FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROY FISHER; JOSIE FISHER; MARIA 

MENDOZA, EDWARD A. CONTRERAS,

Plaintiffs-Appellants,

v.

TUCSON UNIFIED SCHOOL DISTRICT,

No. 10-15124 Defendant-Appellee,

D.C. Nos. SIDNEY L. SUTTON; SALLY J. 

4:74-cv-00090-DCB SUTTON; JOHN R. CENTENO; MARY 74-cv-00204-DCB KATHERINE CENTENO; LIBRADA G.

RUIZ; SIDNEY TAIZE,

Defendant-intervenors-Appellees,

v.

UNITED STATES OF AMERICA,

Plaintiff-intervenor. 

9771
ROY FISHER; JOSIE FISHER, 

Plaintiffs-Appellants,

and

MARIA MENDOZA; EDWARD A.

CONTRERAS,

Plaintiffs,

UNITED STATES OF AMERICA, No. 10-15375

Plaintiff-intervenor, D.C. Nos. 

v. 4:74-cv-00090-DCB

74-cv-00204-DCB TUCSON UNIFIED SCHOOL DISTRICT,

Defendant-Appellee,

SIDNEY L. SUTTON; SALLY J.

SUTTON; JOHN R. CENTENO; MARY

KATHERINE CENTENO; LIBRADA G.

RUIZ; SIDNEY TAIZE,

Defendant-intervenors-Appellees. 

9772 FISHER v. TUCSON USD
ROY FISHER; JOSIE FISHER; MARIA 

MENDOZA; EDWARD A. CONTRERAS,

Plaintiffs-Appellees,

UNITED STATES OF AMERICA,

Plaintiff-intervenor-Appellee,

v. No. 10-15407

TUCSON D.C. No. UNIFIED SCHOOL DISTRICT, 

Defendant-Appellant, 4:74-cv-00090-DCB

and OPINION

SIDNEY L. SUTTON; SALLY J.

SUTTON; JOHN R. CENTENO; MARY

KATHERINE CENTENO; LIBRADA G.

RUIZ; SIDNEY TAIZE,

Defendant-intervenors. 

Appeal from the United States District Court

for the District of Arizona

David C. Bury, District Judge, Presiding

Argued and Submitted

May 10, 2011—San Francisco, California

Filed July 19, 2011

Before: Betty B. Fletcher and Sidney R. Thomas,

Circuit Judges, and Nancy Gertner, District Judge.*

Opinion by Judge Thomas

*The Honorable Nancy Gertner, District Judge for the U.S. District

Court for Massachusetts, Boston, sitting by designation. 

FISHER v. TUCSON USD 9773
COUNSEL

Rubin Salter, Jr., Tucson, Arizona, for the Fisher plaintiffsappellants/cross appellees.

Cynthia Valenzuela Dixon, Mexican American Legal Defense

and Educational Fund, Los Angeles, California, Lois D.

Thompson, Jessica Freiheit Kurzban, and Jennifer Roche,

Proskauer Rose, LLP, Los Angeles, California, for the Mendoza plaintiffs-appellants/cross appellees.

Thomas E. Perez, Assistant Attorney General, Dennis J. Dimsey and Holly A. Thomas, Civil Rights Division, Appellate

Section, United States Department of Justice, Washington,

DC, for plaintiff-intervenor the United States.

Richard M. Yetwin, Heather K. Gaines, and Sesaly O.

Stamps, DeConcini McDonald Yetwin & Lacy, P.C., Tucson,

Arizona, for defendant- appellee/cross appellant Tucson Unified School District.

OPINION

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

9776 FISHER v. TUCSON USD
court supervision under these circumstances, we reverse and

remand.

I

In the wake of the Brown decisions,1 federal courts fashioned and enforced desegregation decrees to ensure that

school districts that once operated “state-compelled dual systems” performed their “affirmative duty to take whatever

steps might be necessary to convert to a unitary system in

which racial discrimination would be eliminated root and

branch.” Green v. Cnty. Sch. Bd. of New Kent Cnty., Va., 391

U.S. 430, 437-38 (1968) (citations omitted).2 The test used to

determine when unitary status has been achieved, and accordingly when federal court oversight may end, is wellestablished:

The ultimate inquiry is “ ‘whether the [constitutional

violator] ha[s] complied in good faith with the

desegregation decree since it was entered, and

whether the vestiges of past discrimination ha[ve]

been eliminated to the extent practicable.’ ”

Missouri v. Jenkins, 515 U.S. 70, 89 (1995) (alterations in the

original) (quoting Freeman v. Pitts, 503 U.S. 467, 492 (1992)

(quoting Bd. of Ed. of Okla. City Public Schs. v. Dowell, 498

1

See Brown v. Bd. of Educ., 347 U.S. 483 (1954) (Brown I); Brown v.

