Fisher, et al v. Tucson Unified, et al
Filing
2497
ORDER The Second Supplemental Notices of Compliance Re: the December 1, 2018 USP Benchmarks set by this Court in the September 9, 2018 Order are approved, except as specified. IT IS FURTHER ORDERED that the Report and Recommendation Re: Support for Beginning Teachers (Doc. 2346 ) is moot. The Second Supplemental Notice of Compliance: Beginning Teachers at Underperforming and Racially Concentrated Schools (Doc. 2327 ) is approved except as specified. IT IS FURTHER ORDERED that the Report and R ecommendation Re: Teacher Diversity Plan, Retention, and GYO Programs ( 2372 / 2392 ) is adopted in all parts, except the Court declines to formally adopt alternative standards for measuring staff diversity. The Second Supplemental Notice of Complian ce: Diversity Plan and GYO Programs (Doc. 2329 ) is approved, except as specified. IT IS FURTHER ORDERED that the Report and Recommendation Re: Inclusive School Environments and Civility (Doc. 2377 ) is adopted, except the Court does not reach the merits of whether unitary status should be granted. The Second Supplemental Notice of Compliance: Inclusive School Environments/Cultures of Civility (Doc. 2328 ) is approved. IT IS FURTHER ORDERED that the Report and Recommendation Re: Professional Learning for Technology (Doc. 2375 ) is adopted by the Court. The Second Supplemental Notice of Compliance: Professional Learning Plan for Teacher Proficiency Using Technology (Doc. 2330 ) is approved. The Motion to Strike (Doc. 2433 ) is DENIED. IT IS FURTHER ORDERED that all filings necessary to comply with the directives of this Order shall be made within 30 days of the filing date of this Order. Signed by Senior Judge David C Bury on 7/15/2020. (See attached Order for complete details) (DLC)
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.,
Plaintiffs
9
10
and
11
No. CV-74-00090-TUC-DCB
(Lead Case)
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
(Consolidated Case)
Plaintiffs,
21
and
22
United States of America,
23
24
25
26
Plaintiff-Intervenor,
ORDER
v.
Tucson Unified School District, et al.
Defendants.
27
28
December 1, 2018 USP Benchmarks: Second Supplemental Notices of Compliance
1
Procedural Posture
2
On September 6, 2018, after full briefing on the question of unitary status, the Court
3
adopted recommendations by the Special Master for completion of Action Plans, which
4
were adopted pursuant to various Unitary Status Program (USP) provisions and gave
5
express directives for actions the Court found were necessary under the USP, including
6
planning for future post unitary status operation of the District under the USP. (Order (Doc.
7
2123)). “The Court made express directives and set benchmark deadlines for compliance
8
where it identified specific deficiencies in respect to attaining unitary status for specific
9
programs.” (Order (Doc. 2273) at 2 (citing Order (Doc. 2123)). Since then, the Court has
10
issued several Orders tracking the District’s progress related to the benchmark date,
11
December 1, 2018, and the District’s corresponding, Notices of Compliance, as follows: 1)
12
AASSD and MASSD Operating Plans; 2) FACE Update; 3) ELL Plan; 4) Middle School
13
Courses for Highschool Credit; 5) Centralized Hiring Process and Certification for Placing
14
Beginning Teachers at Underperforming and Racially Concentrated Schools; 6) Teacher
15
Diversity, Grow-Your-Own Programs, and Attrition; 7) Inclusive School Environments
16
and Cultures of Civility, and 8) Professional Learning for Technology.
17
In April 2019, after briefing by the Plaintiffs and the Special Master, the Court
18
considered the December 1, 2018, Notices of Compliance and required the District to make
19
immediate, but not longer than 30 days, revisions to bring the District into compliance with
20
directives from the September 6, 2018, Order. (Order (Doc. 2217) at 15.)
21
The Court called for Supplemental Notices of Compliance as follows: 1) Centralized
22
Hiring Process and Certification for Placing Beginning Teachers at Underperforming and
23
Racially Concentrated Schools (requiring the District to revise certification criteria and
24
identify strategies aimed at placing beginning teachers in hard-to-teach schools); 2)
25
Teacher Diversity, Grow-Your-Own-Programs, and Attrition (requiring District to ensure
26
its GYOPs are growing teachers of color and administrators of color); 3) Inclusive School
27
Environments (reaffirming directive for District to work with Special Master to assess
28
effectiveness of strategies), and 4) Professional Learning for Technology (District agreeing
-2-
1
to revise professional learning to focus on use of technology to facilitate student learning).
2
(Order (Doc. 2217) at 6-15.)
3
Subsequent to the District’s filing the first Supplemental Notices of Compliance,
4
after full briefing, and review,1 on September 10, 2019, the Court again called for
5
supplementation, Second Supplemental Notices of Compliance, as follows: 1) Centralized
6
Hiring Process and Certification for Placing Beginning Teachers at Underperforming and
7
Racially Concentrated Schools (directing District to revise beginning teacher certification
8
procedure and teacher assessment form and to file Beginning Teacher Inventory); 2)
9
Teacher Diversity, Grow-Your-Own-Programs, and Attrition (reaffirming directive to file
10
comprehensive plan addressing all directives from April 22, 2019, Order); 3) Inclusive
11
School Environments (reaffirming directive for District to work with Special Master to
12
assess effectiveness of strategies), and 4) Professional Learning for Technology (ordering
13
District to work with the Special Master to, as it had agreed, revise professional learning
14
plan to focus on use of technology to facilitate student learning, including explaining how
15
to evaluate effectiveness of Teacher Technology Liaisons (TTLs) and to file the plan with
16
the Court.) (Order (Doc. 2273)).
17
18
These Second Supplemental Notices of Compliance are the subject of this Order,
which issues after full review and comment from the Parties and the Special Master.
