# Appendix — Sanchez v. Tucson Unified School District No. 1 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0765%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1981 - **Citation:** 450 U.S. 912 ## Text 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 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 ¥ 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- ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Defendants. ) ) ) -173- 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 -175- 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. -181- (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 representation of a client, a lawyer may: (1) Where permissible, exercise his professional judgment to waive or fail to assert a right or position Of his client. (2) Refuse participate he believes even though Support for to aid or in conduct that to be unlawful, there is some an argument that the conduct is legal. ~188- 7% APPENDIX Q Law Offices MARTORI, MEYER, HENDRICKS & VICTOR A Professional Association July 7, 1978 J. William Brammer, Jr., Esquire Richard M. Yetwin, Esquire DeCONCINI, MCDONALD, BRAMMER & YETWIN, P.C. 240 North Stone Tufson, Arizona 85701 Re: Tucson School Desegregation Case/Settlement Matters Dear Bill and Dick: This letter is in response to your request that, in connection with the pos- sible settlement of the remaining issues in this matter, the plaintiffs detail for you the amount of attorneys' fees and costs that they seek to have paid by the School District as a part of the settle- ment. This letter, however, relates only to the attorneys for the Fisher plaintiffs (No. C-74-90). It is my understanding that Mike Savala will be Submitting to you today a similar letter on behalf of the attorneys for the Mendoza plaintiffs (No. C-74-204). As a preliminary matter, let me point Out that Rubin and I spent considerable time last night and again this morning reviewing time records and out-of-pocket costs. Taking into consideration some of -189- of the points that the two of you made to us several weeks ago concerning travel time, alleged duplication, and arguably unnecessary efforts, Rubin and I agreed that each of our law firms would delete several hundred hours from the total hours recorded in connection with this litigation. At the same time, Rubin and I agreea that, for purposes of this settlement discussion only, we would charge the remaining hours at a significantly re- duced hourly rate with no added factors or multipliers for the inherent risks of the litigation and for the long period of time over which the litigation was carried by our two firms. Rubin and I have concluded that the following is a reasonable proposal on be- half of the Fisher plaintiffs for payment of fees and costs by the School District in settlement of this litigation: FEES: Between our firm and Rubin's firm, exclusive of the above-referenced hours that have been intentionally dis- regarded, there is a combined total of 6,388 hours of attorney time since the in- ception of this litigation. In addition, Our two firms have a combined total of 2,413 hours of paralegal and law clerk time. (During the bulk of the time, the "law clerks" in question were law school graduates or lawyers admitted to the Bar.) We have applied a rate of $55.00 per hour to the attorneys' time and a rate of $15.00 per hour to the paralegal and law clerk time. This results in a total requested fee of $387,535.00 COSTS: After eliminating some out-of- pocket costs on the grounds that they were -190- of questionable recovery at best, Rubin and I added together the out-of-pocket costs of our two law firms since the in- ception of the litigation for such items as depositions, witness fees, expert fees, reproduction and copying, service of pro- cess, necessary travel and related ex- penses, equipment and supplies, miscel- laneous unvouchered costs. The total of these out-of-pocket costs, for which we seek reimbursement from the School Dis- trict is $104,381.52. I think that it is appropriate to make two brief points concerning the fore- going. First, although you have raised some question concerning the reasonable value of Larry Hammond's time in light of his relative inexperience as a trial attorney, we believe (without necessarily agreeing with your position) that the re- quested rate of $55.00 an hour for all attorneys involved is unquestionably reasonable and more than offsets any arguments that you may have concerning the value of Larry's time. Second, al- though we do not necessarily agree with your arguments concerning unnecessary duplication and excessive travel time, we have (for purposes of this settlement proposal only) taken these factors into consideration in connection with both our total hours claimed and our hourly rate requested. Needless to say, this letter and the figures contained herein are being sub- mitted to you as part of a settlement pro- posal only. In the event that we are un- able to arrive at a settlement of this matter, this letter is not deemed a waiver of our right to seek from the court -191- compensation for all hours expended at normal hourly rates of $65.00 to $85.00 per hour, together with appropriate multi- pliers for the risk and contingency fac- tors, plus all Out-of-pocket costs. Please let me know if you would like any further information concerning any of the foregoing. Very truly yours, /s/ William J. Maledon WJIM/cap -192- APPENDIX R LAW OFFICES BOLDING & ZAVALA July 12, 1978 J. William Brammer, Jr., Esq. DeConcini, McDonald, Brammer & Yetwin, P.C. 240 North Stone Tucson, Arizona 85701 Re: Desegregation Case Settlement. Dear Mr. Brammer: This letter is in response to your request that we submit to you our requested attorney's fees and costs in this case. As was done by the Fisher Plaintiffs, we have reviewed our time records and out-of-pocket expenses to date. Taking into consideration that the District should not be charged for unnecessary duplication, the hours submitted to you here do not represent all of the hours Spent by attorneys in this case. Also, the expenses of law clerks is included as costs and does not involve any profit to us. The figures represent the amounts actually paid by us for law clerks and, for settlement pur- poses only, we are seeking only to be reimbursed for those expenses. Including the time spent by attorneys for MALDEF and this firm, the total attorney hours Spent in the case for settlement purposes amount to 3,741. Unlike the Fisher plaintiffs, we are not setting any hourly rate at this time. Our total out-of-pocket expenses to date amount to $34,957.28. -193- As stated by the Fisher plaintiffs, this letter and the figures contained herein are submitted to you as part of a settlement proposal only. In the event we are unable to arrive at a settlement of this case, this letter is not to be deemed a waiver of our right to seek from the court compensation for all hours expended at the rates set by the court. If any additional information is needed, please feel free to call. Sincerely, BOLDING & ZAVALA /s/ Michael 0. Zavala MOZ: amy cc: Rubin Salter, Esq. -~194- APPENDIX §S DeCONCINI McDONALD BRAMMER & YETWIN, P.C. Attorneys at Law July 13, 1978 Rubin Salter, Jr., Esq. Kipps & Salter 703 Transamerica Building Tucson, Arizona 85701 William J. Maledon, Esq. Martori, Meyer, Hendricks 5 Victor 35th Floor, Valley Bank Center Phoenix, Arizona 85073 Michael 0. Zavala, Esq. Bolding & Zavala 402 Toluca Building La Placita Village 120 West Broadway Tucson, Arizona 85701 Morris J. Baller, Esq. M.A.L.D.E.F. 145 Ninth Street San Francisco, California 94103 Thomas M. Keeling