
Any objections to any discovery
attempted by plaintiff Sanchez will be
heard immediately upon the filing thereof.
IT IS FURTHER ORDERED that the Clerk
forthwith notify counsel for all parties of
this Order by telephone and thereafter either
furnish copies of this Order or mail same
to such counsel.
-1lll-
DATED this 22nd day of Autust, 1978.
s/William C. Frey
William C. Frey
United States District Judge
-112-
-%s
APPENDIX I
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
FISHER, et al,
Plaintiffs,
UNITED STATES OF AMERICA,
Plaintiff-
Intervenor,
vs.
LOER, et al,
Defendants,
and
SUTTON, et al,
Defendants-
Intervenors.
MENDOZA, et al,
Plaintiffs,
UNITED STATES OF AMERICA,
Plaintiff-
Intervenor,
vs.
TUCSON SCHOOL DISTRICT
NO. l, et al,
Defendants.
-113-
Nos.
CIV 74-90-TUC-WCF
)
)
)
)
)
)
)
)
)
)
)CIV 74-204-TUC-WCF
)
)
)
) ORDER
) APPROVING
) SETTLEMENT
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
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)
)
FILED: August 3l, 1978
W. J. FURSTENAU, CLERK
DISTRICT COURT FOR THE
DISTRICT OF ARIZONA
BY /s/
DISTRICT CLERK
These cases proceeded to trial and
the Court made and entered substantial
findings of fact and conclusions of law.
Thereafter counsel for plaintiffs filea
objections and motions pertaining to such
findings and conclusions but stipulated
that a ruling on such matters be deferred
by the Court to allow counsel an oppor-
tunity to explore the possibility of a
settlement.
c Counsel entered into a proposed set-
tlement subject to class hearings and Court
approval. The proposed settlement included
approval by plaintiffs of a desegregation
plan submitted to the Court by defendants
pursuant to Court Order and designed to
-114-
remedy existing effects of past discrimi-
natory acts or policies.
The Court conducted public hearings
to receive evidence from those affected
by such desegregation plan. Some of the
plaintiff class members appeared and testi-
fied in opposition to such plan. The op-
position by class members to the
desegregation plan came from those opposed
to the closing of three schools (Roosevelt
Elementary, University Heights Elementary
and Spring Jr. High). The Court found the
desegregation plan approved by the parties
to be fair, equitable, curative of the ex-
isting effects from past discrimination and
constitutionally proper.
Once the parties had arrived at a
tentative settlement, one of the plaintiffs
in Case No. 74-204 (Sanchez) apparently be-
came dissatisfied with the proposed desegre-
gation plan and sought separate counsel.
Such substitution of counsel was accom-
-115-
plished and new counsel for plaintiff
Sanchez initiated objections to the pro-
posed settlement and the proposed desegre-
gation plan.
The Court directed notice of the pro-
posed settlement and scheduled a hearing
thereon. The hearing produced, for the
most part, response from the same dis-
senters and objectors to the desegregation
plan. Essentially, the argument in opposi-
tion to the proposed settlement involved
dissatisfaction with school closures and
student assignment. More specifically such
dissatisfaction centered on the closing of
Roosevelt Elementary and Spring Jr. High.
Beyond this, the hearings produced little
by way of objection to the proposed settle-
ment. A few of the objectors apparently
went door to door with a petition listing
objections to the proposed settlement, none
of which went to the fairness of the settle-
ment and most of which were irrelevant.
-116-
About 90 signatures were so collected.
However, the evidence fails to show that
those signatures represent bona fide mem-
bers of the class or what inducement, if
any, caused the signatures.
Eleven class members appeared and
testified in opposition to the settlement
and as previously stated, many if not most,
of those were those who previously ob-
jected to the desegregation plan and, in
general, they simply restated the same ob-
jections previously made to the Court. In
addition to such objectors noted above,
the Court received six letters opposed to
the proposed settlement. Further, counsel
for plaintiff Sanchez submitted pleadings
indicating he was representing 21 objectors.
Approximately seven or eight of such ap-
peared and testified.
Without determining the validity of
the alleged class standing of those sending
letters and signing the petition, the ob-
-117-
jectors, including in some instances hus-
band and wife, totalled 121; the two
classes involved in these cases total
18,500 students.
Much time was consumed at the public
hearing by the objectors' evidence con-
cerning the pilot program on the "Spaulding
Method" for language arts instruction.
Not only did the evidence fail to show
that the inclusion of such a pilot program
was unfair or discriminatory, it failed to
take into account that the program was
strictly a volunteer program limited to 30
Students. Counsel for plaintiffs in Case
No. CIV 74-204 has filed a comprehensive
memorandum on this issue which adequately
covers the propriety of the inclusion of
such a program in the settlement agreement.
This is adopted by the Court.
The objectors and counsel for plain-
tiff Sanchez make such of the inadequacy of
the scope and form of the notice, yet their
-118-
testimony reveals widespread actual notice.
No doubt given more time and more oppor-
tunity, the hard core of objectors could
have marshalled more numbers of objectors,
but the evidence fails to reveal that such
objectors would have had objections dif-
ferent in kind from what was received and
considered. The notice in this case was
fair and adequate as is shown by the record.
These cases were fully tried on their
merit in a vigorous adversary proceeding.
Most, if not all, of the objections, other
than those going to the Court's remedy, i.e.,
closure of schools and student assignment,
involved issues that were tried and ruled
upon. The objections received in this
case simply were not meritorious.
The standard to be applied by the Court
in reviewing a proposed settlement of a
class action is whether the proposed set-
tlement "is fair and reasonable". Bryan v.
Pittsburg Plate Glass Company, 494 F.2d
-119-
799, 801 (3rd Cir. 1974), cert. denied,
419 U.S. 900 (1975). Accord, Marshall v.
Holiday Magic, Inc., 550 F.2d 4173, 1176
(9th Cir. 1977); In re King Resources
Company Securities Litigation, 420 F. Supp.
610, 625 (D. Colo. 1976); Lewis v. Newman,
99 F.R.D. 525, 527-28 (S.D.N.Y. 1973);
West Virginia v. Charles Pfizer and Company,
314 F. Supp. 710, 740 (S.D.N.y. 1970),
affirmed, 440 F.2d 1079 (24 Cir.), eert.
denied, 404 U.S. 871 (1971). As the Court
Stated in Lewis v. Newman, supra:
"The test is often more con-
cisely phrased--is the set-
tlement 'fair, reasonable,
and adequate.'" 59 F.R.D. at
527-28.
The determination whether a proposed
settlement of a class action is fair,
reasonable and adequate is committed to the
sound discretion of the trial court.
Grunin v. International House of Pancakes,
-120-
913 F.2d 114, 123 (8th Cir. 1975); Newman
v. Stein, 464 F.2d 689, 692 (2a Cir. 1972);
Ace Heating and Plumbing Company v. Crane
Company, 453 F.2d 30, 34 (3rd Cir. 1971).
The principal factors to be considered
by the district court in determining
whether to approve a proposed settlement
of a class action were listed by the Second
Circuit in City of Detroit yv. Grinnell
Corporation, 495 F.2d 448, 463 (2d Cir.