19
Likewise, in April 2019, when it addressed the compliance issues above, the Court
20
found the inter-connectedness of USP provisions for Student Support Services (AASSD
21
and MASSD) and Family and Community Outreach Engagement (FACE), including the
22
crossover role played by these departments in serving English Language Learner (ELL)2
23
students, required a more wholistic approach to the Court’s review of these efforts under
24
the USP. The Court called for first Supplemental Notices of Compliance to be filed by
25
September 1, 2019 for the AASSD and MASSD Operating Plans, the FACE Update, and
26
Review was limited to the District’s efforts relevant to the September 6, 2018,
directives, as narrowed by Objections, R&Rs, and the April 2019 Orders issued by the
Court. The Court takes the same approach here.
1
27
28
2
Now: English Learners (EL).
-3-
1
the ELL Plan reflecting this interconnection and ensuring that AASSD and MASSD do not
2
duplicate services being provided by other departments or by school staff on-site at the
3
schools. (Order (Doc. 2213)). The Court ordered the District to prepare an Executive
4
Summary3 by December 1, 2019, to address the interconnectedness of the Unitary Status
5
Plan (USP) programs before the Court reconsiders unitary status. (Order (Doc 2213) at 12-
6
20.)
7
Subsequent to the District filing the AASSD and MASSD plans, the Plaintiffs’
8
objections and the Special Master’s reassertion of duplication and waste of resources, the
9
Court ordered the Special Master to develop the AASSD and MASSD Plans. (Order (Doc.
10
2359)). The Court will address Student Support Services, AASSD and MASSD Plans, the
11
FACE Update and ELL Plan in a separate Order.
12
13
December 1, 2018 USP Benchmarks: Second Supplemental Notices of Compliance
1) Centralized Hiring Process and Certification for Placing Beginning Teachers at
14
Underperforming and Racially Concentrated Schools.
15
On September 10, 2019, the Court ordered the District to revise its beginning teacher
16
certification procedure, including the certification form.4 The Court ordered the District to
17
file a Beginning Teacher Inventory. The first directive was responsive to the Mendoza
18
Plaintiffs’ complaint that District procedures were undermining its commitment to not hire
19
beginning teachers at underperforming and racially concentrated schools. The second
20
directive addressed the District’s chronic inability to provide accurate data related to its
21
hiring and placement of beginning teachers, which is essential to the integrity of its
22
beginning teacher programs. This data issue is both a budget and substantive program
23
concern. See (Order (Doc. 2273) at 3-13 (full discussion of rationales supporting these
24
directives).
25
26
27
3
28
4
Executive Summary (Doc. 2384) filed 12/1/19.
Certification of necessity is required before a beginning teacher is placed at an
underperforming or racially concentrated school.
-4-
1
On October 10, 2019, the District filed the Second Supplemental Notice of
2
Compliance: Certification & Support for Beginning Teachers (NC: Beginning Teachers)
3
(Doc. 2327). The District has revised the certification procedures, including the
4
certification form to address the Court’s concerns. It is now clear that there are only two
5
legitimate exceptions justifying placement of a beginning teacher at an under-performing
6
or racially concentrated school: 1) “The school is racially concentrated or underperforming,
7
and a qualified, more experienced applicant was not available or [2)] The school is racially
8
concentrated, has three years of above District average scores in ELA and Math, and the
9
first year teacher promotes a diverse teaching staff.” (2nd Supp. NC: Beginning Teachers,
10
Ex. E: Certification Form (Doc. 2327-5) at 2.) It is also clear that during the certification
11
process specific sheltering/mitigating strategies, above and beyond the support strategies
12
afforded all beginning teachers, have been identified and agreed to by school leadership.
13
Id. (omitting option “none”); see also (TUSD Response (Doc. 2423-2) (reflecting which
14
sheltering/mitigation strategies are being used at which schools).5
15
Second, the Court directed the District to prepare a Beginning Teacher Inventory.
16
This directive was not an attempt to micro-manage District operations but was instead
17
responsive to the chronic inability of the District to report accurate data for beginning
18
teachers. (Order (Doc. 2273) at 4.) In fact, this inability continued through the filing of the
19
Second Supplemental Notice of Compliance, 2019-20 Beginning Teachers Inventory
20
(10/10/19). (2nd Supp. NC: Beginning Teachers, Ex. B (Doc. 2327-2) at 2-5.) In spite of
21
the District’s assertion that it had “discovered issues regarding data fields used to enter
22
teacher experience, which [had] been carefully corrected and checked,” (2nd Supp. NC:
23
5
24
25
26
27
28
The Court notes that the Sheltering/Mitigation Strategies report reflects 36 schools
as compared to the First and Second Yr. Teachers SY 19-20 by Site (11/5/19) Inventory,
reports 48 underperforming and racially concentrated schools. In other words, 12 schools
may be missing sheltering/mitigation strategies. The November 5, 2019, Inventory
removed the classification RC3+, which this Court asked to be included in the report to
reflect those schools that would not need sheltering/mitigation strategies. Perhaps the
schools missing sheltering/mitigation strategies are high performing racially concentrated
schools, i.e., RC3+ schools, but the Court’s review of the original First and Second Yr.
Teacher SY 19-20 (10/10/20) Inventory, which did include the RC3+ classification, only
showed five such schools. The District shall resolve this data discrepancy and ensure that
sheltering/mitigation strategies are being used at all underperforming schools.
-5-
1
Beginning Teachers, Ex. C: Summary 2019-20 Beginning Teachers Inventory (Doc. 2327-
2
2) at 2), and its confidence “that these numbers are accurate as of the date of filing,” id.,
3
this was not true. The District self-corrected by filing the First and Second [Yr] Teachers
4
SY 2019-20 by Site 11/5/19 (Doc. 2423-1) Inventory in response to the Special Master’s
5
Report and Recommendation (R&R) asking again for the data, which this Court had
6
directed should be included in the Inventory. (R&R (Doc. 2346)); see also (Mendoza
7
Objection (Doc. 2340) at 4) (pointing out Tucson High is a large school but the Inventory
8
reflected only seven actual teachers, and small schools like Tolson, Henry, and Dunham
9
had Inventory numbers of actual teachers near and over 100)). The filing made by the
10
District on January 31, 2020, reflecting First and Second [Yr] Teachers by Site 11/5/19
11
appears to be an accurate report, and, therefore, complies with the directives of this Court
12
but for the omission of “RC3+” classification for racially concentrated schools that are
13
high-performing.6 The Court is confident that the Beginning Teachers Inventory (Doc.