Civil Rights Division, Room 7726 Main Building U.S. Department of Justice Washington, D.C. 20530 John R. Moore Education Section Civil Rights Division U.S. Department of Justice Washington, D.C. 20530 -195- Louie M. Stewart Department of Health, Education and Welfare 40 United Nations Plaza San Francisco, California 90104 Re: Fisher v. Lohr No. CIV-74-90-TUC-wCF Mendoza v. District No. 1 No. CIV-74-204-TuUC-wcr Gentlemen: This letter is written to Messrs. Salter and Maledon as Counsel for Plain- tiffs Fisher, et al, and all members of the class of Plaintiffs represented by the Fishers, et al, to Messrs. Zavala and Baller as Counsel for Plaintiffs Mendoza, et al, and all members Of the class of Plaintiffs represented by Maria Mendoza, et al, to Messrs. Keeling, Stewart and Moore as Counsel for Plaintiff Intervenor, the Government of the United States of America, in response to the Suggestions made by you, on behalf of your clients, that the above-captioned cause might be settled. Specific elements for settlement have been communicated to me from Counsel for Fishers, et al, Mendoza, et al, concurred in by Counsel for the Government. These elements, it is my understanding, must be considered together with and in addition to the plan being submitted on July 17, 1978, by me, on behalf of my clients, as I understand them to have been proposed by the respective Plaintiffs' counsel, are as follows: ~196- Respecting Plaintiffs Fisher, et al: 1. 2. "Desegregation" of Borton and Holladay Elementary Schools. Change in some fashion the pat- tern of elementary schools which “feed" their graduates into Utterback Junior High School. With respect to Pueblo Gardens and Cavett Elementary Schools, either change the junior high School into which graduates are fed, or restructure the assign- ment of faculty to those schools so that not more than one Black teacher is on the faculty of either school. Examine carefully, with a view toward improvement if necessary, testing instruments used by the District, as well as the Board's Suspension and expulsion policy and its counseling pr_gram with- in the schools. Consideration of the necessary in-service programs to reinforce the cultural awareness of Dis- trict employees involved in the desegregation efforts, as well as examining the District's educa- tional programs to determine the cultural diversity within the offerings, leading toward any necessary improvement in curricu- lar offerings. Consideration of adopting an af- firmative-action or non-discrimi- nation statement. -197- 7. Examination of the District's personnel practices concerning hiring, placement and promotion. 8. Elimination within District schools of any concentration of Black employees. 9. Examination and improvement, if necessary, of the educational offerings respecting the basic Skills of reading, writing and mathematics. 10. A determination of whether the existence of bilingual, English- Spanish program in schools ad- versely affects students who attend those schools but do not need the programs. ll. Consideration of the June 197§ "Programmatic Recommendations to Assist in the Quality Education of Black Students in Tucson" which I received from Mr. Salter on June 29, 1978, and which in- Cludes discussion of portions of the subject matter of Items #4, 3, 6, 7 and 9. B. Respecting Plaintiffs Mendoza, et al: 1. Examination of Drachman, Carrillo, and Davis Elementary Schools with a view toward replacing them with a new, downtown school which will better allow the District to de- liver educational services and an equal education opportunity to the students presently served by those three schools. ~198- 2. Examination and possible develop- ment of clear policies respecting promotion within the District's certificated job Classifications. 3. Consideration, and adoption if necessary, Of a specific reading program proposal which I received from Mr. Zavala on July 7, 1978, concerning the "Spalding" method of instruction. Respecting both Plaintiffs Fisher, et al, and Mendoza, et al, agreement upon a sum certain to be paid by my clients to counsel for all Plaintiffs as and for their attorney's fees and costs incurred in the above-captioned causes, In return for the above-enumerated items, and as express conditions for them, all Plaintiffs, both those specifically named and all class mem- bers, and the Plaintiff-Intervenor, must agree as follows: 1. Not to appeal or otherwise move to alter or amend in any way any Order entered on or after June 5, 1978, in the above-captioned causes. 2. That on or before Jul7 1, 1983, assuming that my clients have theretofore complied with the reasonable reporting procedures required by the Court, my clients may apply to the Court having jurisdiction of the above-captioned causes, and that no opposition to Such application would be made by -199- any plaintiffs, either those specifically named or any class member, or Plaintiff-Intervenor, for an order of the Court termi- nating and dismissing with pre- judice the above-captioned causes as to all Defendants, releasing all Defendants from any further responsibility to Plaintiffs, both those Specifically named and all class members, or Plaintiff- Intervenor based upon the orders of the Court theretofore made, and terminating finally and with prejudice any further jurisdiction of the Court over any and all De- fendants in the above-captioned causes. In addition, the Defen- dants cannot be responsible for changes subsequent to the imple- mentation of any portion of the plan in 1978 or thereafter of the racial and ethnic balance within the schools, when those changes are due to factors over which the District has no control, such as residential patterns or student exodus from the school system. Stipulating to judgment in favor of all Defendants, and against all Plaintiffs, both those speci- fically named and all class members, and Plaintiff-Intervenor, On Counts 2, 5 and 6 of the Amended Com- Plaint filed by and on behalf of Plaintiffs Mendoza, et al, which have been heretofore severed by the Court. Stipulating that the motions here- tofore filed by all Plaintiffs, -200- both those specifically named and all class members, and Plaintiff Intervenor, to alter, amend, sup- plement or make additional Findings of Fact and Conclusions Of Law are moot and that the same be dismissed by the Court as moot. 5. That all Plaintiffs, both those specifically named and all class members, and Plaintiff-Intervenor will make no objections to, or Suggested revisions of, the plan which will be submitted July 17, 1978 in response to the Court's June 5, 1978 Order. 