Appendix — Sanchez v. Tucson Unified School District No. 1

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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)-

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

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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Defendants, )

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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

C

Oo

Cc

1)

os

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,

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

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

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

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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Defendants. )

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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

-174-

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

-176-

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

-177-

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.

-178-

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

-179-

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

-~180-

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

-182-

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

-183-

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.

-184-

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.

-185-

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

-186-

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.

-187-

(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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Appendix — Sanchez v. Tucson Unified School District No. 1 · 450 U.S. 912 | Frix