Fisher, et al v. Tucson Unified, et al

Filing 1760

ORDERED that the Court adopts the recommendation contained in R&R 1659 , 1666 that, within 20 days of the filing date of this Order, TUSD shall provide the Plaintiffs and Special Master with Teacher and Principal Evaluation Action Plans. Signed by Senior Judge David C Bury on 1/28/2015. SEE ORDER FOR FURTHER DETAILS. (BAR)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF ARIZONA

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

)
)
)
Plaintiffs,
)
v.
)
)
United States of America,
)
)
Plaintiff-Intervenor,
)
)
v.
)
)
Anita Lohr, et al.,
)
)
Defendants,
)
)
and
)
)
Sidney L. Sutton, et al.,
)
)
Defendants-Intervenors,
______________________________________ )
)
)
Maria Mendoza, et al.,
)
)
Plaintiffs,
)
)
United States of America,
)
)
Plaintiff-Intervenor,
)
)
v.
)
Tucson Unified School District No. One, et al., )
)
)
Defendants.
_______________________________________ )
Roy and Josie Fisher, et al.,

CV 74-90 TUC DCB
(lead case)

ORDER

CV 74-204 TUC DCB
(consolidated case)

1

R&R: Evaluation of Teachers and Principals and Special Master’s 2014 Annual Report

2

On August 28, 2014, the Special Master filed a Report and Recommendation (R&R

3

(Docs. 1659/1666)) that TUSD be directed to prepare an Action Plan for USP § IV.H:

4

Evaluation of Teachers and Principals. This R&R correlates to his First (2014) Annual

5

Report (Doc. 1641), which reflects that review of teacher and principal evaluation procedures

6

is “delayed.” TUSD objects, here and there, because it asserts it has completed the

7

requirements called for in the USP for teacher and principal evaluations. At issue is Section

8

IV, Administrators and Certified Staff, subsection H, Evaluation, which provides:

9

By July 1, 2013, the District shall review, amend as appropriate, and adopt
teacher and principal evaluation instruments to ensure that such evaluations,
in addition to requirements of State law and other measures the District
deems appropriate, give adequate weight to: (i) an assessment of (I) teacher
efforts to include, engage, and support students from diverse racial, ethnic,
cultural, and linguistic backgrounds using culturally responsive pedagogy
and (II) efforts by principals to create school conditions, processes, and
practices that support learning for racially, ethnically, culturally and
linguistically diverse students; (ii) teacher and principal use of classroom
and school-level data to improve student outcomes, target interventions, and
perform self-monitoring; and (iii) aggregated responses from student and
teacher surveys to be developed by the District, protecting the anonymity
of survey respondents. These elements shall be included in any future
teacher and principal evaluation instruments that may be implemented. All
teachers and principals shall be evaluated using the same instruments, as
appropriate to their position.

10
11
12
13
14
15
16
17

According to TUSD, they completed these tasks by July 1, 2013. See (TUSD July
18

2013 Status Report at 25) (reporting it developed an evaluation instrument, which was
19

piloted in the Fall of 2012, and failed because it did not meet state requirements; then
20

explored alternative instruments beginning December 2012, selected an evaluation
21

instrument February 2013; analyzed alternatives, considered state and USP requirements,
22

with Board approving both instruments and staff training to begin May 2013 to be ongoing
23

throughout SY 2013-2014).
24

TUSD’s position is contrary to the August 1, 2014, Final Approval Scheduled in the
25

Revised Implementation Addendum, filed by TUSD on June 20, 2014. TUSD, however,
26

noted there that “the parties disagree on whether Teacher Evaluation Procedures and
27
28

2

1

Principal Evaluation Procedures require the development of an Action Plan subject to USP

2

§ I.D1 review. The General Provisions section of the USP requires: “In addition to all

3

specific reporting requirements identified herein, for all new or amended plans, policies,

4

procedures, or other significant changes contemplated pursuant to this Order, the District

5

shall solicit the input of the Special Master and the Plaintiffs and submit such items for