6. Stipulation by all parties that any order entered in conjunction with paragraph D 2 be considered as fully and finally terminating and resolving any and all dis- putes which were or could have been raised between the parties, including all class members, in the above-captioned causes. Based upon the foregoing elements ex- pressed by all Plaintiffs for a complete and full settlement, and the required re- ciprocal agreements on the part of all Plaintiffs, this letter Signifies the in- tent of my clients, pursuant to action taken by the Board of Education of Unified School District #1, Pima County, Arizona, on July 13, 1978, to settle finally and fully any and all disputes which were or could have been raised in the above-cap- tioned causes between the parties, including all class members, as follows: -201- A. As to Plaintiffs Fisher's, et al, requests: 1. The student assignment patterns for Borton and Holladay Elemen- tary Schools will be altered. The Board, however, does not want to limit itself to the options which have previously been shown to them and you. Although one of those options may ultimately be chosen, the Board does not wish to uni- . laterally impose an option upon unsuspecting parents and children in a settlement. Instead, the Board would establish a means by which the public will be informed of and involved in what result must be reached, and allow the public to advise the Board as to how the result should be reached The Board will immediately imple- ment this process with a view toward having an option with re- spect to both Borton and Holladay ready for its review and action. The Board further envisions that a review by Counsel for all parties of the fruits of this process be conducted so that the process will produce a result which is pala- table to Plaintiffs and consonant with constitutional principles. Should the Board's public process not produce a result Satisfactory to either the Board or Plaintiffs, the Board will, on or before De- cember 31, 1978, independently examine the issues and produce a plan for presentation to the Court -202- for its approval prusuant to para- graphs 5 and 7 of the Court's June 5, 1978 Order. Implementa- tion of this student assignment adjustment would be targeted for the fall semester of the 1979-80 school year, Subject to adjust- ments thereafter with Court approval. Respecting the alteration of Utterback's attendance patterns, the Defendants agree that those patterns will be modified. Again, as with Borton and Holladay, the Board will utilize the advice of the public when reaching its decision. The process, timetable and procedures here would be the same as indicated in paragraph Al. Your concern regarding Pueblo Gardens and Cavett will be ex- amined, Particularly with respect to the propriety and reasonable- ness of Black teachers assigned to those schools. The Council of Black Educators will be involved in this assessment process and if it is determined that some reas- Signment of personnel is required, the Board will make the necessary adjustments, subject to the ap- Proval of the Court. The District has recently adopted a uniform suspension and expulsion policy and administrative pro- cedures to implement the policy. Copies are attached for your re- view, as I believe that your con- cerns have been adequately -203- addressed. Respecting your con- cerns relating to student evalua- tion and counseling procedures and techniques, the District agrees to continue its efforts to reinforce that no student will be discriminated against in this aspect of the District's educa- tional program. 5. There will be in-service training Of District employees involved in implementing the Plan ordered by the Court, as weil as any commit- ments made herein. Planning for this effort will be undertaken by District staff as soon as the Court approves each element of the plan and this understanding, and thereafter implemented as appropriate. In this regard, please see Dr. Florence Reynolds 6/30/78 and 7/10/78 memoranda. These memoranda also address your curricular con- cerns. 6. Please see a copy Of a draft of a statement regarding non-discrimi- nation in employment which the Board would adopt as a part of this settlement. 7. Contained within the proposed non-discrimination statement is a commitment to establish uni- form procedures to address your concerns in these areas. 8. Although a concern has been ex- pressed by you that Black teachers not be assigned in such a manner -~204- 10. ll. as to isolate them by themselves, aS a practical matter this should not be a problem. Assignment of Black teachers in all schools will be assessed during the 1978-79 school year. The Council of Black Educators will be involved in this Process and if this examination indicates that reassignment of Black faculty is Suggested, the Board will undertake such re- assignment beginning in the 1979- 80 school year. Please refer, in response to those concerns, to Dr. Reynolds' memo- randa dated 6/30/78 and 7/10/78. It is the District's position that a child is not admitted to a bi- lingual instructional program without specific parental permis- sion. Accordingly, the District must presume that any child in such a program must need it. How- ever, an examination of your con- cern will be conducted and if any adverse affects are found respect- ing non-program Students, they will certainly be addressed. Again, Dr. Reynolds' memoranda of 6/30/78 and 7/10/78 briefly dis- cuss the District's position and commitment respecting the concerns and proposals contained in the June 1978 document you presented to me. I have been assured by District staff, and the Board has so directed by authorizing this letter, that the legitimate con- cerns contained in that documert will be addressed within the -205- District's total effort. B. As to Plaintiffs Mendoza's et al, requests: 1. The student assignment patterns for Davis, Carrillo and Drachman Elementary Schools will be altered, and the Board is quite concerned with the manner in which any change in the assignment of students now attending Davis, Drachman, and Carrillo Elementary is to be handled. Accordingly, the Board wants to significantly involve citizens in any process which may result in any school Closing or the reassignment of any pupils by permitting them to offer advice to the Board before any decision is made to close, consolidate, or continue to operate these schools and also offer the Board advice on the educational specifications of any new elementary school to be built in the inner city if such is to be the case. The Board will immediately imple- ment this process with a view toward having an option ready with respect to these schools for its review and action. The Board further envisions that a review by Counsel for all parties of the fruits of this process be conducted so that the process will produce a result which is palatable to Plaintiffs and consonant with consitutional principles. -206- Should the Board's public process not produce a result Satisfactory to either the Board of Plaintiffs, the Board will, on or before De- cember 31, 1978, independently examine the issues and produce a Plan for preséntation to the Court for its approval pursuant to paragraphs 5 and 7 of the Court's Order of June 5, 1978. Please refer to the attached pro- posed statement regarding non- discrimination in employment. Contained within this document is a commitment to address the con- cern which you have raised. Please refer to the attached Dis- trict memorandum dated July 12, 1978, in response to this item, as well as the attached analysis of this program authored by Laura Banks. As a result of these two memoranda, the District has a Significant question respecting the advantage, if any, to students exposed to this program. However, if the parents of at least 25, but not more than 30 children, with full knowledge of the limitations of this program, remain interested in enrolling their children in this program, the District will offer such a pilot program. These volunteers must be available and Signify in writing their inten- tions, including an acknowledge- ment of the program's limitations, by August 1, 1978, in order to -207- Si implement the program in the 1978- 79 school year. The District will provide a teacher for this Program who is fully competent to instruct the "Spalding Method". However, that teacher will not necessarily be the person Suggested by Counsel for Plaintiffs Mendoza, et al, but rather the teacher who is deemed by District personnel to be most competent to the task. A letter dated July 7, 1978, addres- Sing the attorneys' fees and costs issue, has been received