Fisher, et al v. Tucson Unified, et al

Filing 2572

ORDERED the Special Master's Reports and Recommendations (Docs. 2468 , 2469 , 2494 (Reply R&R) and recommendation that the Court award unitary status is adopted based on the Findings of Fact and Conclusions of Law made by this Court. It is f urther ordered that the Supplemental Petition for Unitary Status (Doc. 2461 ) is GRANTED for all USP provisions, except for those provisions reserved for noncompliance. It is further ordered that the Court retains jurisdiction for the limited purpos e of determining compliance with these remaining contingencies. It is further ordered that the Special Master's approval of the District's training of administrators to evaluate CRP competency (Order (Doc. 2508 ) at 28-29, 33), USP § V.E.6.a.i-ii, shall be filed with the Court by May 31, 2021, and the District shall file the UHS express shuttle-bus report by this same date. It is further ordered that the District shall respond to the Plaintiffs' Supplemental Opposition to the Petition for Unitary Status challenging that Wakefield Middle School and Innovation Tech. High School are Racially Concentrated by addressing whether the strategies outlined in the NARAs to promote integration at these schools have been implement ed, and if not why. It is further ordered that the District shall respond to the In its Supplemental Opposition ((Doc. 2571 ) at 13-14), the Fisher Plaintiffs charge that it is in violation of the Court's Order (Doc. 2557 ) by failing to incl ude the "Academic Performance (African American and Latino Students) criteria in the 2020-21 MSPs. It is further ordered that pending issues of compliance shall be addressed by the Court pursuant to current briefing schedules, and the District 's Responses to the Plaintiffs' Supplemental Opposition to the Petition (Doc. 2570 ) shall be filed within 14 days of the filing date of this Order. The Plaintiffs shall file Replies within 7 days. It is further ordered that the Special Ma ster shall consult the Plaintiffs and oversee the District's development of the Post-Unitary Status Plan, which shall be filed with the Court within 30 days of the filing date of this Order. Signed by Senior Judge David C Bury on 4/19/2021. (SEE ORDER FOR COMPLETE DETAILS)(ARC)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Roy and Josie Fisher, et al.,
Plaintiffs

10
11

and

12

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

United States of America,
Plaintiff-Intervenor,

13
14

v.

15

Tucson Unified School District, et al.,

16

Defendants,

17

Maria Mendoza, et al.,

18

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

Plaintiffs,

19

and

20

United States of America,

21
22
23
24

Plaintiff-Intervenor,

ORDER

v.
Tucson Unified School District, et al.
Defendants.

25
26
27
28

Supplemental Petition for Unitary Status: GRANTED IN PART and reserved in part
pending compliance for USP § V.A as previously ordered and for § X, as ordered herein.

1

PROCEDURAL HISTORY

2

On September 6, 2018, this Court granted unitary status in part and adopted

3

recommendations by the Special Master for Completion Plans, which were designed to

4

bring the District into full compliance with the Unitary Status Plan (USP). The Court made

5

specific findings, identified specific deficiencies in respect to attaining unitary status for

6

specific programs, and issued express directives and set benchmark deadlines for

7

completing the work required under the USP.

8

In adopting the Special Master’s recommendations, the Court called for the

9

District to file Notices of Compliance related to the Completion Plans and other directives

10

of the Court, and held that such notices would trigger supplemental briefing by the parties

11

and the Court’s reconsideration of unitary status.1 The Court set two Completion Plan

12

benchmarks: December 1, 2018 and September 1, 2019. Compliance was only partially

13

attained by these dates, and the District was required to file supplemental Notices of

14

Compliance. For every Notice of Compliance, including supplemental ones, the parties and

15

Special Master provided review and comment, and the Court addressed all assertions of

16

noncompliance and ineffectiveness until finally, compliance was attained, except for a few

17

limited tasks which remain as noted herein. The Court turns to the District’s Supplemental

18

Petition for Unitary Status filed on December 31, 2019. (Supp. Petition (Doc. 2461))

19

The Supplemental Petition has been fully briefed by the parties, and the Special

20

Master recommends that the Court grant unitary status, except for a few specific objections

21

which have been addressed by the Court over the course of the past year and are now moot.

22
23
24
25
26
27
28

1

In 2017, the District filed a Motion for Unitary Status. (Doc. 2005.) The Court
denied it as moot and directed that the District’s 2016-17 Annual Report (DAR) include a
detailed analysis regarding compliance with each USP provision and that the Special
Master’s 2016-17 Annual Report (SMAR) (Doc. 2096) include a like status report
regarding progress made under the USP. The District filed an Analysis of Compliance
(USP RAC (Doc. 2075)) simply asserting that evidence reflected there was no basis to
conclude it would revert to segregated schools and its efforts since the inception of the USP
reflected its good faith. The District stopped short of renewing the Motion for Unitary
Status, however, it objected to the Special Master’s recommendation for partial unitary
status by arguing that he should have recommended immediate and complete termination
of supervision because the District had attained unitary status. (TUSD Response (Doc.
2099)).
-2-

1

The Court adopts the recommendation of the Special Master after being fully advised by

2

Plaintiffs’ Objections. The Court finds in favor of the Defendant, and hereby makes the

3

following special Findings of Fact and Conclusions of Law pursuant to the Federal Rules

4

of Civil Procedure, Rule 52(a) and (c) which constitutes the decision of the Court that the

5

Tucson Unified School District has attained unitary status, except where the Court has

6

found compliance contingent on outstanding filings from the District as specified herein.

7

FINDINGS OF FACT

8
9

To the extent these Findings of Fact are also deemed to be Conclusions of Law, they
are hereby incorporated into the Conclusions of Law that follow:

10

1.

11

six years. In 2013, it agreed to participate in drafting and adopting the USP as a consent

12

decree. It developed action and implementation plans for all USP provisions and made

13

adjustments to improve program effectiveness as ordered by the Court. By SY 2016-17,

14

when the Court last reviewed unitary status, the District was implementing those plans.

15

Since then, the District has monitored and tracked data relevant for assessing program

16

effectiveness and complied with all operational directives from this Court, issued in

17

response to challenges asserted by the Plaintiffs and Special Master. As of now, all USP

18

programs have been designed to meet best practices standards and to be the most

19

effective programs for each USP provision based on research. There has been full

20

implementation of USP strategies, and the District is being operated, accordingly, under

21

the USP, now and into the future. These operations over six years, from 2013 through

22

now, have eliminated the vestiges of segregation to the extent practicable over this period

23

of time.

24

2.

25

years, which is a reasonable period of time to establish a lasting commitment to the USP

26

and the Constitution, rather than merely being a temporary constitutional ritual by the

27

District’s board.

The District has moved forward with deliberate speed over the past approximately

The District has acted in good faith to comply with the USP over the past six

28

-3-

1

3.

2

whole of the USP and to those provisions of the law and the Constitution that predicated

3

judicial intervention, and where contingencies for compliance remain, they do not call

4

into question the District’s commitment to the whole of the USP or to the Constitution.

5

4.

6

to make program decisions, now and in the future, based on the effectiveness of strategies

7

and programs to integrate its schools and afford equal access to educational opportunities

8

and improve academic achievement for African America and Latino, including English

9

Learner (EL), 2 students.

For over six years, the District has demonstrated its good-faith commitment to the

The District has the commitment, the relevant data, technology, and the expertise

The District’s course of action reflects more than a mere promise. The District has

10

5.

11

now done the things previously found lacking, see supra ¶¶ 14-15, that once precluded a

12

finding of good faith.

13

6.

14

accountable by the community.

15

7.

16

District’s development of a Post Unitary Status Plan (Post-USP) to restore accountability,

17

through transparency, in the governmental systems that are designed to oversee the

18

District’s operations.

19

8.

20

Status. (Doc. 2461.) The Special Master filed a Report and Recommendation (R&R)

21

(Doc. 2468) recommending that the Court find unitary status has been attained and grant

22

the Petition. The Court adopts the recommendation of the Special Master based on the

23

Findings of Fact and Conclusions of law as stated herein.

It is time for the District to be released from judicial oversight and held

It remains, pursuant to the USP § X, for the Special Master to oversee the

On December 31, 2019, the District filed the Supplemental Petition for Unitary

24

History
“In 1974, two class action lawsuits were filed alleging segregation in TUSD

25

9.

26

between White students and African-American students (Fisher Plaintiffs), CV 74-90

27

TUC DCB, and Mexican-American students (Mendoza Plaintiffs), CV 74-204 TUC

28
2

English Language Learners (ELL). (USP § II.E.3 (Doc. 1713) at 11.)
-4-

1

DCB. The cases were consolidated in 1975 and went to trial in 1977.” (Order (Doc.

2

2123) at 4.) 3

3

10.

4

TUSD. Regardless of the fact that only Black students were statutorily prohibited from

5

attending White schools, Judge Frey found that even as the District dismantled the ‘dual

6

Black and White school system and, thereafter, there existed some intentional

7

segregation of minority students (Black and Mexican-American) from Anglo-students.’”

8

(Order (Doc. 2123) at 4 (quoting Order (Doc. 1119) at 15 n.9), see also Fisher v. TUSD,4

9

652 F.3d 1131, 9781 n.9 (9th Cir. 2011) (citing finding of de jure discrimination without

“In 1978, the Court found that de jure discriminatory segregation existed in

10

criticism)). Judgment was entered for Plaintiffs.

11

11.

12

to resolve the consolidated case. ‘It appears likely that the Settlement Agreement

13

resolved the appellate issues raised by the class Plaintiffs because Judge Frey approved

14

it without ruling on the pending motions and ordered that the Stipulation would be the

15

controlling Order of the Court.’” (Order (Doc. 2123) at 4-5 (quoting Order (Doc. 1119)

16

at 4-5 (citing Fisher, 652 F.3d at 1137 n.10 (quoting Settlement Agreement: “the rights

17

and obligations of the parties to be determined solely by its terms and the terms of any

18

subsequent stipulations or orders entered herein pursuant to it.”)).

19

12.

Instead of proceeding on appeal, “the parties entered into a Settlement Agreement

“The 1978 Settlement Agreement provided for TUSD to implement ‘its proposed

20

desegregation plans in a number of specified schools, cooperate with parents to develop

21

and examine future student assignment policies at several additional schools, and

22

eliminate discrimination in faculty assignments, employee training, and in polices on

23
24
25
26

“More detailed discussions of the history of this case have been given by
this Court in prior Orders. (Docs. 1119, 1270), see also Fisher v. Tucson USD,
652 F.3d 1131, 9781 n.9 (9th Cir. 2011) (citing Mendoza v. [TUSD], 623 F.2d 1338,
1341 (9th Cir. 1980) (describing early case history)).” (Order (Doc. 2123) at 4 n.1.)
3

27
28

Fisher v. TUSD, 549 F. Supp. 2d 1132 (Ariz. 2008) (granting unitary status), rev’d
652 F.3d 1131 (9th Cir. 2011).
4

-5-

1

bilingual education, testing, and discipline.’” (Order (Doc. 2123) at 5 (quoting Fisher,

2

652 F.3d at 1137 (citing Mendoza v. TUSD, 623 F.2d 1338, 1342 (9th Cir. 1980)). The

3

Settlement Agreement prohibited TUSD from “engaging ‘in any acts or polices which

4

deprive any student of equal protection of the law’ based on race or ethnicity.’” Id.

5

13.

6

Settlement Agreement before TUSD could file a motion to dissolve it. Around the end of

7

this period, in 1983, the Arizona State Legislature enacted a funding provision, A.R.S. §

8

15-910G, to allow school districts operating under court orders to generate additional tax

9

revenues above and beyond educational spending limitations to pay for desegregation

10

activities. By and large the express provisions of the Settlement Agreement had been

11

implemented within the five-year period, but the case did not end.” (Order (Doc. 2123) at

12

5 (citing Order (Doc. 1119) at 8, 10, 18, 23)). “Instead, TUSD spent millions of dollars,

13

id., over the course of approximately twenty years before the Court called for TUSD to

14

show good cause why unitary status had not been attained.” Id. (citing Order (Doc.

15

1052)). “The question was briefed by the parties, and on April 24, 2008, this Court found

16

unitary status had been attained, but not without finding some fault with the District’s

17

failure to consider the effectiveness of the programs financed by desegregation dollars

18

over this extended period of time.” Id. (citing Order (Doc. 1270)). “This Court’s decision

19

was reversed by the Ninth Circuit Court of Appeals on August 10, 2011.” Id.

