THOMAS, Circuit Judge:
In 1974, African American and Mexican American students sued the Tucson, Arizona, school system, alleging intentional segregation and unconstitutional discrimination on the basis of race and national origin. For some 30 years after the parties settled in 1978, Tucson's schools operated subject to a federally enforced desegregation decree. In a careful review of the progress under the decree, the district court concluded that the school district had failed to act in good faith compliance with its desegregation obligations, but nonetheless declared the Tucson school system "unitary" and terminated court jurisdiction. Because Supreme Court precedent requires continuing court supervision under these circumstances, we reverse and remand.
In the wake of the Brown decisions,
Missouri v. Jenkins, 515 U.S. 70, 89, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995) (alterations in the original) (quoting Freeman v. Pitts, 503 U.S. 467, 492, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992) (quoting Bd. of Ed. of Okla. City Public Schs. v. Dowell, 498 U.S. 237, 249-50, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991))). The school district bears the burden of making these two showings. Id. at 88, 115 S.Ct. 2038.
The Supreme Court has underscored that the first showing, regarding good faith, is central to a district court's decision to declare a school system unitary and withdraw its supervision. In Freeman, the Court directed district courts to "give particular attention to the school system's record of compliance" because "[a] school system is better positioned to demonstrate its good-faith commitment to a constitutional course of action when its policies form a consistent pattern of lawful conduct directed to eliminating earlier violations." 503 U.S. at 491, 112 S.Ct. 1430. Indeed, "A history of good-faith compliance is evidence that any current racial imbalance is not the product of a new de jure violation." Id. at 498, 112 S.Ct. 1430.
Just as important, the Court has stressed the breadth of the second showing, regarding whether the school district has eliminated the vestiges of past discrimination to the extent practicable. It has instructed district courts to "look not only at student assignments, but `to every facet of school operations — faculty, staff, transportation,
Guided by these principles, we turn to the case at bar. We review the district court's legal conclusions de novo. DirecTV, Inc. v. Webb, 545 F.3d 837, 842 (9th Cir.2008). Cognizant that "[p]roper resolution of any desegregation case turns on a careful assessment of its facts," Freeman, 503 U.S. at 474, 112 S.Ct. 1430, and aware of the deference owed district courts in such cases,
The 1974 lawsuits filed by the Fisher and Mendoza plaintiffs, representing the district's African American and Mexican American students, respectively, were consolidated in 1975, and the United States was permitted to intervene as a plaintiff in 1976. The consolidated case went to trial in 1977, and in 1978 the district court found that the Tucson Unified School District
The Settlement Agreement established and directed federal court oversight of the School District; it has been the desegregation decree at the center of this case for the past 30 years. In approving the Agreement, the district court described it as "designed to remedy existing effects of past discriminatory acts or policies." The Agreement itself professed to "finally resolve this litigation."
The Agreement provided that "[a]fter five full school years of operation under" its terms "and the student assignment plans adopted pursuant to" it, the District could "move the [c]ourt to dissolve" it and dismiss the actions, subject to objection by the plaintiffs or the United States as plaintiff-intervenor. It was more than 25 years, however, before the School District did so — and then only in response to the district court's 2004 sua sponte order directing the parties to show cause why the court should not declare the School District unitary and terminate its jurisdiction.
In its Petition for Unitary Status, the District argued that it had shown its good faith commitment and eliminated the vestiges of discrimination to the extent practicable by measure of the Green factors. It claimed to have achieved unitary status and requested that the court dismiss the action and terminate its oversight of the District's operations.
The Mendoza plaintiffs objected.
After reviewing the parties' arguments and extensive evidentiary submissions, on August 21, 2007, the district court stated its first of two preliminary findings that the School District had achieved unitary status. As to the first prong of the unitary status inquiry, the court concluded that it could not "make the requisite finding as to ... [w]hether the provisions of the Settlement Agreement have been complied with in good faith." The court noted that "[g]ood faith means more than mere protestations of an intention to comply with the Constitution in the future," and instead requires evidence of "[s]pecific policies decisions, and courses of action." The court went on, however, to state that the School District could demonstrate its good faith by working with the other parties to develop so-called "post-unitary provisions" — "clearly stated" "goals ... and requirements," "measurements of success and effectiveness," and "periodic review and reporting to the community regarding implementation, operation, and progress." The court indicated that the adoption of a plan consisting of "transparen[t] ... post-unitary provisions" that allowed for public monitoring would "establish [the District's] good faith commitment to the future operation of the school system in compliance with the constitutional principles that were the predicate for this Court's intervention in this case."