1974). To the extent applicable to a case
Such as this, those factors are as follows:
(1) The relative strengths and weaknesses
of plaintiffs' legal position; (2) the
risks of establishing liability; (3) the
complexity, expense and likely duration of
the litigation; (4) the state of the pro-
ceedings and the amount of discovery com-
pleted; (5) the ability of the defendants
to withstand a greater judgment; (6) the
reaction of the class to the settlement;
(7) the range of reasonableness of the
-121-
settlement terms in light of the best
possible result. See also, Bryan v.
Pittsburg Plate Glass Company, supra, 494
F.2d 799 (erd Cir. 1974), cert. denied,
419 U.S. 900 (1974). Unquestionably, the
most significant factor is the strength of
the plaintiffs' case. See Marshall v.
Holiday Magic, Inc., supra, 550 F.2d ke oF
1178 (9th Cir. 1977). As the Supreme
Court has stated in an analogous context,
the court should "compare the terms of the
compromise with the likely rewards of
further litigation" in assessing the fair-
ness, reasonableness and adequacy of a
Proposed settlement. Protective Committee
for Independent Stockholders of TMT Vv.
Anderson, 390 U.S. 414, 425 (1968).
Another factor (not listed in
Grinnell) is whether the proposed settle-
ment is advocated by a government agency.
If so, the courts generally give this fac-
tor great weight in assessing the fairness
-122-
and adequacy of the settlement. Marshall
v. Holiday Magic, Inc., supra, 550 F.2d
1173, 1178 (9th Cir. 1977). In this case
the government intervened on behalf of the
plaintiffs and is urging the adoption of
the settlement agreement.
Considering all of these factors in
light of the facts and circumstances and
present posture of these cases, it is clear
that the proposed settlement is fair,
reasonable and adequate to all members of
each class.
IT IS ORDERED:
1. That the Stipulation of Settlement
filed herein, a copy of which is attached
hereto (as amended on page 6, paragraph 13)
is approved, merged herein and shall be the
controlling Order of the Court, notwith-
Standing any prior Orders or Findings
entered herein, as provided in paragraph 23
of the said Stipulation of Settlement.
-123-
2. That all pending motions filed
herein to alter or amend the Court's
Findings of Fact and Conclusions of Law,
are denied as moot.
The Clerk is directed to mail a copy
of tiuis Order to all counsel of record
herein.
DATED this 3lst day of August, 1978.
/s/
William C. Frey
United States District Judge
-124-
APPENDIX J
J. Wm. Brammer, Jr.
Richard M. Yetwin
DeCONCINI McDONALD BRAMMER YETWIN
& LACY, P.C.
240 North Stone Avenue
Tucson, Arizona 85701
Telephone: (602) 623-3411
Attorneys for Defendants other
than Defendant Lohr
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
ROY and JOSIE FISHER,
et al,
Plaintiffs,
UNITED STATES OF AMERICA,
Plaintiff-
Intervenor,
vs.
ANITA LOHR, et al,
Defendants.
and
SIDNEY L. SUTTON, et al,
Intervenors-
Defendants.
-125-
MARIA MENDOZA, et al, )
Plaintiffs, a
UNITED STATES OF Manca, Che se-0eeaeiaee
Plaintiff- c1s<ye-en-ebeeiae
Intervenor,
)
)
vs. )
)STIPULATION OF
TUCSON SCHOOL DISTRICT ) SETTLEMENT
NO. l, et al, )
)
)
)
Defendants.
FILED: August ll, 1978
W. J. FURSTENAU, CLERK
U.S. DISTRICT COURT FOR THE
DISTRICT OF ARIZONA
BY /s/
DEPUTY CLERK
On June 15, 1978, Plaintiffs Fisher,
et al., and Plaintiffs Mendoza, et al.,
filed motions to Alter or Amend Findings
of Fact and Conclusions of Law entered by
the Court on June 5, 1978, in these con-
solidated school desegregation cases.
Plaintiff-Intervenor United States sup-
-126-
ported the motions which were filed by
Plaintiffs. Those motions were argued be-
fore the Court on June 28, 1978, and are
presently pending.
Subsequent to the hearing on Plain-
tiffs' motions, counsel for all parties
have conferred and agreed to the terms of
a final settlement of this case, as con-
tained in this stipulation, that will make
it unnecessary for the Court to decide the
pending motions and that will finally re-
solve this litigation. As evidenced by the
Signatures of their counsel below, the
parties hereby stipulate and agree as
follows:
1. The parties file herewith a joint
motion requesting the Court to enter the
attached Settlement Order, which has been
signed by all parties who have appeared in
this action.
2. Commencing with the 1978-79 school
year and thereafter during the term of this
-127-
agreement, the Defendants will operate
Brichta, Tully, and Manzo elementary
schools in accordance with Option II of
the plans submitted to the Court on July
17, 1978, and will operate Roosevelt,
University Heights, Cragin, and Jefferson
Park elementary schools in accordance with
Option III of the plans submitted to the
Court on July 17, 1978, as Originally rec-
ommended by the District staff, unless
alterations are made or approved as pro-
vided herein in paragraphs 20, 21 or 23.
3. Commencing with the 1978-79 school
year and thereafter during the term of
this agreement, the Defendants will operate
their junior high schools in accordance
with Option V of the plans submitted to
the Court on July 17, 1978, provided that
the closure of Mansfeld and Safford Junior
High Schools and the construction of a new
school to replace them is undertaken as
soon as practicable, unless alterations
-128-
are made or approved as provided herein
in paragraphs 20, 21 or 23. In the event
construction of the new junior high school
is not completed within a reasonable
period of time, the Board will implement
alternative measures to desegregate Saf-
ford Junior High School.
4. Commencing with the 1979-80
school year and thereafter during the term
of this agreement, the Defendants shall
alter the student assignment patterns for
Borton and Holladay Eleme..cary Schools
under a plan of student assignment which
will be developed in the manner described
in paragraph 8 below, so as to reduce the
minority enrollment of these schools below
approximately 50 percent minority.
5. Commencing immediately, the De-
fendants shall implement a process for
parent participation to examine the future
Student assignment patterns for Davis,
Drachman, and Carrillo Elementary Schools.
-129-
The public process shall consider whether
these schools should be closed, consoli-
dated, or continued and make recommenda ~
tions to Defendants on the educational
specifications for either the continuation
of the schools or the contruction of a new
elementary school(s) in the inner city,
if such is to be the case.
6. Commencing with the 1979-80
school year and thereafter during the term
of this agreement, the Defendants shall
alter the student assignment patterns for
Utterback Junior High School under a plan
of student assignment which will be de-
veloped in the manner described in para-
graph 8 below, so as to reduce the minority
enrollment at that school below approxi-
mately 50 percent.
7. Commencing with the 1979-80
school year and thereafter during the term
of this agreement, the Defendants will en-
Sure that the junior high school into which
-130-
the graduates of Pueblo Gardens and
Cavett Elementary Schools matriculate
shall not exceed approximately 50 percent
minority student enrollment, under a plan
to be developed in the manner described
in paragraph 8 below.