14
2423-1) is accurate and can be relied on for planning and budget purposes.
15
To the extent that the need for an accurate data-based tracking system for beginning
16
teachers is not obvious, the Court’s approval is conditioned on it for the Plan for First-Year
17
Teachers at Racially Concentrated and Underperforming Schools and Second Year
18
Teachers Who Receive Unsatisfactory End of First Year Evaluation (Plan for Beginning
19
Teachers at RC and UP Schools) (Doc. 2327-1 at 2-6). The District has designed support
20
strategies for beginning teachers, who are teaching in hard-to-teach schools, which includes
21
an intense Beginning Teacher-Teacher Mentor program. The support strategies are directly
22
linked to need, which is assessed by a pre-and post-observational rubric which assesses
23
teacher proficiency to ensure that support exists for these teachers through their second
24
year of teaching, if necessary, to attain proficiency. The District provided the Pre and Post
25
Observational Rubric reflecting that the necessary assessments are being performed, and
26
that there is improvement between the Beginning of the Year (BOY) and End of the Year
27
28
6
Meaning, the school is racially concentrated, with three years of above District
average scores in ELA and Math.
-6-
1
(EOY) scores for these teachers. (2nd Supp. NC: Beginning Teachers, Ex. D: Strategies
2
(Rubric Scores) (Doc. 2327-4) at 15-18.)
3
The main component of the District’s Support Plan for Beginning Teachers at
4
Racially Concentrated and Underperforming Schools is the Beginning Teacher-Teacher
5
Mentor program, which assigns mentors by a ratio of 1:10 for beginning teachers at
6
underperforming and racially concentrated schools. (2nd Supp NC: Beginning Teachers,
7
Ex. A: Support Plan for Beginning Teachers at RC and UP Schools (Doc. 2327-1) at 2.)7
8
Every budget cycle, it has been an issue whether the District is providing sufficient funding
9
for this mentoring program. The Court notes that SY 2020-21 has commenced, and the SY
10
2020-21 USP Budget has been filed with the Court for review and comment. The District
11
shall run the First and Second [Yr] Teachers Inventory as filed for SY 2019-20 (11/5/19),
12
(Doc. 2423-1), for SY 2020-21 and provide it to the Plaintiffs and the Special Master.
13
2) Teacher Diversity, Grow-Your-Own (GYO) Programs, and Attrition8
14
The revisions called for by the Court in its September 10, 2019, Order were in large
15
part required to resolve confusion created because development of the Teacher Diversity
16
17
18
19
20
21
22
23
24
25
26
27
28
7
Different ratios apply for mentors for beginning teachers at other schools and for
second-year teachers. (2nd Supp NC: Beginning Teachers, Ex. A: Support Plan for
Beginning Teachers at RC and UP Schools (Doc 2327-1) at 2.)
8
In the September 6, 2018, Order, the Court considered attrition in the context of
the USP goal to retain a diverse teaching staff. Based on the Special Master’s examination
of District records, the Court rejected Plaintiffs’ allegation that the District had improperly
blacklisted former employees from being rehired. Without objection from the Plaintiffs,
the Court adopted the Special Master’s recommendation that the District conduct a study
to identify ways to improve working conditions and leadership behavior, to in-turn reduce
teacher turnover and the number of new teachers to improve both teacher performance and,
correspondingly, student performance. (Order (Doc. 2123) at 40 (citing (2016-17 SMAR
(Doc. 2096) at 17)). The Court ordered the District to include strategies determined to be
effective in the study to reduce attrition in the 2018-19 Teacher Diversity Plan (TDP). Id.
Subsequently, the Special Master reported that the rate of attrition in TUSD among teachers
is lower than the national average and lower than the state average, with especially low
numbers in new teachers in 2018-19, which he attributed to declining attrition. He reported
studies of teachers’ attitudes towards their jobs indicated there is no substantial difference
among White, African American and Latino teachers in their levels of job satisfaction or
intent to leave the District. The Special Master recommended: “The District should be
granted partial unitary status with respect to attrition.” (R&R (Doc. 2203/2204) at 5), see
also SY 2018-19 TDP (Doc. 2159-1). There were no objections. Accordingly, the Court’s
last Order on the TDP did not address attrition. (Order (Doc. 2217) at 8-14.) For this same
reason, this Order does not address attrition.
-7-
1
Plan was spread out over several years and between multiple documents. The Court asked
2
the District to bring them altogether in one Diversity Plan document, with the District
3
making it clear which strategies discussed in the various documents are actually being used
4
in the District, including the GYO programs. Substantively, the Court required the District
5
to make it clear that its proactive recruitment plan, including the soon to be hired Director
6
of Talent Acquisition, would address both diversity in teaching staff and diversity in school
7
administrators. The Court required the plan to make it equally clear how each GYO
8
program would grow teachers and administrators of color (TOC and AOC), not just grow
9
teachers and administrators, generally, to address national teacher shortages. (Order (Doc.
10
2273) at 13-17); see also (Order (Doc. 2217) at 13).
11
On October 10, 2019, the District filed the Second Supplemental Notice of
12
Compliance: Diversity Plan for Teachers and Administrators (Diversity Plan) (Doc. 2329-
13
1). The Court finds it addresses all but one of the Court’s concerns, which the Special
14
Master has addressed by R&R previously, asking the Court to require the District to have
15
a proactive recruitment plan that includes a pathway to administrative positions, especially
16
for African American teachers. In 2018, when the Court reviewed the District’s diversity
17
efforts, it ordered the District to conduct a study to determine whether it could develop a
18
viable proactive recruitment program, including the types of programs “adopted by the
19
military which seek out and groom individuals with leadership potential from entry level
20
positions through assigned career paths leading to the District’s top administrative
21
positions.” (Order (Doc. 2123) at 42 (citing SMAR (Doc. 2096) at 17)).
