Fisher, et al v. Tucson Unified, et al

Filing 1893

ORDER adopting the Report and Recommendation 1775 filed by the Special Master as stated in attached order. Signed by Senior Judge David C Bury on 1/26/2016. (SEE ORDER FOR COMPLETE DETAILS) (DPS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Roy and Josie Fisher, et al.,

No. CV-74-00090-TUC-DCB

Plaintiffs

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and

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United States of America,
Plaintiff-Intervenor,

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v.

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Tucson Unified School District, et al.,
Defendants,

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and

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Sidney L. Sutton, et al.,
Defendants-Intervenors,

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Maria Mendoza, et al.,

No. CV-74-0204-TUC-DCB

Plaintiffs,

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and

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United States of America,
Plaintiff-Intervenor,

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v.

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Tucson Unified School District, et al.

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Defendants.

ORDER

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Culturally Responsive Pedagogy and Instruction (CRPI)

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The Court revisits TUSD’s appointment of the Director of Culturally Responsive

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Pedagogy and Instruction (CRPI), a position critical to TUSD’s successful

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implementation of courses of instruction in cultural and historical experiences and

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perspectives of African-American and Latino communities. These Culturally Responsive

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Courses (CRCs) are a key methodology for engaging African-American and Hispanic

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students. TUSD has twice advertised to hire for the CRPI Director’s position and both

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times the solicitation processes were flawed and both times TUSD ended up hiring in-

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house to fill the position, and both times TUSD filled the position with a candidate

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experienced with Hispanic culture and pedagogy, not African-American studies.

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The USP was adopted February 20, 2013. TUSD advertised the CRPI Director

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position, nationally, on September 24, 2013. This solicitation resulted in recruiting 49

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sub-finalists and choosing eight finalists, before aborting the effort because the interview

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and selection process was leaked to the public.

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appointed a TUSD retiree, Dr. Salvador A. Gabaldon, as the CRPI Director. He had

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experience developing and teaching curriculum focused on Latino social, cultural, and

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historical experiences and advocating for and supporting instruction for English

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Language Learner (ELL) students. After objections from both Plaintiffs and based on the

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R&R from the Special Master, this Court approved appointing Dr. Gabaldon as Acting

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Director. Pursuant to the agreement of the parties, the Court ordered TUSD to undertake

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the hiring of the CRPI Director in full compliance with USP § IV.D.1 and 3 and §

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V.4.E.4.c,1 to be completed by the end of the 2014. (Order (Doc. 1650) at 5. To alleviate

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the concerns of the Fisher Plaintiffs that the Acting Director of CRPI had no experience

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to determine CRPI for African-American students, id. at 3-4, the Court ordered TUSD to

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utilize the services of Dr. Jacqueline Jordan Irvine, an African-American CRPI expert,

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including using her expertise for the hiring and selection process of the Director of CRPI,

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id. at 5.

TUSD, thereafter, recruited and

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See USP (Doc. 1713), edited for typographical errors.
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The Court ordered TUSD to file a Notice of Hiring the CRPI Director. The Court

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ordered further briefing on whether the USP § IV.D hiring procedures applied when

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TUSD designated a current employee to fill a position versus hiring a new employee.

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TUSD Notice of Hiring CRPI Director

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On December 17, 2014, TUSD filed a Notice of Hiring the CRPI Director,
Lorenzo Lopez, Jr. (Notice (Doc. 1733)).

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Again, even with expert advice by Dr. Irvine, the hiring process was flawed. “Too

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little time was given for responses (30 days); the position statement did not advise

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candidates of the unique and important role to be played and failed to anticipate concerns

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regarding potential CRC attacks from the State; it was not sent to sources with great

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potential to yield candidates,” (R&R (Doc. 1775) at 4), and failed to include a statement

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that TUSD is an equal opportunity employer, which is a phrase used to welcome diverse

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applications, id. Only three African-Americans applied.

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Again, TUSD hired in-house and chose a candidate that has no experience

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working with African-American students.