8. The student assignment plans re-
quired by paragraphs 4, 5, 6 and 7 above
shall be developed under the following
procedure and schedule:
(a) The Defendants will immedi-
ately implement a process or processes for
public participation, which will include
representatives of those to be affected,
in the development of alterations of stu-
dent assignments for the schools indicated.
(b) The plans for student as-
Ssignment, if any, developed through the
above public process or processes shall be
reviewed by the Defendants and shall be
provided to counsel for Plaintiffs and
Plaintiff-Intervenor for a reasonable
-l13l-
period of review of not less than ten
(10) days and the parties to this Stipu-
lation shall determine by November 30,
1978, whether the plans so developed are
acceptable to them;
(c) If the Defendants, the Plain-
tiffs or the Plaintiff-Intervenor find the
plans developed through the above public
process unsatisfactory, the Defendants
shall independently examine the issues and
produce a plan for alteration of student
assignments as provided in Paragraphs 4,
5, 6 and 7 above, for presentation to the
Court and to Plaintiffs and Plaintiff-
Intervenor on or before December 31, 1978;
(d) The parties shall confer and
On or about the 3lst of January, 1979,
shall inform the Court whether they have
been able to agree on the plan, or a modi-
fication of the plan, presented pursuant to
subparagraph 8(c) above;
~132-
(e) If the parties have agreed,
the student assignment adjustments shall
be incorporated into a Stipulation of Set-
tlement No. 2 which will be jointly sub-
mitted to the Court for its approval in
the form of an order containing the same
terms as paragraph 1 of the Settlement
Order filed herewith;
(f£) If the parties cannot agree,
the issues will be submitted to the Court
for resolution consistent with the terms
of this Stipulation.
9. The Defendants shall restructure
the assignment of faculty at Pueblo Gar-
dens and Cavett Elementary Schools so that
a disproportionate number of Black teachers,
taking the District as a whole, is not on
the faculty of either school. Implemen-
tation of such reassignments shall be
completed no later than the commencement
of the fall semester of the 1979-80 school
year.
-133-
10. In additic: to the reassignment
of Black teachers outlined in paragraph 9
above, the Defendants shall examine the
assignment of all Black teachers during
the 1978-79 school year. Necessary re-
assignments shall be implemented so that
a disproportionate number of Black teach-
ers, taking the District as a whole, is
not on the faculty of any given school
commencing with the fall semester of the
1979-80 school year.
ll. The Defendants shall adopt an
additional statement of Non-Discrimination
in Employment and establish uniform pro-
cedures with respect to the hiring, place-
ment, and promotion of District employees,
in the form of the statement which is at-
tached hereto as Exhibit "A".
12. The Defendants will develop and
implement in-service training programs
which will be required of all District em-
ployees involved in implementing this
-134-
agreement and the student assignment
plans adopted pursuant to paragraphs 2
through 7 above.
13. The Defendants shall implement
good faith efforts, with specific input
and recommendations from Black and Mexi-
can-American parents, to ensure that no
student is discriminated against in the
implementation of the District's uniform
Suspension and expulsion policy.
14. The Defendants shall conduct a
careful, good faith examination of the
testing instruments used by the Defendants
to ensure that no student is discriminated
against in this aspect of the District's
educational program. The Defendants' ef-
forts shall include the utilization of
qualified personnel to assess tests and
responses that are unique to Black students.
In addition, qualified parents, or their
qualified representatives, and Black edu-
-135-
cators shall assist the Defendants as
they complete the design and implementa-
tion of the "Programmatic Recommendations
to assist in the Quality Education of
Black Students in Tucson," a document pre-
viously submitted by Plaintifis Fisher.
15. The Defendants shall not admit
a student to a bilingual instructional
program without specific parental permis-
Sion. No student shall be admitted to
Such a program without an explanation of
the nature of the program and the available
options, including programs of standard
English as a second dialect (e.g.,
B.A.S.E.), to the student's parent(s). As
a part of the Defendants' efforts to
evaluate the bilingual instructional pro-
grams, there shall be included external
evaluation of these programs to determine
whether there have been adverse effects on
non~program students, with the objective
of correcting any such effects.
-136-
16. Commencing with the fall semes-
ter of the 1978-79 school year, the De-
fendants shall offer a One-year pilot
instructional program utilizing the
"Spalding Method," provided that at least
25 students shall signify interest in such
a program in writing, by August 14, 1978,
including an acknowledgment that they have
been advised of the Defendants' view of
the "Spalding Method." Enrollment in the
pilot program shall be limited to 30 stu-
dents.
(a) The pilot program shall be
at Menlo Park School. Children enrolled
in that program who otherwise would quali-
fy for transportation on a daily basis and
who desire it shall be provided transporta-
tion by Defendants.
(b) Commencing immediately, the
Defendants will implement a process to
select a teacher to instruct the pilot in-
Structional program. At a very minimun,
-137-
the person selected to instruct this pro-
gram should have (1) experience in teach-
ing the "Spalding Method;" (2) experience
in having taught that method to Mexican-
American children; and (3) demonstrated
past success in teaching Mexican-American
children through the "Spalding Method."
17. On April 15, 1979, October is,
1979, April 15, 1980 and for each April
15 thereafter during the term of this
stipulation, the Defendants shall file
with the Court and serve on each Party a
report showing the racial and ethnic stu-
dent enrollment of all schools involved in
the above plans to that date; the faculty
and staff of each school together with any
reassignments of faculty and staff and any
reasons therefor; and a report showing all
programmatic changes pursuant to this
Stipulation and the effectiveness of such
changes. In addition, during the term of
this stipulation, counsel for Plaintiffs
-138-
and Plaintiff-Intervenor shall have
reasonable access to Defendants’ records
for these purposes.
18. An independent citizens' commit=-
tee will be established by the Defendants
to review and report to the School Board
the progress of the Defendants’ compliance
with the terms of this Stipulation. This
"citizens'" committee will include one
member selected by the Plaintiffs Fisher,
et al., and one member selected by the
Plaintiffs Mendoaz, et al. In addition,
the Board shall select citizens of diverse
ethnic and racial backgrounds, including
but not limited to Mexican-Americans,
Blacks, Anglos, Orientals and Native
Americans,
19. Defendants will not engage in any
acts or policies which deprive any student
of equal protection of the law whether by
intentional segregation or discrimination
based on a student's race Or ethnic group.
-139-
20. Defendants will not undertake
the construction of new schools or of
permanent additions at existing schools
without specific authorization of the
Court. Nothing in this Stipulation shall
preclude the construction of new schools
in the future if the construction of such
schools is deemed to be in the best in-
terest of the community and not inconsis-
tent with on-going efforts to reduce
segregation, nor shall anything herein
preclude revision of student transportation
patterns for the purpose of having the ef-
fect of reducing or eliminating the trans-
portation of students called for in this
stipulation, consistent with on-going
efforts to reduce segregation.
