Fisher, et al v. Tucson Unified, et al

Filing 2364

ORDER ADOPTING REPORT AND RECOMMENDATION re: 2351 Report and Recommendation - Special Master. It is further ordered that within 14 days of the filing date of this Order the District shall file a Supplement to its Analysis of Extra-Curricular P articipation in District Schools identifying the target schools with lower socioeconomic status which are Racially Concentrated schools, identifying the extracurricular activities and strategies being implemented at these schools to increase partici pation, and provide corresponding status reports for these Racially Concentrated schools, including the base-line data for the schools. The District shall include reporting on these schools and efforts in future District Annual Reports (DARs). It is further ordered that the District shall use the format for gathering and reporting individual school data for all extracurricular activities at all schools as recommended by the Special Master. Signed by Senior Judge David C Bury on 11/15/2019. (BAR)

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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.,
Plaintiffs

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and

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No. CV-74-00090-TUC-DCB
(Lead Case)

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.,

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No. CV-74-0204-TUC-DCB
(Consolidated Case)

Plaintiffs,

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and

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United States of America,

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Plaintiff-Intervenor,
v.
Tucson Unified School District, et al.
Defendants.

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Extracurricular Activities: USP § VIII

ORDER

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On September 6, 2018, the Court adopted a completion plan, recommended by the

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Special Master, to gather and evaluate data on a school-by-school basis, with the end goal

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being an assessment as to whether there is district-wide parity in extracurricular programs.

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(Order (Doc. 2123) at 137-138); (USP (Doc. 1713) § VIII.A.1). This is especially important

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for non-athletic activities because research suggests a correlation between participation and

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student achievement. (R&R (Doc. 2351) at 3.) The Court also mandated that the District

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implement a process by which Principals are responsible for ensuring that extracurricular

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activities at their schools provide opportunities for interracial contact and positive settings

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of shared interest. (Order (Doc. 2123) at 137); (USP (Doc. 1713) § VIII.A.2).

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On August 30, 2019, the District filed a Notice of Compliance. The District included

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the district-wide reporting chart for SY 2018-19, for the two-year comparison with the SY

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2017-18 chart, as requested by the Special Master because in prior years the District

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tabulated different participation data.1 There is no assertion of district-wide racial

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disproportionality based on these numbers. The District’s review of the data, disaggregated

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at the school level, concluded “no pattern of racial/ethnic disparities in extracurricular

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participation . . . nor that students overall were not being afforded opportunities for

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interracial contact and positive settings of shared interests.” (Notice of Compliance (NC),

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Ex. 4: “Analysis of Extra-Curricular Participation in District Schools” (Doc. 2260-1) at

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17.) The District reported findings: “consistent with a larger pattern that is well-

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documented across the United States wherein schools with lower socioeconomic status

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tend to participate in extracurricular activities at lower levels.” Id. at 20. Therefore, the

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District, being “cognizant of the need to ensure that extracurricular activities, particularly

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at the elementary level are available to all students[,] . . has implemented strategies aimed

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at reducing disparities across schools, including (a) reducing and/or eliminating all fees

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associated with participation in extracurricular activities, (b) increasing transportation

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See (Reply (Doc. 2317) at 5-6 (asserting it has been reporting data in current format
for three years, SY 2016-17 through SY 2018-19, and retroactively applied both the old
and current data reporting methods to the data for SY 2015-16; data charts for SY 2013-14
through SY 2018-19).
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options to support participation in extracurricular activities, and (c) designing certain

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extracurricular activities to target increased participation at lower socio-economic

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schools.” Id.

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The only thing missing are the specifics necessary to ensure that the District is

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monitoring the efficacy of these efforts. Consequently, the District shall file a supplement

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to its “Analysis of Extra-Curricular Participation in District Schools” identifying the target

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schools with lower socioeconomic status which are Racially Concentrated schools,

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identifying the extracurricular activities and strategies being implemented at these schools

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to increase participation, and provide corresponding status reports for these Racially

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Concentrated schools, including the base-line data for the schools and report on these

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schools and efforts in future District Annual Reports (DARs).2

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The Special Master and the Mendoza Plaintiffs focus on the District’s admitted

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failure to provide school-by-school comparison data and extracurricular activity

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comparisons, necessary to: “analyze the array of extracurricular activities occurring in the

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schools and identify those that provide opportunities for interracial contact and positive

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settings of shared interest and, if necessary, develop remedial strategies to ensure such

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opportunities are occurring in each school.” (Mendoza Objection (Doc. 2284) at 3 (citing

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Order (Doc. 2123) at 137-38.) The District attempts to rectify the omission by replying that

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it “analyzed the extracurricular activities occurring in all schools and has identified that,

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due to the broad levels of participation across races/ethnicities, virtually all such activities

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provide ‘opportunities for interracial contact and positive settings of shared interest.’”

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(Reply (Doc. 2317) at 3.) The District attaches a chart, Exhibit A, which reflects that “over

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the past three years only a handful of activities have had single-race/ethnicity

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participation.” This data would not, however, help a Principal identify extracurricular

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activities which promote opportunities for interracial contact. Knowing which activities to

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NOT promote is not the same thing as knowing which types of extracurricular activities to

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II.B.1.)

Racially Concentrated is used here as defined in the USP. (USP (Doc. 1713) §

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promote. Looking at the data provided by the District and placing itself in the position of a

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Principal, the Court would be hard pressed to perform his or her responsibility to create

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and lead an extracurricular monitoring team, analyzing data at a regularly scheduled time

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to ensure interracial contact in positive settings of shared interest. (NC, Ex. 5: Principal

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Review Process (Doc. 2260-1) at 22.) The Special Master’s recommended format for

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gathering and reporting individual school data for all extracurricular activities at all schools

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would allow a Principal to make a relevant comparison within a school and between similar

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schools to identify extracurricular activities and strategies to use at his or her school to

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provide opportunities for interracial contact and to create positive settings of shared

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interest.

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Accordingly,

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IT IS ORDERED that the Special Master’s Report and Recommendation (Doc.

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2351) is ADOPTED.

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IT IS FURTHER ORDERED that within 14 days of the filing date of this Order

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the District shall file a Supplement to its “Analysis of Extra-Curricular Participation in

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District Schools” identifying the target schools with lower socioeconomic status which are

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Racially Concentrated schools, identifying the extracurricular activities and strategies

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being implemented at these schools to increase participation, and provide corresponding

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status reports for these Racially Concentrated schools, including the base-line data for the

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schools. The District shall include reporting on these schools and efforts in future District

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Annual Reports (DARs).

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IT IS FURTHER ORDERED that the District shall use the format for gathering

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and reporting individual school data for all extracurricular activities at all schools as

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recommended by the Special Master. The District shall provide this data to the Principals

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in a timely fashion to enable them to make relevant comparisons within their schools and

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between similar schools to identify extracurricular activities and strategies to use at their

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school to provide opportunities for interracial contact and to create positive settings of

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shared interest.

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Dated this 15th day of November, 2019.

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