20

14.

21

School District ‘failed to act in good faith in its ongoing operation ... under the Settlement

22

Agreement.’ . . . [specifically,] the School District had failed to make ‘the most basic

23

inquiries necessary to assess the ongoing effectiveness of its student assignment plans;’

24

had ‘exacerbated the inequities’ of racial imbalances through its ‘failure to assess

25

program effectiveness;’ had ‘failed to respond’ to ‘legitimate and important’ concerns

26

about staff cuts at minority schools; had ‘failed to comply’ with the Settlement

27

Agreement's requirement that it regularly review recruitment, hiring, and promotion in

28

order to ‘guard against discrimination or inequities;’ had never ‘undertaken a

“The District was supposed to operate for five years under the terms of the

In the 20-plus years of operation under the 1978 Settlement Agreement, “the

-6-

1

comprehensive analysis of suspension and expulsion data by ethnicity and race;’ had not

2

given ‘time and attention’ to how the African American Studies Department could aid the

3

quality education of minority students; and had failed to review program effectiveness in

4

order to ensure quality education for minority students.” Fisher v. Tucson Unified Sch.

5

Dist., 652 F.3d 1131, 1142 (9th Cir. 2011) (quoting this Court’s findings without

6

citation).

7

15.

8

Court precedent.” “[A] plan that merely promises future improvements is [not enough;]

9

[t]o the contrary, it is only ‘[a] history of good-faith compliance” that “enables the district

The appellate court held the above findings cannot be “reconciled with Supreme

10

court to accept [a school district's] representation that it has accepted the principle of

11

racial equality and will not suffer intentional discrimination in the future.’” Fisher v.

12

Tucson Unified Sch. Dist., 652 F.3d 1131, 1142 (9th Cir. 2011) (quoting Freeman, 503

13

U.S. at 498).

14

16.

“The case was remanded to this Court ‘to maintain jurisdiction until it is satisfied

15

that the School District has met its burden by demonstrating – not merely promising—its

16

good-faith compliance . . . with the [Settlement Agreement] over a reasonable period of

17

time.’” (Order (Doc. 2123) at 6 (quoting Fisher v. TUSD, 652 F.3d at 1143-44 (quoting

18

Freeman v. Pitts, 503 U.S. 467, 498 (1992)). “‘The court must also be convinced that the

19

District has eliminated ‘the vestiges of past discrimination . . . to the extent practicable’

20

with regard to all of the Green factors.’” Id. (quoting Fisher, 652 F.3d at 1144 (quoting

21

Freeman, 503 U.S. at 492 (citing Green v. County School Board of New Kent County

22

VA, 391 U.S. 430 (1968)). Here, desegregation efforts have been defined broadly and not

23

limited to the de jure segregation found by Judge Frey to exist in 1977 at certain specific

24

schools, which was the impetus for the relief he granted in 1978.

25

17.

26

Master to develop a plan by which the District would attain unitary status. Given the

27

history of the case, this Court directed the plan to be specifically designed to address the

28

Green factors relevant to attaining unitary status in this case and for a plan of action that

“Upon returning the case to its active docket, the Court appointed a Special

-7-

1

would avoid a repeat performance of the District operating under court jurisdiction in

2

perpetuity. The parties entered into a stipulated plan, i.e., a consent decree: the USP. The

3

Court adopted the USP in 2013.” (Order (Doc. 2123) at 6); (Order (Doc. 1436) (adopting

4

the USP); (USP (Doc. 1415); (Doc. 1713) (revised to correct typographical errors).[5]

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

The District rewrites history by asserting that “[t]he Court entered the Unitary
Status Plan (“USP”) as an order, over the District’s objections, . . ..” (Supp. Petition (Doc.
2461) at 11.) In fact, on remand TUSD asked the Court to refer the case to a mediator,
either a Magistrate Judge or the 9th Circuit Mediation program, for a settlement conference.
Using this forum, the District proposed it would draft a plan, having as its goal, “the
elimination of all vestiges of a segregated system and the attainment of unitary status within
a reasonable time period.” (Order (Doc. 1320) at 2.) The Plaintiffs objected to the District
taking the lead on this endeavor, and after full briefing, the Court decided to appoint a
Special Master, pursuant to Fed. R. Civ. P. 53(a), to oversee the undertaking. Id. at 3.
5

After initially being at odds regarding the nominee for Special Master, on December
6, 2011, the District reported that it agreed to the appointment of Dr. Willis Hawley, the
preferred candidate by the Fisher Plaintiffs, who would employ the Plaintiffs’ experts to
assist him, especially in the area of student assignment. (Order (Doc. 1345)). The District
prepared the draft Order, (Doc. 1345-1), for appointment of the Special Master, which
clearly reflects that the parties intended the USP to be prepared as a consent decree,
approved by the Court, to lead to unitary status. (Order (Doc. 1350) at 3, 4-6, 9). See also,
(Order (Doc. 1377) at 2 (extending deadline for submitting the USP to the Court, pursuant
to the parties’ stipulation to work “collaboratively” to resolve any objections to the initial
USP proposed by the Special Master prior to presenting it to the Court; granting nine
additional weeks to develop “greater consensus among the Parties, greater specificity
where desired, greater coherence, and a more solid legal basis for the USP.”)
The Court extended the time for filing the USP, because the parties represented they
agreed there were “substantial areas of agreement regarding the Unitary Status Plan which
[could] be addressed by Consent Decree” and needed an extension “to draft the Consent
Decree–Unitary Status Plan and to prepare a single document identifying any remaining
areas of disagreement including the Parties’ positions and/or objections with respect to
those areas.” (Order (Doc. 1398) at 2.) The parties, likewise, agreed “to make a good faith
effort to reach agreement on as many areas of the USP as possible.” Id. The parties reported
they had “engaged in intense negotiations, resulting in a proposed Consent Decree
[reflecting] the agreement of all Parties to numerous Green and ancillary factors, with only
a few areas of disagreement or objections anticipated.” (Order (Doc. 1405) at 2.) Due to
hurricane Sandy, one last extension of time was necessary, but instead of the Special
Master filing the USP, the parties agreed to prepare the Consent Decree, present it to the
Court and simultaneously identify all areas of objection, and where appropriate include
alternate language or provisions. Id. The parties did precisely this. See (Stipulation (Doc.
1411)). To the extent the District made objections those can be found in the USP, Exhibit
A. Id. The Court ruled on each objection and adopted the USP, as so revised. (Order (Doc.
1436)). The USP was filed as adopted by the Court on February 20, 2013 (USP (Doc.
1415)), and revised to correct typographical errors on November 6, 2014 (Doc. 1713)). The
USP expressly states that it is a “Consent Order.” (Doc. 1713) at 5.)
-8-

1

The Unitary Status Plan (USP) (Doc. 1713)
“The USP is an ambitious and comprehensive plan developed to remedy the past

2

18.

3

vestiges of discrimination and segregation that existed in TUSD.” (USP (Doc. 1713) at 5

4

(citing Order (Doc. 2123) at 7 (relying on 2016-17 SMAR (Doc. 2096) at 3-4)). “[T]he

5

Parties expressly entered “into this Consent Order (“Order”) to resolve the longstanding

6

desegregation case against the District.” (USP (Doc. 1713) at 5.)

7

19.

8

typographical errors (Doc. 1713), replaced the 1978 Settlement Agreement as the operative

9

consent decree, which will guide this Court’s determination of unitary status.

The USP, adopted on February 20, 2013 (Doc. 1415), amended to correct

“In addition to strategies to promote and sustain integration, the USP includes

10

20.

11

provisions to provide students with transportation, increase the diversity and

12

effectiveness of teachers and school administrators; strengthen and enrich the curriculum

13

and increase access to advanced learning experiences; develop safe, productive, inclusive

14

and supportive school environments; provide services to students with special needs;

15

meaningfully engage families; ensure equity in facilities and technology-facilitated

16

learning resources; provide students with extracurricular activities; and create

17

information systems and budgetary processes that facilitate accountability, strategic

18

resource allocation and effective management.” (Order (Doc. 2123) at 76 (citing 2016-17

19

SMAR (Doc. 2096) at 3-4)).

20

21.

21

as follows: 1) Student Assignment; 2) Transportation; 3) Administrators and Certificated

22

Staff; 4) Quality of Education; 5) Discipline; 6) Family and Community Engagement; 7)

23

Extracurricular Activities; 8) Facilities and Technology, and 9) Accountability and

The USP provisions are contained within interconnected or interrelated sections,

24
25
26
27
28

“The 1978 Settlement Agreement’s approach to eliminating discrimination
was focused on testing, whereas the USP student achievement provisions are
exceedingly broader. But even under the 1978 Settlement Agreement, this Court
rejected a narrow scope of factors for assessing unitary status and held that TUSD had
spent millions of desegregation dollars over the course of this case to close the
student achievement gap, therefore, student achievement was at least one measure
of program effectiveness.” (Order (Doc. 2123) at 11-12 n. 4 (citing Order (Doc. 1119) at
15 n.7, 22-23.))
6

-9-

1

Transparency.” (Order (Doc. 2123) at 8 (citing USP (Doc. 1713)). Cf., (Executive

2

Summary (Doc. 2384); Orders (Docs. 2213 and 2217) (requiring Executive Summary to

3

reflect interrelationships between USP provisions and assist the Court’s determination of

4

unitary status).

5

22.

6

provisions, implementation of the action plans, and operations pursuant to the action

7

plans for a time period sufficient for the District to determine the effectiveness of the

8

various plans and make modifications accordingly, and an end date ‘not prior to the end

9

of the 2016-2017 school year.’”)” (Order (Doc. 2123) at 6 (quoting USP (Doc. 1713) §

“The USP called for the development of specific action plans for each of its

10

XI.A.2)).

11

23.

12

the District’s Annual Report (DAR). The Special Master follows with his annual report:

13

the SMAR. The parties may make objections,” (Order (Doc. 2123) at 7), and the Court

14

resolves any issues raised in the objections.7

15

24.

16

2014. (Doc. (1641). He reported the development of a set of plans, 28 Action Plans and

17

107 Implementation Plans, with Action Plans for the most significant elements of the

18

USP and Implementation Plans either describing the steps to implement the Action

19

Plans or to implement other less significant elements of the USP. The District

20

drafted the proposed plans, with review and comment by the Plaintiffs and the

21

Special Master, and the Court resolved objections based on a R&R from the

22

Special Master and full briefing by the parties. Nineteen of the 28 Action Plans

23

were finalized, but objections were pending. The Action Plans were behind

24

schedule due to time spent developing the USP as a consent decree, but the Special

25

Master reported the District was moving forward even while waiting for the Court

“Annually, the District files a report of activities undertaken pursuant to the USP:

The Special Master filed the first annual report, SY 2014-15 SMAR, on July 31,

26
27
7

28

The parties have had access to the Court to present any issue at any time by first
presenting it to the Special Master for resolution, and if not resolved by him, thereafter to
be submitted to the Court by R&R for resolution after full briefing by the parties.
- 10 -

1

to resolve Plaintiffs’ Action Plan challenges. (SY 2014-15 SMAR (Doc. 1641) at

2

3.)

3

25.

4

year.’” See supra ¶ 22. “‘The Court [has affirmed] the January 6, 2012, Order, paragraph

5

7, directive that annual extensions of judicial oversight beyond three years will be based

6

on reasons of unattained compliance by the District with the USP. Three years out, the

7

Court [took] an inventory of the District’s progress towards unitary status.’” (Order (Doc.

8

2123) at 14 (quoting Order (Doc. 2086) at 2).

The USP provides for “an end date ‘not prior to the end of the 2016-2017 school

9

SY 2016-17 Status of USP Compliance (Order (Doc. 123)
The Court’s comprehensive review of unitary status in 2018 “marked the three-

10

26.

11

year presumptive end-date, SY 2016-17, for the USP. Therefore, the Court required both

12

the DAR and SMAR to include a comprehensive analysis of the District’s progress under

13

the USP and a status report to the Court on whether or not unitary status has been attained

14

in whole or in part.” (Order (Doc. 2123) at 7.)

15

27.

