Fisher, et al v. Tucson Unified, et al

Filing 1909

ORDERED that the 1884 Report and Recommendation is adopted in part and rejected in part. Further ordered that the NARA (1869) is approved in part as to the reconfiguration of Drachman K-6 to a K-8 school. It is further ordered that the NARA (18 69) is not approved in part as for TUSDs plan to reconfigure Borman K-5 to a K-8 school. It is further ordered that the NARA is not approved to reconfigure Fruchthendler and Collier elementary schools to add the 6th grade and to add a middle school (7th and 8th grades) at Sabino High School. The Court approves the NARA in respect to TUSDs plan to add express bussing and the AVID and AP programs at Magee Middle School and Advanced Learning Experiences (ALEs) such as GATE and pre-AP classes. Signed by Senior Judge David C Bury on 3/8/2016.(BAR)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA 7 8 Roy and Josie Fisher, et al., No. CV-74-00090-TUC-DCB Plaintiffs 9 10 and 11 United States of America, Plaintiff-Intervenor, 12 13 v. 14 Tucson Unified School District, et al., Defendants, 15 16 and 17 Sidney L. Sutton, et al., Defendants-Intervenors, 18 19 Maria Mendoza, et al., 20 No. CV-74-0204-TUC-DCB Plaintiffs, 21 and 22 United States of America, 23 24 25 26 27 28 Plaintiff-Intervenor, v. Tucson Unified School District, et al. Defendants. ORDER 1 Notice and Requests for Approval (NARA) of Grade Reconfiguration at elementary 2 schools Borman, Collier, Drachman, Fruchthendler and Sabino High School. 3 On November 16, 2015, TUSD filed the NARA proposing to add 6th-8th grades at 4 Borman K-5; 6th grade at Collier K-5; 7th-8th grades at Drachman K-6, 6th grade at 5 Fruchthendler K-5, and 7th-8th grades at Sabino High School. (NARA (Doc. 1869)). The 6 parties agreed to a briefing schedule as follows: 20 days from the filing date of the 7 NARA for the parties to file any objections previously raised with the Special Master; 20 8 days from the filing of any objections for TUSD to file a Response, simultaneously, with 9 the Special Master and the Court; the Special Master to have 10 days to file a Report and 10 Recommendation (R&R) and request expedited ruling within 30 days. The parties were 11 allowed five days after the filing of the R&R to file an objection to any new issue raised 12 in the R&R. 13 The parties filed Objections on December 7, 2015. TUSD responded on 14 December 23, 2015. The Special Master filed the R&R on January 6, 2016. On January 15 13, 2016, TUSD filed an objection to “new” issues raised in the R&R related to adding 16 7th and 8th grades at Sabino High School, which include: 1) whether the addition 17 improves integration at Sabino and Magee and does not exacerbate racial concentration; 18 2) whether the addition takes into account current and future patterns of choice; 3) 19 whether TUSD considered valid survey data indicating significant potential for 20 improving integration through incentive transportation with express buses; 4) whether the 21 7th-12th grade structure is not unusual, and 5) whether TUSD demonstrates a strong 22 likelihood for positive integrative impacts at Magee with outreach and recruitment efforts 23 to ensure the proposal does not negatively impact other USP obligations. TUSD asked 24 the Court to rule by February 5, 2016. 25 Changes which open new middle schools and move students from one school to 26 another are not easily undone. Missed opportunities to improve diversity may be missed 27 forever. And of course, changes exacerbating segregation must be avoided. The Court 28 grants the reconfiguration of Drachman, only. The NARA is denied for the remainder of -2- 1 TUSD’s proposed reconfigurations. 2 Reconfigure Drachman Elementary School K-6 to K-8. 3 Drachman K-6 Montessori is a nationally-recognized high-achieving magnet 4 school located on the District’s west side on S. 10th Avenue just north of W. 22nd St. 5 Drachman is a racially concentrated school, with 75% Latino students and an incoming 6 class that is 68% Latino. The plan is to use incentive “express bussing” for Anglo 7 students from the north and east sides of the District to attend Drachman K-8. All parties 8 agree that the likely impact of adding grades seven through eight at Drachman will 9 improve integration and afford more students an opportunity to experience an integrated 10 school environment. 