by me from counsel for Plaintiffs Fisher, as applied only to them. 1 have also received a letter dated July 12, 1978 from counsel for Plaintiffs Mendoza, et al., which applies to them. This issue has been addressed by my clients and they have instructed me to tell you that the District will Pay to all counsel for all Plaintiffs as and for all their attorneys' fees and costs, both past and future, the aggregate sum Of $400,000.00 to be divided among them in any manner they see fit. I solicit any comment which any of you may have with respect to the foregoing, and would appreciate it if you would please offer any comments in writing. In addition, I will require a written letter of intent from all counsel for Plaintiffs both those specifically named and all class members, and Plaintiff-Intervenor that the six re- quirements of settlement made by my clients herein are Satisfactory and will be agreed to, Providing my clients ~208- adhere to the commitments it is sug- gested herein will be made by them. I look forward to hearing from all of you soon. Very truly yours, DeCONCINI McDONALD BRAMMER & YETWIN, P.C. /s/ J. Wm. Brammer, Jr. JWB: jo Enclosures cc: Edmund Kahn Dr. Wilbur H. Lewis Russell N. Jensen -209- APPENDIX T LAW OFFICES MARTORI, MEYER, HENDRICKS & VICTOR A PROFESSIONAL ASSOCIATION July 19, 1978 J. William Brammer, Jr., Esquire DeCONCINI, McDONALD, BRAMMER & YETWIN, P.C. 240 North Stone Avenue Tucson, Arizona 85701 Re: Fisher v. Lohr, et al No. CIV 74-90-TUC-WCF Dear Bill: On behalf of the Fisher plaintiffs, we hereby submit to you certain comments and requested changes with respect to the settlement proposal contained in your letter of July 13, 1978, to all plaintiffs' counsel. In addition, we hereby submit to you our tentative comments, objections, and suggested alternatives concerning the plan of desegregation that the Board has recommended to the Court with respect to the nine schools that Judge Frey has ordered desegregated. As you know, this letter is merely preliminary to our scheduled meeting on August 1 to discuss the specifics of an initial stipulation of settlement. Some of the changes suggested herein will have to be refined somewhat, but this letter should give you some idea of our current -210- 7. thinking. Suffice it to Say that we have every reason to believe that the Specifics of a stipulation or Stipulations can be worked out if the general parameters of a settlement can be agreed to in principle. RESPONSE TO LETTER OF JULY 13, 1978 For the sake of Clarity and simplicity, we have inserted our comments and requested changes into the affected portions of your July 13 letter, a copy of which is attached hereto. Obviously, many of the changes that we have requested in your July 13 letter are for purposes of clarification only and do not indicate a difference of Opinion as to the underlying substantive issues. To the extent that our requested changes do relate to Substantive issues, we do not believe that our requests are unreasonable or outside the scope of a good faith effort to settle this matter without further litigation and expense. Specifically, the Purposes of our re- quested changes are as follows. The changes on nage two of your letter are for clarification Purposes only. The changes on Page three of your letter (see insert following your page three) are designed to address to some ex- tent the concerns that we discussed with you on the phone on Monday. The language that we have Suggested in this regard is, we believe, consistent with the intent of Our proposed agreement. The changes on page four of your let- ter are self explanatory, and do not in Our opinion, reflect any significant de- parture from what you had proposed. -211- _ The changes on pages five, six and seven of your letter are for Purposes of both clarification and specificity. These twelve numbered paragraphs will become the essence of our initial Stipulation with defendants. Accordingly, we must have some greater specificity as to what defen- dants are willing to do, even though we fully realize that defendants cannot agree to specifics at this time because of the need for further community input concern- ing the available alternatives. For ex- ample, we do not believe that it is sufficiently specific for defendants to state merely that "the student assignment patterns for Borton and Holladay elemen- tary schools will be altered." Such a statement, by itself, would technically permit the School Board to do nothing more than alter the attendance zones for Borton and Holladay by moving them a block or two in either direction without thereby having any significant impact on the racial and ethnic composition of the student enroll- ment at those schools. The language we have inserted at the end of the above- quoted sentence is designed merely to clarify the commitment that the School Board would make with respect to these schools as a part of the proposed settle- ment. The language in the remaining para- graphs on pages five, six and seven of your letter of July 13, 1978, is likewise de- signed to clarify and to bring greater specificity to the general commitment of the parties under the settlement proposal. We do not believe that any of these sug- gested changes results in a substantive alteration of what has been proposed by you and previously discussed with us, but we would be pleased to discuss the matter with you further if you do not agree with this position. -212- With respect to attorney fees and costs (see proposed changes on page eight of your letter of July 13, 1978), we would like to state at the Outset that we do not believe that a disagreement on these matters should preclude a settlement. However, we do not feel that we could live with your current offer Of $400,000 for all plaintiffs. As we pointed out in our letter to you of July 7, 1978, we had al- ready substantially reduced Our total hours on behalf of the Fisher plaintiffs in arriving at the Proposed figure (for us alone) of $491,916.52. The considerable out-of-pocket costs involved and the large humber of hours and costs Claimed by the attorneys for the Mexican-American plain- tiffs leave little room for recovery of any reasonable attorney's fees by us. Much of the expense of this litigation was financed by loans and temporary cost ad- vances received by our two law firms 6 i a Kipps & Salter and Martori, Meyer, Hendricks & Victor). Under all of these circum- Stances, we do not believe that our counter- Proposal that the District Pay $550,000 in fees and costs to all plaintiffs’ attorneys is unreasonable. As pointed out above, however, we do not believe that this issue should preclude a settlement. Thus, if the Board is unwilling to reconsider its $400,000 offer, we Suggest that a viable alternative might be to divorce this issue from our current settlement discussions and submit the issue of recovery of attorneys’ fees and costs to Judge Frey under traditional recovery principles in cases such as this. We recognize that your letter of July 13, 1978, is a sincere effort on defendants’ part to pursue a good faith settlement of -213- this litigation. Presumably, defendants have likewise recognized that plaintiffs have made and are continuing to make every diligent and good faith effort to arrive at a settlement of this litigation. As you know, plaintiffs have made a number of Substantial concessions in the course of the settlement discussions, and defendants no doubt feel that they have made some Substantial concessions also. We believe that the basic elements of an agreement in principle are contained in your letter of July 13 with the addition of the changes that we have requested. We are hopeful that the settlement efforts will not stall at this point and we therefore look for- ward to a favorable response from you with respect to our requested changes in your July 13 letter. PROPOSED PLAN OF DESEGREGATION With respect to defendants' proposed Plan of desegregation for the nine elemen- tary and junior high schools which are the Subject to Judge Frey's Order of June 5, 1978, our position is as follows: 1. With respect to defendants' recom- mendation concerning the Brichta-Manzo- Tully complex, we have no objection or sug- tested alternatives and we are prepared to abide by this recommendation even though we do not necessarily agree that this Op- tion effectively desegregates these three schools. 