Bd. of Educ., 349 U.S. 294 (1955) (Brown II). 

2

See Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 459 (1979) (“ ‘If

school authorities fail in their affirmative obligations . . . , judicial authority may be invoked. . . . In default by the school authorities of their obligation to proffer acceptable remedies, a district court has broad power to

fashion a remedy that will assure a unitary school system.’ ” (second alteration in the original) (quoting Swann v. Charlotte-Mecklenburg Bd. of

Educ., 402 U.S. 1, 15-16 (1971))). 

FISHER v. TUCSON USD 9777
U.S. 237, 249-50 (1991))). The school district bears the burden of making these two showings. Id. at 88.3

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.

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 498.4 When a school district demon3Acknowledging that school desegregation class actions “ ‘present[ ]

problems of considerable complexity,’ ” the Supreme Court has emphasized that responsibility for their resolution is shared. Swann, 402 U.S. at

12 (quoting Brown I, 347 U.S. at 495). “ ‘School authorities have the primary responsibility for elucidating, assessing, and solving these problems;

courts [ ] have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles.’ ” Id. (quoting Brown II, 349 U.S. at 299). 

4The Supreme Court has emphasized that the lingering effects of de jure

segregation, and not re-segregation caused by factors outside the school

district’s control, are the targets of properly tailored desegregation

decrees: 

Once the racial imbalance [in student assignment] due to the de

jure violation has been remedied, the school district is under no

duty to remedy imbalance that is caused by demographic factors.

. . . [“I]n the absence of a showing that either the school authorities or some other agency of the State has deliberately attempted

to fix or alter demographic patterns to affect the racial composition of the schools, further intervention by a district court should

not be necessary[.]” 

Freeman, 503 U.S. at 494 (quoting Swann, 402 U.S. at 32); 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; Pasadena City Bd. of Educ. v.

Spangler, 427 U.S. 424, 434 (1976); Swann, 402 U.S. at 22)). 

9778 FISHER v. TUCSON USD
strates good faith, it “enables the district court to accept [its]

representation that it has accepted the principle of racial

equality and will not suffer intentional discrimination in the

future.” Id. (citation omitted).

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, extra-curricular

activities and facilities.’ ” Dowell, 498 U.S. at 250 (quoting

Green, 391 U.S. at 435); accord Jenkins, 515 U.S. at 88. The

Court has emphasized that desegregation decrees must “address all these components of elementary and secondary

school systems.” Freeman, 503 U.S. at 486 (emphasis added).

Especially given that these so-called “Green factors may be

related or interdependent” such that “a continuing violation in

one area may need to be addressed by remedies in another,”

id. at 497, unitary status cannot be declared, and jurisdiction

cannot be terminated, when a school district lags in one or

more of them.

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,

and aware of the deference owed district courts in such cases,5

5

See Penick, 443 U.S. at 457 n.6; Anderson v. Sch. Bd. of Madison

Cnty., 517 F.3d 292, 296 (5th Cir. 2008) (“We have also recognized that,

given the unique factual circumstances present in school desegregation

cases, the district court’s factual findings are entitled to ‘great deference[,]’ ” particularly when “the district judge has ‘supervised the case for

many years.’ ” (quoting Flax v. Potts, 915 F.2d 155, 158 (5th Cir. 1990));

N.A.A.C.P., Jacksonville Branch v. Duval Cnty. Sch., 273 F.3d 960, 965

(11th Cir. 2001); Dowell v. Bd. of Educ. of Okla. City Public Schs., 8 F.3d

FISHER v. TUCSON USD 9779
we review the court’s findings of fact—including its finding

of unitary status—for clear error pursuant to Federal Rule of

Civil Procedure Rule 52(a)(6). Webb, 545 F.3d at 842; see

Robinson v. Shelby Cnty. Bd. of Educ., 566 F.3d 642, 647 (6th

Cir. 2009) (clear error standard for review of unitary status

determination) (citing Manning, 244 F.3d at 940).6“The clear

error standard is significantly deferential and is not met unless

the reviewing court is left with a ‘definite and firm conviction

that a mistake has been committed.’ ” Cohen v. U.S. Dist.