16

with USP (USP RAC) (Doc. 2075), and the Revised ALE USP RAC (Doc. 2092), “the

17

Special Master identifie[d] specific non-compliance issues, [made] specific

18

recommendations for activities necessary for compliance, and provide[d] specific

19

deadlines for the District to complete such activities. The Plaintiffs, who [] had full and

20

ongoing discovery rights including the ability to make requests for disclosures and

21

answers, [] filed Responses and made objections, . . .. [The] Court [] reviewed thousands

22

of pages, including [] referenced briefs and any referenced supporting evidence.” (Order

23

(Doc. 2123) at 14 (relying on 2016-17 SMAR (Order (Doc. 2086) at 3) (citations

24

omitted)).

25

28.

26

eliminate discrimination to the extent practicable as proposed in USP Action and

27

Implementation Plans, which were based on data and research, and best practices. (Order

28

(Doc. 2123) at 12.)

Subsequent to the 2016-17 DAR, (Docs. 2057-2068), the Analysis of Compliance

The Special Master developed, and the Court adopted, Completion Plans to

- 11 -

While the Defendants objected to the Special Master’s recommendations that the

1

29.

2

Court adopt Completion Plans, “[t]he District began its compliance effort upon receipt of

3

preliminary drafts of the SMAR from the Special Master in December, 2017 and January,

4

2018, and [began working] with the Special Master to refine many of the completion

5

steps set out in the SMAR. (Order (Doc. 2123) at 12 (citing TUSD Response (Doc. 2099)

6

at 4)). The District acted to implement recommendations by the Special Master even

7

while it asserted that it was not required to act accordingly, id., and acted to comply with

8

the Court’s adoption of those recommendations even though it appealed them, (Order

9

(Doc. 2213) at 2); see e.g., (Order (Doc. 2555) at 6) (noting District’s express intent to

10

continue pursuant to oversight directives pending appeal of Orders issued in 2020).

11

30.

12

previous reticence, the District [appeared] committed to bringing this case to a conclusion

13

by implementing Completion Plans for USP provisions where unitary status ha[d] not yet

14

been attained.” (Order (Doc. 2123) at 13.)

15

31.

16

whether the District had attained unitary status, the Court granted unitary status in part,

17

retained judicial oversight beyond three years based on findings that identified specific

18

USP programs and provisions where the District had not yet attained compliance with the

19

USP, adopted recommendations made by the Special Master and the Plaintiffs

20

compliance with each USP section, and correspondingly issued express directives,

21

including requiring the District to plan for future post unitary status operations. (Order

22

(Doc. 2123) at 14.) The Court did not “grant unitary status in full because it found that

23

the School District [had] not demonstrated to the public, including African-American and

24

Hispanic8 parents and students, its good-faith commitment to the whole of the USP and to

25

those provisions of the law and the Constitution that predicated judicial intervention.”

26

(Order (Doc. 2123) at 15.)

By three-years out, SY 2016-17, “the Court detected a change in attitude. From its

On September 6, 2018, after full briefing by all parties and the Special Master on

27
28

8

Mendoza Plaintiffs were referred to as Hispanic in the 1978 Settlement Agreement
and Latino in the USP. The terms are used interchangeably.
- 12 -

1

32.

2

recommendations by the Special Maser and Plaintiffs and set two benchmark deadlines

3

for reviewing compliance: December 1, 2018 and September 1, 2019. Neither deadline

4

saw full compliance, but eventually full compliance was attained as identified below,

5

except for a final revision of the ALE Policy Manual and corresponding revision of the

6

Transportation Plan are due April 26, 2021, and development of a Post-USP, as directed

7

herein.

8

33.

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

On September 6, 2018, the Court adopted the Completion Plans and other

The first benchmark, December 1, 2018, included the following USP provisions:
a. § IV, §§ A, F.1, I.3, Administrative and Certificated Staff Diversity: The
Court ordered the District to file the 2018-19 Teacher Diversity Plan
(TDP), including attrition and Grow-Your-Own (GYO) Program studies.
The Court adopts the findings of compliance made in the September 6,
2018 Order (Doc. 2123) and all subsequent relevant Orders (Docs. 2217,
2273, 2497, 2564), including the Order finding compliance issued on
February 9, 2021 (Doc. 2564), and the African American Diversity Plan
Addendum for Black Certificated Staff (Doc. 2568) filed 3/9/2021).
b. § IV.E, Assignment of Certificated Staff, Beginning Teachers: The Court
ordered the District to comply with directives related to centralizing the
hiring process and certification for placing beginning teachers at Racially
Concentrated or under-achieving schools. The Court adopts the findings of
compliance made in the September 6, 2018 Order (Doc. 2123) and all
subsequent relevant Orders (Docs. 2217, 2272, 2273, 2497, 2564),
including the Order finding compliance issued on February 9, 2021. (Doc.
2564.)
c. § V.E.1.b.i, Student Engagement and Support: The Court ordered the
District to clarify the interrelationships between African American Student
Services Department (AASSD), Mexican American Student Services
Department (MASSD), including EL Action Plan, and Family and
Community Engagement (FACE) and file an EL Action Plan for dropout
prevention and graduation (DPG). The Court adopts the findings of
compliance made in the September 6, 2018 Order (Doc. 2123) and all
subsequent relevant Orders (Docs 2213, 2217, 2273, 2363, 2386), including
the Order finding compliance related to establishing the EL DPG issued on
November 18, 2019 (Order (Doc. 2363), and the Order finding the District
has addressed the interrelationships between FACE performed by AASSD
and MASSD, including ELs issued on December 3, 2019 (Doc. 2386).
d. § V.E.1-8, Student Engagement and Support, Post-unitary Status Plan for
AASSD and MASSD: The Court adopts the findings of compliance made
in the September 6, 2018 Order (Doc. 2123) and all subsequent relevant
Orders (Docs. 2213, 2359, 2363, 2386, 2508), including the Order issued
on August 14, 2020 (Doc. 2508), adopting AASSD and MASSD Plans, as
revised.

28

- 13 -

e. § V.F, Student Engagement and Support, Inclusive School Environment
and Professional Learning Plan: The Court ordered the District to comply
with the Completion Plan for maintaining inclusive school environments
and related professional learning. The Court adopts the findings of
compliance made in the September 6, 2018 Order (Doc. 2123) and all
subsequent relevant Orders (Docs. 2217, 2273, 2497, 2502), including the
Orders finding compliance issued on December 13, 2019 (Doc. 2497) and
on July 31, 2020 (Doc. 2502).

1
2
3
4
5

f. § VII, Family and Community Engagement (FACE): The Court ordered the
District to address school-site services and develop data tracking
capabilities, using expert advice on effective family engagement strategies,
to update the FACE Action Plan. The Court adopts the findings of
compliance made in the September 6, 2018 Order (Doc. 2123) and all
subsequent relevant Orders (Doc. 2213, 2217, 2273, 2363, 2386), including
the findings of compliance related to school websites (Order (Doc. 2273)
issued on September 10, 2019, integration into AASSD and MASSD Plans
(Order (Doc. 2363) issued on November 18, 2019, and the final Order
(Doc. 2386) issued on December 3, 2019.

6
7
8
9
10

g. § IX.B.1.iv and B.4, Facilities and Technology: The Court ordered the
District to comply with the Professional Learning Plan for teacher
proficiency in using technology to facilitate student learning. The Court
adopts the findings of compliance made in the September 6, 2018 Order
(Doc. 2123) and all subsequent relevant Orders (Doc. 2217, 2273, 2492,
2497, 2502, including the findings of compliance related to the Resource
Index (Order (Doc. 2497),9 hiring consultants (Order Doc. 2492), and the
final Order (Doc. 2502) issued on July 31, 2020 approving the Professional
Learning Plan for Inclusive Environments and Discipline.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

34.

The second benchmark, September 1, 2019, included the following USP

programs:
a. § II, Student Assignment, § E, Magnet Program: The Court ordered the
District to file a 3-Year Plus Integration Plan, prioritizing magnet
program expansion and priority non-magnet school integration plans, if
any are practicable, and an Outreach and Recruitment (ORR)
Addendum combined for both magnet schools and ALE programs. The
Court adopts the findings of compliance made in the September 6, 2018
Order (Doc. 2123) and all subsequent relevant Orders (Docs. 2205,
2471, as amended by 2486, 2485, 2557), including the Order finding
compliance for USP § II, Student Assignment, § E, Magnet Program,
and § I, Outreach and Recruitment issued on December 23, 2020.
(Order (Doc. 2557)).
b. § V.A, ALE Policy Manual: The Court ordered the District to file the
ALE Policy Manual. The Court adopts the findings of compliance made
in the September 6, 2018 Order (Doc. 2123) and all subsequent relevant
Orders (Docs. 2474, 2512, 2561), including the Order finding

27
28

9

See (R&R Re: Professional Use of Technology to Teach: Technology Integration
Observation Tool (TIOT): NC (Doc. 2477) Approved) (Doc. 2510.)
- 14 -

1
2
3
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

compliance issued on January 26, 2021, (Order (Doc. 2561), contingent
on the District filing the Revised Final ALE Policy Manual and
Appendices, Full Time GATE and AACs-AP Alignment Map and
Schedule, and the Revised Final Transportation Plan due: April 26,
2021.
c. § III, Transportation: The Court retained jurisdiction over transportation
as relevant to determining unitary status for the Magnet Programs and
Advanced Learning Experiences (ALE) Programs. The Court adopts the
findings of compliance made in the September 6, 2018 Order (Doc.
2123) and all subsequent relevant Orders for the Magnet Program
(Docs. 2205, 2471, 2485, 2486, 2557) and for ALE (Docs 2474, 2512,
2561), contingent on the District filing the Final ALE Policy Manual
with corresponding revisions to the Transportation Plan, due: April 26,
2021. (Order (Doc. 2561.)
d. § V.C, Dual Language (TWDL) Plan: The Court ordered the District to
file the Dual Language, Two-Way Dual Language (TWDL) Plan. The
Court adopts the findings of compliance made in the September 6, 2018
Order (Doc. 2123) and all subsequent relevant Orders (2295, 2483),
including the Order finding compliance issued on June 19, 2020 (Doc.
2483.)
e. § V.E.6.a.i-ii, Student Engagement and Support, Culturally Relevant
Curriculum (CRC) Comprehensive Plan and Culturally Relevant
Pedagogy (CRP) Professional Learning Plan: The Court ordered the
District to file the CRC Comprehensive Plan and CRP Professional
Learning Plan. The Court adopts the findings of compliance made in the
September 6, 2018 Order (Doc. 2123) and all subsequent relevant
Orders (Docs. 2508, 2561 (CRC AACs and AP course), with the Special
Master to approve the District’s training of administrators to evaluate
the CRP competencies of teachers as being effective, due: May 2021.
(Order (Doc. 2508) at 28-29, 33.)
f. § VI, Discipline: The Court ordered the District to file a detailed
progress report specifically addressing each provision of the Discipline
Completion Plan and Professional Learning Plan. The Court adopts the
findings of compliance made in the September 6, 2018 Order (Doc.
2123) and all subsequent relevant Orders, including those related to
compliance and directing the District to continue reporting Discipline
data and program information in the 2019-20 DAR as made in its Order
(Doc. 2502) issued on July 31, 2020.
g. § VIII, Extracurricular Activities: The Court ordered the District to
document that there are no disparities between Racially Concentrated
and Integrated schools and that extracurricular activities that are used to
facilitate positive interracial interactions. The Court adopts the findings
of compliance made in the September 6, 2018 Order (Doc. 2123) and all
subsequent relevant Orders, including those related to compliance, made
in its Order (Doc. 2364) issued on November 18, 2019. See (Supp. NC
(2387) (no objections, thereafter).
h. § IX.A and B, Facilities and Technology, FCI and TCI: The Court
ordered the Special Master to recalculate the FCI scores and the District
to update the TCI internet access and correct any disproportionality. The
Court adopts the findings of compliance made in the September 6, 2018
- 15 -

Order (Doc. 2123) and all subsequent relevant Orders, including those
related to compliance, made in its Order (Doc. 2362) issued on
November 18, 2019.

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

35.

The USP, § X.A.1, Accountability and Transparency, Evidence-based

Accountability System (EBAS): EBAS is a data system capable of tracking individual
student demographics, academic and behavioral data, and running reports that flag when
students do not meet pre-determined goals or expectations for academic performance or
behavioral concerns. In this way EBAS assesses program effectiveness for each student
and in masse for each USP program. (Order (Doc. 2123) at 140.)
36.