2. With respect to defendants' recom- mendation concerning Spring and Safford Junior High Schools, we have no objections or Suggested alternatives and we are pre- pared to abide by this recommendation on ~214- the understanding that the measures taken are a preliminary step to the eventual closure of Safford and Mansfield Junior High Schools and the building of a new junior high school in that area to replace them, 3. With respéct to defendants’ recom~ mendation concerning Roosevelt-University Heights-Jefferson Park-Cragin, we do have certain objections and Suggested alter- natives to present. Essentially, it is tion with respect to these schools (1.@., known as Option IT) unfairly and improperly Places the burden of desegregation solely On the minority students. Indeed, defen- dants' proposed Plan would bus minority Students from the former Roosevelt atten- dance zone to Blenman and Cragin whole Anglo students in the Foothills area north of the Rillito River (who were previously bussed to Cragin and Jefferson Park) are to be transported to two predominately Anglo schools (i.e., Davidson and Whit- more). In addition, the defendants' pro- posed plan contains no indication as to what the long-range solution is for the Roosevelt-University Heights-Jefferson Park area. Presumably, any Plan such as that Proposed by the District should be accom- panied by specific Projections for the con- struction of new schools and the closing of existing schools so as to maintain de- segregative gains and at the Same time eliminate as much of the proposed trans- portation of students as possible. In light of these objections to and the apparent shortcomings in defendants' pro- posed plan with respect to these schools, we suggest (for sake of settlement pur- poses) the following alternatives: -215- A. Adoption by the Board of the option originally recommended to the Board by the District Staff. This option, as we recall, has the added advantage of Producing a somewhat greater degree of desegregation of the schools identified by the Court as being unconstitutionally segregated, without placing the burden of desegre- gation solely on the minority students. As pointed above with respect to the District's current Proposal, however, we believe that even this option must be accompanied by some specific pro- jections for the construction of new schools and for the eventual reduc- tion of the student transportation called for by the plan. B. Alternatively, we suggest that the Board adopt a plan whereby Roskruge Elementary School becomes the focal point for the desegregation of the Roosevelt-University Heights- Jefferson Park-Cragin complex. This could be done, we believe, by (1) Closing Roosevelt and University Heights, (2) increasing the Roskruge attendance zone to include all or some of the former Roosevelt zone (possibly that portion south of Speedway) and all of the former University Heights zone south of Elm Street, (3) trans- porting the former Jefferson Park Foothill students and the former Cragin Foothill students to Roskruge, (4) assigning the former Roosevelt students north of Speedway to Jeffer- son Park, and (5) assigning the for- mer University Heights students north of Elm to Jefferson Park. The use of Roskruge in this manner would signi- ficantly reduce the number of students -216- who would have to be bussed who are not already being bussed to a Similar extent. At the same time, the burden of desegregation would not rest solely with the minority students. This plan is perfectly consistent with the more long range goals of construction of a new shcool in the Foothills area as well as the contstruction of a new school in the Roskruge-Richey-Roose- velt-University Heights area which would be designed to maintain desegre- gative advances in that area of the city. CONCLUSION Consistent with our continued efforts and hope to arrive at an amicalbe settle- ment of this litigation, we are prepared to discuss any of the foregoing matters with you in greater detail, and will plan to do so at the August 1 meeting. If we are unable to arrive at a settlement of this matter, this letter is not to be deemed a waiver, either in whole or in part, of our rights to object to defendants' Proposed plan or plans of desegregation, or to pursue any other rights and remedies that may be available to us. Moreover, Since this letter is Submitted to you as part of a settlement Proposal, we would request that it not be made available to nor discussed with the press or the public without our consent. -217- We shall await your reply on or before August l, 1978. WJIM/cap Encl. Very truly yours, KIPPS & SALTER BY/s/ RUBIN SALTER, JR., ESQUIRE MARTORI, MEYER, HENDRICKS & VICTOR A Professional Association BY/s/ WILLIAM J. MALEDON, ESQUIRE -218- APPENDIX U DeCONCINI McDONALD BRAMMER & YETWIN, P.c. ATTORNEYS AT LAW 240 North Stone Avenue Tucson, Arizona 85701 July 26, 1978 Rubin Salter, Jr., Esq. Kipps & Salter 703 Transamerica Building Tucson, Arizona 85701 William J. Maledon, Esq. Martori, Meyer, Hendricks & Victor 35th Floor, Valley Bank Center Phoenix, Arizona 85073 Michael Oo, Zavala, Esq. Bolding & Zavala 402 Toluca Building La Placita Village 120 West Broadway Tucson, Arizona 85701 Morris J. Baller, Esq. M.A.L.D.E.F. 145 Ninth Street San Francisco, California 94102 Thomas M, Keeling Civil Rights Division, Room 7726 Main Building U.S. Department of Justice Washington, D.C. 20530 John R. Moore Education Section Civil Rights Division U.S. Department of Justice Washington, D.C. 20530 -219- Louie M. Stewart Department of Health Education and Welfare 40 United Nations Plaza San Francisco, California 90104 Re: Fisher v. Lohr No. CIV-74-90-TUC-WCF Mendoza v. District No. l No. CIV-74-204-TUC-WwCcF Gentlemen: This letter is written to Mr. Salter and Mr. Maledon as counsel for Plaintiffs Fisher, et al, and all members of the class represented by the Fishers, et al; to Mr. Zavala and Mr. Baller as counsel for Plaintiffs Mendoza, et al, and all members of the class of Plaintiffs represented by Maria Mendoza, et al; and to Mr. Keeling, Mr. Stewart and Mr. Moore as counsel for Plaintiff-Intervenor, the Government of the United States of America in reply to the response to our letter dated July 13, 1978, which was sent by the Plaintiffs; Fisher attorneys on July 19, 1978; by the Plaintiffs Mendoza's attorney on July 19, 1978; and by the Plaintiff-Intervenor's attorneys on July 20, 1978, with those materials found on page 4 of their letter under the subheading "Proposed Plan of Desegregation". Subsequent to making several comments which deal Specifically with the plan for desegregation, this made in Plaintiffs! Fisher responsive letter. In order to simplify the Board's reply to that response, we have taken Mr. -220- Brammer's July 13, 1978 letter and had it retyped including additions made by Plaintiffs which have been approved by the Board, paragraphs which were changed by the Plaintiffs but which the Board feels com- pelled not to change. Immediately follow- ing the retyped text of the July 13, 1978 1. Adopted as modified by Plaintiffs - this means that Plaintiffs' modifica- tion or the Original July 13, 1978 letter has been adopted by Board action taken July 26, 1978. Be Partially adopted as modified by Plaintiffs - this means that a 3. Unchanged in Original - this means that the Plaintiffs did not change the Original Proposal letter and it has remained unchanged and has been retyped. 