21. Hereafter, and until further
Order of the Court, all acts and/or poli-
cies of the District which substantially
affect the racial or ethnic balance in any
school in the District and/or which are
discriminatory because based on race or
ethnicity of any students in the District
schools, shall be subject to Court review
in these cases.
22. After five full school years of
Operation under the terms of this agree-
ment and the student assignment plans
adopted pursuant to this Stipulation, the
Defendants may on or after July 1, 1983,
move the Court to dissolve the Settlement
Order and dismiss these actions, with
prejudice, unless the Plaintiffs or the
Plaintiff-Intervenor, within at least
thirty (30) days after service of such mo-
tion, object to the dissolution of the
Settlement Order and the dismissal of
these actions on the grounds that the De-
fendants have failed to comply with the
terms of this agreement, or other applic-
able orders entered by the Court herein.
If such an objection is filed, the Court
shall set a hearing as soon thereafter as
oa
possible to determine the appropriate
disposition of this action.
23. Once this Stipulation of Settle-
ment becomes effective, the rights and
obligations of the parties shall be de-
termined solely by its terms and the terms
of any subsequent Stipulations or orders
entered herein pursuant to it. Assuming
that the expectations for student enroll-
ments set out in the plans approved by
the Court pursuant to this Stipulation are
substantially met through the 1979-80
school year, the plan will be deemed to
have been implemented insofar as student
assignments are concerned in accordance
with this Stipulation. Plaintiffs, Plain-
tiff-Intervenor and Defendants shall re-
tain all rights and remedies provided by
law or equity and the federal rules of
procedure in seeking enforcement or relief
from this and any subsequent stipulations
and orders, including the right to seek
~142-
review of any order enforcing or refusing
to enforce such stipulations. Further,
in seeking enforcement of or relief in any
federal court from the time of this stipu-
lation, no party may rely upon prior
findings and conclusions: in this case to
interpret the terms of this stipulation
or to determine the rights and obligations
of the parties thereunder.
24. This stipulation shall become
effective upon the Court's entry of the
Settlement Order filed herewith and the
Court's approval of the Stipulation of
Dismissal, concerning Counts 2, 3, 4, 5,
6 and 7 of the Amended Complaint filed on
behalf of Plaintiffs Mendoza, etal. If
the Court fails to enter the Settlement
Order and Order approving the Stipulation
of Dismissal, this stipulation becomes
void ab initio.
25. Any order entered in conjunction
-143-
_
with paragraph 22 above, shall be con-
sidered as fully and finally terminating
these cases, and resolving any and all
disputes between the parties, including
all class members, in the above captioned
causes.
26. Defendants shall pay to counsel
for all Plaintiffs as and for all their
attorneys’ fees and costs, both past and
future, except to the extent of any at-
torneys' fees and costs incurred by Plain-
tiffs in the future as a result of
Defendants' failure to comply with the
terms and conditions agreed to herein, the
aggregate sum of Five Hundred Thousand
Dollars ($500,000.00), to be payable in
two (2) installments, and to be divided
among Plaintiffs' counsel as they may see
fit. The two installment payments are to
be made as follows and are conditioned up-
on counsel for Defendants being first pro-
vided by counsel for Plaintiffs with spe-
~144-
cific documentation in the form of time
and expense records and vouchers which,
in the reasonable opinion of Defendants'
counsel, support such payment:
(a) The first installment shall
be Two Hundred Fifty Thousand Dollars
($250,000.00), payable as soon as is
reasonably possible after the Court's ap-
proval and entry of both the Settlement
Order filed herewith and Order approving
the Stipulation of Dismissal;
(b) The second installment shall
be Two Hundred Fifty Tousand Dollars
($250,000.00), payable as soon as is
reasonably possible after the entry of the
Court's Order which is contemplated by
paragraph 8(e) or 8(f) above, further pro-
viding that this second installment i
shall not be paid prior to July 10, 1979.
27. Anita Lohr may be dismissed as
a Defendant in these actions.
~145-
Stipulated and agreed to this 8th
day of August, 1978.
/s/ pica
Rubin Salter, Jr.
Attorney for Plaintiffs
Fisher, et al.
Stipulated and agreed to this 8th
day of August, 1978.
/s/
William J. Maledon
Attorney for Plaintiffs
Fisher, et al.
: Stipulated and agreed to this 8th
day of August, 1978.
/s/
Michael 0. Zavala
Attorney for Plaintiffs
Mendoza, et al.
Stipulated and agreed to this 8th
day of August, 1978.
[A ASSO
Morris J. Baller
Attorney for Plaintiffs
Mendoza, et al.
-146-
Stipulated and agreed to this llth
day of August, 1978.
/s/
J. Wm. Brammer, Jr.
Attorney for Defendants other
than Defendant Lohr
Stipulated and agreed to this 8th
day of August, 1978.
/s/
John R. Moore
Thomas M. Keeling
Louie M. Stewart
Attorneys for Plaintiff-
Intervenor United States
of America
-147-
NON-DISCRIMINATION IN
EMPLOYMENT STATEMENT
It shall be the policy of Tucson
Unified School District to adhere to all
state and federal constitutional and
statutory racially non-discriminatory
criteria regarding the recruitmenc, hiring,
assignment, promotion, demotion, and dis-
missal of any certified and classified
staff.
The Superintendent of Tucson Unified
School District shall develop procedures
which shall insure that its schools are
not racially indentifiable solely as a re-
sult of its faculty and staff assignments.
The Tucson Unifoed School District,
its Board, and administration shall follow
those policies and procedures so as to
prevent the creation of identification of
schools by reference to disproportionate
EXHIBIT "A"
-148-
racial composition of the faculty and
staff, bearing in mind, however, that the
test is a balance of faculty and staff by
qualifications for subject and grade level
and then by experience and race.
The Board will regularly review its
hiring and promotion policies in Tucson
Unified School District so as to ensure
the absence of any discrimination or
inequities.
Consistent with the General Provi-
sions stated above, the Tucson Unified
School District Board of Education directs
the Superintendent as follows:
a) To promote the consistent imple-
mentation of this policy at all
local levels, the Superintendent
or his single, specific deisgnee,
shall be personally responsible
for directing all of the person-
nel activities within the
district.
-149-
b)
c)
dq)
e)
7/12/78
All recruitment and promotional
requirements must be reviewed for
the purpose of assuring that such
requirements cannot purposely or
inadvertantly discriminate
against any class of individuals.
Uniform recruitment evaluation
devices or tests shall be used.
A uniform grievance and hearing
procedure shall be available to
individuals who allege to have
been discriminated against, due
to race, color, sex, national
Origin, religion or age.
Uniform procedures shall be es-
tablished to assure equal promo-
tional opportunities for all
qualified employees regardless of
race, color, sex, national origin,
religion, or age.