11 Reconfigure Borman Elementary School K-5 to K-8 12 Borman elementary school is located on the Davis-Monthan Air Force Base 13 (DMAFB). It serves children of military personnel and civil servants living and working 14 on the base. Accordingly, many of the Borman students are not TUSD students and 15 TUSD students cannot attend Borman unless their parents or grandparents are in the 16 military. TUSD argues that adding the middle school at Borman would have virtually no 17 impact on the surrounding middle schools because approximately 70% of the children 18 attending Borman do not attend TUSD middle schools. After Borman, these students 19 move to a charter K-8 on-base school or go to middle schools outside of TUSD. TUSD 20 seeks to add grades six through eight to compete with the on-base charter school and to 21 discourage students at Borman from going to middle schools outside TUSD. 22 The Court has seen this request before. In 2007, TUSD sought and was denied 23 leave to open then recently closed Lowell Smith Elementary School as an on-base middle 24 school. Then as now, TUSD hoped to compete with the on-base charter school and to 25 prevent students from going to schools outside of TUSD. See (Order (Doc. 1209), see 26 also (Notice of Reconsideration to Reopen Smith (Doc. 1264)). Then as now, the TUSD 27 school serving DMAFB was Roberts-Naylor K-8, which is only 3.5 miles from the front 28 gate of DMAFB. (Order (Doc. 1209)). -3- 1 In 2007, Roberts-Naylor’s student body was 82% minority, and it had “been 2 designated a failing school under AZLearns and as “underachieving” by the No Child 3 Left Behind Act.” 4 report describing its deficiencies, identifying needs and proven strategies to improve 5 student academic performance at Naylor Middle School.” Id. at 2, 4. “The Arizona Department of Education had issued a Id. (citation omitted). 6 According to Plaintiffs Fisher, Roberts-Naylor’s student body is now 11% Anglo 7 making it a racially concentrated minority school. (Fisher Objection (Doc. 1877) at 7; 8 NARA (Doc. 1880) at 3, n. 5 (TUSD estimates its minority population at 80% (58% 9 African American; 22% Latino); (NARA (Doc. 1869), Ex. 2: Desegregation Impact 10 Analysis (DIA) at 2)). 11 Borman’s Anglo student body is 54%. (NARA (Doc. 1869), Ex. 2: DIA at 4.) 12 Borman is an A school (2013-14 SY); Roberts-Naylor is a C school (2013-14 SY). 13 (Fisher Objection (Doc. 1880) at 7). TUSD estimates that 70% of the Borman Area 14 students may not attend TUSD schools after the 5th grade. (Doc. 1869) at 9 (citing Ex. 2 15 at 5-6.) According to TUSD the Borman proposal will not change anything; it neither 16 improves nor exacerbates ethnic imbalances. Id. It simply retains the status quo which 17 now exists through the 5th grade and extends it through to the 8th grade. 18 To address any impact on Roberts-Naylor K-8, TUSD proposes to add the 19 Advancement Via Individual Determination (AVID) program to improve its 20 attractiveness and enhance integration there. 21 American and Latino students for success in core classes and Advanced Learning 22 Experiences (ALEs) such as Gate and pre-AP classes. (NARA (Doc. 1869) at 10 (citing 23 Ex. 2: DIA at 2)). TUSD justifies the Borman reconfiguration because it creates the 24 educational benefit of K-8 grades for Borman students. Id. The AVID program prepares African 25 TUSD submits: What are at issue, here, are 36 students who currently will move 26 from Borman at the end of the 5th grade to non-TUSD schools. (NARA (Doc. 1869) Ex. 27 2: DIA at 6.) Approximately, 54% of these 36 students are Anglo: approximately 19 28 students. Adding AVID at Roberts-Naylor will not draw these students to Roberts- -4- 1 Naylor because AVID is designed for minority students, not Anglo students. 2 addition of AVID may indirectly impact future integration by improving academic 3 achievement at the school, which will make Roberts-Naylor a more attractive choice to 4 all students including those now choosing to attend Borman, the on-base charter school 5 and other non-TUSD schools. But, creating a middle school at Borman will ensure that 6 Borman students will neither attend Roberts-Naylor’s K-8 nor move to Roberts-Naylor in 7 the 7th grade. Creating a middle school at Borman to afford its students the same K-8 8 experience available to Roberts-Naylor students directly competes with Roberts-Naylor’s 9 marketing advantage over Borman, if all other things were equal. The 10 TUSD submits the importance of adding middle school grades at Borman is to 11 keep Anglo students from leaving TUSD schools and thereby becoming unavailable for 12 the purpose of future integration efforts. (TUSD at 9.) In this case, TUSD must mean for 13 purposes of integrating its high schools because they would attend Borman through the 14 8th grade. Given the unique characteristics of the Borman students, TUSD does not 15 explain why they would not continue to leave TUSD after completing school at Borman, 16 whether that is in five or eight years. The plan to add grades 7 and 8 to Borman will 17 attract and retain a student population which is 54% Anglo to