4. Modifications by Plaintiffs rejected, Original language readopted - this means that the Board has rejected the proposed modification by Plaintiffs and has readopted the language of its Original letter. In the appropriate place after each of the above statements, some idea as to the Board's rationale will be Stated, if necessary, in rejecting or partially adopting the Proposals by Plaintiffs, PROPOSED PLAN OF DESEGREGATION Plaintiffs know, Roskruge is a very old School which is multi-storied and will be The Board has, however, stated that | it will, for settlement purposes only, rescind its vote taken on July 12, 197 which adopted Option 3, as amended (which was, in effect, the Proposed Option 2) and would be Willing to adopt the Original Option 3 without an amendment. The following copy of the July 13, 1978 letter, as modified, will still make reference to the July 17, However, with respect to Option 3, the Board will not accompany that Proposal by tion of the Student transportation called for by the Plan. Any student transportation in this area has been prompted by and is & result of the lawsuit, and there is a Possibility that the Students involved could be transported indefinitely. This is a case with many Students in the District at the present time, including the Children referred -222- to in your letter as the foothills stu- dents. It should be apparent to you that the construction of a new school in the Same area, without significant demographic changes, would be constructed as a racially imbalanced school THE JULY 13, 1978 LETTER, AS MODIFIED This letter is written to Messrs. Salter and Maledon as counsel for Plain- tiffs Fisher, et al, and all members of the class of Plaintiffs represented by the Fishers, et al, to Messrs. Zavala and Baller as counsel for Plaintiffs Mendoza, et al, and all members of the class of Plaintiffs represented by Maria Mendoza, et al, to Messrs. Keeling, Stewart and America, in response to the suggestions made by you, on behalf of your clients, that the above-captioned causes might be settled. Specific elements for settlement have been communicated to me from counsel for Fisher, et al, Mendoza, et al, con- curred in by counsel for the Government. These elements, it is my understanding, must be considered together with and in addition to the Plan being submitted on July 17, 1978, by me, on behalf of my clients, to the Court Pursuant to its order of June 5, 1978. These elements, as I understand them to have been proposed by the respective Plaintiffs’ counsel, are as follows: -223- Respecting Plaintiffs Fisher, et al: : & # "Desegregation of Borton and Holladay Elementary Schools. Change in some fashion the pattern of elementary schools which "feed" their graduates into Utterback Junior High School. With respect to Pueblo Gardens and Cavett Elementary Schools, either change the junior high school into which the graduates are fed, or restructure the assignment of faculty to those Schools so that a disproportionate number of Black teachers (taking the District as a whole) are not on the faculty of either school. Examine carefully, with a view toward improvement if necessary, testing instruments used by the District, as well as the Board's Suspension and expulsion policy and its counseling program within the schools. Consideration of the necessary in-service programs to reinforce the cultural awareness of District employees involved in the desegre- gation efforts, as well as examin- ing the District's educational programs to determine the cultural diversity within the offerings, leading toward any necessary im- provement in curricular offerings. Consideration of adopting an affirmative-action or non-dis- crimination statement. -224- 7. Examination of the District's personnel practices concerning hiring, placement and promotion. 8. Elimination within District schools of any concentration of Black employees. 9. Examination and improvement, if necessary, of the educational offerings respecting the basic skills of reading, writing and mathematics. 10. A determination Of whether the existence of bilingual English- Spanish programs in schools ad- versely affects students who attend those schools but do not need the programs. ll. Consideration of the June 1978 "Programmatic Recommendations to Assist in the Quality Education Of Black Students in Tucson" which I received from Mr. Salter on June 29, 1978, and which includes discussion of portions of the subject matter of Items #4, 5, 6 7 and 9, B. Respecting Plaintiffs Mendoza, et al: 1. Examination of Drachman, Carrillo, and Davis Elementary Schools with a view toward replacing them with a new, downtown school which will better allow the District to deliver educational services and an equal educational Opportunity to the students Presently served by these three schools. -225- 2. Examination and possible develop- ment of clear policies respecting Promotion within the District's certificated job Classifications. 3. Consideration, and adoption if necessary, of a specific reading Program proposal which I received from Mr. Zavala on July 7, 1978, concerning the "Spalding" method of instruction. C. Respecting both Plaintiffs Fisher, et al., and Mendoza, et al, agreement upon a sum certain to be paid by my clients to counsel for all Plaintiffs as and for their attorneys' fees and D. In return for the above-enumerated items, and as express conditions for them, all named Plaintiffs, both on their own behalf and on behalf of all class members, and the Plaintiff- Intervenor must agree as follows: 1. That they will enter into an initial Stipulation with Defen- dants containing essentially the Same terms and conditions as set forth in this letter, which stipu- lation shall then be Submitted to the Court for its approval in the form of an Order, enforceable by Plaintiffs and Defendants. 2. That, following the completion of the procedures set forth in para- graphs A l through A 3 and in Paragraph Bl, following in this letter, they will enter into a -226- second stipulation with Defen- dants concerning the specifics of the plan called for by such paragraphs, which second stipu- lation shall be then submitted to the Court for its approval in the form of an Order, enforceable by Plaintiffs and Defendants. That they will not appeal or move to alter or amend in any way the Court's Order of June 5, 1978, unless the Defendants fail to enter into or the Court fails to approve the stipulation called for in Paracraph D 1 above, and until such stipulation has been entered into and approved by the Court, the Motions to Alter or Amend filed by Plaintiffs on June 15, 1978, shall remain under con- sideration by the Court without any rul*‘ng thereon so as to pre- serve P’ :intiffs' rights under Said Motions. Once said stipula- tion has been entered into and approved by the court in a formal Order, the Motions to Alter or Amend filed by Plaintiffs on June 15, 1978, shall be deemed denied as moot. Notwithstanding any of the foregoing to the contrary, Plaintiffs and Defendants shall retain all rights and