22
In the R&R to the Second Supplemental Notice of Compliance: Diversity Plan, the
23
Special Master reports this omission, (R&R (Doc. 2372/2392)9 at 5), and recommends it
24
be added to the proactive recruitment plan for teachers and administrators of color through
25
GYO programs, id. at 6. The District seems to agree to implement this recommendation.
26
(See NC with Special Master’s R&R (Doc. 2425) at 3-5 (describing how the proactive
27
recruitment plan as revised in the Diversity Plan is seeing successes in recruiting African
28
9
Identical documents.
-8-
1
American and Hispanic10 applicants for the GYO Leadership Prep Academy (LPA)), see
2
also (TUSD Report (Doc. 2352) (describing same success). The Court directs the District’s
3
attention to the Diversity Plan: Plan for Improved Diversity Through Grow Your Own
4
Programs (Doc. 2329-1 at 45-53). Admittedly, the District has designed generalized GYO
5
strategies to serve as TOCs and AOCs through a personalized targeted recruitment strategy,
6
spearheaded by the newly hired Director of Talent Acquisition. There is nothing wrong
7
with this, but this does not really address the Special Master’s recommendation that the
8
District design pathway-recruitment programs.
9
The District reports that this year minority enrollment in LPA far surpassed prior
10
years, with 25 (45%) African American, 14 (25%) Hispanic, and 17 (30%) White
11
applicants, from which, based on screening criteria, the District selected the 30 strongest
12
applicants: 13 (43%) African American, 9 (30%) Hispanic, and 8 (27%) White participants.
13
The Special Master’s recommendation would reach these screening criteria and other
14
similar impediments. He recommends the District develop a proactive program aimed at
15
strengthening the qualifications of African American and Hispanic teachers over the years
16
they serve as teachers in the District so that when an administrative position opens, there
17
is a pool of well qualified African American and Hispanic teachers available to apply for
18
that position. The Special Master’s recommendation reaches the competitive application
19
process to attend GYO programs like LPA. The District’s proactive recruitment program
20
should extend to the type of selection criteria used for LPA, thereby, creating professional
21
pathways for Africa American and Hispanic teachers to become the strongest applicants
22
for GYO programs leading to administrative positions. For example, the screening criteria
23
include leadership roles, such as: Principal designee, Dean of Students, MTSS Facilitator
24
or Lead, or Curriculum Service Providers. The District, including the Director of Talent
25
Acquisition, shall extend proactive recruitment efforts to these types of positions. This was
26
27
10
28
Hispanic, meaning native speakers of Spanish, is used interchangeably with
Latino, meaning of Latin American origin. Both replace the previous use of Mexican
American.
-9-
1
what the Special Master was recommending and what the District’s proactive recruitment
2
program does not do.
3
The Special Master’s recommendation makes a generalized GYO, like the LPA, an
4
AOC. This is not a quota affirmative action strategy, but it is a proactive recruitment
5
program that reaches systemic types of impediments to the advancement of African
6
American and Hispanic teachers to become administrators. The Director of Talent
7
Acquisition responsibilities shall be expanded to include developing this pathway approach
8
extending recruitment to these building block positions, which addresses the need to make
9
the generalized GYO programs TOCs and AOCs.
10
The Mendoza Plaintiffs submit that there remains some confusion as to what’s in
11
and what’s out of the Diversity Plan because the District included as Exhibit 1-6, Plan for
12
Recruitment of Teachers for Diversity and GYO Programs (Doc. 2221-1), which the Court
13
ordered revised in September 2019. (Order (Doc. 2273) at13-17.) The District explains it
14
had no choice but to include it because the Court said to: “file a Diversity Plan . . ., which
15
shall include previously reviewed and approved provisions.” (Reply (Doc. 2353) at 2
16
(quoting Order (Doc. 2273) at 1). Since the Court did not approve the Plan for Recruitment
17
of Teachers for Diversity and GYO Programs (Doc. 2222-1), the District cannot entirely
18
clear up the confusion with the directions on the first page of the Diversity Plan, which
19
explain that the Plan has two major parts: 1) the Diversity Transfer Plan (Diversity Transfer
20
Plan), including Exhibit 1-6, the original recruitment plan (Doc. 2221-1) and 2) the Plan
21
for Improved Diversity Through GYO Programs (GYO Diversity Plan). Further
22
clarification is required to address the last paragraph of the Diversity Transfer Plan ((Doc.
23
2329-1) at 13), which says that the recruiting plan “originally filed as 2221-1, is now
24
incorporated into the Diversity Transfer Plan.” More accurately, this paragraph should
25
describe 2221-1 as being superseded by incorporation in the Diversity Plan.
26
In addition to the above recommendation regarding the scope of the proactive
27
recruitment plan, the Special Master made several other recommendations in response to
28
the Second Supplemental Notice of Compliance: Diversity Plan. (R&R Doc. 2372/2392).
- 10 -
1
The District filed a Notice of Compliance suggesting its agreement with the
2
recommendations. (NC with R&R Re: Diversity Plan (Doc. 2425)). The Mendoza
3
Plaintiffs filed a Motion to Strike or Alternatively, a Response. (Doc. 2423.) Alternatively,
4
the Court considers the Mendoza’s Response (Doc. 2423).11
5
The Mendoza Plaintiffs challenge the veracity of the District’s Notice of
6
Compliance with the Special Master’s R&R that the Diversity Transfer Plan “keep[s] open
7
the broad range of incentives available in the original TDP.” (R&R (Doc. 2372/2392) at 4
8
(referring to 2016 TDP (Doc. 2329-1) at 34)). The District says it does, but the clear express
9
incentive provisions for Teachers, § III.E, and for Administrators, § IV.E, of the Diversity
10
Transfer Plan ((Doc. 2329-1) at 9) reflect it does not. The Diversity Transfer Plan shall
11
expressly memorialize that it retains this range of options by reference to and incorporation
12
of the 2016 Teacher Diversity Plan ¶ 2, Teacher Incentives: Requested Transfers ((Doc.
