A federal judge overseeing the desegregation efforts of Tucson’s largest school district has strongly criticized TUSD, saying it has moved away from working collaboratively with the plaintiffs, instead adopting a more “aggressive, legalistic” approach.
The statement by U.S. District Judge David C. Bury was part of an order in which he approved the appointment of legal counsel for Special Master Willis Hawley — a request Tucson Unified School District and the Department of Justice railed against.
TUSD will be responsible for the $475-an-hour legal fees.
Bury noted much has changed in TUSD since the 2013 adoption of the Unitary Status Plan — a road map designed to help bring racial balance to TUSD schools. The differences, according to Bury, include staffing changes and a change in legal counsel initiated by the district’s new superintendent, H.T. Sanchez.
“This past year, TUSD has decidedly moved away from collaboratively working with the plaintiffs and the special master to resolve issues,” Bury wrote. “The court finds these changes have stymied the expeditious implementation of the USP.”
The sentiment is similar to comments made by Hawley — a national desegregation expert appointed by the court to guide TUSD in its efforts and advise the court on the progress made — at a Governing Board meeting weeks ago. He said some of the decisions being made could hinder the district’s ability to get out from under the decades-old court order by the end of the 2016-2017 school year, as planned.
In his ruling regarding Hawley’s request for legal counsel, Bury noted that even minor procedural rulings are being litigated by TUSD.
The decision by TUSD to move away from working collaboratively prompted the court to find that appointing legal counsel to Hawley was “urgently needed,” given that TUSD’s past filings and what will likely be filed in the future will include legal challenges, Bury said.
TUSD, however, argues that such an appointment is unprecedented and unnecessary.
“The special master is supposed to be a referee between the district and the plaintiffs to ensure protocol is being followed,” Sanchez said. Unlike the plaintiffs and the defendant — the district — Hawley doesn’t get the benefit of having his own legal team, Sanchez added.
Bury argued, however, that part of Hawley’s job is to analyze the district’s effort, including whether it has shown “good faith” compliance in implementing the USP.
Good faith in this case is a critical legal assessment, and counsel is best tasked with identifying when actions by TUSD — or nonaction — evidences a lack of good faith and should be brought to the court’s attention, Bury said.
The attorney appointed to Hawley is Andrew H. Marks of Washington, D.C. His $475-an-hour fee is discounted from the $650 rate he usually charges. His role, according to Bury, will be very limited: providing advice to Hawley regarding law, both substantive and procedural.
Like TUSD, Bury said the court is concerned about the cost of the appointment.
“The court has the same concern as all the parties, which was succinctly expressed by TUSD, that money spent for counsel appointed for the special master ‘makes less available to educate the children sought to be benefitted,’“ Bury wrote. “But this is true regarding all the attorney fees being incurred by all the parties.”
Bury noted the court referred the parties to a settlement conference to discuss placing a cap on attorney fees, but no agreement was reached.
He also highlighted that Hawley has a track record of using his resources conservatively, routinely discounting his own fees by not billing for approximately 20 percent of his time.
TUSD, however, has publicly lamented the amount that has been paid out to Hawley and his team of experts — $662,648 — in little more than two years. On a yearly basis, Hawley is earning more than Sanchez’s annual base pay.
The other experts who Hawley has brought on board with the court’s approval have assisted with student assignment issues and in monitoring USP implementation.