The USP requires the District to ensure that EBAS data is used to assess program

effectiveness, especially for § V.A, increasing participation and performance in ALEs, §
V.E, the Post-unitary Status Plans for AASSD and MASSD, and § VI, reducing
discipline, especially exclusionary discipline. (Order (Doc. 2123) at 98, 121, 132.) “[I]f
the EBAS is being effectively used in these three areas then the requisite degree of
professional development related to the implementation and use of EBAS has occurred.”
Id. at 143.)
37.

The Court rejects the District’s assertion that “USP § X.A, EBAS, does not call for

more than its development and implementation . . .[because] the USP requires the District
to establish effective strategies, and EBAS is a major part of many USP strategies.
Therefore, EBAS must be used effectively.” (Order (Doc. 2123) at 143.)
38.

The Court rejects the Mendoza Plaintiffs’ argument that the District must

demonstrate it has fully implemented EBAS, plus show it is effectively using EBAS data.
See (Mendoza Objection (Doc. 2463) at 33 (arguing against unitary status for family
engagement because District fails to demonstrate effective site-use of FACE data
tracking system); see also (Mendoza Supp. Resp. to NC: ELL DPG (Doc. 2332) at 5

25

(quoting (Order (Doc. 2123) at 143) (challenging lack of evidence that “‘relevant EBAS

26

data is being effectively used by the persons responsible for implementing the …USP

27

program strategies’” for DPG); (Mendoza Supp. Resp. to NC: AASSD and MASSD

28

plans (Doc. 2168) at 3 (having no substantive objections to plans, but objecting to unitary
- 16 -

1

status in part because no showing that student service departments are effectively using

2

EBAS).

3

39.

4

therefore, the question is simply whether EBAS is being used. The Plaintiffs were

5

afforded opportunities to raise program specific challenges as to whether EBAS is

6

tracking requisite data for the USP programs, such as FACE, DPG, AASSD and

7

MASSD, relevant to assessing program effectiveness. Plaintiffs were silent.

8

40.

9

made with EBAS. (2018-19 DAR § X, Accountability and Transparency (Doc. 2298) at

EBAS is designed to gather data necessary to assess program effectiveness,

The 2018-19 DAR included detailed information regarding the progress being

10

184-187 (Reporting: continued building of EBAS as a federation of multiple software

11

applications to collectively work together to inform decisions and strategies for effective

12

instruction and administration; developing capability to pull data from multiple systems

13

to conduct studies and assessments across the systems, with A&E, Curriculum and

14

Instruction, Desegregation, Student Relations, and Technology Services departments;

15

monthly collaboration with the AASSD, MASSD, and other departments to ensure the

16

EBAS was aligned and enhanced to support the instruction and development of students;

17

enhancements ranging from incorporating additional data, additional reporting, replacing

18

Clarity with Synergy, implementing district‐wide capabilities in support of Multi-Tiered

19

System of Supports (MTSS), and in-house design and implementation of electronic

20

tracking system for FACE); see also 2018-19 DAR § V.D, Dropout Prevention (2298-1)

21

at 87-88 (moving from professional development to professional learning related to

22

MTSS and FACE); § V.F, Targeted Interventions and Supports, AASSD (2298-1) at 98,

23

104); MASSD (2298-1) at 105, 116; § VI, Discipline (2298-1) at 132, 139, 141-143, 153,

24

155, 160-161 (implementing coordinated effort to ensure the effective use of data related

25

to discipline by principals, teachers, and other relevant staff using various components of

26

EBAS, including site discipline audits, interviews with principals regarding the site’s use

27

of discipline data, and guidance to principals and certified staff through training to

28

facilitate replication of best practices, identify patterns and hot spots; developed strategies

- 17 -

1

to address areas in need of improvement, with site teams assessing effectiveness of

2

interventions and strategies to determine if they contributed to positive outcomes and to

3

share strategies). The Plaintiffs were silent subsequent to the District’s filing the 2018-19

4

DAR.

5

41.

6

with EBAS. (2019-20 DAR § X.C, EBAS (Doc. 2531-1) at 181 (reporting targeted

7

advancements primarily aimed at transferring from Clarity to Edupoint Synergy MTSS,

8

addressing long held desire of teachers to consolidate everything in one place:

9

gradebooks, attendance, and MTSS); 2019-20 DAR (2531-1) at 9, 102, 114, 133, 144-

10

146 (reflecting ongoing training for use of EBAS data by teachers and principals). The

11

Plaintiffs were silent subsequent to the District’s filing the 2019-20 DAR.

12

42.

13

to tracking and reporting compliance with Completion Plans and Court directives. (Order

14

(Doc. 2164); (SM Request for discretionary filings (Doc. 2150). He has not raised any

15

issues related to EBAS.

16

43.

17

District allocated too much (100%) of 910G funding for EBAS because EBAS benefits

18

all students; the District may not supplant general M&O funding with 910G funding. The

19

Court noted the importance of EBAS to the USP and the breadth of the District’s

20

responsibility to not just develop EBAS, but to implement it, including professional

21

training in its operation and use, and to ensure USP operations are using EBAS. The

22

Court held the District could use 100 percent 910G funding for EBAS operations related

23

to: the delivery of student support services in minority Racially Concentrated schools and

24

underperforming schools; reducing discipline, especially exclusionary discipline which

25

has been shown to fall disproportionately on African American students, and assessing

26

the effectiveness of USP programs. Ruling in part for the Plaintiffs, the Court held the

27

District must link other EBAS expenditures to the USP). (Order (Doc. 2272) at 13-14.)

The 2019-20 DAR included detailed information regarding progress being made

The Special Master did not file SMARs after 2017-18 because he shifted his focus

The sole challenge presented to the Court to resolve related to EBAS was that the

28

- 18 -

1

44.

2

challenges to the District’s representations as made in the DARs and the Completion Plan

3

developed by the Special Master was designed “to ensure district-wide school-site use of

4

EBAS in the context of intervention programs and the use of EBAS to assess program

5

effectiveness, especially USP initiatives, including the systematic analysis of EBAS data

6

to identify problem areas and/or schools that are positive and negative outliers with

7

respect to success in implementing initiatives or achieving particular goals.”(Order (Doc.

8

2123) at 142-143.) The Court affirms, its prior finding that when unitary status is attained

9

for the USP provisions, especially §§ V.A and E.6-7, and VI, unitary status is likewise

The District has shown EBAS is being effectively used because there were no

10

attained for EBAS. (Order (Doc. 2123) at 143.)

11

45.

12

the assistance of the Special Master, in a post unitary status plan. (Order (Doc. 1350) at 3,

13

9.) The Post-Unitary Status Plan (Post-USP) shall identify any benchmark events related

14

to any plan, program or study that has been scheduled to occur beyond the date of this

15

Order; retain the practice of publicly posting such information on the District’s website to

16

facilitate public transparency and accountability, and address the recent “comparative

17

data” challenge raised by Mendoza Plaintiffs on March 23, 2021 that the District adopted

18

new academic achievement measures for SY 2020-21. (Mendoza Supp. Opposition (Doc.

19

2570)). Pre or post unitary status, comparable data is critical to making data-based

20

decisions related to USP program effectiveness and to having effective transparency and

21

accountability strategies for oversight of District operations. The District shall continue to

22

prepare and post the DAR and 910G budget details on its website for a reasonable period

23

of time to facilitate public accountability and transition oversight of the District from this

24

Court to the community.

25

46.

26

Unitary Status Plan for the purpose of enforcement.” (Order (Doc. 2123) at 152.) Since

27

then, the Court, upon full briefing by the parties and R&R from the Special Master, has

28

resolved each and every objection until finally finding that the District has fully complied

The USP, § X, Transparency requirements shall be addressed by the District, with

On September 6, 2018, the Court retained “jurisdiction over all provisions of the

- 19 -

1

with September 6, 2018 directives, the Completion Plans, and the USP. See supra ¶¶ 34-

2

35. The Court adopts the findings made in the September 6, 2018 Order (Doc. 2123) and

3

the subsequently issued Orders, referred to above in ¶¶ 34-35.

4

Green v. County School Board of New Kent County VA, 391 U.S. 430 (1968)

5

47.

Under Green, the Court considers whether racial disparities remain in: student

6

assignment; faculty and staff, including teacher assignments for beginning teachers;

7

transportation; extracurricular activities, and facilities. The Court also considers whether

8

racial imbalances exist in the context of educational resource allocations, including

9

ALEs.

10

48.

11

Plaintiffs, that the District has failed to: integrate ten percent of its nonmagnet schools (8

12

out of 69) where it has determined there is a high potential for integration; reduce the

13

number of Racially Concentrated schools to below the number of Integrated schools

14

(students in Racially Concentrated schools account for more than one-third of the total

15

enrollment), and failed to improve racial concentrations at six (6) transition schools,

16

which had magnet status terminated (four are more racially concentrated than they were

17

in 2016-17, one has the same degree of racial concentration, one is slightly reduced, and

18

one is Integrated). (Mendoza Objection (Doc. 2463) at 14-16.)

19

49.

20

2014-15 the number of Racially Concentrated schools had gone from 35 to 30; the

21

number of Integrated schools went from 17 to 25. This resulted in 2,154 more students

22

being in Integrated schools and 2,542 students not being in Racially Concentrated

23

schools. The Special Master provided this data and reported that if he used a “highly

24

diverse” definition for integration, there was even greater improvement. (Order (Doc.

25

2123) at 16 (citing SM Resp., USP Integrated School (Doc. 2111-1) at 1)). The TUSD

26

40th Day Enrollment for SY 2019-20 reflects there are currently 27 Racially Concentrated

27

schools and 27 Integrated schools. There are approximately 81 schools, with the

28

remainder being neither Racially Concentrated nor Integrated. (2019-20 DAR, II.k.1.a

Student Assignment: The Court assumes it is true, as alleged by the Mendoza

In 2018 when the Court reviewed the data for SY 2016-17, it found that “from

- 20 -

1

Enrollment-40th Day (Doc. 2532-3) at 111.) The Court assumes the same would be true

2

now as it was in 2018, several of these other schools are highly diverse. The Court has

3

not rutted through the record further to find this number or to tickle out how many more

4

students are now in Integrated or highly diverse school environments because the

5

numbers are not dispositive. It is enough that the data reflects progress at this time under

6

the USP to integrate the District’s schools to the extent practicable.

7

50.

8

racially concentrated school is any school in which any racial or ethnic group exceeds

9

70% of the school’s total enrollment.” (USP (Doc. 1713) § II.B.1.) “An integrated school

Based on the District’s demographics of being a minority majority district, “[a]

10

is any school in which no racial or ethnic group varies from the district average for that

11

grade level (Elementary School, Middle School, K-8, High School) by more than +/- 15

12

percentage points, and in which no single racial or ethnic group exceeds 70% of the

13

school’s enrollment.” (USP (Doc. 1713) § II.B.2.)

14

51.

15

the Court in the context of the 3-Year Priority Integration Plan (3-Year PIP). See (Order

16

(Doc. 2485) at 5-6 (3-Year PIP to include nonmagnet school integration priorities;

17

requiring Action Plans for every nonmagnet school because the District cannot abandon

18

USP goals for a school when magnet status is withdrawn or because it is not a magnet

19

school; USP calls for district-wide integration to the extent practicable, with magnet

20

schools being one integration strategy); (Amended Order (Doc. 2486) at 6 (requiring

21

Integration Improvement Action Plans (IIAPs) for nine “high potential” nonmagnet

22

schools)). The Court affirmed using a future definition for integration rather than the USP

23

definition in the 3-Year Nonmagnet Priority Integration Plan.10 (Order (Doc. 2557) at

24

14.) In its December 23, 2020 Order, the Court recapped its directives, which required the

25

District to review of noncompliant magnet schools using new definitions, improvement

26

plans for all noncompliant magnet schools, Integration Improvement Plans for the top

27

nine “priority” nonmagnet schools, and Academic Improvement Action Plans for 19

Directives to identify integration priorities for nonmagnet schools were issued by

28
10

See supra ¶ 66. _____
- 21 -

1

nonmagnet schools with AZMerit grades D or F. The Court noted that all this work was

2

done and filed with the Court without any objections from the Plaintiffs. (Order (Doc.

3

2557) at 11.)

4

52.

5

new schools in 2021, Wakefield Middle School (MS) and Innovation Technology High

6

School (HS), which are both Racially Concentrated, 89% and 77% Hispanic,

7

respectively. (Mendoza Supp. Opposition (Doc. 2570) at 3-7.) This does not raise

8

questions involving the ongoing and future integration plans for nonmagnet schools,

9

except for Wakefield MS and Innovation Tech. HS

The Mendoza Plaintiffs recently, March 23, 2021, allege the District opened two

10

53.