attend Borman, a school 18 which is the same. 19 Relevant to integration, the Court asks two questions. First, would approximately 20 19 Anglo students make a difference to integration efforts at Roberts-Naylor. The second 21 question is whether there are any strategies which would draw Borman student’s to 22 Roberts-Naylor instead of to the K-8 on-base charter school or to middle schools outside 23 of TUSD. If any such strategies exist, this would increase the number of Anglo students 24 at Roberts-Naylor beyond 19. Like the AVID program at Roberts-Naylor, adding even 25 minority students from Borman would indirectly improve future integration by improving 26 the overall academic environment at Roberts-Naylor because Borman is an A school. 27 One educational opportunity not currently available at Borman but offered at Roberts- 28 Naylor is K-8 grades. The USP requires more than just doing no harm, it requires TUSD -5- 1 to take affirmative actions to do good in the context of improving integration and the 2 quality of education for minority students, if it can. In other words, it is not ok for TUSD 3 to base its Borman proposal on “current patterns of choice” if it has the means to change 4 those choices. 5 adjacent to DMAFB, an unusual source of Anglo students, which could affirmatively 6 impact integration at Roberts-Naylor if they could be directed there. Until the Court is 7 certain that Roberts-Naylor cannot be a viable K-8 program for Borman students, it will 8 not approve a plan which will ensure Roberts-Naylor can never be such an alternative. Roberts-Naylor is a racially concentrated school uniquely situated 9 Since 2007, there have been measures proposed to improve the quality of 10 education at Roberts-Naylor. Since 2007, TUSD has been trying to attract DMAFB 11 students to TUSD schools. It is important to know the successes or failures TUSD has 12 experienced given this history, and within that context assess whether there are any 13 strategies that could be implemented at Roberts-Naylor to make it a viable K-8 option for 14 students now attending Borman, the on-base charter school, or other non-TUSD middle 15 schools. Then, if the conclusion is that Roberts-Naylor cannot be a viable K-8 option, 16 then the addition of grades seven and eight at Borman can be established as having 17 virtually no impact on Roberts-Naylor. 18 The Court asks TUSD to prepare a detailed report regarding the academic and 19 demographic conditions at Roberts-Naylor and describe the measures, if any, which have 20 been or could be taken by TUSD to transform Roberts-Naylor into a viable K-8 program 21 capable of competing with the middle schools now attracting the Borman students. 22 TUSD should explain why or why not it is feasible to implement any such identified 23 measures. TUSD should consider a time line to accomplish a transformation at Roberts- 24 Naylor sufficient to begin attracting students that currently choose to go elsewhere. 25 TUSD shall provide its report to the Special Master and the Plaintiffs, with the Special 26 Master preparing a supplement to his R&R in respect to adding grades 6 through 8 at 27 Borman K-5. 28 ///// -6- 1 Reconfigure Collier K-5 and Fruchthendler K-5 to K-6 schools, and add a 7th and 8th 2 grade middle school at Sabino High School 3 Like the Borman reconfiguration, the Court has previously seen this proposal. In 4 April 2015, TUSD filed a NARA to at what it then described as an honors Fruchthendler- 5 Sabino pipeline. Then as now TUSD admitted it would draw Anglo students away from 6 Magee, but that Magee had a sufficient Anglo student population to withstand the loss of 7 white students. The Court denied TUSD’s request to reconfigure these schools because 8 TUSD had failed to take a comprehensive look at its impact. (Order (Doc. 1799)). TUSD 9 has now taken that look and reurges the request. 10 Currently, Collier and Fruchthendler students matriculate to Magee Middle School 11 for grades 6-8 and from there students living north of Magee move to Sabino High 12 School and students living south of Magee move to Sahuaro High School. By opening a 13 new middle school at Sabino High School, TUSD would change the matriculation of 14 students from Fruchthendler and Collier schools. Glaringly missing from TUSD’s DIAs 15 for these schools are their academic ratings, but TUSD tells the Court that Sabino High 16 School is an A school with a stellar reputation, and TUSD’s website reflects that Sahuaro 17 High School is a B school. The TUSD website reflects that Fruchthendler1 and Collier 18 are B schools and Magee Middle School is a C school. See www.Tusdstats.tusd.k12. 