As to the second prong of the unitary status inquiry, the court similarly concluded that it could not "make the requisite finding as to ... [w]hether the vestiges of de jure segregation have been eliminated to the extent practicable." However, it stated that it "anticipate[d] that once compiled in a comprehensive report, the record will support a finding that the vestiges of de jure segregation have been eliminated to the extent practicable for student assignments." The court then ordered the District to compile such a report.
Overall, the court concluded that the parties' submissions to date were such that it was "hard pressed without spending hours upon hours of rutting through the record to piece together the facts it need[ed] to support a finding of unitary status." But it nonetheless announced its intention "to close this case and return [the District] schools to the state because oversight and control will be more effective placed in the hands of the public with
The School District responded to the district court's order regarding the second prong of the unitary status inquiry with a Student Assignment Report purporting to show that it had eliminated the vestiges of discrimination in student assignment. Included were two expert reports that the District described as providing "a comprehensive review of the impact of [its] student assignment plans and student transfer policies from 1976 to [2007]" and as "support[ing] a finding that the District [] operated in good faith with regard to student assignment since the [Settlement Agreement] was entered."
In their response to the District's Student Assignment Report, the Mendoza plaintiffs presented a report by Dr. Leonard B. Stevens arguing that the District "should not be found unitary in student assignment, because it has failed to meet its desegregation obligation." In their response, the Fisher plaintiffs presented a report by Dr. James T. Schelble that challenged the court's analytical model and alleged that the District's Student Assignment Report "clearly shows that [it] has failed to satisfy the Court's Order to document its compliance with the terms of the [Agreement] addressing student assignment."
The district court responded to the School District's Student Assignment Report and the plaintiffs' objections in an order in which it made its second preliminary finding that the School District had achieved unitary status. See Fisher v. Tucson Unified Sch. Dist. No. One, 549 F.Supp.2d 1132 (D.Ariz.2008). Adopting as its own the facts stated by the School District in its Report, the court found that the District had satisfied the second prong of the unitary status inquiry: "[T]he ethnic and race ratios required under the Settlement Agreement desegregation plans were implemented and maintained for 5 years, and eliminated to the extent practicable the vestiges of de jure segregation." Still, even as it approved the District's progress with regard to student assignment — and then only in the early years of its operation under the Settlement Agreement
As to the first prong, the court concluded that the School District "failed to act in good faith in its ongoing operation ... under the Settlement Agreement." The court was most critical of the District's efforts at gauging its progress toward desegregation, finding that it had "fail[ed] to monitor, track, review and analyze the effectiveness" of its programs and policies and therefore had not demonstrated a good faith adherence to the Settlement Agreement or the constitutional principles that underlie it. The court focused on the District's shortcomings regarding student assignment, finding that it had "failed to make the most basic inquiries necessary to assess the ongoing effectiveness of its student assignment plans, policies, and programs."
Nonetheless, having concluded that the School District failed the good faith inquiry and having raised significant questions as to whether the District had eliminated the vestiges of racial discrimination to the extent practicable, the court announced its intention to grant the District's Petition for Unitary Status and terminate its jurisdiction. It stated that "successful desegregation will exist when the[District] is accountable to the public for its operation... in compliance with ... principles of equality. In other words," the court continued, the District "will attain unitary status upon the adoption of a Post-Unitary Plan that ensures transparency and accountability to the public regarding the operation of a non-discriminatory school system." The court ordered the parties to meet and confer to finalize such a plan and held that, "[o]nce the [Plan] is adopted by the[District]," it would "grant the Petition for Unitary Status."
Nonetheless, after it answered the plaintiffs' objections, the court ordered the Plan approved, declared the District unitary, and announced the end of "all federal juridical oversight" of the District.
The district court's own findings are fatal to its determination that the School District has achieved unitary status. Supreme Court precedent is clear: in making a declaration of unitary status and terminating federal jurisdiction, a district court must determine that the school district has "complied in good faith with the desegregation decree since it was entered" and has eliminated "the vestiges of past discrimination... to the extent practicable." Jenkins, 515 U.S. at 89, 115 S.Ct. 2038 (quotation omitted); see Freeman, 503 U.S. at 492, 112 S.Ct. 1430; Dowell, 498 U.S. at 249-50, 111 S.Ct. 630. Nowhere are these requirements described as anything other than mandatory prerequisites to a determination of unitary status.