remedies Provided by law or equity with respect to the stipulations re- ferred to in Paragraphs D 1 and D 2, above, including the right of appeal to a higher court concern- ing any Order of the District Court which refuses to enforce the Orders issued pursuant to such -227- Stipulations. Any Orders issued by Judge Frey which enforce any Orders issued Pursuant to these Stipulations wil] not be appealable. That on or before July 1, 1983, Stipulations and Orders entered in the above-captioned Causes and have complied with the reasonable reporting procedures required by the Court, my clients may apply, upon 30 days written notice to Plaintiffs, to the Court having jurisdiction over the above- captioned causes, and that no Opposition to such application would be made by any Plaintiffs, either those Specifically named Or any class member, or Plaintiff- Intervenor, for an Order of the Court terminating and dismissing with prejudice the above-captioned causes as to all] Defendants, re- leasing all Defendants from any further responsibility to Plain- tiffs, both those specifically named and all class members, or Plaintiff-Intervenor based upon the orders of the Court thereto- fore made, and terminating finally and with Prejudice any further jurisdiction of the Court over any and all Defendants in the above-captioned causes. In addition, the Defendants cannot be responsible for changes subsequent to the implementation of any portion of the Plan in 1978 or thereafter of the racial or ethnic -228- a balance within the schools, when those changes are due to factors over which the District has no control, such as residential patterns or student exodus from the school system. 5. Stipulating to judgment in favor of all Defendants, and against all Plaintiffs, both those spe- cifically named and all class members, and Plaintiff-Intervenor, on Counts 2, 5 and 6 of the Amended Complaint filed by and on behalf of Plaintiffs Mendoza, et al, which have been heretofore severed by the Court. 6. That all Plaintiffs, both those specifically named and all class members, and Plaintiff-Intervenor will make no objections to, or Suggested revisions of, the plan which was submitted July 17, 1978 in response to the Court's June 5, 1978 Order. 7. Stipulation by all parties that any order entered in conjunction with paragraph D 4 be considered as fully and finally terminating and resolving any and all disputes which were or could have been raised between the parties, in- Cluding all class members, in the above-captioned causes. Based upon the foregoing elements ex- pressed by all Plaintiffs for a complete and full settlement, and the required re- ciprocal agreements on the part of all Plaintiffs, this letter Signifies the -229- intent of my clients, pursuant to action taken by the Board of Education of Unified School District #1, Pima County, Arizona on July 13 and 26, 1978, to Settle finally and fully any and all dis- Putes which were or could have been raised in the above-captioned causes between the parties, including all clacs members, as follows: A. As to Plaintiffs’ Fisher, et al, requests: 1. The student assignment patterns for Borton and Holladay Elementary Schools will be altered SO as to reduce the current minority en- rolliment in these schools. The Board, however, does not want to limit itself to the options which have Previously been shown to them and you. Although one of those options may ultimately be chosen, the Board does not wish to unilaterally impose an option upon unsuspecting parents and children in a settlement. Instead, the Board would establish a means by which the public will be informed of and involved in determining what result must be reached, and allow the public to advise the Board as to how the result should be reached. The Board will immediately imple- ment this process with a view toward having an option with re- Spect to both Borton and Holladay ready for its review and action. The Board further envisions that -230- Particularly with respect to the propriety and reasonableness of Black teacher assignment to those schools. The Council of Black Educators will be involved in this assessment process and if it is determined that some reassign- ment of personnel is required, the Board will make the necessary adjustment, Subject to the approval of the Court. The District has recently adopted a uniform suspension and expulsion policy and administrative pro- cedures to implement the policy. Copies are attached for your re- view, as I believe that your con- cerns have been adequately addressed. Respecting your con- cerns relating to student evalua- tion and counseling procedures and techniques, the District agrees to continue its efforts to ensure that no student will be discriminated against in this aspect of the District's educa- tional program. There will be in-service training Of all District employees which will be required of all employees involved in implementing the Plan Ordered by the Court, as well as any commitments made herein. Plan- ning for this effort will be under- taken by District staff as soon as the Court approves each element of the plan and this understanding, and thereafter implemented as appropriate. -231- a review by counsel for all parties of the fruits of this Process be conducted so that the process will produce a result which is palatable to Plaintiffs and consonant with constitutional principles. Should the Board's Public process not produce a result satisfactory to both the Board and Plaintiffs, the Board will independently examine the issues and produce a Plan for presentation to the Court and to Plaintiffs on or before December 31, 1978, for incorporation into a stipulation and order pursuant to paragraph D 2 above. implementation of this Student assignment adjustment will be completed no later than the commencement of the fall semester of the 1979-80 school year, sub- ject to adjustments thereafter with Court approval. Respecting the alteration of Utterback's attendance patterns, the Defendants agree that these patterns will be modified to re- duce the current minority enroll- ment in that school. Again, as with Borton and Holladay, the Board will utilize the advice of the public when reaching its de- Cision. The process, ‘timetable and procedures here would be the same as indicated in paragraph A i, Your concern regarding Pueblo Gardens and Cavett will be examined -232- In this regard, please see pr. Florence Reynolds' 6/30/78 and 7/10/78 memoranda. These memoranda also address your cur- ricular concerns. In addition, it is understood that qualified parents and the Council of Black Educators will provide input and recommendations to the Educa- tional Services Division as they complete the design for "Program- matic Recommendations to Assist in the Quality Education of Black Students in Tucson." Please see the copy of a draft of a statement regarding non-dis- crimination in employment which the Board would adopt as part of this settlement. Contained within the proposed non- discrimination statement is a com- mitment to establish uniform procedures to address your con- cerns in these areas. Although a concern has b2en ex- pressed by you that Black teachers not be assigned in such a manner as to isolate them from other Black teachers, as a practical matter this should not be a prob- lem. Assignment of Black teachers in all schools will be addressed during the 1978-79 school year. The Council of Black Educators will be involved in this process and if this examination indicates that reassignment of Black faculty is desirable, the Board may under- take such reassignment beginning in the 1979-80 