19 20 The racial makeup of these schools tracks the racial makeup of the District with 21 Anglo neighborhoods lying to the northeast and minority neighborhoods sitting south and 22 west in the District. So, Sabino High School has a 54.8% Anglo student body, and 23 Sahuaro High School’s student body is 41.6% Anglo. Collier Elementary School’s 24 Anglo students are 64.3%. Fruchthendler’s Anglo students are 62.7%. Magee Middle 25 School’s Anglo population drops to 44.5%. See 26 /Documents/AR15/AppendixII-11.pdf. 27 ///// 28 1 Fruchthendler was an A school. (Order (Doc. 1799) at 2.) -7- 1 TUSD has promoted the reconfigurations as ways to create equity between the east 2 and west sides of the District in respect to K-6 and K-8 programs, but addition of 6th 3 grades at Collier and Fruchthendler elementary schools does not create parity with the 4 opportunity afforded students on the west side and central portions of the district to stay 5 at one school, K-8, until transitioning to high school.2 6 requires dual transitions from elementary school to middle school to high school. The 7 only difference is that the transition occurs between 6th and 7th grade, instead of 5th and 6th 8 grades. The K-6 configuration still 9 The Court does not see TUSD’s proposal to open a middle school as a transition 10 saving measure. The DIA suggests that the middle school would be a separate school 11 keeping the pre-teen 7th and 8th graders separate from the upper classmen. (NARA (Doc. 12 1869), Ex. 6: DIA at 3), but see id. (suggesting cost reduction in transportation if 7th and 13 8th graders ride with upper grades). The Special Master pointed out that TUSD is 14 proposing an unusual structure to add 7th and 8th grades at a high school. TUSD responds 15 that Basis Tucson North is 5th- 12th grades and provides a list of 13 other charter or 16 private schools with some combination of 5th through 12th grades. (TUSD Objection to 17 R&R (Doc. 1886), Ex. 1.) The Court is not convinced that small charter and private 18 schools are good comparisons to a large public school like Sabino High with over 1,000 19 high school students. TUSD has not discussed how the special developmental needs of 20 7th and 8th graders will be addressed in a high school environment. After all, it was the 21 unique character of 7th and 8th graders that drove the creation of middle schools in the 22 first place. Except for transportation costs, TUSD appears to bundle the costs of the 23 middle school into the Sabino High School operations. For example, there appears to be 24 no separate administration or disciplinary program planned for these middle school 25 students. 26 27 28 2 The west side has 10 K-8 schools; central Tucson has two K-8 schools, and the east side has two K-8 schools. The Court does not know the proportion of the District’s students being served in these respective areas so the significance of the number of K-8 schools in the respective areas is of limited value. -8- 1 The Court is concerned about a hasty rush to simply add 7th and 8th grades at high 2 schools in TUSD as a means to reduce transitions, if the better solution is to add 7th and 3 8th grades to elementary schools. And, it appears TUSD is considering such plans. 4 TUSD is also considering moving 7th and 8th grades coming from Cavett Elementary 5 School to Catalina High School bypassing Utterback Middle School. (NARA (Doc. 6 1869), Ex. Ex 7: DIA at 4). Unlike the Sabino High School reconfiguration, the Catalina 7 High School reconfiguration would promote integration by shifting students from racially 8 concentrated Utterback Middle School to the integrated high school. This might seem a 9 handy integration device to move students from smaller school environments, which are 10 by their nature harder to integrate, to larger high school environments, which generally 11 are more integrated. But this would be a false assumption, if the middle schools being 12 opened on high school campuses must be kept separate—then the larger integrated high 13 school student bodies will not contribute towards an integrative experience for 7th and 8th 14 graders. 15 TUSD reports that there are only two elementary schools remaining in TUSD with 16 the capacity for becoming K-8 schools: Erickson and Lynn/Urquides. 