-150-
APPENDIX K
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 78-3352
MARIA MENDOZA, ETC., ET AL.,
Plaintiffs-Appellees,
and
ALBERTO SANCHEZ, NADINE SANCHEZ,
BETTY SANCHEZ, GEORGE SANCHEZ,
ERNEST SANCHEZ AND JOHN SANCHEZ,
Plaintiffs-Appellants
and
JULIA O. FLOREZ, BILLIE GUTIERREZ,
THERESA MEDINA, BETTY M. GRANILLO,
CAROL CRUZ-POPKIN, BARNEY PAUL POPKIN,
CARMEN P, URRUTIA, MANUEL ALVARADO,
CAROLYN HACKWORTH, GLORIA HAGLER,
JOHNNY RANDOLPH-KELLY, THELMA B.
MANRIQUEZ, ADOLFO A. SUAREZ, NAT
WASHINGTON, II, RALPH O. GOMEZ,
JUAN BRITO, MARCIA ALMEDA, EMILIA
Plaintiffs-Objectors-Appellants,
Vv.
UNITED STATES OF AMERICA,
Plaintiff, Intervenor-Appellee,
-15l-
TUCSON UNIFIED SCHOOL DISTRICT NO. l,
ET AL.,
Defendants-Appellees,
ORDER
FILED: AUGUST 11, 1980
Before: CHOY and SNEED, Circuit Judges and
EAST,* District Judge.
The panel as constituted in the
above case has voted to deny the petition
for rehearing and to reject the suggestion
for rehearing en banc.
The full court has been advised of
the suggestion for rehearing enbanc and no
judge of the court has voted to grant
rehearingen banc. F.R.App.P. 35(b).
The petition for rehearing is denied
and the suggestion for rehearing en banc is
rejected.
*The Honorable William G. East, Senior United
States District Judge for the District of
Oregon, sitting by designation.
-152-
APPENDIX L
OFFICE OF THE CLERK
UNITED STATES DISTRICT COURT
55 EAST BROADWAY
TUCSON, ARIZONA
NOTICE OF PROPOSED SETTLEMENT
OF SCHOOL DESEGREGATION CASES
AND OF HEARING THEREON
TO: THE PARTIES, GUARDIANS AND/OR NEXT
FRIENDS OF ALL BLACK STUDENTS WHO ARE
ENROLLED OR ARE TO BE ENROLLED IN GRADES
K THROUGH 8 IN TUCSON UNIFIED SCHOOL
DISTRICT NO. 1; AND, THE PARENTS,
GUARDIANS, AND/OR NEXT FRIENDS OF ALL
MEXICAN-AMERICAN OR HISPANO-AMERICAN
STUDENTS OR STUDENTS WITH SPANISH SUR-
NAMES WHO ARE ENROLLED OR ARE TO BE
ENROLLED IN GRADES K THROUGH 12 IN
TUCSON UNIFIED SCHOOL DISTRICT NO. 1:
There are pending in the United States
District Court for the District of Arizona,
in Tucson, Arizona, two class actions
(No. CIV 74-90 and No. CIV 74-204) charging
-153-
Tucson Unified School District No. l, its
Board of Education, its Superintendent,
and certain other Defendants with violating
the United States Constitution and various
Statutes by (in the case of Black children)
racially segregating and discriminating
against Black children in elementary and
junior high schools, and by (in the case
of Mexican-American children) racially
segregating and discriminating against
Mexican-American children and employees
in elementary, junior high schools and
high schools. These class actions were
commenced in 1974 by parents of Black and
Mexican-American school children in Tucson
("Plaintiffs"). The United States of
America, through the United States Justice
Department, was subsequently permitted to
intervene as a Plaintiff. The evidence in
these actions was presented to the Court
between January and April of 1977, and a
decision was rendered by the Court on June
~154-
5, 1978. The Court's decision, accompanied
by extensive Findings of Fact and Conclu-
sions of Law, requires the Defendants to
implement by the start of the coming
school year, if possible, appropriate
measures to correct the existing effects
of past segregation and discrimination
against Black and Mexican-American chil-
dren found by the Court to have been
practiced by the Defendants in some ele-
mentary and junior high schools in Tucson
Unified School District No. 1. The Court's
decision contains no finding of segregation
or discrimination in the high schools in
Tucson Unified School District No. 1. In
addition, the Court concluded that any
issue relating to employment discrimination
by Defendants was properly before the Court
for consideration only insofar as it was
relevant to the issues of intentional
segregation of students.
The Court's decision identifies the
-155-
the following schools as having present
effects of past intentionally segregative
acts by the Defendants: Spring Junior
High School, Safford Junior High School
Brichta Elementary School, Cragin Ele-
mentary School, Jefferson Park Elementary
School, Manzo Elementary School, Roosevelt
Elementary School, Tully Elementary
School, and University Heights Elementary
School. The Court ordered the Defendants,
in cooperation with the Plaintiff class
representatives, to prepare a proposed
plan or plans to remedy the segregation
found to exist at these schools.
Following the Court's decision on June
5, 1978, Plaintiffs in these class actions
filed Motions with the Court, asking that
a number of additional schools be included
among those found by the Court to have
present effects of past intentional segre-
gative acts by the Defendants. The Court
has issued no decision with respect to
-~156-
these Motions to date.
PROPOSED SETTLEMENT
On August 2, 1978, a proposed settle-
ment of these class actions was presented
to the Court jointly by the Defendants,
the Plaintiff class representatives, and
the Plaintiff-Intervenor United States of
America. The terms of the proposed settle-
ment are contained in a Stipulation of
Settlement filed with the Court on August
11, 1978, a copy of which may be obtained
at the offices of the School Board of
Tucson Unified School District No. 1 Board
located at 1010 East 10th Street, Tucson,
Arizona. A copy of this Stipulation of
Settlement is also available for examina-
tion at the office of the Clerk of the
United States District Court, 55 East
Broadway, Tucson, Arizona.
A general summary of the proposed
settlement is as follows:
-157-
l. The nine elementary and
junior high schools named hereinabove
will be operated, commencing with the
1978-79 school year, in accordance
with Option II of the plans submitted
to the Court by Defendants on July 17,
1978 (insofar as Brichta, Manzo and
Tully elementary schools are con-
cerned), in accordance with Option
III of the plans submitted to the
Court by Defendants on July 17, 1978,
(insofar as Cragin, Jefferson Park,
Roosevelt and University Heights ele-
mentary schools are concerned), and
in accordance with Option Vv of the
plans submitted to the Court by De-
fendants on July 17, 1978, (insofar
as Spring and Safford Junior High
Schools are concerned). Copies of
these plans and the Court order dated
August ll, 1978, adopting a plan may
be reviewed at the offices of the
-158-
7%
School Board of Tucson Unified School
District No. 1, 1010 East 10th Street,
Tucson, Arizona.
2. Certain educational programs,
testing procedures, instructional
methods, and faculty assignment poli-
cies will be put into effect and/or
reviewed by Defendants with the goal
of eliminating racially or ethnically
discriminatory practices.
3. Student assignment patterns at
Utterback Junior High School and at
Holladay and Borton elementary schools
will be altered commencing with the
1979-80 school year so as to reduce the
minority enrollment at these schools
below approximately 50 percent minority.
The procedures for the change in stu-
dent assignment patterns at these
schools will be developed during the
1978-80 school year through a process
of public participation with review
-159-
by the Pla. 1tiff class representatives
and the United States Department of
Justice.