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Program Coordinator and his expertise is in teaching Mexican American Studies (MAS)

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courses. Again, the Fisher Plaintiffs complain about, and again TUSD proposes to

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alleviate, Mr Lopez’ lack of African-American expertise by engaging a panel of experts

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to review the CRC courses and the elements of professional development relevant to

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CRPI and to engage an African-American expert on CRPI to advise Mr. Lopez on aspects

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of CRPI that are especially important to the success of African-American students.

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(R&R (Doc. 1775) at 6.)

Mr. Lopez’ experience was as the CRPI

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The Fisher Plaintiffs remain concerned. The Court does not address the Fisher

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Plaintiffs’ accusations that TUSD has lied about which job description was disseminated

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to applicants and lied about one of the three African-American applicants not being

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available for the position because he accepted a different position in TUSD. The Court

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does observe that the level of distrust between the parties has fallen so low as to even

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erode professional confidence that normally exists between attorneys in respect to

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representations made to each other and the Court. The Special Master has investigated

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both allegations and is confident that he has identified the job description circulated by

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TUSD and that one of the African-American candidates took a different position and so

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there were only two African-American candidates for the CRPI Director’s position.

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The Court turns to Fisher Mendoza’s substantive concerns, which are no less

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important now than they were when the Court first addressed them in its Order issued

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August 21, 2014. The stop-gap measures of appointing African-American experts to

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advise administrators overseeing CRPI, which allowed time for TUSD to conduct a

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robust nationwide search for a highly-qualified CRPI Director, cannot become the

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permanent standard by which TUSD provides CRPI African-American expertise. The

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Fisher Plaintiffs are legitimately concerned that African-American students’ interests in

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CRPI will be over-born by TUSD’s need to serve the interests of the much larger

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Hispanic student body.

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The Fisher Plaintiffs complain that Mr. Lopez does not have the State

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certifications he needs to serve in the supervisory role of the Director of CRPI. Under

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Arizona law, Administrative Certification, is required for administrators who have

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responsibility for teachers and students.

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appears Mr. Lopez was not so certified at the time he was hired as the CRPI Director but

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that he is obtaining this certification. The Special Master is not concerned by this lack of

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certification because he asserts that the Director of CRPI does not have the type of

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supervisory responsibility requiring such certification. The Court finds the important

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question is not whether the CRPI Director is certified, but is whether the CRPI Director

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has supervisory authority over teachers and students. The Fisher Plaintiffs’ concerns

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about equal program administration can only be met where the administrator in charge

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has sufficient administrative authority to protect both student bodies’ interests in CRPI.

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If as the Special Master suggests this authority is not lodged in the CRPI Director then

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perhaps the Fisher Plaintiffs’ recommendations should be aimed higher.

(Fisher Objection (Doc. 1779) at 3-6.)

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It

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Alternatively to having one CRPI Director that can serve the interests of both

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student bodies, the Fisher Plaintiffs recommend amending the USP to provide for co-

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CRPI Directors, one for African-American students and one for Hispanic students. This

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would address the Special Master’s observation that: “Few candidates would have

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experience in developing and teaching culturally relevant courses or have CRP expertise

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for both Latino and African-American students . . ..” (R&R (Doc. 1775) at 5.) The USP

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clearly and expressly allows for the CRPI Director to have “experience developing and

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teaching curriculum focused on the African-American and/or Latino social, cultural and

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historical experience at secondary level.” USP § V.E.4.c. (emphasis added). The Fisher

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Plaintiffs call for the USP to be amended and ask the Court to set aside the appointment

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of Mr. Lopez and order another search.