17 information, TUSD does not address whether either of these two schools or any existing 18 K-8 school in the District might be marketed to students on the north or east sides of the 19 District. Again, TUSD analysis ignores the most important marketing tool for any 20 school: academic achievement. The Court notes that where TUSD operates A-schools, 21 students attend, including students outside that school’s district and even from outside of 22 TUSD. Sabino High School draws approximately 53% of its students from outside the 23 school’s attendance area, (NARA (Doc. 1869), Ex. 6: DIA at 2), and approximately 30 24 students enter as 9th graders from outside TUSD, id. See also University High School 25 and Dodge Middle School. Beyond this 26 The Court does not agree with the Student Assignment Committee’s conclusion 27 that “virtually all of the central and west schools are racially concentrated so adding more 28 students to them would not have an integrative effect.” (NARA (Doc. 1869), Ex. 7: DIA -9- 1 at 2.) It would so, if Anglo students were added at racially concentrated schools. A bus 2 traveling south travels the same distance as a bus traveling north: a mile is a mile. TUSD 3 conducted a survey of parents of 6th and 7th grade students currently attending racially 4 concentrated middle schools and asked if they would be interested in incentive 5 transportation to Sabino High School if the trip took between 45 minutes and one hour. 6 They responded affirmatively (NARA (Doc. 1869), Ex. 6: DIA at 13.) 7 Fruchthendler parents complained that traffic makes the travel time for the 4 mile trip 8 between Fruchthendler and Magee extremely long. ((NARA (Doc. 1869), Ex. 5: DIA at 9 9.) But, 10 TUSD also surveyed parents of 5th grade students at racially concentrated schools 11 and asked if an express bus were provided would they be interested in sending their 12 children to Magee Middle School and described it as having “strong academics and an 13 outstanding Odyssey of the Mind competition group,” or Fruchthendler, which is “a 14 highly performing school on the eastside of Tucson,” or Collier, which is “a tight-knit 15 community of learners on the northeast side of Tucson.” (Mendoza Objections (Doc. 16 1867), Ex. 2: Survey questions.) TUSD saw positive feedback here too. 17 Without more, the Court concludes that the positive feedback was due to parents 18 of students attending racially concentrated schools that Sabino was an A school and that 19 Magee had strong academics and an outstanding Odyssey of the Mind competition group, 20 and parents believed these schools would be superior to the school their child was 21 attending. The Plaintiffs and the Special Master point out that Magee Middle School is a 22 C school, a fact the Fruchthendler parents, whose children are targeted to attend it, are 23 more likely to know. Additionally, the Mendoza Plaintiffs question whether Magee can 24 even retain its current attractiveness because TUSD has recently placed its alternative to 25 long-term suspension program at Magee. (Mendoza Objection (Doc. 1876) at 9.) TUSD 26 responds that most parents are not aware of this, (Response (Doc. 1880) at 8). They will, 27 however, undoubtedly find out. 28 ///// - 10 - 1 The Court notes that all this is mere supposition when in fact, TUSD currently 2 offers free incentive transportation to students at racially concentrated schools to attend 3 schools where their attendance would have an integrative impact. 4 students in racially concentrated schools may already attend Fruchthendler and Collier, 5 Magee Middle School or Sabino High School and may use free incentive transportation 6 services provided by TUSD to get there and back. TUSD says “only a handful” of 7 students are currently attending these schools using TUSD’s incentive transportation 8 program. (NARA (Doc. 1869) at 7.) The Mendoza Plaintiffs point out that only 699 9 non-Anglo students district-wide utilized incentive transportation in 2014-2015. Using 10 TUSD’s conservative 6% estimate of the 874 positive survey responses, TUSD believes 11 express bussing will add approximately 100 minority students at Sabino, but the 12 Mendoza Plaintiffs point out this would equal one seventh of all the non-white students 13 who were provided incentive transportation in 2014-2015. (Mendoza Objection (Doc. 14 1876) at 6); see also (NARA (Doc. 1869), Ex. 5: DIA at 3) (busses with 50 students each 15 to Sabino); (NARA (Doc. 1869), Ex. 6: DIA at 7 (one bus with 40 students to Magee). 16 The Plaintiffs and the Special Master’s point is that the survey responses are unreliable. 17 (Mendoza Objection (Doc. 1876) at 5; Fisher Objection (Doc. 1877) at 14-16; R&R 18 (Doc. 1884) at 2-3.) In other words, 19 The success of express busing is important because it provides the only 20 opportunity for the Fruchthendler/Collier to Sabino reconfiguration to have any positive 21 impact on integration whatsoever. If a child lives within the boundaries of a racially 22 concentrated school and chooses to attend a school through open enrollment, he or she 23 may be eligible for free transportation there depending on the demographics of the home 24 school, the open enrollment school, and the student’s ethnicity. 