11

Request for Approval (NARA) provisions, USP § X.C, which included a Desegregation

12

Impact Analysis (DIA), full review and comment from the parties and the Special Master.

13

See Wakefield MS NARA (Doc. 2373), Mendoza Objection (Doc. 2390); Fisher

14

Objection (Doc. 2400); TUSD Reply (Doc. 2409); R&R (Doc. 2394); Supp. R&R:

15

Utterback Alternative (Doc. 2418); Order (Doc. 2428). See also Bridges HS (Innovation

16

Tech. HS) NARA (Doc. 2336); Mendoza Objection (Doc. 2361); (U.S. Intev. Resp. (Doc.

17

2356); R&R (Doc. 2389); Order (Doc. 2395). In the face of this Court’s approval for

18

opening these schools, Plaintiffs nevertheless argue that opening two Racially

19

Concentrated schools this past year proves “[the District,] has not yet developed the

20

capacity to move toward integration absent Court oversight.” (Mendoza Supp. Opposition

21

(Doc. 2570) at 2.)

22

54.

23

achieving, no-boundary, Integrated, south-central middle school[, . . . , featuring a lab

24

school in partnership with the University of Arizona, after-school programming in

25

partnership with non-profit Higher Ground, and an express bus and a modified lottery to

26

improve integration and access for traditionally underserved students seeking preparation

27

for high school ALE programs like University High School, the IB program at Cholla,

Opening both these schools was approved by the Court pursuant to Notice and

Wakefield MS, closed in 2013, was reopened as an “an open-access, high-

28

- 22 -

1

and the AP program at Pueblo, and all AP and Honors courses at all high schools.”

2

(Notice and Request for Approval (Wakefield NARA) (Doc. 2373) at 2.)

3

55.

4

middle school in a racially concentrated area of the District; 2) develop new teachers

5

through a “lab school” model in partnership with the University of Arizona, and 3)

6

strengthen the ALE pipeline at the middle school level.” (Wakefield NARA (Doc. 2373)

7

at 3 (citing Exhibit 1, Revised DIA)).

8

56.

9

High School, was proposed in collaboration with the Pima County Joint Technical

“The [Wakefield MS] proposal ha[d] three key objectives: 1) create an Integrated

As described by the Special Master, Innovation Tech. HS, then called Bridges

10

Education District (JTED) to be “a new career and technical high school[, affording] . . .

11

TUSD students an extraordinary opportunity to develop knowledge and skills that are

12

likely to provide them with exceptional employment prospects. Students will be provided

13

with core academic courses and sophisticated career and technical skills that are in high

14

demand (e.g., robotics). Students will have the opportunity to earn industry certificates

15

and credentials, participate in internships and externships, and engage in clinical

16

experiences in dual college credit in many classes. The District would be unable to

17

provide these learning opportunities without partnering with JTED.” (R&R (Doc. 2389)

18

at 2.)

19

57.

20

Racially Concentrated and the Special Master’s recommendations to, nevertheless,

21

approve both with strategies for integration, and approved the NARAs to place these

22

“specialized”11 schools in highly concentrated neighborhoods to improve the academic

23

opportunities and student achievement, for African American and Latino, including EL,

The Court considered the Plaintiffs’ objections that these two schools would be

24
25
11

26
27
28

Early on this Court recognized that there were ways beyond magnet status to
promote integration and academic achievement. See (Order (Doc. 1753) at 15
(encouraging use of alternative resources to improve schools unencumbered by the
burdens of trying to become a magnet school); (Order (Doc. 2123) at 31 (asking District
to consider nonmagnet strategies to increase integration district-wide).

- 23 -

1

students, contingent on proposed strategies to integrate these schools to the extent

2

practicable.

3

58.

4

Master to conduct further investigation of an alternative site for the school at Utterback

5

Middle School, and pursuant to the recommendation of the Special Master approved the

6

NARA for Wakefield MS, contingent on most if not all of the Plaintiffs’ recommended

7

directives addressing integration concerns, including a number of strategies such as

8

express incentive bussing tied to targeted marketing for the school and provisions to

9

ensure that master teachers for Wakefield MS would not be recruited from

For Wakefield MS, the Court heard fully from the parties, ordered the Special

10

underperforming schools, etc. (Order (Doc.2428)). The Court did the same for Innovation

11

Tech. HS. (Order (Doc. 2395)).

12

59.

13

that Wakefield MS and Innovation Tech are Racially Concentrated schools. Essentially,

14

the Mendoza Plaintiffs argue “we told you so,” with the only other challenges being: 1)

15

questions related to whether express bus service is being used as proposed in the NARAs

16

for both these schools and 2) for Innovation Tech. HS, whether Dr. Gary Orfield is being

17

consulted related to marketing and recruitment. The Court would normally assume that

18

these and other strategies to promote integration, included in the NARAs and adopted by

19

the Court, were implemented by the District. There is no showing of noncompliance. The

20

Plaintiffs instead note the District’s responses to RFIs about what is being done to reduce

21

racial concentration at these schools does not include express bussing. The Court calls for

22

a Response from the District, specifically, addressing whether the strategies outlined in

23

the NARAs to promote integration at these schools have been implemented, and if not

24

why?

25

60.

26

because Arizona law requires open enrollment and allows charter schools (Order (Doc.

27

2123) at 15), leaving the District with the primary12 strategy of magnet schools to

The Mendoza Plaintiffs’ recent supplemental argument opposing unitary status is

The District’s ability to eliminate racial concentration in its schools is limited

28
12

Other integration strategies are: student assignment through attendance
- 24 -

1

voluntarily integrate the District which is almost 80% minority (60% Hispanic, primarily

2

Mexican American, students).13 Pursuant to § II.E of the USP, the magnet school

3

program, Comprehensive Magnet Plan (CMP) and 3-Year Priority Magnet Plan (3-Year

4

PIP), has been developed, implemented, and is fully operational now and into the future.

5

See supra ¶ 35.a (citations omitted.)

6

61.

7

identifiable demographic target neighborhoods and targeted marketing plans for each

8

magnet school. While the primary goal of the CMP is integration, to accomplish this goal

9

it is imperative that magnet schools be academically attractive: schools with AZMerit

The CMP strategically places magnet programs centrally in the District, with

10

grades A or B, or if a C school, it has a TUSD MagnetMerit grade of B. The District has

11

developed and is using clear standards and procedures for improving or removing magnet

12

status from noncompliant programs. The 3-Year PIP includes priorities for future magnet

13

schools and priorities for improving integration at nonmagnet schools that have a high

14

potential to be Integrated. See supra ¶ 35(a) (citations omitted.) Free, incentive

15

transportation promotes magnet school programs and priority nonmagnet school

16

integration efforts. The 3-Year PIP has been informed by transportation costs. See supra

17

¶ 35(b); (Doc. 2471) at 14 (priority candidate magnet school and nonmagnet schools to

18

include specific transportation plans required for those programs); (Doc. 2557) at 24-25

19

(reserving review of Transportation Plan to be joined with review of Revised ALE Policy

20

Manual because Mendoza Plaintiffs raised transportation issues related to ALE)).

21

62.

22

(Cragin Elementary School was eliminated as a magnet program in SY 2015-16.) Of the

23

19 magnet schools, only two met magnet criteria of being Integrated and A or B schools:

24

Dodge Middle School and Palo Verde High School. (CMP (Doc. 1898) at 10.) Four

25

magnet schools (Borton Elementary School, Booth Fickett K-8, Dodge Middle School,

The CMP was prepared in 2015-16 and identified 19 magnet schools/programs

26
27

boundaries, open enrollment policies, and lotteries. (Amended Order (Doc. 2486) at 7 n.5.)
13

28

African American students are 9-10% of the total student population; Hispanic
students are approximately 61%, and White students make up about 20-21%, with other
students completing student demographics. (Supp. Petition (Doc.2461) at 39-40.)
- 25 -

1

and Palo Verde), met the integration criteria. Subsequent to Court ordered magnet status

2

terminations, 13 magnet schools remained.

3

63.

4

elementary schools, Dodge Middle School, and Palo Verde High School.” (Order (Doc.

5

2123) at 22) (relying on CMP (Doc. 1898) at 10; 2016- 17 DAR (Doc. 2057-1) at 53). By

6

September 28, 2017, the District’s 40th Day enrollment report reflected the addition of

7

four more Integrated magnet schools: Bonillas and Davis elementary schools, Drachman

8

K-8, and Mansfield Middle School. In short, nine magnet schools were Integrated, with

9

2017-18 AZMerit grades as follows: Bonillas (INT) B; Borton (INT) C; Carillo (RC) B;

10

Davis (INT) B; Holladay (INT) C; Tully (INT) C; Drachman (INT) F; Booth-Fickett D;

11

Roskruge D; Dodge (INT) B; Mansfeld (INT) B; Palo Verde (INT) D, and Tucson High

12

(RC) C. Based on 2017-18 data, there were nine non-compliant magnet schools: one

13

Racially Concentrated school, one F school, three D schools, and four C schools. (Order

14

(Doc. 2123) at 22-24.)

15

64.

16

program,14 was a Racially Concentrated school. Booth-Fickett and Holladay were no

17

longer Integrated as defined for the USP, but qualified as magnet schools, pursuant to the

18

future definition of integration adopted by the District: “an integrated school is any

19

school in which no racial or ethnic group varies from the district average for that grade

20

level (Elementary School, Middle School, K-8, High School) by more than +/- 25

21

percentage points, and in which no single racial or ethnic group exceeds 70% of the

22

school’s enrollment.” (NC (Doc. 2501) at 3.) Subsequent to the adoption of a TUSD

23

MagnetMerit B grade for AZMerit C schools, there were three schools that did not meet

“In 2016-17, five magnet schools were Integrated: Borton, Holladay, and Tully

Based on 2018-19 enrollment data, only Roskruge K-8, a dual language

24
25
26
27
28

“This is important because the dual language [] programs place ‘a practical limit
on African American and Anglo student enrollment because success in these programs in
grades three and beyond is affected by the student’s ability to speak Spanish.’” (Order
(Doc. 2123) at 56 (quoting (2016-17 SMAR (Doc. 2096) at 32)). It is not surprising
Roskruge K-8 is Racially Concentrated, but Davis Bilingual (Dual Language) Elementary
Magnet School is Integrated. (2018-19 DAR, Appendix II-12, Integration (Doc. 2299-2) at
4.)
14

- 26 -

1

the academic criteria to be a magnet school. (NC (Doc. 2501) at 2.)15 Accordingly, there

2

were four noncompliant magnet schools. (Order (Doc. 2557) at 11.)

3

65.

4

considering the merits of continuing magnet status for these schools into the future.

5

(Order (Doc. 2557) at 2-3 (citing Amended Order (Doc. 2486) at 8 (adopting Special

6

Master’s recommendation for more common definition of Integration to capture “highly

7

diverse” environments for future use post unitary status, including the 3-Year PIP)).

8

66.

9

Improvement Plans (TAIPs) for Tully Elementary Magnet School (C) , Booth-Fickett

The Court approved a post-USP definition for Integrated because it was

Pursuant to CMP protocols, the District developed Targeted Academic

10

Math/Science Magnet School (F), and Palo Verde Magnet High School (C), and a

11

Targeted Integration Improvement Plan (TIIP) for Roskruge K-8. These improvement

12

plans will either move these schools into magnet compliance or transition them to

13

nonmagnet status by the end of SY 2021-22. (Order (Doc. 2486) at 18 (transition plan

14

implementation to begin SY 2022-23)).

15

67.

16

grade are important, not because they reduce the number of noncompliant magnet schools

17

from nine to four, but because they provide clear standards, combined with protocols

18

adopted in the Revised CMP,16 which provide a finite period of time, end of SY 21-22,

19

for making substantial progress (also clearly defined) towards meeting the requisite

20

academic and integration standards or trigger automatic development of Transition Plans

21

and mandatory implementation at the beginning of SY 22-23. (Amended Order (Doc.