school year. -233- i. 10. ll. 12. Please refer, in response to these concerns, to Dr. Reynolds' memo- randa dated 6/30/78 and 7/10/78 and to paragraph 5 above. It is the District's position that a child is not admitted to a bilingual instructional program without specific parental permis- sion. In addition, the District agrees that ne Black student will be submitted to such a program without first explaining the nature of the program and the available options to the student's parents. An examination of your concern (i.e., any adverse effect of the bilingual program on non- program Black students) will be conducted and if any adverse effects are found respecting non- program students, they will certainly be addressed. Again, Dr. Reynolds' memoranda of 6/30/78 and 7/10/78 briefly dis- cuss the District's position and commitment respecting the con- cerns and proposals contained in the June 1978 document you pre- sented to me. I have been assured by District staff, and the Board has so directed by authorizing this letter, that all concerns contained in that document will be addressed within the District's total effort. Any citizen's committee that is established to assist the Board in the monitoring or implementing of the District's plan will include -234- citizens of diverse ethnic and racial backgrounds, including but not limited to Mexican-Ameri- cans, Blacks, Anglos, Orientals and native Americans. This com- mittee will include a member or members of the N.A.A.C.P., and Shall be selected by the Board. B. As to Plaintiffs' Mendoza, et al, requests: 1. The student assignment patterns for Davis, Carrillo and Drachman Elementary Schools will be altered, but the Board is quite concerned with the manner in which any change in the assignment of students now attending Davis, Drachman and Carrillo Elementary Schools is to be handled. Ac- cordingly, the Board wants to significantly involve citizens in any process which may result in any school closing or the re- assignment of any pupils by per- mitting them to offer advice to the Board before any decision is made to close, consolidate, or continue to operate these schools and also offer the Board advice On the educational Specifications of any new elementary school to be built in the inner city if Such is to be the case. 4 The Board will immediately imple- ment this process with a view toward having an option ready with respect to these schools for its review and action. The Board further envisions that a review -235- by counsel for all parties of the fruits of this process be con- ducted so that the process will produce a result which is pala- table to Plaintiffs and conso- nant with Consitutional principles. Should the Board's public process not produce a result Satsifactory to both the Board and Plaintiffs, the Board will, on or before December 31, 1978, independently examine the issues and produce a plan for presentation to the Court for its approval Pursuant to Paragraphs 5 and 7 of the Court's Order of June 5, 1978. Please refer to the attached pro- posed statement regarding non- discrimination in employment. Contained within this document is a commitment to address the concern which you have raised. Please refer to the attached District memorandum dated July 12, 1978, in response to this item, as well as the attached analysis of this program authored by Laura Banks. AS a result of these two memoranda, the District has a Significant question respecting the advantage, if any, to students exposed to this program. However, if the parents of at least 25, but no more than 30 children, with full knowledge of the limitations of this program, remain interested in enrolling their Children in -236- this program, the District will offer such a pilot program. These volunteers must be available and Signify in writing their inten- tions, including an acknowledge- ment of the program's limitations, by August 14, 1978, in order to implement the program in the 1978-79 school year. The District will provide a teacher for this program who is fully competent to instruct the "Spalding Method." However, that teacher will not necessarily be the person Suggested by counsel for Plaintiffs Mendoza, et al, but rather the teacher whe is deemed by District personnel to be most competent for the task. Omitted - requires additional data. I solicit any comment which any of you may have with respect to the fore- going, and would appreciate it if you would please offer any comments in writing. In addition, I will require a written letter of intent from all counsel for Plaintiffs both On behalf of the named Plaintiffs and on behalf of all class members, and Plaintiff-Intervenor that the six requirements of settlement made by my clients herein are Satisfactory and will be agreed to, Providing my clients adhere to the commitments which will be made by them. -237- REPLY TO MEXICAN-AMERICAN RESPONSE DATED JULY 19, 1978 There does not seem to be a signifi- cant distinction between the material in Our letter concerning the Mexican-Ameri- cans dated July 13, 1978 ana their response thereto. For purposes of Clarification, however, several comments should be made. First, the advisory group which is mentioned in the School Board's letter to all Plaintiffs envisions a group com- posed of parents of children attending Davis, Carrillo and Drachman Elementary Schools which would concern itself only with those schools. Any citizens' ad- visory group which would contribute to a plan for the future of all inner city schools would be made up of citizens from throughout the District. Although the Plaintiffs may not spe- cifically Participate in the selection process of the teacher for the one year pilot "Spalding" program, the criteria utilized in selecting a teacher who is fully competent to instruct according to the "Spalding" method will certainly be given to the Plaintiffs. If a teacher currently employed by the School District is not available, one will be found and hired. The deadline for enrolling chil- dren in the program could be extended to August 14, 1978. The Plaintiffs are not correct when they suggest that the District is utiliz- ing only locally developed tests. Evi- dence presented at trial concerning -238- the testing of children in the School District should adequately answer the concerns by Plaintiffs. With respect to paragraph 4 it is the Defendants' position that there is cur- rently a standard procedure for staff Promotions within the District which is being refined and shall be made available to you. In reference to the attorney's fees requested by plaintiffs, please refer to the prior materials contained in this letter. In reference to the letter received by the Defendants from the Plaintiff- Intervenor, the United States Of America, the attorneys for the Defendants have responded to that letter by stating that it is too vague to respond to in the areas concerning approval of the options already presented to Judge Frey on July 17, 1978, and concerning any problems which the Plaintiff-Intervenor may have with the Richey School. Until such time as an adequate response is received from the Government, the Defendants have nothing additional that they can add in response thereto. We look forward to meeting with you On August 1, 1978, in an attempt to resolve any difficulties which continue -239- Subsequent to the transmittal of this letter to you. Very truly yours, DeCONCINI McDONALD BRAMMER & YETWIN, P.c, /s/ Richard M. Yetwin ; RMY: jc Enclosures cc: Edmund Kahn Dr. Wilbur H. Lewis Russell Nn. Jensen -240- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0765%3A2. Public record. Not legal advice.