Court for N. Dist. of Cal., 586 F.3d 703, 708 (9th Cir. 2009)

(quoting Concrete Pipe & Prods. v. Constr. Laborers Pension

Trust, 508 U.S. 602, 623 (1993)).7 However, “Rule 52(a)

‘does not inhibit an appellate court’s power to correct errors

of law, including those that may infect a so-called mixed finding of law and fact, or a finding of fact that is predicated on

a misunderstanding of the governing rule of law.’ ” Thornburg v. Gingles, 478 U.S. 30, 79 (1986) (quoting Bose Corp.

v. Consumers Union of U.S., Inc., 466 U.S. 485, 501 (1984)).

1501, 1511 (10th Cir. 1993); Goldsboro City Bd. of Educ. v. Wayne Cnty.

Bd. of Educ., 745 F.2d 324, 327 (4th Cir. 1984) (“The Supreme Court has

said that appellate courts should give great deference to the district court’s

findings in school desegregation cases.”) (collecting cases); Arthur v.

Nyquist, 712 F.2d 809, 813 (2d Cir. 1983); Alexander v. Youngstown Bd.

of Ed., 675 F.2d 787, 796 (6th Cir. 1982) (citing Penick, 443 U.S. at 469-

71 (Stewart, J., concurring)); Hoots v. Pennsylvania, 639 F.2d 972, 979

(3d Cir. 1981) (citing Evans v. Buchanan, 555 F.2d 373, 380 (3d Cir.

1977) (en banc)). 

6Accord Anderson, 517 F.3d at 296; N.A.A.C.P., Jacksonville Branch,

273 F.3d at 965; Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d

305, 317 (4th Cir. 2001) (en banc); Coal. to Save Our Children v. State

Bd. of Educ. of State of Del., 90 F.3d 752, 759 (3d Cir. 1996); Keyes v.

Sch. Dist. No. 1, Denver, Colo., 895 F.2d 659, 666 (10th Cir. 1990). 

7We are left with such a conviction when the district court’s factual

finding is “illogical, implausible, or without support in inferences that may

be drawn from the facts in the record.” United States v. Hinkson, 585 F.3d

1247, 1263 (9th Cir. 2009) (en banc). 

9780 FISHER v. TUCSON USD
II

A

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 District8 had acted with segregative intent in the past

and had failed its obligation to rectify the effects of its past

actions. See Mendoza v. Tucson Sch. Dist. No. 1, 623 F.2d

1338, 1341 (9th Cir. 1980) (as amended) (describing the

case’s early procedural history and the district court’s June

1978 order).9 The court approved the District’s proposed

desegregation plans and a Settlement Agreement submitted by

all parties. See id. at 1342-43.

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.”

10 In the Agreement, the School District

stipulated that it would implement its proposed desegregation

8Tucson maintained separate school districts for its primary and secondary students until 1977. We refer to the Tucson Unified School District as

the “School District” or “the District” throughout. 

9As the court below noted, this action therefore “falls squarely within

the confines of a de jure case for purposes of determining whether or not

[the School District] has attained unitary status.” See Penick, 443 U.S. at

456-58. 

10Furthermore, the Agreement provided that once it was implemented,

“[T]he rights and obligations of the parties shall be determined solely by

its terms and the terms of any subsequent stipulations or orders entered

herein pursuant to it.” 

FISHER v. TUCSON USD 9781
plans in a number of specified schools, cooperate with parents

to develop and examine future student assignment policies at

several additional schools, and eliminate discrimination in

faculty assignments, employee training, and in policies on

bilingual education, testing, and discipline. Id. at 1342. The

Agreement required the District to file annual reports describing its schools’ enrollments by race and ethnicity, detailing its

faculty and staff assignments, and summarizing all programmatic changes made pursuant to the Agreement and assessing

their effectiveness. Finally, the Agreement prohibited the District from engaging “in any acts or policies which deprive any

student of equal protection of the law” based on race or ethnicity, and required court review of District acts or policies

that “substantially affect the racial or ethnic balance in any

school.”

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 plaintiffintervenor. 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.11

B

In its Petition for Unitary Status, the District argued that it

had shown its good faith commitment and eliminated the ves11The district court speculated that the School District’s reticence, and

the other parties’ complacence, was owing to the fact that in 1983 “the

state legislature enacted legislation which generated funding availability

for districts incurring costs pursuant to court ordered desegregation. This

opened the door for [the School District] to obtain millions of dollars in

local tax revenue.” See Ariz. Rev. Stat. § 15-910(G) (allowing appropriations for expenses incurred with respect to court desegregation orders).