22

2486) at 18); see (Revised CMP, § C, Eliminating Magnet Programs (Doc. 2517) at 15-

23

16 (describing 3-Year protocols for meeting eligibility standards or transitioning to

24

nonmagnet school operations). Accordingly, the District has designed, implemented, and

The 3-Year PIP future definition for Integration and the TUSD MagnetMerit B

25
15

26
27
28

Tully Elementary Magnet School (C), Booth-Fickett Math/Science Magnet
School (F), and Palo Verde Magnet High School (C); AZMerit grades were the same as
in 2018-19 because AZMerit testing did not occur in 2019-20 due to the COVID-19
pandemic.
The Final CMP is the one posted on the District’s website after the Court’s Order
issued on December 27, 2020 (Doc. 2557).
16

- 27 -

1

is operating a comprehensive magnet plan that, according to research and best practices,

2

will promote integration, and the 3-Year PIP ensures the integrity of the magnet program

3

now and into the future.

4

68.

5

that the District is in violation of the Court’s order issued December 23, 2020, that

6

pursuant to the CMP, § B.3, Magnet School Plans (MSP), the “Academic Performance

7

(African American and Latino Students) criteria be used in the MSPs by the Magnet

8

Review Committee for the 2020-21 MSPs. See (Order (Doc. 2557) at 6-7 (explaining

9

basis for and providing directives for including these criteria in MSPs). The Court

In its Supplemental Opposition ((Doc. 2571) at 13-14), the Fisher Plaintiffs charge

10

assumes compliance with its Orders or a showing of cause from Defendants for

11

noncompliance, the District shall accordingly respond this challenge.

12

69.

13

true, as alleged by the Mendoza Plaintiffs, that the District has diversified only 10 of the

14

26 schools targeted for teacher diversity, which was 13 in SY 2016-17. The District has

15

placed approximately 75% of its first-year teachers at Racially Concentrated and

16

underperforming schools, which schools comprise approximately 58.8% of all TUSD

17

schools. (Mendoza Objection (Doc. 2463) at 16-20.)

18

70.

19

2123) at 38.) The USP goal of increasing certificated staff diversity is because: “teachers

20

[and administrators] of color tend to expect more from minority students, and those

21

higher expectations can lead to increased academic achievement; 2) positive exposure to

22

a variety of races and ethnic groups can help reduce stereotypes, and 3) children who see

23

people like themselves as role models are more likely to follow in their footsteps.” (Order

24

(Doc. 2564) at 7 (relying on Order (Doc. 2123) at 38; 2016-17 DAR, Appendix IV-29

25

(Doc. 2060-2) at 2).

26

71.

27

efforts to recruit diverse teaching staff. “‘Moreover, Arizona ranks at the bottom among

28

the states as attractive places for teachers to start their careers.’” (Order (Doc. 2123) at 39

Faculty and Staff (Administrators and Teacher) Diversity: The Court assumes it is

“[T]here is no assertion of discriminatory hiring practices in TUSD.” (Order (Doc.

The severe national teacher shortage is a fundamental problem facing TUSD in its

- 28 -

1

(quoting 2016-17 DAR, Appendix IV-29 (Doc. 2060-2) at 15)). “Arizona teacher salaries

2

are 17% lower than jobs that require similar levels of experience and education; ‘Arizona

3

teachers who head families of four are eligible for seven need-tested federal aid

4

programs—more than teachers in any other state.’” Id.

5

72.

6

African American certificated staff because in Arizona, the African American population

7

is only about five percent, and only about 4 percent of the teachers in the entire District

8

are African American.

9

73.

Problems related to teacher shortages, generally, are further compounded for

The national teacher shortages limit avenues available to the District to improve

10

teacher diversity, especially the ability to hire new diverse staff, therefore, the District

11

focuses on in-house retention, GYO programs, and incentive transfers. Teacher diversity

12

and administrator diversity are linked because as teachers’ careers progress, they tend to

13

move to administrative positions. (Order (Doc. 2123) at 38-42.) The District has

14

developed and implemented diversity plans for both teachers and administrators, and

15

hired a Diversity Recruitment Director, who is responsible for identifying specific site-

16

based needed diversity for both teachers and administrators; identifying and recruiting in-

17

house transfers to meet that need, using incentives including monetary stipends, and does

18

the same for GYO programs, including recruiting African American and Latino staff for

19

pathway positions which are building-block positions necessary to become eligible for

20

GYO administrative programs. See supra ¶ 34.a (citations omitted).

21

74.

22

not necessarily address African American certificated staff diversity. The data reflects

23

that the District cannot attain this diversity unless new African American certified staff

24

can be recruited. (Order (Doc. 2564) at 9-10.) Given the small African American

25

populations in Arizona and Tucson, new recruits must come from out-of-state, however,

26

the Fisher Plaintiffs have objected to this strategy as not productive. Id. at 8. The HR

27

Procedures for Recruiting African American Staff have been reviewed, without objection.

28

Id. at 9. The District has complied with the Court’s Order to file the African American

The strategies available to increase Latino teacher and administrator diversity do

- 29 -

1

Diversity Plan Addendum to answer on March 11, 2021 identifying the practicable

2

strategies being used for recruiting and hiring new African American teachers and

3

administrators, with an emphasis on teachers. (Doc. 2568.) Again, there is no objection.17

4

75.

5

Procedures for Recruiting African American Professional Staff, and the District has

6

identified a program at John Hopkins University which is not an HBCU, but may afford

7

the District an opportunity to recruit African American teachers from John Hopkins. The

8

Fisher Plaintiffs have challenged the efficacy of partnering with HBCU because of the

9

travel expense and lack of success. The cost effectiveness of the John Hopkins program is

10

for the District to determine; they intend to maintain recruiting efforts with HBCUs. The

11

Addendum reflects the active role by the Diversity Recruitment Director to spear head

12

the Diversity Plan, including increasing African American certificated staff diversity.

13

(African American Diversity Plan Addendum (Doc. 2568-1) at 4.)

14

76.

15

students are approximately 61%, and White students make up about 20-21%, with other

16

students completing student demographics. (Supp. Petition (Doc. 2461) at 39-40.) Tucson

17

is 37% Hispanic and 4% African American. (African American Diversity Plan

18

Addendum (Doc. 2568-1) at 21.)

19

77.

20

the state average of 2.8%, as follows: 2016-17 (3.0%); 2017-18 (2.9%); 2018-19 (3.4%,

21

and 2019-20 (3.4%). (African American Diversity Plan Addendum (Doc. 2568-1) at 2.)

22

In 2015-16 (4%) of new classroom-teacher hires were African American and by 2018-19

23

and 2019-20 that increased to (5%). Id. at 3.

24

78.

25

hired from 2015-16 (8%) to 2018-19 and 2019-20 (14%), with site-administrator new-

The African American Diversity Plan Addendum strategies include HR

TUSD demographics are: African American students are 9-10%; Hispanic

The Addendum reflects that TUSD employed African American teachers above

The District has increased the number of new African American administrators

26
27
28

17

The assertion by the Fisher Plaintiffs in the Supplemental Opposition filed April
6, 2021, that “[t]he District’s present hiring methodologies for African American
Administrators do not met the diversity requirements of the Unitary Status Plan (USP),” is
too little too late.
- 30 -

1

hires going from 13% in 2015-16 and 2016-17 to 14% and 15% in 2017-18 and 2018-19,

2

but dropping to 9% in SY 2019-20. (African American Diversity Plan Addendum (Doc.

3

2568-1) at 3.)

4

79.

5

American new-hires the District recruited using USP strategies. (Order (Doc. 2564) 8

6

(citing Fisher Obj. 2019-20 Budget (Doc. 2239) at 4—5)). The answers are: Recruitment

7

Incentives for Critical Needs (Hard-to-Fill) new-hire incentives (7 in 2016-17, 6 in 2017-

8

18, 7 in 2018-19, and 7 in 2019-20); Make the Move financial assistance to current

9

employees for pathways to teacher certification (2 in 2016-17, 5 in 2017-18, 5 in 2018-

10

19, and 4 in 2019-20); Relocation $10,000 Reimbursement for new out-of-state hires (2

11

in 2018-19 and 1 in 2019-20). (African American Diversity Plan Addendum (Doc. 2568-

12

1) at 6-7.)

13

80.

14

beyond the expectations of any party and “no one intended that the number of beginning

15

teachers in what some call ‘hard to teach schools’ would be as great as it is.’” (Order

16

(Doc. 2273) at 4 (quoting Order (Doc. 2123) at 43 (citations omitted)). “‘The importance

17

of limiting the number of beginning teachers in these schools cannot be overstated

18

because good experienced teachers are the most important factor needed to improve

19

student achievement.’” Id. (citing Order (Doc. 2217) at 6).

20

81.

21

vacancies, which in SY 2016-17 in August when the most vacancies occurred, there were

22

158. Cf., (Order (Doc. 1865) at 6-9 (stipulation by parties, subsequent to the Court’s first

23

review of CMP, calling for improvement plans, agreeing improvement plans would

24

include among other things, dates certain by which the District would fill approximately

25

25 teacher vacancies, including long-term substitutes, at approximately eight of the 13

26

magnet schools). By SY 2019-20, the number of teacher vacancies dropped to 62. (Supp.

27

Petition (Doc. 2461) at 22-23.)

The Addendum answers the Fisher Plaintiffs’ questions of how many African

The national teacher shortage increased the need to hire beginning teachers

The only thing worse than placing beginning teachers at these schools was teacher

28

- 31 -

1

82.

2

teachers at Racially Concentrated and underperforming schools by adopting a centralized

3

hiring structure and certification for each beginning teacher placement identifying site-

4

specific mitigation strategies and that there was no more experienced applicant available

5

or that the school has above average ELA and Math scores and the first-year teacher

6

promotes diversity. (Order (Doc. 2497) at 5.) Mitigation strategies are site-specific but all

7

include a 1:10 ratio teacher mentor program, which tracks the beginning teacher’s

8

proficiency into year two to ensure supports, including the teacher-mentor, are available

9

until the teacher becomes proficient. Id. at 7. See supra ¶ 34.b.

The District offset the negative impact of placing beginning, less experienced

10

83.

11

65.4% White; 28.1% Hispanic, and 3% African American compared to SY 2019-20

12

61.9% White; 30% Hispanic, and 3.4% African American. TUSD racial diversity

13

compares to national averages of White 81.9%; 7.8% Hispanic, and 6.8% African

14

American and state averages of 80.1% White; 13.1% Hispanic, and 2.8% African

15

American. (Supp. Petition (Doc. 2461) at 21.)

16

84.

17

average being 5.9%, and the District average in 2018-19 being 11.6%. (Supp. Petition

18

(Doc. 2461) at 22). The state average for Hispanic administrators was 31.4%, and the

19

District average was 38.7% in 2018-19. Id. The record reflects steady improvement over

20

the life of the USP, as follows: African American 6.2% in 2013-14 to 10.7% in 2019-20;

21

Hispanic 38.8% to 42%, and White 53.5% down to 44.3%. (2nd NC Diversity (Doc. 2329-

22

1) at 91.)

23

85.

24

they have been eliminated to the extent practicable and are not the result of past de jure

25

segregation or current discrimination.

26

86.

27

District filing the Revised Transportation Plan to correspond with the ALE Policy

28

Manual revisions for AP student support services and the Self-contained GATE and

The percentage of teacher diversity by race has improved as follows: SY 2016-17

Administrative diversity exceeds national and state averages, with the state

To the extent that racial imbalances remain in certificated staff and administrators,

Transportation: Compliance with USP § III, Transportation, is contingent on the

- 32 -

1

AAC-AP Alignment Appendixes. See supra ¶ 35.b-c. There is no allegation of

2

discrimination. There is no racial disparity resulting from past de jure segregation in

3

transportation services. The burden of transportation necessary to integrate the District

4

falls most heavily on students living in racially concentrated neighborhoods, African

5

American and Latino, including EL, students but is reasonable because commute times

6

are limited to approximately 20 minutes. See supra ¶ 96.

7

87.

8

document that there are no disparities between Racially Concentrated and Integrated

9

schools and that extracurricular activities are being used to facilitate positive interracial

Extracurricular Activities: On September 6, 2018, the Court ordered the District to

10

interactions. (Order (Doc. 2123) at 137-38.) Students from lower socioeconomic families

11

participate in extracurricular activities at lower levels, therefore, the District developed

12

and implemented strategies to reduce and/or eliminate fees associated with participation,

13

increase transportation support for extracurricular activities, and designed activities to

14

target increased participation for this group of students. (Order (Doc. 2364) at 2-3.) On

15

November 18, 2019, the Court concluded the only thing missing for full compliance with

16

USP § VIII, Extracurricular Activities, was for the District to ensure it is monitoring the

17

effectiveness of these strategies at Racially Concentrated schools and schools with high

18

percentages of students qualifying for free and reduced lunches. Id. at 3. Subsequent to

19

the base line report, the Court ordered the District to include the data in the DAR, and

20

directed it to use a form recommended by the Special Master which was designed to

21

assist school principals in identifying extracurricular activities conducive to promoting

22

positive interracial interaction. Id. at 4. This work was completed. (Supp. NC (Doc.