25 /contents/distinfo/deseg/schoolchoicecalculator.asp. TUSD plans to add express bussing 26 to its incentive transportation program to reduce travel time and increase the 27 attractiveness of Collier, Fruchthendler, Magee, and Sabino schools. (NARA (Doc. 28 1869) at 7.) TUSD also agrees to the Special Master’s suggestion for a controlled choice - 11 - 1 admission plan which would link increased Anglo student enrollment to increased 2 minority student enrollment. (Reply to R&R (Doc. 1886) at 8.) The Sabino Middle 3 School is a three-year phase in plan with SY 2016-17 for planning, adding 7th grade in 4 SY 2017-18, and adding 8th grade in SY 2018-19. TUSD will make a substantial 5 investment in time and money on this proposed reconfiguration plan, which at best has 6 tentative indicia of having any positive impact on integration. Unwinding it would be 7 impossible in the event express bussing is not successful. And, the Court cannot ignore 8 the dismal track record of minority student utilization of incentive busing in this very 9 area. 10 Soon TUSD will have hard data proving how far middle school Anglo-students 11 are willing to travel on express busses to attend an outstanding school, Drachman, which 12 is also a racially concentrated school (75% Latino). (NARA (Doc. 1869), Ex. 4: DIA at 13 4.) If Drachman is successful there is no reason to believe that other successes cannot 14 follow. Nothing stops TUSD from introducing express busses from racially concentrated 15 schools to Magee Middle School or to B elementary schools like Fruchthendler or 16 Collier, or Sabino High School. Such bus routes would provide hard evidence regarding 17 how many students will actually ride buses northeast and how far. Hard evidence is 18 critical because any positive integrative affect from the Fruchthendler/Collier-Sabino 19 reconfiguration hinges on express bussing. 20 The goal behind opening a middle school at Sabino High School is not to shift 21 Anglo students away from Magee Middle School. Like the Borman plan, creating Sabino 22 Middle School is aimed at attracting and retaining students on the northeast side of the 23 District who currently do not go to any TUSD school and instead choose to go to charter 24 schools or to go outside the District. Because these students are not going to Magee 25 Middle School, TUSD reasons that securing their attendance at a new middle school 26 located on the prestigious Sabino High School campus will not directly affect integration 27 at Magee Middle School. On the flip side, attracting and retaining these students, who in 28 the majority will be Anglo, will not improve integration of the majority Anglo student - 12 - 1 bodies at Collier or Fruchthendler elementary schools or Sabino High School. (NARA 2 (Doc. 1869), Ex. 6: DIA at 4 (estimating that “almost all” 6th graders would transition to 3 Sabino). There is no evidence that these “new” students will be directed to any TUSD 4 schools to help integration and the intent is the contrary: TUSD intends that these 5 students will attend Fruchthendler, Collier, and Sabino—both middle school and high 6 school. There will be no new pool of potential attendees for the purpose of integrating 7 any other TUSD schools. This reconfiguration simply maintains the status quo. 8 In respect to integration, TUSD admits, based on current capture rates, that nine 9 students will go from Fruchthendler to Magee, (NARA (Doc. 1869), Ex. 5: DIA at 8, and 10 23 students will go from Collier to Magee, (NARA (Doc. 1869), Ex. 3: DIA at 8). The 11 difference in travel time does not explain the difference in matriculation because there are 12 four miles between Fruchthendler and Magee and 4.5 miles between Collier and Magee. 13 The estimated travel time, without traffic is approximately eight minutes. The trip 14 between Fruchthendler and Sabino High School is 7.5 miles, and Collier Elementary 15 School is only 2.2 miles from Sabino High School. TUSD expects all these students to 16 transition to Sabino. (NARA (Doc. 1869), Ex. 6: DIA at 4.) In other words, Magee 17 Middle School will lose 32 Anglo students. 18 Will this have a negative impact on integration at Magee Middle School? TUSD 19 says no. It will actually improve integration at Magee because it has a small enough 20 Hispanic student population (38.0%) that if some of its Anglo students (48 %) leave 21 Magee it will improve integration by boosting the Hispanic student ratio upwards towards 22 the +/ – 15% definition for an integrated school under the Unitary Status Plan. While the 23 District asserts “it is not advocating for reducing any school’s white student population 24 as a desegregation strategy,” TUSD nevertheless asserts that if Magee’s white student 25 population was reduced to 28% and the Latino student population increased to 55%, “the 26 result would be an Integrated School under the USP.” (TUSD Response (Doc. 1880) 27 at 9) (emphasis in original). 