4. Defendants will begin a process
to determine whether future student
assignment patterns at Davis, Drachman
and Carrillo elementary schools should
be changed or whether said schools
should be closed, consolidated or con-
tinued. The procedures for the change
in student assignment patterns, clo-
Sures, consolidations, or other
changes respecting these schools will
be developed during the 1978-79 school
year through a process of parent par-
ticipation with review by the Plain-
tiff class representatives and the
United States Department of Justice.
5. The effectiveness of the stu-
dent reassignment decisions and of the
changes in educational programs and
related policies will be periodically
-160-
>
¥
reviewed by the Court for a period of
five (5) years. Therafter, the De-
fendants may request the Court to dis-
solve the Settlement Order and dismiss
these class actions.
6. During the next five (5) years,
the Defendants will not build new
schools or additions at existing
schools without authorization of the
Court. Nor will Defendants during
this five (5) year period engage in
any acts or policies which substan-
tially affect the racial or ethnic
balance in any school in the District
without Court approval.
7. The Plaintiff class represen-
tatives and the Plaintiff-Intervenor
United States will not appeal any por-
tion of the Court's decision of June
5S, 1978. The Defendants shall pay to
the attorneys for all the Plaintiffs
the total sum of $500,000.00 for all
-161-
their attorneys' fees and costs in-
curred in connection with these
actions.
You are reminded that the foregoing
description of the proposed settlement is
of a very general nature only and that the
only complete statement of the terms of
the proposed settlement is contained in the
Stipulation of Settlement referred to above.
If the settlement is approved by the Court,
the agreement not to appeal the Court's
decision of June 5, 1978, may be binding
On members of the classes.
NOTICE OF HEARING
NOTICE IS HEREBY GIVEN that a hearing
will be held before the Court on Wednesday,
August 30, 1978, at 8:30 a.m. at the United
-162-
States Courthouse, 55 East Broadway,
Tucson, Arizona, to determine whether the
proposed settlement of these class actions
Should be approved by the Court under Rule
23(e) of the Federal Rules of Civil Pro-
cedure. If so approved, the settlement
will be binding on all persons to whom
this Notice of Proposed Settlement is
directed. At the hearing on Wednesday,
August 30, 1978, any person to whom this
Notice of Proposed Settlement is directed
may either file written objections or
appear and be heard, to the extent per-
mitted by the Court. A person who objects
to the proposed settlement but who does
not advise the Court of such objections
at the time of hearing may be waiving such
objection and any rights to raise them in
-163-
in any appeal to a higher court.
DATED this 14th day of August, 1978.
We We FURSTENAU, Clerk
United States District Court
District of Arizona
By /s/
Dennis c. Cole
Deputy Clerk
-164-
APPENDIX M
J. Wm. Brammer, Jr.
Richard M. Yetwin
DeCONCINI McDONALD BRAMMER
YETWIN & LACY, P.C.
240 North Stone Avenue
Tucson, Arizona 85701
Telephone: (602) 623-3411
Attorneys for Defendants other
that Defendant Lohr
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
FISHER, et al,
)
)
Plaintiffs, )
)
)
Plaintiff-
Intervenor,
vs.
CIV 74-90-TUC-WCF
LOHR, et al,
CIV 74-204-TUC-WCF
Defendants,
and DEFENDANTS OTHER
THAN ANITA LOHR
SIDNEY L. SUTTON, et al,
Intervenors-
)
)
)
)
)
)
)
) REPORT OF ALL
)
)
)
)
)
Defendants. )
)
)
~165~-
MENDOZA, et al,
Plaintiffs,
UNITED STATES OF AMERICA
Plaintiff-_
Intervenor,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
vs.
TUCSON SCHOOL DISTRICT
NUMBER 1, et al,
Defendants,
-166-
FILED: August 4, 1978
W.J. Furstenau, Clerk
U.S. District Court for
the District of Arizona
JSs/
Deputy Clerk
Pursuant to Order of this Court
entered July 18, 1978, Defendants submit
this Report to inform the Court of the
activities of and proceedings before the
School Board since the Defendants' Plan was
submitted on July 17, 1978. Additionally,
as the Court has been informally notified
by letter dated August 2, 1978, the Defen-
dants have reached a settlement of all issues
with Plaintiffs Fisher, et al., Plaintiffs
Mendoza, et al., and Plaintiff-Intervenor,
subject to the provisions of Rule of
Federal Procedure No. 23 and approval of the
Court.
One of the provisions of the settle-
ment agreement is that, with respect to the
Roosevelt, University Heights, Jefferson
-167-
\
Park and Cragin group of schools, Option
III as it is included within the materials
submitted to the Court on July 17, 1978
would be agreed upon by the parties for
the Court's approval. This Option is
different from the one (Option II) which
was adopted by the School Board as its
preferred Option for this group of schools.
Other than that single difference, which is
agreed to by the School Board only as a
part of the settlement, no alteration
in the Plan as submitted on July 17, 1978
is suggested by Defendants.
Included in the materials which are
submitted herewith for the Court's consider-
ation are transcripts of two additional
public meetings which the School Board held
On July 20 and 31, 1978 for the purpose of
receiving further citizen comment on the pro-
posed plan alternatives and any alternate
plans which the citizens may have generated.
These transcripts are self-explanatory.
-168-
Also submitted in the companion
materials is evidence of the Defendants'
efforts to inform the residents of the
School District of the School Board's
proposed plan. In addition to a special
issue of the TUSD News which was mailed
to the parents of District children and
District employees during the week of
July 24, 1978, the Defendants obtained the
cooperation of the two daily newspapers
in Tucson with the widest circulation in
publishing the Defendants' preferred plan
options. Copies of the TUSD News edition
and press clippings are submitted.
The Court's July 17, 1978 Order
required the parties to publicly disseminate
the information contained in that Order.
The Defendants included the essence of the
Court's July 17, 1978 Order in the TUSD
News Special Edition, and presume that,
since it was mailed to those affected, the
terms of the Court's Order have been met.
-169-
The School Board has received nine
separate communications, to date, commenting
on the proposed plan filed by the Defen-
dants. Some of these documents suggest
alternative solutions to the problems
identified by the Court. These are materials
which have been generated by members of the
public for consideration by both the School
Board and the Court. These materials
have been considered by the School Board
and are now being transmitted to the Court
for review.
One further meeting was held on
August 3, 1978 at 7:30 in the evening. At
this meeting, School District staff pre-
sented the Plan adopted by the School
Board to 20 members of the District Coun-
cil of the School-Community Partnership
Council, an organization created several
years ago to provide the School Board with
the input and cooperative effort of the
members of the public. The Council members
-170-
present are to report the substance of
this meeting to the school councils in each
of the District's schools so that as
many citizens as are interested May be
informed on the issues.
Nothing further of substance is
available at this time to report to the
Court, although the Defendants will
endeavor to bring these materials up to
date as any changes occur.
RESPECTFULLY SUBMITTED this 4
day of August, 1978.