23

2387)). There are no objections to the entry of unitary status for extracurricular activities.

24

See supra ¶ 35.g (citations omitted).To the extent that racial imbalances remain, they

25

have been eliminated to the extent practicable and are not the result of past de jure

26

segregation or current discrimination.

27

88.

28

using the original FCI formula, demonstrates equity; there is no evidence that Racially

Facilities: The Facilities Conditions Index (FCI) report reflects that the District,

- 33 -

1

Concentrated schools have lower FCI scores than non-racially concentrated schools.

2

(Order (Doc. 2362) at 1-3.) “‘Every school has the same type of wireless access points,

3

installed to the same minimum density standards.’” Id. at 4. “Each school has equipment

4

of the same type and with the same capacity connecting the school to the main District

5

internet connection,” with no disparity in the availability of internet access anywhere in

6

the District. Id. There are no objections to the entry of unitary status for facilities. See

7

supra ¶ 35.h. There are no racial imbalances in facilities, including technology

8

infrastructure.

9

89.

Advanced Learning Experiences (ALEs): Disparate allocation of educational

10

resources may violate the constitutional right of equal access to educational opportunities.

11

See (Order (Doc. 2512) at 5-8 (discussing Green factors)). ALE is an educational

12

resource, “which if disproportionately available to White students can easily be identified

13

as segregated and, highly likely to be due to discriminatory intent.” (Order (Doc. 2561) at

14

4 n.3 (citing Order (Doc. 1119) at 15-16)).

15

90.

16

is “influenced by perceptions of a likely attainment of the putative benefits of

17

participating in a given ALE,” which are influenced by family and student perceptions of

18

whether students will benefit from ALEs and creates a “stereotype threat” to equal access

19

over which the District has no control. (Order (Doc. 2123) at 46.)

20

91.

21

in ALE is “not less than 15%” of the percentage of African American and Latino students

22

enrolled district-wide in the grades where the ALE is offered, multiplied by 75% to

23

determine the percentage of students of each race that need to be enrolled in the ALE to

24

reflect equal access exists for an ALE. Enrollment, red-flagged under the “not less than

25

15%” rule, makes a prima faice case of discrimination. (Order (Doc. 2123) at 10.)

26

92.

27

programs in SY 2019-20. See (Order (Doc. 2561) at 7 (identifying SY 2019-20 “less than”

28

15% red-flagged ALEs), (Mendoza Objection (Doc.2463) at 20-25 (noting the

Parity is not a reasonable goal for ALEs because voluntary participation in ALEs

A meaningful standard for participation by African American and Latino students

A prima facie case of discrimination exists for a substantial number of ALE

- 34 -

1

discrepancy, but either 15 of 28 or 13 of 32 ALEs red-flagged for discrimination,

2

complaining that District strategies raised all boats instead of targeting African American

3

and Latino students), (Mendoza Objection to SM R&R (Doc. 2476) at 33-34 (same)).

4

93.

5

by African American and Latino students in ALEs, (SM R&R Re: Unitary Status (Doc.

6

2468) at 26-27), (Order (Doc. 2561) at 25 (3,853 ALE students in 2014-15 increased to

7

6,283 in 2019-20; Latino 1,973 in 2014-15 to 3,314 in 2019-20; African American 200 in

8

2014-15 to 615 in 2019-20.) White student enrollment grew from 1,338 to 1,772. (Order

9

(Doc. 2561) at 26.) This 63% increase in ALE students from 2014-15 to 2019-20, was

10

apportioned as follows: 68% increase for Latino students, 33% increase for White students,

11

and 207% increase for African American students.18 Nevertheless, “numbers of African

12

American and Latino students enrolled in all elementary level GATE programs is still less

13

than 15%.” (Order (Doc. 2474) at 11.)

14

94.

Student enrollment has increased across the board, including increased participation

ALEs include: Gifted and Talented Education (GATE) and Advanced Academic

15

Courses (AACs). Access to ALEs includes “the number of ALE programs available to

16

minority students, including EL students, and opportunities for participation, defining

17

participation as the number of students enrolled in ALE courses through completion by

18

passing ALE courses or taking and passing requisite certification tests necessary for

19

African American and Latino students to secure the benefit of participating in ALE

20

programs.’” (Order (Doc. 2123 at 5 (quoting Order (Doc. 2084) at 17)).
“The District has implemented every [] suggested strategy for increasing access,

21

95.

22

[meaning availability,] to GATE. It universally administers the GATE qualifying exams

23

to all students. It has lowered the cut scores. It has Pull-out GATE programs at every

24

elementary school for grades 1-5. For grades 6-10, it offers Resource GATE, which is

25

GATE instruction provided in enrichment or content area classes, and offers one or more

26
27
28

18

The Court miscalculated these percentages in its Order (Doc. 2561) at 26), but the
miscalculation was not determinative because African American and Latino students,
generally, participate in ALE below the 15% red-flag threshold for equal participation,
especially in the entry-level elementary grades.
- 35 -

1

Resource class(es) at every school for these grades. It has promoted an open GATE

2

policy which fills GATE classes with students without requiring a qualifying entrance

3

test at Tully ES grades 1-5 and at Roberts-Naylor in the Open GATE strand for grades 6-

4

8. It has 14 Cluster GATE schools as an open enrollment alternative to Pull-out GATE,

5

and Resource GATE is open to all students without any qualifying cognitive testing or

6

other qualification. The District identifies all students who qualify for GATE and has

7

implemented direct outreach programs by school staff to these students and their parents,

8

and also by either the African American Student Support Department (AASSD) or the

9

Mexican American Student Support Department (MASSD).” (Order (Doc. 2561) at 12.)

10

See supra ¶ 35.b (citations omitted).

11

96.

The only GATE program where there is limited program availability is in Self-

12

contained GATE, defined as: “full time, five days per week” (Revised ALE Policy

13

Manual (Doc. 2500-1) at 9), and “GATE instruction in all core academic subjects” (ALE

14

Action Plan (Doc. 1645-2) at 43).” (Order (Doc. 2561) at 13.) It is also established that a

15

program should not be further than a 20-minute commute, (Order (Doc. 2123) at 27

16

(explaining parents will not send their children where travel time exceeds approximately

17

20 minutes); (Order (Doc. 2512) at 11 n.8) (same); (Order (Doc. 2561) at 14 (requiring

18

Transportation Plan revision to reflect same).

19

97.

It remains for the District to prepare an Appendix to the ALE Status Report to

20

reflect an equitable plan ensuring equal availability for African American and Latino

21

students to a full-time GATE experience, including revising the Final ALE Policy Manual,

22

Status Report, and Transportation Plan. (Order (Doc. 2561) at 13-15.)
The District has developed and implemented “a comprehensive and evenly

23

98.

24

distributed AAC plan, which in summary includes Honors, Advanced, and Accelerated

25

courses for grades 6-10 and AP, IB and Dual Credit programs for grades 11 and 12.”

26

(Order (Doc. 2561) at 17) (explaining Plaintiffs do not challenge AAC plan, except for

27

omission of new schools Wakefield MS and Innovation Tech. HS) See supra ¶ 35.b

28

- 36 -

1

(citations omitted). See also (Order (Doc. 2217) at 6 (middle school for high school credit

2

courses now equally exist at every middle and K-8 school)).

3

99.

UHS student diversity target numbers were not reached, but the District is doing

4

everything practicable to recruit and support African American and Latino students to and

5

at UHS. Personally, every eligible student is contacted. Free transportation is provided to

6

and from UHS, and for student academic support programs. “‘African American and

7

Latino students participate in and pass AP courses at the same rate as White students at

8

UHS,” (Order (Doc. 2561) at 29), and UHS academic support programs are the gold-

9

standard applied by the Court in assessing practicability and effectiveness. Id. at 26-34. It

10

remains for the District to file a report regarding the practicability of running an express

11

UHS shuttle from the south or west sides of the District to UHS. Id. at 36.

12

100.

In 2018, the Court found, without objection, that further oversite of the IB

13

program at Cholla High School was not necessary. (Order (Doc. 2561) at 30 (citing Order

14

(Doc. 2123) at 79)). The question remained as to whether integration of the 82% majority

15

Latino student body at Cholla High School might be promoted by an incentive

16

transportation route from targeted northeastern White neighborhoods to south-side Cholla

17

High School. This question was answered in the negative. Id. at 36-37. The IB Program is

18

the other student-support litmus test for practicability and effectiveness. Id. at 28-34.

19

101.

20

American and Latino, including EL, students, because access is defined as successfully

21

completing ALE GATE and AAC courses, and passing requisite AP and IB qualifying

22

exams. (Order (Doc. 2561) at 26-36.)

23

102.

24

increasing enrollment and participation in ALE programs, including strategies to improve

25

the academic performance for African American and Latino students in ALE, (Order

26

(Doc. 2123) at 50 (quoting Order (Doc. 2084) at 17), as follows: CRC AAC and AP

27

courses, student support services provided on-site, especially those provided for ALE

28

students at UHS and for IB students at Cholla High School, and/or by AASSD or

Student support strategies are necessary to secure full access to ALEs for African

The District has developed support strategies, pursuant to the USP, aimed at

- 37 -

1

MASSD, transportation, and family engagement. (Order (Doc. 2561) at 15-40.) It

2

remains for the District to implement student support services equal to those offered at

3

UHS and Cholla High School for IB students for all ALE AP students. Id. at 40. See

4

supra ¶ 35.b (citations omitted).

5

103.

6

achievement in ALEs by aligning Honors, Accelerated, and Advanced courses with its

7

AP courses, including alignment for AACs at Wakefield MS and Innovation Tech. HS

8

(Order (Doc. 2561) at 17-18), and for CRC ACCs to align with CRC AP courses, id. at

9

23, 40. It remains for the District to prepare and file the AACs to AP Courses Alignment

The District failed to comply with past directives to promote academic

10

Map and Schedule for Compliance. See supra ¶ 35.b (citations omitted).

11

104.

12

increase academic achievement using strategies targeting African American and Latino,

13

including EL, students, as follows: CRC and CRP to maximize academic engagement and

14

performance; student support service departments, including AASSD, MASSD, and the

15

Linguistic Acquisition Department, to ensure behavioral and academic support services

16

are delivered effectively in a culturally relevant manner, including addressing language

17

barriers and outreach to prevent dropouts and encourage graduation; community

18

engagement programs, including family centers, to address culturally relevant outreach

19

issues. See also (SM R&R Re: Unitary Status, Efforts to Improve Academic Performance

20

(Doc. 2468-1) at 5-10 (same, adding on-site AVID and MTSS program to identify

21

academic and behavioral needs, DPG, Reading Recovery, Seven Period Days, etc.)

22

105.

23

African American and Latino students and are designed to improve academic

24

achievement, such as: professional development programs, including teacher-mentor

25

programs to improve teacher performance, especially for beginning teachers at Racially

26

Concentrated and underperforming schools; GYO programs and incentive transfer

27

programs to increase school-site diversity in teacher and administrative staff to provide

28

culturally relevant role models and mentors for students; dual language (TWDL) program

The USP, § V.E, Student Engagement and Support, programs are all designed to

In short, most of the USP strategies being implemented by the District target

- 38 -

1

to ensure the dual language educational program is academically challenging; inclusive

2

school environments and a discipline plan designed to mitigate the negative impact of

3

discipline which falls most heavily on African America students, and extracurricular

4

activities designed to increase participation and inter-racial interaction. Free incentive

5

transportation glues it altogether.

6

106.

7

TUSD is not surprising because the District is an 80% minority-majority district, with

8

approximately 60% Hispanic students, and “best practices” in teaching strategies

9

necessarily improves student achievement for all the students in a classroom. This

That many of these strategies improve academic achievement across the board in

10

phenomenon is not contrary to the Court’s prior findings that the USP, its programs and

11

910G funding, are for the exclusive benefit of African American and Latino, including

12

EL, students.

13

107.