28 ///// - 13 - 1 TUSD bases this argument on the +/– 15% allowance for integration, but ignores 2 the end of the equation which is that if Anglo student enrollment falls below 38% Magee 3 would not be integrated. The USP describes a racially concentrated school as: any school 4 in which any racial or ethnic group exceeds 70% of the school’s total enrollment. The 5 USP describes an integrated school as: any school in which no racial or ethnic group 6 varies from the district average for that grade level (elementary school, middle school, K- 7 8, high school) by more than +/- 15 percentage points. 8 The +/– 15% rule, like the 70% cap rule, was designed to accommodate a District 9 with an average 60% majority Hispanic student population and a small 23% Anglo 10 student population and to account for some neighborhoods being almost exclusively one 11 race. Neither rule was designed to produce a numeric integration goal; the USP does not 12 require a school to attain integration status. The purpose of both rules was to allow 13 TUSD to show positive integration in the face of overwhelming numbers of Latino 14 students in a school. The rules work as follows. A school will be considered racially 15 concentrated if the student body is more than 70% one minority. The +/ – 15% formula 16 produces a range within which a school may be considered integrated. At Magee Middle 17 School, the 23% district-wide Anglo student average means that Anglo students should 18 be at least 38% of the student body. They are 48%. The 62% district-wide Hispanic 19 student average means that Hispanic students may make up 47% to 70% of the student 20 population without Magee being considered racially concentrated. They are 35%. 21 Magee is not considered integrated within the context of the 15% margins, but that 22 does not preclude this Court from recognizing that it has a healthy racial mix. Magee 23 Middle School is uniquely located in TUSD to be in close proximity to both Anglo and 24 Hispanic students. 25 Magee 26 neighborhoods are south. This explains the balance of Anglo and Hispanic students 27 there. The Court categorically rejects the notion that Magee Middle School’s naturally 28 integrated district must be skewed by a formula developed to account for schools in Middle Middle class, predominately Anglo, neighborhoods lie north of School and lower socio-economic, - 14 - predominately Hispanic, 1 TUSD that sit in predominately Anglo or predominately Hispanic neighborhoods. This 2 Court will not advocate reducing the number of white students and increasing the number 3 of Hispanic students at Magee Middle School as an integration strategy, especially here 4 where the Anglo students are being shifted from a school where they make up 44.5% of 5 the students to schools where they will make up over 60% of the students. 6 The real question is whether or not it impacts integration at Magee Middle School 7 to create an A middle school at Sabino High School. TUSD admits the Sabino middle 8 school will attract essentially all the Fruchthendler and Collier students. (NARA (Doc. 9 1869), Ex. 6: DIA at 4.) There is no reason it will not attract other students interested in 10 an A-school experience as well, especially those living nearest to it. Because Magee 11 Middle School is not racially concentrated, express bussing will not be afforded its 12 students to attend Sabino, therefore, its students will be left behind in a C school while 13 Fruchthendler and Collier students move north for 7th and 8th grades at an A school. And, 14 middle class families living north of Magee who can provide their own transportation 15 will be better positioned to attend the A middle school planned at Sabino than lower- 16 income Hispanic families residing south of Magee. And, if middle class families move 17 their students to Sabino, whether they are Anglo or Hispanic, the level of academic 18 achievement will decline at Magee Middle School. (R&R (Doc. 1884) at 5.) Admitting 19 as much, TUSD advises that it will add AVID and AP programs at Magee to prepare 20 African and Latino students for success in core classes and Advanced Learning 21 Experiences (ALEs) such as GATE and pre-AP classes. (NARA (Doc. 1869), Ex. 6: DIA 22 at 10). Is this enough? No. 23 Except for the argument rejected here that decreasing Anglo students and 24 increasing Latino students at Magee Middle School will make it integrated, TUSD 25 suggests no integrative value whatsoever to the reconfiguration of Fruchthendler and 26 Collier elementary schools to add 6th grades there and open a new middle school at 27 Sabino High School. Without a successful express bussing program there can be no 28 ///// - 15 - 1 positive impact on integrating the TUSD school district. The reconfiguration brings new 2 Anglo students into TUSD to attend majority Anglo schools. 