Here, the district court determined that the School District "failed to act in good faith in its ongoing operation ... under the Settlement Agreement." And even by reference to only certain of the Green factors, the court stated concerns about whether the District had sufficiently eliminated the effects of past de jure segregation. The court found that the School District had failed to make "the most basic inquiries necessary to assess the ongoing effectiveness of its student assignment plans;" had "exacerbated the inequities" of racial imbalances through its "failure to assess program effectiveness;" had "failed to respond" to "legitimate and important" concerns about staff cuts at minority schools; had "failed to comply" with the Settlement Agreement's requirement that it regularly review recruitment, hiring, and promotion in order to "guard against discrimination or inequities;" had never "undertaken a comprehensive analysis of suspension and expulsion data by ethnicity and race;" had not given "time and attention" to how the African American Studies Department could aid the quality education of minority students; and had failed to review program effectiveness in order to ensure quality education for minority students.
The district court's decision to declare the School District unitary on the basis of these findings cannot be reconciled with Supreme Court precedent. There is no authority for the proposition that a failure to demonstrate past good faith can be cured, and federal jurisdiction can be terminated, if a plan that merely promises future improvements is adopted. To the contrary, it is only "[a] history of good-faith compliance" that "enables the district court to accept [a school district's] representation that it has accepted the principle of racial equality and will not suffer intentional discrimination in the future." Freeman, 503 U.S. at 498, 112 S.Ct. 1430 (emphasis added).
In its cross-appeal, the School District argues that the district court's error instead lies in its determination that the District has not demonstrated good faith. However, the district court's factual conclusion is amply supported by the record. The District has produced no evidence to rebut the lower court's finding that the District failed to collect and analyze the data that would reveal whether its desegregation efforts were working. As such, the District has no means to show that its "policies form a consistent pattern of lawful conduct directed to eliminating earlier violations." Freeman, 503 U.S. at 491, 112 S.Ct. 1430. Indeed, as the district court found, because the School District "has been incapable of making logical or meaningful changes to its ... policies, practices, or procedures related to desegregation," any progress "would have been mere coincidence." Good faith requires more.
We are well aware that "federal supervision of local school systems was intended as a temporary measure to remedy past discrimination" and therefore that desegregation decrees "are not intended to operate in perpetuity." Dowell, 498 U.S. at 247-48, 111 S.Ct. 630. Indeed, "Returning schools to the control of local authorities at the earliest practicable date is essential to restore their true accountability in our governmental system." Freeman, 503 U.S. at 490, 112 S.Ct. 1430. After all, "`local autonomy of school districts is a vital national tradition.'" Id. (quoting Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 410, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977)).
Yet these principles do not permit a federal court to abdicate its responsibility to retain jurisdiction until a school district has demonstrated good faith and eliminated the vestiges of past discrimination to the extent practicable. Decades of Supreme Court precedent dictate that, where good faith lacks and the effects of de jure segregation linger, public monitoring and political accountability do not suffice. Only once a school district has "shown that [it] has attained the requisite degree of compliance" may a court craft "an orderly means for withdrawing from control." Id. Rightly so, for "the court's end purpose must be to remedy the violation and, in addition, to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution." Id. at 489, 112 S.Ct. 1430 (emphasis added) (citation omitted). Thus, "when a school district has not demonstrated good faith," the Supreme Court has "without hesitation approved comprehensive and continued district court supervision." Id. at 499, 112 S.Ct. 1430 (emphasis added) (citations omitted).
Accordingly, we do not hesitate to do so here. We reverse the court below and order it to maintain jurisdiction until it is satisfied that the School District has met its burden by demonstrating — not merely promising — its "good-faith compliance ... with the [Settlement Agreement] over a
The district court, of course, retains "the discretion to order an incremental or partial withdrawal of its supervision and control." Id. at 489, 112 S.Ct. 1430. Specifically,
Id. at 490-91, 112 S.Ct. 1430 (emphasis added).
Id. at 491, 112 S.Ct. 1430.
We remand for further proceedings in light of our opinion. We do not reach any of the additional arguments raised by the parties.
Freeman, 503 U.S. at 494, 112 S.Ct. 1430 (quoting Swann, 402 U.S. at 32, 91 S.Ct. 1267); see Manning ex rel. Manning v. Sch. Bd. of Hillsborough Cnty., Fla., 244 F.3d 927, 941 (11th Cir.2001) ("Put simply, a school board has no obligation to remedy racial imbalances caused by external factors, such as demographic shifts, which are not the result of segregation and are beyond the board's control." (citing Jenkins, 515 U.S. at 102, 115 S.Ct. 2038; Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 434, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976); Swann, 402 U.S. at 22, 91 S.Ct. 1267)).
As we discuss below, the district court used the wrong standard to assess the School District's progress in the area of faculty assignments. See post at n. 29.
Jenkins, 515 U.S. at 113, 115 S.Ct. 2038 (O'Connor, J., concurring).