DeCONCINI McDONALD BRAMMER
YETWIN & LACY, P.C.
By
J. Wm. Brammer, Jr.
240 North Stone Avenue
Tucson, Arizona 85701
Attorneys for Defendants
other than Defendant Lohr
Copies of the foregoing
hand delivered this 4th
day of August, 1978, to:
Rubin Salter, Jr., Esq.
and William J. Maledon, Esq.
c/o Kipps &Salter
703 Transamerica Building
Tucson, Arizona 85701
Attorneys for Plaintiffs Fisher
-171-
Michael 0. Zavala, Esq.
and Morris J. Baller, Esq.
c/o Bolding & Zavala
402 Toluca Building
La Placita Village
120 West Broadway
Tucson, Arizona 85701
Attorneys for Plaintiffs Mendoza
John R. Moore
c/o U.S. Attorney's Office
Acapulco Building, 3rd Floor
120 West Broadway
Tucson, Arizona 85701
Attorney for Plaintiff-
Intervenor Government
Edmund Kahn, Esq.
6th Floor, Valley National Building
Tucson, Arizona 85701
Attorney for Intervenors-
Defendant Sutton, et al.
Armand Salese, Esq.
702 Transamerica Building
Tucson, Arizona 85701
Attorney for Alberto Sanchez,
individually
Honorable William Cc, Frey
Judge, U.S. District Court
U.S. Courthouse
Tucson, Arizona 85701
-172-
APPENDIX N
J. Wm. Brammer, Jr.
Richard M. Yetwin
DeCONCINI McDONALD BRAMMER
YETWIN & LACY, P.C.
240 North Stone Avenue
Tucson, Arizona 85701
Telephone: (602 623-3411
Attorneys for Defendants
other than Defendant Lohr
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
FISHER, et al, )
Plaintiffs, Nos.
)
UNITED STATES OF AMERICA) ©1V~74-90-TUC-WCF
CIV-72-204-TUC-WCF
Plaintiff-
Intervenor, JOINT MOTION OF
ae PLAINTIFF-INTEVERNOR
AND DEFENDANTS
OTHER THAN LOHR
FOR ENTRY OF
SETTLEMENT ORDER
LOHR, et al,
Defendants,
and
SIDNEY L. SUTTON, et al,
Intervenors-
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MENDOZA, et al,
Plaintiffs,
— ee wer me ee eee
UNITED STATES OF AMERICA
Plaintiff-
Intervenor,
vs.
TUCSON SCHOOL DISTRICT
NUMBER 1, et al,
Defendants,
ee we we we ws
FILED: August 1l, 1978
W.J. FURSTENAU, Clerk
U.S. District Court for
the District of Arizona
By s/s
Deputy Clerk
Plaintiffs Fisher, et al., Plaintiffs
Mendoza, et al., Plaintiff-Intervenor United
States and Defendants Other than Lohr hereby
respectfully move this Court for entry of
the Settlement Order, approved by the above
parties, and for entry of an order, after
appropriate notice under Rule 23(e), Federal
Rules of Civil Procedure, approving the
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Stipulation of Dismissal Signed by all
parties who have appeared in these actions.
As grounds for this Motion the above
parties state as follows:
1. On June 5, 1978, this Court
entered Findings of Fact and Conclusions
Of Law and an Order concerning issues
raised in these consolidated cases and,
inter alia, directing the development of
plans to eliminate any constitutional
violations found by the court.
2. On June 15, 1978, Plaintiffs
Fisher and Plaintiffs Mendoza each filed
motions requesting this Court to alter
Or amend its findings, conclusions and
order and the Plaintiff-Intervenor joined
in those motions, which are now pending
before the Court.
3. In subsequent orders, this
Court has directed a schedule for the filing
of plans by the Defendants, the filing of
objections or alternatives by the Plaintiffs
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and Plaintiff-Intervenor, the submission of
Suggestions by the public and the holding
of a hearing thereon.
4. Since the entry of this Court's
Order of June 5, 1978, the above parties
have conferred and engaged in a good faith
effort to resolve this case without the
need for resolution by the Court of the
issues pending before it or further liti-
gation between the parties on the issues in
these cases and have agreed to the terms
of the Stipulation of Settlement and
Settlement Order, which have been filed
simultaneously with this Motion. The
above parties believe that resolution of
the case by the terms of the Stipulation
of Settlement is in the best interest of
the parties and all others concerned.
5S. Plaintiffs Mendoza, et al.,
have agreed to dismissal with prejudice
of Counts 2, 3, 4, 5, 6 and 7 of their
Amended Complaint and the Other parties
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7°
have determined that such dismissal, as
provided in the Stipulation of Dismissal
Signed by all parties herein, will not
prejudice their interest or the interest
of any class members represented by them.
All parties have agreed to the dismissal
of Anita Lohr as a Defendant.
6. The above parties agree that
the filing of these papers may be made
in lieu of the filing of objections or
alternatives by Plaintiffs ana Plaintiff-
Intervenor and any responses thereto by
the Defendants as provided in this Court's
Order of July 17, 1978.
WHEREFORE, the above parties respect-
fully request this Court to:
(1) Enter the Settlement Order,
filed herewith and approved by the parties;
(2) Approve the Stipulation of
Dismissal filed herewith after appropriate
notice; and
(3) Approve the filing of these
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papers as in lieu of the filings required
of Plaintiffs and Plaintiff-Intervenor
by this Court's Order of July 17, 1978.
RESPECTFULLY SUBMITTED this 8th
day of August, 1978.
s/s
Rubin Salter, Jr.
Attorney for Plaintiffs
Fisher, et al.
RESPECTFULLY SUBMITTED this 8th
day of August, 1978.
s/s
William J. Maledon
Attorney for Plaintiffs
Fisher, et al.
RESPECTFULLY SUBMITTED this 8th
day of August, 1978.
s/s
Michael 0. Zavala
Attorney for Plaintiffs
Mendoza, et al.
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RESPECTFULLY SUBMITTED this 8th
day of August, 1978.
s/s
Morris J. Baller
Attorney for Plaintiffs
Mendoza, et al.
RESPECTFULLY SUBMITTED this 8th
day of August, 1978.
s/s
J. Wm. Brammer, Jr.
Attorney for Defendants
other than Defendant Lohr
RESPECTFULLY SUBMITTED this 8th
day of August, 1978.
s/s
John R. Moore
Thomas M. Keeling
Louie M. Stewart
Attorneys for Plaintiff-
Intervenor United States
of America
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APPENDIX 0
FEDERAL RULES OF CIVIL PROCEDURE
Rule 23. Class Actions
(a) Prerequisites to « Class Action.
One or more members of a class may sue
or be sued as representative parties on
behalf of all only if (1) the Class is
SO numerous that joinder of all members
is impracticable, (2) there are questions
Of law or fact common to the class, (3)
the claims or defenses of the representa-
tive parties are typical of the claims
or defenses of the Class, and (4) the
representative parties will fairly and
adequately protect the interests of the
class.