3 Just because these students do not currently attend TUSD schools, specifically 4 Magee Middle School, does not mean this plan will not impact integration efforts in 5 TUSD. Embarking on this plan closes the door for Magee Middle School or any other 6 existing TUSD school, with higher percentages of minority students than Sabino, to be 7 the subject of a plan to attract Anglo students currently not attending TUSD schools. The 8 Court recognizes no such school currently exists to compete with Sabino High School’s 9 stellar A rating, but TUSD should consider whether the possibility exists for Magee 10 Middle School or any other TUSD school to become an attractive option. The integrative 11 impact of such a plan would substantially move the District towards unitary status 12 because it would simultaneously improve the academic quality of the school for the 13 minority students attending it. 14 As for mitigating measures, TUSD has not shown that express bussing will work 15 to move students from racially concentrated schools north. It has not shown that adding 16 AVID, ALE, GATE and AP-classes will improve academic achievement at Magee 17 Middle School. The Court approves TUSD’s plan to try both. Except for Drachman, 18 TUSD has not considered the option of moving Anglo students south. TUSD has not 19 considered whether improvements could be made to any schools centrally located or to 20 the south of the District which would make them attractive K-8 schools for Anglo 21 students residing on the north side of the District. 22 The Court cannot find any positive impact on integration from the reconfiguration 23 of Fruchthendler/Collier elementary schools from K-5 to K-6, with a middle school 24 added at Sabino High School. The reconfiguration simply provides more opportunities to 25 Anglo students in predominately Anglo schools. As the Fisher Plaintiffs note: if White- 26 flight is a factor in the resistance by Anglo students to travel south in the TUSD district, 27 TUSD should reconsider a plan that would facilitate White-flight. (Fisher Objection 28 (Doc.1877) at 17.) After implementing express bussing and making improvements at - 16 - 1 Magee Middle School, TUSD should be better positioned to consider the question of 2 White-flight. As it now stands, the proposed reconfiguration will have a negative impact 3 on integration at Magee Middle School, which while minor, is enough for this Court to 4 deny the NARA given the other concerns outlined above. 5 Accordingly, 6 IT IS ORDERED that the Report and Recommendation (R&R) (Doc. 1884) IS 7 ADOPTED IN PART AND REJECTED IN PART as follows. 8 9 IT IS FURTHER ORDERED that the NARA (1869) is APPROVED IN PART as to the reconfiguration of Drachman K-6 to a K-8 school. 10 IT IS FURTHER ORDERED that the NARA (1869) is NOT APPROVED IN 11 PART as for TUSD’s plan to reconfigure Borman K-5 to a K-8 school. TUSD shall 12 prepare a detailed report regarding the academic and demographic conditions at Roberts- 13 Naylor and describe the measures, if any, which have been or could be taken by TUSD to 14 transform Roberts-Naylor into a viable K-8 program capable of competing with the 15 middle schools now attracting the Borman students. TUSD should explain why or why 16 not it is feasible to implement any such identified measures. TUSD should consider a 17 time line to accomplish a transformation at Roberts-Naylor sufficient to begin attracting 18 students that currently choose to go elsewhere. Within 30 days of the filing date of this 19 Order, TUSD shall provide its report to the Special Master and the Plaintiffs, with the 20 Special Master preparing a supplement to his R&R in respect to adding grades 6 through 21 8 at Borman K-5. The Special Master shall a supplement to the R&R within 14 days of 22 receiving TUSD’s report. All parties may have 14 days to file objections to the Special 23 Master’s Borman supplement. 24 IT IS FURTHER ORDERED that the NARA is NOT approved to reconfigure 25 Fruchthendler and Collier elementary schools to add the 6th grade and to add a middle 26 school (7th and 8th grades) at Sabino High School. The Court approves the NARA in 27 ///// 28 ///// - 17 - 1 respect to TUSD’s plan to add express bussing and the AVID and AP programs at Magee 2 Middle School and Advanced Learning Experiences (ALEs) such as GATE and pre-AP 3 classes. 4 Dated this 8th day of March, 2016. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 18 -

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