13
2329-1) at 34).
14
The Special Master suggests various alternative measures of success for assessing
15
improved diversity over the course of the USP. The District submits it “will continue to
16
report, as it has done, the number of teachers of all races/ethnicities at every school in the
17
District. Thus, any party may compute [and the Court] may compute integration and
18
diversity by whatever measure they choose.” (NC with R&R Re: Diversity Plan (Doc.
19
2425) at 2.) The Court approves the District’s approach to report the numbers as it has been
20
doing, specifically as reflected in the 2019-20 TDP report, which includes application of
21
the +-15% standard for White teachers.12
22
The Court reserves discussion regarding the merits of the various measures of
23
success for when it considers unitary status, but in the context of this review of the
24
25
11
26
12
27
28
The Court denies the Motion to Strike (Doc. 2423).
The District measures effectiveness by applying the +-15% standard to Hispanic
teachers only; the Court has agreed with the Plaintiffs and Special Master that the +- 15%
standard be measured for White teachers too. The Special Master offers new measurements
such as widening the +- standard by two points, adding all minority teachers together at a
school, or looking at the total number of teachers of color at a school or looking for an
approximate 50/50 balance between White and Hispanic teachers at a school.
- 11 -
1
District’s compliance with the USP and related Orders of the Court, the Court makes
2
several observations. First, by any proposed measure, about 40% of the 26 original 2016
3
targeted schools remain targeted in SY 2019-20. Compare (2016-17 Teacher Transfer
4
Target Schools (Doc. 2329-1) at 34); 2019-20 Diversity Transfer Plan (Doc. 2329-1) at 15
5
(reflecting 11 of the original targeted schools remaining). The Court notes that without
6
attaining the +-15% standard for Hispanic teachers and without explanation, the District
7
appears to abandon further diversity efforts at Dunham ES, Gale ES, Holladay Magnet ES,
8
Howell ES, Hudlow ES, Hughes ES, Kellond ES, Marshall ES, Miller ES, Myers/Ganoung
9
ES, Soleng Tom ES, Roberts/Naylor K-8, and Safford K-8. (2019-20 Diversity Transfer
10
Plan (Doc. 2329-1) at 15.)
11
It is even harder to apply the +-15% standard to measure administrative diversity by
12
school because of the small number of administrators at each school, including many
13
schools with only one administrator, the Principal. (SY 2019-20 Administrator Diversity
14
Report (Doc. 2329-1) at 20.)
15
In summary, the reports provided by the District reflect that the impediment to
16
attaining diversity under the +-15% standard is too many White teachers, and African
17
American administrators trailing far behind Hispanic administrators. In addition to the +-
18
15% standard, the Court intends to look for improved diversity in professional staff over
19
the course of the USP. The Special Master recommended that the District not adopt a new
20
list of target schools in 2019-20 but retain the original targets until 2020-21. The District
21
agrees. The Court adopts this recommendation but notes that the 26 target schools were
22
selected by the Special Master in spring of 2016 for a period of two years, with the District
23
planning to meet the +-15% standard in 2016 and SY 2017-18. The plan to attain
24
professional staff diversity at these schools was extended for a third year (SY 2018-19),
25
with the District proposing a new target list for SY 2019-20. (2nd Supp. NC: Diversity Plan
26
(Doc. 2329) at 4-5); (2019-20 Diversity Transfer Plan Target Schools (Doc. 2329-1) at 15.)
27
This makes SY 2019-20 an especially appropriate time for the District to review the
28
effectiveness of its diversity efforts since 2016 and consider improvements for future
- 12 -
1
strategies. The District has done this by adopting the Proactive Transfer Plan and hiring
2
the Director of Talent Acquisition.
3
As for future strategies, the District shall file the SY 2020-21 Diversity Transfer
4
Plan Target Schools, including a status update identifying any of the original target schools
5
which are not within one or two teachers of meeting the +-15% standard, see (Status Report
6
(Doc. 2352) at 5) and evaluate the effectiveness of the diversity efforts which were
7
undertaken there. The status update shall prioritize these schools for further diversity
8
efforts or explain why there are no further diversity efforts warranted at this time.
9
Based on what the Court has before it, there is no proposal for how the Court should
10
assess the success or failure of the District’s Diversity Plan for administrators, except for
11
the +-15% standard, which all appear to agree is not a legitimate diversity standard to apply
12
to administrators. The District shall provide a 2016 comparison report for the 2019-20
13
School Site Administrators Report ((Doc. 2329-1) at 20). The District shall file a status
14
report identifying the school site diversity priorities for administrators in SY 2020-21,
15
especially any efforts which may improve African American administrator diversity.
16
3. Inclusive School Environments/Cultures of Civility
17
In its last Order addressing USP § V.F, Maintaining Inclusive School Environments,
18
the Court reaffirmed the directive that the District work with the Special Master to assess
19
the effectiveness of strategies being used now and potentially to be used in the future to
20
create and maintain inclusive school environments. The Court issued the following express
21
directives: 1) “The District shall NOT USE strategies that are not research based”; 2) it
22
“shall undertake a study of the effects of a pilot intervention program using restorative
23
processes and identify positive and negative outlier schools to determine whether there are
24
common practices being implemented in either regard; these studies shall inform future
25
strategy choices by the District for creating inclusive school environments and cultures of
26
civility”; 3) it shall collaborate with the Special Master to identify strategies to be used in
27
the future at schools needing improvement, and 4) it shall collaborate with the Special
28
Master to develop a professional learning plan for preparing District staff to implement a
- 13 -
1
program to create and maintain school environments of inclusiveness and civility. (Order
2
(Doc.2273) at 18.)