9782 FISHER v. TUCSON USD
tiges 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.12

The Mendoza plaintiffs objected.13 They challenged the

District’s contentions regarding both prongs of the unitary status inquiry and opposed the termination of federal jurisdiction. Both the School District and the Mendoza plaintiffs

marshaled thousands of pages of evidence in support of their

conflicting positions.

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

12The School District specified, however, that it was not seeking the termination of federal court jurisdiction, so as not to jeopardize the funding

it received pursuant to Ariz. Rev. Stat. § 15-910(G).

13The Fisher plaintiffs did not file a formal opposition to the District’s

Petition but in later proceedings objected to the District being declared

unitary. 

FISHER v. TUCSON USD 9783
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 political system at its disposal to

address any future issues.”

14

C

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

14In its August 21, 2007, order, the district court also found unconstitutional the School District’s race-based student transfer policy in operation

at the time. Neither the Fisher plaintiffs nor the Mendoza plaintiffs challenge this holding on appeal, and the policy has since been repealed.

Accordingly, we do not address it. 

9784 FISHER v. TUCSON USD
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.”

15

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 Agreement16—the court noted significant deficiencies

15Dr. William A.V. Clark’s report described demographic change in the

district. Dr. David J. Armor’s report focused on the District’s student

assignment policies.

16Interpreting the Settlement Agreement as binding the School District

“to affirmatively combat segregation” and “at the very least . . . to not

FISHER v. TUCSON USD 9785
with regard to other Green factors17 and did not address certain Green factors at all, including transportation, extracurricular activities, and facilities.

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.”

18 But the court’s concerns extended to

exacerbate racial imbalances caused by [ ] demographic changes,” the

court found that after the first five years of its operation under the Agreement, the District’s student assignment programs, practices, and procedures “had no net effect on [ ] demographic segregation,” and in some

cases had even “exacerbated the inequities” such segregation caused. 

17The court criticized the District’s efforts with regard to faculty and

staff assignments, noting the overall underrepresentation of black teachers,

and the concentration of Hispanic faculty at certain schools such that they

were almost racially identifiable. The court also described the District’s

efforts with regard to disciplinary policies as sorely lacking, finding that

“[o]nly recently, in 2004” had it “charged a responsible party to [work] to

eliminate the over-representation of minority students in drop out, absenteeism, suspension, and expulsion rates.” 

18The court noted that the District’s “lack of good faith [was] proven by

the simple fact that [its] expert reports were only secured . . . to belatedly

support its Petition for Unitary Status,” and by the fact that it “fail[ed] to

present any evidence that over the past 27 years it monitored and reviewed

the effectiveness of its race and ethnic sensitive school boundaries, magnet

programs, and open enrollment.” The court made similar findings with

regard to the District’s programs for advanced and special education students.

9786 FISHER v. TUCSON USD
other areas, as well.19 The court concluded that “[e]ven if the

data presented by the [District] were more persuasive, the

[District’s] lack of good faith is established by [its] failure to

monitor the effectiveness of its ongoing operations to meet”

desegregation goals.

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 nondiscriminatory 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.”

20

19As with student assignment, the court found that the District had

“failed to make the most basic inquiries necessary to assess the effectiveness of its recruitment, hiring, promotion, and placement of minority faculty to satisfy the provisions of the Settlement Agreement requiring

regular review to guard against discrimination or inequities.” The court

further observed that the District had “failed to respond” to “legitimate

and important” concerns that had been raised over staff cuts affecting predominantly minority schools. With regard to disciplinary policies, the

court found that “the District [had] not undertaken a comprehensive analysis of suspension and expulsion data by ethnicity and race.” Similarly,

with regard to student achievement, the court found that except for an

analysis conducted in 1982, the District had “failed to review student

achievement as a measurement for program effectiveness” despite the fact

that “ongoing review of program effectiveness is the only way to ensure

that . . . program changes address demographic segregation and the quality

of education for minority students.”

20In anticipating its grant of the Petition, the district court rejected the

District’s request that it continue to exercise limited jurisdiction (without

FISHER v. TUCSON USD 9787
Over the ensuing year, a committee consisting of representatives of the Fisher and Mendoza plaintiffs, experts, and District staff drafted a “Post-Unitary Status Plan,” which the

District’s Governing Board adopted with amendments.21 In a

further order, the district court began its review of the Plan by

stating that its “responsibility” was “to guard the public

against future injury and restore true accountability to the

public education system by returning it to the control of local

authorities as soon as possible.” The court wrote approvingly

of most of the Plan’s provisions, although it again expressed

“concerns,” which it stated that it shared with the Fisher and

the Mendoza plaintiffs, “regarding the Green factors at issue

in this case and expressly addressed in the [Settlement Agreement].”22

oversight). Stating that the request was motivated by the District’s fear of

losing appropriations provided by the state legislature pursuant to Ariz.