(b) Class Actions Maintainabile. An
action may be maintained as a class action
if the prerequisites of subdivision (a)
are satisfied, and in addition:
(1) the prosecution of separate
actions by or against individual
members or the class would create
a risk of
(A) inconsistent or varying
adjudications with respect to
individual members of the class
which would establish incom-
patible standards of conduct
for the party Opposing the class,
or
(B) adjudications with respect
to individual members of the
class which would as a practical
matter be dispositive of the
interests of the other members
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not parties to the adjudications
Or substantially impair or im-
pede their ability to protect
their interests; or
(2) the party opposing the class
has acted or refused to act on
grounds generally applicable to the
class, thereby making appropriate
final injunctive relief or corres-
ponding declaratory relief with
respect to the class as a whole; or
(3) the court finds that the ques-
tions of law or fact common to the
members of the class predominate
over any questions affecting only
individual members, and that a class
action is superior to other available
methods for the fair and efficient
adjudication of the controversy.
The matters pertinent to the findings
include:
(A) The interest of members of
the class in individually con-
trolling the prosecution or
defense of separate actions;
(B) the extent and nature of
any litigation concerning the
controversy already commenced
by or against members of the
Class; (C) the desirability or
undesirability of concentrating
the litigation of the claims in
the particular forum; (D) the
difficulties likely to be en-
countered in the management of
a class action.
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(c) Determination by Order Whether Class
Actions to be Maintained; Notice;
vudgnent Actions Conducted Partially
as Class Actions.
(1) As soon as practicable after
the commencement of an action brought
as a class action, the court shall
determine by order whether it is to
be so maintained. An order under
this subdivision may be conditional,
and may be altered or amended before
the decision on the merits.
(2) In any class action maintained
under subdivision (b) (3), the court
shall direct to the members of the
class the best notice practicable
under the circumstances, including
individual notice to all members who
can be identified through reasonable
effort. The notice shall advise
each member that (A) the court will
exclude him from the class if he so
requests by a specified date; (B)
the judgment, whether favorable or
not, will include all members who
do not request exclusion; and (C)
any member who does not request ex-
clusion may, if he desires, enter
an appearance through his counsel.
(3) The judgment in an action main-
tained as a class action under sub-
division (b) (1) or (b) (2), whether
or not favorable to the Class, shall
include and describe those whom
the court finds to be members of the
class. The judgment in an action
maintained as a class action under
Subdivision (b) (3), whether or not
favorable to the Class, shall include
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and specify or describe those to
whom the notice provided in sub-
division (c) (2) was directed, and
who have not requested exclusion,
and whom the court finds to be
members of the class.
(4) When appropriate (A) an action
may be brought or maintained as a
Class action with respect to particular
issues, or (B) a class may be divided
into subclasses and each subclass
treated as a class, and the pro-
visions of this rule shall then be
construed and applied accordingly.
(d) Orders in Conduct of Actions. In the
conduct of actions to which this rule
applies, the court may make appropriate
Orders: (1) determining the course of
proceedings or prescribing measures to
present undue repetition or complication
in the presentation of evidence or argu-
ment; (2) requiring, for the protection
of the members of the class Or otherwise
for the fair conduct of the action, that
notice be given in such manner as the
court may direct to some or all of the
members of any step in the action or of
the proposed extent of the judgment, or
of the Opportunity of members to signify
whether they consider the representation
fair and adequate, to intervene and pre-
sent claims or defenses or otherwise to
come into the action; (3) imposing con-
ditions on the representative parties or
on intervenors; (4) requiring that the
Pleadings be amended to eliminate there-
from allegations as to representation of
absent persons, and that the action
proceed accordingly; (5) dealing with
Similar procedural matters. The orders
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may be combined with an order under Rule
16, and may be altered or amended as may
be desirable from time to time.
(e) Dismissal or Compromise. A class
action shall not be dtsmissea or compro-
mised without the approval of the court,
and notice of the proposed dismissal or
compromise shall be given to all members
of the class in such manner as the court
directs.
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APPENDIX P
CODE OF PROFESSIONAL RESPONSIBILITY
CANON 5. A LAWYER SHOULD
EXERCISE INDEPENDENT PROFESSIONAL
JUDGMENT ON BEHALF OF A CLIENT.
ETHICAL CONSIDERATIONS
ED5-1. The professional
judgment of a lawyer should
be exercised, within the
bounds of the law, solely
for the benefit of his client
and free of compromising in-
fluences and loyalties.
Neither his personal interests,
the interests of other clients,
nor the desires of third persons
should be permitted to dilute
his loyalty to his client.
INTERESTS OF A LAWYER THAT MAY
AFFECT HIS JUDGMENT.
EC 5-2. A lawyer should not
accept proffered employment
if his personal interests or
desires will, or there is a
reasonable probability that
they will affect adversely the
advice to be given or services
to be rendered the prospective
Client. After accepting employ-
ment, a lawyer carefully should
refrain from acquiring a property
right or assuming a position that
would tend to make his judgment
less protective of the interests
of his client.
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DISCIPLINARY RULES
DR 5-103. Avoiding Acquisition
of Interest in Litigation.
(A) A lawyer shall not acquire
@ proprietary interest in the
cause of action or subject matter
of litigation he is conducting
for a client, except that he may:
(1) Acquire a lien granted
by law to secure his fee or
expenses.
(2) Contract with a client
for a reasonable contingent
fee in a civil case.
(B) While representing a client
in connection with contemplated
or pending litigation, a lawyer
shall not advance or guarantee
financial assistance to his Client,
except that a lawyer may advance
Or guarantee the expenses of liti-
gation, including court costs,
expenses of investigation, expenses
of medical examination, and costs
of obtaining and presenting
evidence, provided the client
remains ultimately liable for
such expenses.
CANON 7. A LAWYER SHOULD REPRESENT
A CLIENT ZEALOUSLY WITHIN THE BOUNDS
OF THE LAW.
ETHICAL CONSIDERATION
EC 7-9. In the exercise of his
professional judgment on those
decisions which are for his
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determination in the handling
of a legal matter, a lawyer should
always act in a manner consistent
with the best interests of his
Client. However, when an action
in the best interest of his client
seems to him to be unjust, he may
ask his client for permission to
forego such action.
DISCIPLINARY RULES
DR 7-101 Representing a Client
Zealously.
(A) A lawyer shall not intentionally:
(1) Fail to seek the lawful
objectives of his client
through reasonable available
means permitted by law and
the Disciplinary Rules, except
as provided by DR 7-101(B).
A lawyer does not violate this
Disciplinary Rule, however, by
acceding to reasonable requests
Of opposing counsel which do not
prejudice the rights of his
client, by being punctual in
fulfilling all professional
commitments, by avoiding offen-
Sive tactics, or by treating
with courtesy and consideration
all persons involved in the
legal process.
(2) Fail to Carry out a
contract of employment entered
into with a client for profes-
Sional services, but he may
withdraw as permitted under
DR 2-110, DR 5-102 and DR 5-105.
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(3) Prejudice or damage
his client during the course
of the professional relation-
ship, except as required
under DR 7-102(B).
(B) In his represe
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