3
On October 10, 2019, the District filed the Second Supplemental Notice of
4
Compliance: Inclusive School Environments and Cultures of Civility (Doc. 2328). The
5
Mendoza Plaintiffs accuse the District of once again failing to collaborate with the Special
6
Master to assess the effectiveness of existing strategies and identify possible additional
7
strategies, and that, most likely, the District also failed to collaborate on the development
8
of the Professional Learning Plan. The Court addresses the District’s compliance with the
9
Court’s express directives for collaboration with the Special Master. Subsequently in an
10
Order to follow, the Court will address the merits of the collaborative efforts in the context
11
of the District’s Notice of Compliance: Discipline Progress Report and Combined
12
Discipline/Inclusivity Professional Learning Plan (Doc. 2266). “[I]n reality the discipline
13
plan completely overlaps the inclusivity/civility plan: all of the training to create and
14
maintain inclusive school environments [are] included within, and a subset of, the training
15
the District provides to reduce the incidence of discipline by preventive means.” (2nd Supp.
16
NC: Inclusive School Environments/Cultures of Civility (Doc. 2328) at 5.)
17
Regarding the question of collaboration, the District asserts that every step of the
18
way it has collaborated with the Special Master, who on the other hand has filed R&Rs
19
calling for further collaboration. The Court required the District to work with the Special
20
Master to develop a professional learning plan linked to the practices the District found to
21
be effective. (Order (Doc. 2273) at 17 (issuing identical directive as issued April 22, 2019
22
(Order 2217) at 14)). “While the District did work with the Special Master to design the
23
study that shows that the District is doing well with respect to the set of goals implicit in
24
the relevant section of the USP, the District and the Special Maser did not collaborate in
25
the development of the professional learning plan.” (R&R (Doc. 2254) at 4.) In the R&R,
26
dated August 9, 2019, the Special Master asked the Court to “remind the District that it had
27
been directed to work with the Special Mater to develop the professional learning plan for
28
fostering inclusiveness and cultures of civility.” Id. at 5.
- 14 -
1
In contrast, subsequent to the Second Supplemental Notice of Compliance:
2
Inclusive School Environments/Cultures of Civility (2328), the Special Master explains
3
that he was consulted regarding the various study approaches. He advised the District that
4
a study of the relative effectiveness of its major strategies was not possible “because all of
5
the tools that were being used to promote the outcomes desired by the Court and the parties
6
were being implemented simultaneously and it would not be possible, without an elaborate
7
experimental design that would likely be resisted by families, to separate the effects of
8
these different strategies not only because they overlapped but because they were employed
9
at different times for different purposes in each school in the District.” (R&R (Doc 2377)
10
at 2-3.)
11
According to the Special Master, the District is limited to the type of research-based
12
effectiveness analysis which it has conducted. Id. at 3. The only other avenue of assessment
13
is the outlier study approach, which he recommended in his last R&R on this subject. Id.
14
at 3. In conjunction with the pilot study regarding Restorative Practices Training, which
15
the Special Master also recommended be performed by the District, the District performed
16
the outlier study. It compared the five schools targeted in the pilot study, which were
17
selected as negative outlier schools with higher rates of disciplinary infractions and
18
exclusionary discipline or suspensions, (2nd Supp. NC: Ex. A, Pilot Study (Doc. 2328-1) at
19
2), with five positive outlier K-8 or middle schools with high rates of inclusivity and low
20
rates of discipline, id. at 13.
21
This outlier study led to three conclusions: 1) differences were not due to different
22
programs or strategies between the schools; 2) the positive outlier schools were committed
23
to implementing the programs with a high degree of fidelity, and 3) the positive outlier
24
schools had foundational structures and systems in place to support the successful
25
implementation of district programs and practices. (2nd Supp. NC: Ex. A, Pilot Study
26
(2328-1) at 13-14.) In comparison, the negative outlier schools from the pilot study saw
27
little to no improvement, except perhaps to some extent in program readiness, and the
28
District was generally dissatisfied with the vendor it hired to roll-out the Restorative
- 15 -
1
Practices program in the five pilot schools. Id. at 12. The District decided to not renew the
2
vendor contract and to instead adopt a “train the trainer” model in SY 2019-20 “to develop
3
internal capacity within the district for the five existing pilot schools as well as five new
4
schools.” Id. at 13. This in-house model should generate more buy-in at the school-site
5
level, which was one of the distinguishing factors in the Restorative Practices study
6
between the five pilot schools’ scores of: 1, Not Yet Implemented, 2, Needs Work in the
7
Implementation, and 3, Yes, it is Implemented. See (2nd Supp. NC: Ex. A, Pilot Study (Doc.
8
2328-1) at 6, 9 (common feed-back theme was need for continued staff development and
9
skills building for long-term sustainability; different readiness levels resulted from degree
10
of staff buy-in and whether infrastructure exists to implement restorative practices).
11
The District resubmitted the Study of the Effectiveness of Strategies Employed at
12
TUSD to Promote a Sense of Inclusiveness or Belonging and a Culture of Civility (2nd
13
Supp. NC: Ex. B, Study of Effectiveness) (Doc. 2328-2), which it submitted with the first
14
Notice of Compliance (Doc. 2232-1). The Mendoza Plaintiffs logically argue that if it was
15
deficient the first time around, and it remains so. The Court recognizes that the Special
16
Master originally reported that the study failed to “identify an additional strategy which it
17
might employ [] should monitoring disclose the need for an additional approach.” (R&R
18
(Doc. 2254) at 4) (emphasis in original). And, the Special Master recommended further
19
collaboration related to “any new strategies” . . . “it may decide to use in schools that need
20
to develop more positive school cultures.” Id.
21
The Court has reread the Study of Effectiveness, specifically Part B: Other
22
Strategies, and finds that it identifies the additional social-emotional learning (SEL)
23
strategy of “SEL curriculum,” which “TUSD has not yet attempted.” (2nd Supp. NC: Ex.
24
B, Study of Effectiveness (Doc. 2328-2) at 21.) Now, the Special Master endorses this
25
broad expansion of SEL should it become necessary, (R&R (Doc. 2377) at 4-5), especially
26
given the District’s recent decision to move forward by building a cadre of teachers and
27
administrators who are capable of implementing the existing strategies, id. at 5, which are
28
“based on the principles of (SEL),” (2nd Supp. NC: Ex. B, Study of Effectiveness (Doc.