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The Court is not inclined to repeat directives which have failed. But, the Fisher

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Plaintiffs are not without recourse. The Court agrees with the Fisher Plaintiffs that

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temporary experts who are knowledgeable in African-American CRC pedagogy are not a

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permanent solution to a lack of African-American administrators knowledgeable in

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African-American CRPI. The Court finds that the Plaintiffs’ interest in even-handed

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CRPI serving both Plaintiffs is better ensured if this responsibility is placed in a TUSD

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administrator with requisite supervisory power to guarantee equal access to CRPI for all

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minority students. The Special Master’s R&R suggest the CRPI Director is not that

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administrator. The Court directs the Special Master to ensure that the administrative

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position having the requisite supervisory authority over the implementation of CRPI

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requires the employee filling that position to have comprehensive expertise with respect

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to cultural pedagogy as applied to all students, including Black and Hispanic, and ELL

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students. The Special Master shall identify this administrative position and review the

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job description for that position to ensure such expertise is required there to protect the

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interests of both Plaintiffs’ classes. The Special Master shall report to the Court whether

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the person currently holding that position has such expertise. If not, the Special Master

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shall recommend how to remedy a lack of administrative expertise in the area of African-

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American CRPI.

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TUSD Employee Designations

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The Court called for supplemental briefing on the question of whether TUSD may

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circumvent USP hiring requirements, § IV.D.1 and 3, if it designates a current TUSD

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employee to fill a position instead of hiring a new employee to fill the position. The

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Fisher Plaintiffs call for amendment of the USP to eliminate this option. They complain

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that TUSD’s in-house hiring practices are perpetuating the status quo and the USP calls

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for robust recruitment of diverse certified and administrative staff. See USP § IV

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(requiring enhancement of racial and ethnic diversity of administrators and certificated

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staff; requiring review of outreach, hiring, retention, etc. policies to ensure they result in

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such diversity). The Mendoza Plaintiffs point out, however, that Dr. Gabaldon was the

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sole objection made by the Plaintiffs in respect to all the designations made by TUSD.

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The objections to Dr. Gabaldon were in part because he was not a current employee of

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TUSD and it appeared that TUSD intentionally recruited him in lieu of complying with

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the USP hiring procedures. While the Mendoza Plaintiffs’ supplemental brief reflects

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there is no problem with the USP designation provisions, the circumstances of the

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Gabaldon appointment support the Fisher Plaintiffs’ position that TUSD may not be

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complying with provisions of the USP which require them to take robust measures to

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improve the diversity of certified and administrative staff. The problem, if there is one,

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may be bigger than the USP designation provision or may not be related to it at all.

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Because improving diversity in certified and administrative staff is a key component of

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the USP, the Court will ask the Special Master to undertake a review of the USP staffing

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efforts undertaken by TUSD and provide an R&R to the Court whether they are resulting

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in improved diversity in TUSD’s certified and administrative staff.

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Accordingly,

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IT IS ORDERED that the Court adopts the R&R (Doc. 1775) filed by the Special

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Master as follows: 1) the Court confirms the appointment of Mr. Lopez as the CRPI

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Director; 2) TUSD, pursuant to its agreement, shall engage a panel of African-American

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experts to review the CRC courses and the elements of professional development

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particularly relevant to CRPI, and 3) TUSD, pursuant to its agreement, shall engage an

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African-American expert on CRPI to advise Mr. Lopez on the aspects of CRPI that are

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especially important to the success of African-American students.

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IT IS FURTHER ORDRED that within 30 days of the filing date of this Order,

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the Special Master shall file an R&R with the Court to: 1) identify the administrative

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position having supervisory responsibility for implementation of CRPI with the authority

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to ensure the even-handed administration of CRPI for all students; 2) advise whether the

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job description for that position requires the employee filling that position to have

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expertise with respect to culturally responsive pedagogy for all students, including Black

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and Hispanic, and ELL students; 3) advise whether the person currently holding that

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administrative position has the requisite expertise, and 4) make any necessary

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recommendations.

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IT IS FURTHER ORDERED that within 45 days of the filing date of this Order,

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the Special Master shall file an R&R with the Court that reports on the progress being

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made by TUSD to increase diversity in its administrative and certificated staff and

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recommend any specific measures or undertakings which are required under the USP,

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any action plan, or which can practicably be made to improve the staffing disparities that

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exist in TUSD.

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IT IS FURTHER ORDERED that the Special Master shall undertake the

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preparation and filing of these R&Rs, pursuant to the oversight, monitoring, and

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reporting responsibilities assigned to the Special Master in the USP § X.E and the

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January 6, 2012, Order.

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Dated this 26th day of January, 2016.

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