6

review before they are put into practice or use.” (USP (Doc. 1713) § I.D.1.) The teacher and

7

principal evaluation procedures at issue in this R&R are new and will involve significant

8

changes contemplated to implement the USP, such as basing evaluations on effective efforts

9

to include, engage, and support students from diverse racial, ethnic, cultural, and linguistic

10

backgrounds using culturally responsive pedagogy. Therefore, pursuant to the express and

11

unambiguous terms of the USP, the Special Master and the Plaintiffs “shall” have an

12

opportunity to review and provide input regarding Teacher Evaluation Procedures and

13

Principal Evaluation Procedures. The Special Master and the Mendoza Plaintiffs seek an

14

Action Plan allowing for their review and input prior to Final Scheduled Approval by the

15

Board.

16

The District attempts to limit Action Plans to items in the USP expressly referred to

17

as plans in the USP. This distinction fails. See (SM R&R (Doc. 1659/1666) at 4 (adding

18

Technology Condition Index, a Facilities Condition Index, student outreach and recruitment,

19

a comprehensive boundary plan and an equitable extra-curricular activities plan). The Court

20

notes that an Action Plan is required for USP § VI.B.2.a, Guidelines for Student Rights and

21

Responsibilities, which is drafted similarly to subsection IV.H for Teacher and Principal

22

Evaluation Procedures.

23

guidelines/procedures to be applied by the District to attain an express goal under the USP,

24

without labeling or referring to these new guidelines/procedures as a “plan.” In actuality, the

25

distinguishing feature for provisions in the USP which require Action Plans is that they all

Both set an April 1, 2013, deadline for TUSD to develop

26
27
28

3

1

require TUSD Board approval. It is undisputed that the Teacher and Principal Evaluation

2

Procedures required Board approval and were approved by the Board.

3

The dispute arises because TUSD has not afforded the Plaintiffs and Special Master

4

an opportunity to review and provide input regarding the Teacher and Principal Evaluation

5

procedures. According to the June 20, 2014, Stipulated Revised Implementation Addendum:

6

“The Final Approval Scheduled dates reflect the date when the TUSD board or leadership

7

approved a plan where the plaintiffs had the opportunity to comment/object (or already

8

provided comments/objections) pursuant to USP § I.D.1.” (Doc. 1627) at 6 (the document

9

was not page numbered so the Court refers to the CM/ECF page number). According to the

10

Special Master’s R&R, filed August 28, 2014, (Docs. 1659/1666), he asks the Court to direct

11

TUSD to submit its Action Plan for USP § IV.H: Teacher and Principal Evaluations,

12

including submitting the procedures to Plaintiffs and the Special Master for review and

13

comment and subsequent Board Approval. The Court so orders.

14

For the reasons explained above the Court rejects TUSD’s objection to the Special

15

Master’s 2014 Annual Report wherein it reflects that Teacher and Principal Evaluations have

16

been delayed. TUSD complains that the Special Master used only excerpts from Part I,

17

Action Plans, from the Implementation Addendum in his Annual Report and, therefore, his

18

Annual Report is inconsistent with the parties’ agreed revised Implementation Addendum.

19

“TUSD objects to the Special Master having included any altered language in his Status

20

Report and any that has been added or omitted . . . and knows of no reason why the parties’

21

prior agreement should have been altered.” (TUSD Objection (Doc. 1661) at 2.) The

22

stipulated Revised Implementation Addendum setting deadlines for the various Action Plans

23

has not been altered by the Special Master’s Annual Report, addressing each Action Plan.

24

The Special Master is free to use any logical format he chooses for the Annual Report and

25

to use information from any logical source.