- 16 -
1
2328-2) at 21). Rather than contracting outside vendors to provide SEL skill sets, the
2
Special Master finds no “downside” to the District “undertaking small steps forward that
3
could be implemented more broadly [later] because SEL [curriculum] will enhance the
4
effectiveness of the other [SEL] strategies the District is [currently] employing.” (R&R
5
(Doc. 2377) at 6.)
6
The Special Master reports that the two empirical studies, the student survey and
7
the pilot Restorative Practices Study, both reflect that the District has created a strong
8
foundation of schools which are generally perceived as being inclusive school
9
environments, upon which it can build cultures of civility pursuant to the Combined
10
Professional Learning Plan (PLP) for Discipline and Inclusivity. As noted above the Court
11
will consider the merits of this PLP in an Order to follow. The Court finds that the District
12
has undertaken the studies, as directed by this Court, to determine the effectiveness of its
13
efforts under the USP to create and maintain inclusive school environments.
14
4) Professional Learning Plan (PLP) for Using Technology
15
On September 6, 2018, the Court considered the District’s assertion that it had
16
attained unitary status for USP § IX, Facilities and Technology, by its development of two
17
required indexes, the Facilities Conditions Index (FCI) and the Technology Conditions
18
Index (TCI). The District uses the two indexes to determine capital expenditures to be made
19
under the Multi-Year Facilities Plan and Multi-Year Technology Plan. The Court ordered
20
the District to, and it did, recalculate FCI scores using the original FCI formula (Order
21
(Doc. 2123) at 139), which reflected that racially concentrated schools do not have lower
22
FCI scores than non-racially concentrated schools, (Order (Doc. 2362) at 2-3 (finding
23
compliance with Completion Plan for attaining unitary status related to Facilities Plan).
24
The Court rejected the District’s argument that the TCI did not need to reflect each
25
school’s internet access because upgrades gave all schools equal wireless internet access.
26
(Order (Doc. 2362) at 3-4.) The District revised the TCI, which as expected reflects there
27
is no disparity in access, even though the school’s internet footprints differ. (Supplemental
28
- 17 -
1
NC Re: Internet Access (Doc. 2381). There were no objections to the Supplemental Notice
2
of Compliance.
3
The Court turns to the remaining USP § IX provision, over which it retained
4
jurisdiction in 2018 “to ensure that the District has implemented a Professional Learning
5
Plan focused on the use of technology to facilitate student learning.” (Order (Doc. 2123) at
6
140.) In its April 22, 2019, Order, the Court noted that, without waiving its objections, the
7
District had commenced efforts to comply with recommendations from the Special Master
8
to revise the PLP for Teacher Proficiency in Using Technology (PLP: Teacher Proficiency
9
in Technology) and report further on these efforts. (Order (Doc. 2217) at 15.)
10
Subsequently, on May 22, 2019, the District filed a Supplemental Notice of
11
Compliance: PLP for Teacher Proficiency in Technology (Doc. 2220), which garnered
12
objections from the Mendoza Plaintiffs and the Special Master. The Court adopted two
13
recommendations from the Special Master for revisions. First, the Court directed the
14
Special Master “‘to work with the District to expand the ‘Courses Addressing Use of
15
Technology in the Classroom’ to include content pedagogy, meaning ‘courses about how
16
to use technology in the subject matter that particular teachers teach (such as American
17
government or biology, etc.).’” (Order (Doc. 2273) at 19 (quoting (R&R (Doc. 2252) at 3
18
(recommending revision of Ex. B, Courses Addressing Use of Technology in the
19
Classroom (Doc. 2220-2)). Second, the Court addressed the plan’s lack of clarity regarding
20
the District’s procedures for training teachers and assessing their proficiency in using
21
classroom technology. Id. at 19-20. On October 10, 2019, the District filed the Second
22
Supplemental NC: PLP for Teacher Proficiency in Using Technology (Doc. 2330).
23
The Mendoza Plaintiffs object, complaining that the PLP remains deficient in both
24
regards. (Response (Doc. 2342)). The Special Master reports that as to the first
25
recommendation adopted by the Court in its September 10, 2019, Order: “Fortunately,
26
there is an abundance of lesson plans keyed to national standards available online that
27
teachers could use if the District made the search costs low for locating such resources and
28
indexed these resources to the TUSD curriculum. Such materials are available by googling
- 18 -
1
PBS13 teacher lesson plans and there are lesson plans on the ISTE14 website, among other
2
sources.” (R&R (Doc. 2375) at 2.)
3
The Court has reviewed the PLP for Teacher Proficiency in Using Technology (Doc.
4
2330-1). It explains the procedures for training teachers to use instructional technology.
5
The Instructional Technology Department is responsible for teacher proficiency in the use
6
of instructional technology. There is a director and five Educational Technology
7
Integration Specialists (ETI Specialist), one for each of the five TUSD regions, who are
8
responsible for coordinating and conducting teacher training within his or her region.
9
Further school-site support is provided by Teacher Technology Liaisons (TTLs), who
10
provide technology instruction and peer coaching. TTLs are teachers, who have expertise
11
in the use of classroom technology and who receive special training and a stipend for their
12
services. The District follows the methodology of the International Society for Technology
13
in Education (ISTE) and applies ISTE standards to “identify and internalize ways in which
14
they can adapt the technology tools and platforms to content-specific pedagogy.” (PLP for
15
Teacher Proficiency in Using Technology (Doc. 2330-1) at 4.)
16
The Court finds the revised PLP for Teacher Proficiency in Using Technology (Doc.
17
2330-1) clarifies the structure and procedures for delivery of training services to teachers
18
regarding the use of classroom technology. Id. at 2-5. The Court believes that the PLP
19
suggests that courses addressing use of technology include content pedagogy, meaning
20
courses about how to use technology in the subject matter that a teacher teaches. Id. at 67,
21
25-26 (Academy: Office 365 (targeted online professional development; iPad/TOTS
22
(integrating device use into specific content areas); Independent Learning with Math Tools
23
in OneNote (math)). The Court approves the PLP, contingent upon the District filing the
24
resource index available to teachers reflecting access to courses addressing use of
25
technology by content pedagogy.