Rev. Stat. § 15-910(G), the court found “that any benefit from its continued involvement in this case in the form of funding is offset by the disadvantages that result from suspension of public accountability that occurs

during such periods.”

21The Fisher and Mendoza plaintiffs challenge certain aspects of the

“Post-Unitary Status Plan” and the procedure by which it was adopted.

Because we conclude that the lower court erred when it declared the District unitary, we do not reach any questions regarding the adequacy of the

so-called “post-unitary” proceedings. 

22Namely, the court pointed to the “seriousness of the disparities that

exist in the [D]istrict between the racial and ethnic makeup of the students

and the faculty” and recognized that the Governing Board had rejected

some proposed remedies “as being discriminatory against nonminority

candidates.” However, the court stated that, “[I]n the event the measures

agreed to by the parties to address faculty diversity are unsuccessful, the

data and evidence compiled pursuant to the Plan will enable” proper

reconsideration by the District. The court again rested its confidence in the

public’s ability “to monitor the effectiveness of the Plan in improving faculty diversity and to participate in any public hearings held by the Governing Board to resolve any dispute over the statistical goals for staff

diversity.”

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. 

9788 FISHER v. TUCSON USD
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.23 The Fisher and Mendoza plaintiffs timely

appealed.24 The School District cross-appealed to the extent

the district court’s orders were adverse to it.

III

[1] 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

(quotation omitted); see Freeman, 503 U.S. at 492; Dowell,

498 U.S. at 249-50. Nowhere are these requirements

described as anything other than mandatory prerequisites to a

determination of unitary status.25 And of course they must be

23In addition, the court again affirmed that it would not maintain limited

jurisdiction over the matter. Addressing the plaintiffs’ request that it “retain jurisdiction over the case until further advances are made by the District” with regard to a two-year pilot student assignment program, the

court acknowledged the “desire to shield the Plan from Governing Board

interference” but concluded that the Plan’s “Monitoring of Progress and

Compliance” provisions were sufficient to “place[ ] the responsibility for

[its] success . . . squarely on [the Governing Board’s] doorstep.” 

24The United States as plaintiff-intervenor did not appeal. It did, however, accept our invitation to express its views on this matter and argues

that the court below should be reversed. 

25See, e.g., Freeman, 503 U.S. 490 (“one of the prerequisites to relinquishment of control . . . is that a school district has demonstrated its commitment to a course of action that gives full respect to the equal protection

guarantees of the Constitution” (emphasis added)); id. at 498 (“The

requirement that the school district show its good-faith commitment to the

entirety of a desegregation plan” guarantees “that parents, students, and

FISHER v. TUCSON USD 9789
so, for “[a] school district which has been released from an

injunction imposing a desegregation plan no longer requires

court authorization for the promulgation of policies and rules

regulating matters such as assignment of students and the

like” and, so long as it does not violate the Equal Protection

Clause, is not bound to follow through on the promises it has

previously made. Id. at 250.

[2] 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.

[3] The district court’s decision to declare the School Disthe public have assurance against further injuries or stigma . . . . We stated

in Dowell that the good-faith compliance of the district with the court

order over a reasonable period of time is a factor to be considered in

deciding whether or not jurisdiction could be relinquished.” (emphasis

added) (citing Dowell, 498 U.S. at 249-50)). 

9790 FISHER v. TUCSON USD
trict 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 (emphasis added).26 To be

sure, district courts possess ample discretion to fashion equitable relief in school desegregation cases, to tailor that relief

as progress is made, and to cede full control to local authorities at the earliest appropriate time. See id. at 486-92. Yet

under our controlling precedent, the district court’s extensive

findings as to the School District’s lack of good faith show

that that time has not yet come to pass for Tucson. The district

court’s declaration of unitary status “is predicated on a misunderstanding of the governing rule of law” and is clearly erroneous. Thornburg, 478 U.S. at 79 (quotation omitted).

[4] 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. Indeed, as the district court found, because the School

26See also Dowell, 498 U.S. at 249 (“A district court need not accept at

face value the profession of a school board which has intentionally discriminated that it will cease to do so in the future. . . . [I]n deciding

whether to modify or dissolve a desegregation decree, a school board’s

[past] compliance . . . is obviously relevant.”). 