26
27
28

4

1

TUSD asks the Court to strike the Special Master’s reference in the 2014 Annual

2

Report of continuing problems obtaining information from the District in a timely and

3

effective way. The Court finds the record accurate as reflected in the Special Master’s report

4

and Mendoza Plaintiffs’ memorandum, (Response (Doc. 1680) at 27), but the issue is moot

5

given this Court’s Order, issued August 28, 2014, wherein it gave authority to the Special

6

Master to oversee information requests by Plaintiffs and timely and effective responses by

7

TUSD.1

8

The Court finds that the parties have adequately stated their respective positions in

9

their memoranda, either objecting or supporting, the Special Master’s 2014 Annual Report.

10

The Special Master may not have included all the information in his 2014 Annual Report that

11

TUSD believes he should have included, but TUSD’s memorandum provides the additional

12

information for the record. (TUSD Objection (Doc. 1661) at 2-7.) Both TUSD and the

13

Department of Justice (DOJ) object to the Introduction in the Special Master’s Annual

14

Report, which includes reference to design principles underlying the USP because these are

15

not the constitutional standards by which unitary status will be determined. The Court

16

agrees with the Mendoza Plaintiffs that the Special Master simply expressed the same idea

17

in different words2 than those used by the DOJ in its objection, as follows: “The USP

18

includes numerous specific remedies to address the vestiges of segregation within the District

19

and ensure that a dual system does not persist. These remedies have the benefit of being

20
21
22
23
24

1

The Court is not vested in any particular procedure as long as it ensures timely
exchange of information between the parties so that disputes can be brought to the Court in
a timely and effective manner. The Court’s procedures shall remain in place unless an equal
or more effective alternative is proposed and approved by the Court.
2

27

Compare: “This USP is a comprehensive desegregation plans (sic) that embodies not
only legal principles related to remedying the vestiges of past segregation and discrimination
but also research on the characteristics of school districts committed to continuous school
improvement that enhances educational opportunities and outcomes for all students.” (SM
2014 Annual Report (Doc. 1641) at 1.)

28

5

25
26

1

informed by many years of research and academic scholarship into educational excellence

2

and school improvement.” (Mendoza Response (Doc. 1680) at 8 (quoting (DOJ Objection

3

(1662) at 3)).

4

The Court finds no need to edit the Special Master’s 2014 Annual Report; it shall

5

stand as he has chosen to file it, with the parties’ positions clearly stated in the respective

6

memorandum: TUSD Objection (Doc. 1661); DOJ Objection (Doc. 1662); Mendoza

7

Plaintiffs’ Response (Doc. 1680); SM Response to Objections (Doc. 1681); TUSD Reply to

8

Mendoza (Doc. 1703), and TUSD Reply to SM Response (Doc. 1704).
Accordingly,

9
10

IT IS ORDERED that the Court adopts the recommendation contained in R&R

11

(Doc. 1659/1666) that, within 20 days of the filing date of this Order, TUSD shall provide

12

the Plaintiffs and Special Master with Teacher and Principal Evaluation Action Plans.

13

IT IS FURTHER ORDERED overruling the objection filed by TUSD to the

14

Special Master’s First Annual (July 2014) Report (Doc. 1641), wherein it reflects the review

15

of Teacher and Principal Evaluation procedures has been delayed, ¶¶ 18, 18a, 18b.

16

IT IS FURTHER ORDERED denying the request to strike portions of the

17

Introduction to the Special Master’s Annual (2014) Report or to amend the Annual Report

18

to reflect the Implementation Addendum verbatim.

19

IT IS ORDERED that the Implementation Addendum, adopted by the Court on

20

March 19, 2014, (Docs. 1571 and 1574), is amended pursuant to the Revised Implementation

21

Addendum filed on June 20, 2014, (Doc. 1627), including the projected Final Approval

22

deadline of August 1, 2014, for both Teacher Evaluation Procedures and Principal Evaluation

23

Procedures. Within 14 days of the filing date of this Order, TUSD shall file nunc pro tunc

24

/////

25

/////

26
27
28

6

1

as of June 20, 2014, the Revised Implementation Addendum in its entirety so that it includes

2

the Overview and Part I revisions and Part II.

3

DATED this 28th day of January, 2015.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

7