26
27
13
28
14
Public Broadcasting System.
International Society for Technology in Education.
- 19 -
1
After reviewing the 2nd Supp. NC: PLP for Teacher Proficiency in Using
2
Technology, the Special Master recommended the Technology Integration Observation
3
Tool, being used to assess teacher proficiency with classroom technology, should be
4
aligned with instructional strategies and learning goals for students so it can be used to
5
guide professional development. (R&R (Doc. 2375) at 3-4.) The Special Master
6
recommended the District’s responsibilities under § IX of the USP would be completed
7
once the District made this revision, upon his approval of the Technology Integration
8
Observation Tool. Id. On January 31, 2020, the District filed a Notice of Compliance (Doc.
9
2426) and attached a revised Technology Integration Observation Tool (Doc. 2426-1).
10
The Mendoza Plaintiffs object to the Court’s acceptance of the revised evaluation
11
tool because this would “leapfrog” over the Court and circumvent their opportunity for
12
review and response. (Motion to Strike or Alternative Response (Doc. 2433) at 2.) The
13
Mendoza Plaintiffs ask the Court to strike it. Id. Upon closer scrutiny, the record reflects
14
the Special Master qualified his approval of the revised evaluation tool. He approved it,
15
only, to be used in SY 2019-20, with further revisions to be made for SY 2020-21. (TUSD
16
Response to Mendoza Motion to Strike: Hawley email to TUSD (Doc. 2442-2) at 2.)
17
Therefore, the Court denies the Motion to Strike but directs the Special Master to
18
consider the Mendoza Plaintiffs’ objections in the context of his review of the revised SY
19
2020-21 evaluation tool, which should be the final Technology Integration Observation
20
Tool. The Special Master shall file the final Technology Integration Observation Tool with
21
the Court, including a summary of explanation for any objections remaining by any party
22
to the final evaluation tool he approves.
23
Accordingly,
24
IT IS ORDERED that the Second Supplemental Notices of Compliance Re: the
25
December 1, 2018 USP Benchmarks set by this Court in the September 9, 2018 Order are
26
approved, except as specified below.
27
28
- 20 -
1
IT IS FURTHER ORDERED that the Report and Recommendation Re: Support
2
for Beginning Teachers (Doc. 2346) is moot because the District subsequently filed the 1st
3
& 2nd [Yr] Teachers [Inventory] by site 11/5/19 (Doc. 2423-1).
4
IT IS FURTHER ORDERED that the Second Supplemental Notice of
5
Compliance: Beginning Teachers at Underperforming and Racially Concentrated Schools
6
(Doc. 2327) is approved, except:
7
1.
All future Beginning Teacher Inventories shall be the same format as the 1st
8
& 2nd [Yr] Teachers Inventory by site 11/5/19 (Doc. 2423-1), including the
9
“RC3+” classification.
10
2.
11
The District shall run the Beginning Teacher Inventory for SY 2020-21 and
provide it to the Plaintiffs and the Special Master.
12
IT IS FURTHER ORDERED that the Report and Recommendation Re: Teacher
13
Diversity Plan, Retention, and GYO Programs (2372/2392) is adopted in all parts, except
14
the Court declines to formally adopt alternative standards for measuring staff diversity.
15
16
17
IT IS FURTHER ORDERED that the Second Supplemental Notice of
Compliance: Diversity Plan and GYO Programs (Doc. 2329) is approved, except:
1.
Proactive recruitment efforts shall reach pathway positions necessary to create
18
a pool of well qualified African American and Hispanic candidates for
19
administration positions by ensuring its generalized GYO administrator
20
programs s are AOCs.
21
2.
The Plan for Recruitment of Teachers for Diversity and GYO Programs (Doc.
22
2221) is superseded as incorporated expressly in the Diversity Plan, approved
23
herein.
24
3.
25
26
The full range of incentives included in the original 2016 Teacher Diversity
Plan remain in the Diversity Plan, approved herein.
4.
The District shall retain the 2016-17 target transfer schools for attaining teacher
27
diversity through SY 2019-20 and identify new target transfer schools for SY
28
2020-21, to be filed with an updated status report for the original target
- 21 -
1
schools that were not one or two teachers away from the +-15% teacher
2
diversity standard in SY2019-20, and priority given to any such school or an
3
explanation for why no further diversity efforts are being undertaken in SY
4
2020-21.
5
5.
The District shall file a 2016 comparison report for the 2019-20 School Site
6
Administrators Report, with a status report identifying the school site
7
diversity priorities for administrators beginning SY 2020-21, especially
8
efforts to increase African American administrator diversity.
9
6.
The Motion to Strike (2423) is DENIED.
10
IT IS FURTHER ORDERED that the Report and Recommendation Re: Inclusive
11
School Environments and Civility (Doc. 2377) is adopted, except the Court does not reach
12
the merits of whether unitary status should be granted.
13
IT IS FURTHER ORDERED that the Second Supplemental Notice of
14
Compliance: Inclusive School Environments/Cultures of Civility (Doc. 2328) is approved.
15
IT IS FURTHER ORDERED that the Report and Recommendation Re:
16
Professional Learning for Technology (Doc. 2375) is adopted by the Court.
17
IT IS FURTHER ORDERED that the Second Supplemental Notice of
18
Compliance: Professional Learning Plan for Teacher Proficiency Using Technology (Doc.
19
2330) is approved, contingent on the following:
20
1. District filing the Resource Index including content pedagogy.
21
2. The Special Master filing the SY 2020-21 Technology Integration Tool, with a
22
summary of explanation for any objections remaining by any party to the
23
evaluation tool he approves.
24
3. The Motion to Strike (Doc. 2433) is DENIED.
25
/////
26
/////
27
/////
28
/////
- 22 -
1
2
3
IT IS FURTHER ORDERED that all filings necessary to comply with the
directives of this Order shall be made within 30 days of the filing date of this Order.
Dated this 15th day of July, 2020.
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
- 23 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?