FISHER v. TUCSON USD 9791
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. 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. 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 (1977)).27

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,

27As Justice O’Connor noted in her Jenkins concurrence: 

[I]n the school desegregation context, federal courts are specifically admonished to “take into account the interests of state and

local authorities in managing their own affairs,” Milliken v. Bradley, 433 U.S. 267, 281 . . . (1977) . . . , in light of the intrusion

into the area of education, “where States historically have been

sovereign,” United States v. Lopez, 514 U.S. 549, 564 . . . (1995),

and “to which States lay claim by right of history and expertise,”

id.[ ] at 583 . . . (Kennedy, J., concurring). 

Jenkins, 515 U.S. at 113 (O’Connor, J., concurring). 

9792 FISHER v. TUCSON USD
to restore state and local authorities to the control of a school

system that is operating in compliance with the Constitution.”

Id. at 489 (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

(emphasis added) (citations omitted).

[5] 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 reasonable period of time.” Id. at 498.28 The court must also be

convinced that the District has eliminated “the vestiges of past

discrimination . . . . to the extent practicable” with regard to

all of the Green factors. Id. at 492 (quotation omitted).29

[6] The district court, of course, retains “the discretion to

order an incremental or partial withdrawal of its supervision

and control.” Id. at 489. Specifically,

28See also Dowell, 498 U.S. at 248 (“Dissolving a desegregation decree

after the local authorities have operated in compliance with it for a reasonable period of time properly recognizes that ‘necessary concern for the

important values of local control of public school systems dictates that a

federal court’s regulatory control of such systems not extend beyond the

time required to remedy the effects of past intentional discrimination.’ ”

(citation omitted) (quoting Spangler v. Pasadena City Bd. of Educ., 611

F.2d 1239, 1245 n.5 (9th Cir. 1979) (Kennedy, J., concurring))); Anderson, 517 F.3d at 297 & n.3. 

29With regard to faculty and staff assignments, it is important to emphasize that the “proper comparison [is] between the racial composition of

[the District’s] teaching staff and the racial composition of the qualified

public school teacher population in the relevant market.” Hazelwood Sch.

Dist. v. United States, 433 U.S. 299, 308 (1977) (citation omitted). The

School District acknowledges as much, although admits that it has never

made this inquiry. The district court erred when it instead compared the

racial and ethnic composition of a school’s faculty and staff to that of its

students. 

FISHER v. TUCSON USD 9793
[w]hile retaining jurisdiction over the case, the court

may determine that it will not order further remedies

in areas where the school district is in compliance

with the decree. That is to say, upon a finding that

a school system subject to a court-supervised desegregation plan is in compliance in some but not all

areas, the court in appropriate cases may return control to the school system in those areas where compliance has been achieved, limiting further judicial

supervision to operations that are not yet in full compliance with the court decree. In particular, the district court may determine that it will not order

further remedies in the area of student assignments

where racial imbalance is not traceable, in a proximate way, to constitutional violations.

Id. at 490-91 (emphasis added).30 We leave it to the district

court to decide whether partial withdrawal is warranted in this

case. The court’s “sound discretion” should be informed by

these factors:

whether there has been full and satisfactory compliance with the [Settlement Agreement] in those

aspects of the system where supervision is to be

withdrawn; whether retention of judicial control is

necessary or practicable to achieve compliance with

the [Agreement] in other facets of the school system;

and whether the [S]chool [D]istrict has demonstrated, to the public and to the parents and students

of the once disfavored race[s and ethnicities], its

30The School District retains “the burden of showing that any current

imbalance is not traceable, in a proximate way, to the prior violation.”

Freeman, 503 U.S. at 494. But “as the de jure violation becomes more

remote in time and . . . demographic changes intervene, it becomes less

likely that a current racial imbalance in a school district is a vestige of the

prior de jure system.” Id. at 496. Still, good faith remains paramount: “The

causal link between current conditions and the prior violation is even more

attenuated if the school district has demonstrated its good faith.” Id.

9794 FISHER v. TUCSON USD
good-faith commitment to the whole of the [Agreement] and to those provisions of the law and the

Constitution that were the predicate for judicial

intervention in the first instance.

Id. at 491.

We remand for further proceedings in light of our opinion.

We do not reach any of the additional arguments raised by the

parties.

REVERSED AND REMANDED.

FISHER v. TUCSON USD 9795