14

reflects that from 2015 to 2019, the number of African American students taking AP

15

exams has increased from 138 to 144, but the number passing with a qualifying AP score

16

fell from 42 to 37. (Mendoza Objection (Doc. 2463) at 22.) The 2019-20 DAR did not

17

include AZMerit data because AZMerit testing was cancelled due to COVID-19. (2019-

18

20 DAR (Doc. 2531-1) at 26.) The District does not present data or argument that reflects

19

any notable improvement in academic achievement as measured by AZMerit testing or

20

alternatively by the District, but the Special Master reports, generally, AZMerit scores for

21

African American and Latino students increased substantially over the last three years to

22

“proficient.”19 (SM R&R Re: Unitary Status (Reply) (Doc. 2494) at 5.)

23

108.

24

60% of the student achievement gap between White students and their minority

25

counterparts. When race is adjusted for lower socioeconomic factors, reflected by a study

26

group of 2000 students, grades 4 to 8, receiving free and reduced lunches (FRL), the

27

student achievement gap or “poverty gap” is narrower between White students receiving

Student achievement is one measure of program effectiveness. The 2018-19 DAR

According to the Special Master, socioeconomic factors account for approximately

28
19

The Court finds no supporting evidence for this assertion.
- 39 -

1

FRL and their minority counterparts, and there has been a slight reduction in the gap this

2

past year. (SM R&R Re: Unitary Status, Appendix A (Doc. 2468-1) at 2.)

3

109.

4

achievement gap between White and African American and Latino students. (SM R&R

5

Re: Unitary Status, Addendum A, Examining the Achievement GAP in TUSD (Doc.

6

2468-1) at 2-3.)

7

110.

8

extent practicable upon completing the pending revisions of the ALE Policy Manual,

9

Appendixes, and correspondingly the Transportation Plan. See Supra ¶¶ 35.b, 92, 93.

There is no data to date reflecting USP strategies have narrowed the student

To the extent racial imbalances remain in ALE, they will be eliminated to the

10

111.

11

Settlement Agreement and the USP because the punitive use of disciplinary sanctions,

12

especially serious sanctions for low-level offenses, creates the potential for negative

13

educational and long-term outcomes for affected students. (Order (Doc. 2502) at 3 (citing

14

Order (Doc. 2123) at 126; USP (Doc 1713) § VI.A.1)).

15

112.

16

African American students across the board for all levels of discipline, including long-

17

term out-of-school suspensions which is the most damaging for a student and his or her

18

academic performance. (Order (Doc. 2502) at 3 (citing 2018-19 DAR (Doc. 2305-3) at

19

49-52)). “‘Disproportionality does not, in itself, demonstrate discrimination, [] but it is a

20

red-flag20 for when discrimination may exist.” Id. (quoting Order (Doc. 2123) at 124)

21

(citations omitted). There is no disproportionately between Latino and White students. Id.

22

at 2 (citing Order (Doc. 2123) at 124)).

23

113.

24

remain[ed] red-flagged for discrimination across every discipline category ranging from a

25

low of 14% for in-school suspensions to a high of 20% for long-term out-of-school

26

suspensions.” (Order (Doc. 2502) at 2.) “There is no explanation offered for why 10% of

Discipline is an ancillary factor, which was included in both the original 1978

In 1978, 2013, 2018, and now, disciplinary policies have a disparate effect on

“In 2018-19, African American students ma[d]e up 10% of TUSD’s students and

27
20

28

In this context, red-flagged means disproportionality and is NOT associated with
the ALE “not less than 15%” rule of thumb red-flag for discrimination. (Order (Doc. 2502)
at 3.)
- 40 -

1

the total student population accounts for almost the same number of suspensions

2

compared to White students, who make up approximately 20% of the student population

3

[and 20% of suspensions].” Id. (quoting Order (Doc. 2123) at 124.)

4

114.

5

ethnic disparities in the administration of school discipline and 2) consider student

6

behavior policies and discipline practices to create inclusive and supportive school

7

environments that ensure students remain as often as practicable in the classroom settings

8

where learning happens by devising a variety of graduated positive behavior techniques

9

to be used based on the student behavior at issue with the goal being “to prevent students

10

from being excluded for any amount of time from the classroom or school.” (Order (Doc.

11

2502) at 3-4 (citing Order (Doc. 2123) at 126; USP (Doc. 1713) § VI.A.1)).

12

115.

13

comprehensive, school-wide approaches to classroom management and behavior:

14

Restorative Practices and Positive Behavior Intervention and Supports (PBIS). Over the

15

course of the USP, the District has developed multiple degrees of discipline, with each

16

graduating in severity.” (Order (Doc. 2502) at 4.) The District added a classroom

17

component to reduce the impact of suspension when a student is removed from his or her

18

regular classroom: In-school Intervention (ISI), Out-of-school Short-term Suspension,

19

and District Alternative Education Program (DAEP), which also reduces the length of

20

out-of-school suspensions. Id. Substantively, it is undisputed that ISI and DAEP are far

21

superior to out-of-school exclusionary discipline. Id.

22

116. African American students make up approximately 10% of the total student

23

population, in 2018-19, African American students made up 15% of the total

24

disciplinary incidents and White students, who make up approximately 20% of the

25

students, made up 18% of the incidents. (2018-19 DAR (Doc. 2305-3) at 34.)

26

117. “While there are slight fluctuations from year to year, the overall trend is a

27

reduction in the differences in discipline rates between African American and White

Under the USP, there are two goals related to discipline: 1) reduce racial and

The District has complied with USP provisions calling for the adoption of two

28

- 41 -

1

students.”21 The difference between White and African American students that

2

existed in 2013-14 was nine percentage points (White 11.56% and AA 20.47%) and

3

by 2018-19, the difference dropped to approximately four and a half percent (White

4

6.33 % and African American 10.93%). (2018-19 DAR (Doc. 2305-3) at 49.)

5

118. An AP-Index of “1” reflects students in a group are suspended in the same

6

proportion as their share of the total student population. The P-Index for African

7

American students for long term suspensions in 2014-15 was 2.67 and in 2018-19

8

was 1.80. Put another way, in 2014-15, African American students made up 6% of

9

the student population and 16% of the long-term suspensions; in 2018-19, African

10

American students made up 10% of the student population and 18% of the long-

11

term suspensions. (2018-19 DAR (Doc. 2305-3) at 51.)

12

119. Looking at risk factors, in 2014-15, African American students were 3.5 times

13

more likely than White students to be disciplined with a long-term suspension; in

14

2018-19, the risk factor was 2.1. (2018-19 DAR (Doc. 2305-3) at 52.)

15

120. It is undisputed that “‘compared to national averages in other school districts,

16

African American students receive less disciplinary measures in TUSD.’” (Order Doc

17

2502) at 3 (quoting Order (Doc. 2123) at 124) (other citations omitted).

18

121. The Guidelines for Student Rights and Responsibilities (GSRR); Code of

19

Conduct) has been revised to reflect Restorative Practices and PBIS and graduated

20

degrees of discipline from the least disciplinary measure, such as Positive

21

Intervention Centers (PICs) or time-out rooms to long-term out-of-school

22

suspension. (Order (Doc. 2502) at 4-6.) The Revised GSRR eliminates the

23

“Disorderly Conduct” violation, which was routinely misapplied and allows for

24

Abeyance Contracts and diversion and prevention programs which enable students

25
26
27
28

21

This is true even though discipline rates for SY2018-19 across all groups
increased slightly because the Revised GSRR allowed incidents of exclusionary discipline
for fighting and drug possession, to be reduced from an 11 to 30-day suspension to a 1-day
suspension for first offenders. Also, tobacco use, including vaping, is considered a drug
offense, and these violations increased from about 22 in 2016-17 to around 347 in 201819 due to vaping. (Order (Doc. 2502) at 13.)
- 42 -

1

to stay in class or on-site suspensions with a classroom component or have shorter

2

periods of out-of-school suspensions. Id. at 5-6.

3

122. The District is currently collecting, reviewing, and reporting now and in all

4

future DARS the discipline data as required under the USP to monitor and track the

5

effectiveness of PBIS and the GSRR policies and procedures. (Order (Doc. 2502) at 7-

6

15.)

7

123. The District has put in place processes that will enable it to continue to

8

progress in the future to reduce levels of discipline, especially out-of-school

9

suspensions, and further reduce the disproportionality in disciplinary actions

10

involving African American students. (Order (Doc. 2502) at 15.) At each school, the

11

Student Relations Department is working with site administrators and staff,

12

including MTSS staff, to provide job-embedded support to improve behavioral and

13

disciplinary practices at the school sites and to create site specific Support Action

14

Plans (SAPs). Id. 16-17. The Student Relations Department, Director, reports directly

15

to appropriate central administration to bring any issues warranting investigation

16

or remediation to the District’s attention. Id. at 16.

17

124. Professional Learning is provided in-house by qualified persons in each field,

18

such as GSRR, PBIS or CRP, using specific rubrics to provide coaching and job-

19

embedded support, with this in-house model promoting buy-in from site staff.

20

(Order (Doc. 2502) at 23.)

21

125. The Court ordered the District to include in the 2019-20 DAR, the following:

22

data for the structural and foundational prerequisites for Restorative Practices,

23

PBIS, and GSRR system of discipline, school-site SAPs to address hotspots and an

24

Annual SAP, to be disclosed the first quarter, to address school-site structural or

25

foundational readiness. (Order (Doc. 2502) at 15-26 (purpose to flush out the status

26

of implementation of the USP, § VI, Discipline, positive behavior techniques and

27

graduated disciplinary strategies at each school). The 2019-20 DAR was filed on

28

October 1, 2020. There were no objections from the Plaintiffs or the Special Master.

- 43 -

1

126. To the extent that racial imbalances exist for disciplinary actions involving

2

African American students, they have been eliminated to the extent practicable and are

3

not the result of past de jure segregation or current discrimination.

4

Unitary Status
The Court rejects the Plaintiffs’ argument that unitary status cannot be granted

5

127.

6

until the District attains some predetermined measure of equitable effectiveness,22 such as

7

increasing faculty diversity at its schools +/-15%, increasing access to ALEs, measured

8

by increasing passing scores on qualifying exams or so that no ALE has minority

9

participation less than 15% . . ., or narrowing the student achievement gap between

10

White and African American and Latino students. In the USP Action Plans, the Court

11

required the District to set goals or standards for anticipated improvement. As discussed

12

above some were met; many have not been met. These standards served to guide the

13

District’s efforts under the USP during the course of this litigation to measure program

14

effectiveness. They remain equally relevant post unitary status.

15

128.

16

goal. However, the reverse is not true. If these standards are not met, it does not mean

17

that a USP strategy is ineffective. The showings of ineffectiveness mean the Court must

18

instead look to the District’s good faith compliance with the USP provisions and

19

strategies that were research based and designed based on best practices to be effective in

20

attaining the USP goals of integration, closing the student achievement gap, etc.

21

129.

22

III, Transportation Plan revisions and the § X Post-USP work that remains, the District

23

has demonstrated compliance with every section of the USP, including the USP

24

provisions that were designed to address the Green factors. There are no racial

When these measures are met, a program has effectively attained the program

Except for the USP § V.A, ALE Policy Manual revisions and, corresponding, §

25
26
27
28

22

The Mendoza Plaintiffs do not contend the District must fully eliminate the
achievement gap or assert parity as the standard for attaining unitary status, but “contend
that the tests this Court has articulated must be met.” (Mendoza Objection (Doc. 2463) at
22.)

- 44 -

1

imbalances in transportation, extracurricular activities and facilities. To the extent that

2

racial imbalances exist in student body assignment, certificated faculty and staff, ALE,

3

and discipline, they have been eliminated to the extent practicable because the District

4

has fully and satisfactorily complied with the USP and its strategies, which were designed

5

to eliminate the vestiges of the prior de jure segregation that once existed in TUSD. The

6

District’s compliance with the USP and related directives of this Court demonstrates its

7

good faith commitment to the whole of the USP and of the law and the Constitution.

8

CONCLUSIONS OF LAW

9

To the extent any of the Findings of Fact contain or include any Conclusions of

10

Law, said Findings of Fact are incorporated herein by reference.

11

1.

12

purposes of determining whether or not TUSD has attained unitary status regardless of the

13

fact that only Black students were statutorily prohibited from attending White

14

schools.’” (Order (Doc. 2123) at 11 (quoting Order (Doc. 1119) at 15 n. 9, see also

15

Fisher v. TUSD, 652 F.3d 1131, 1137 n. 9 (9th Cir. 2011) (referencing this finding

16

without criticism)).

17

2.

18

resolve the longstanding desegregation case against the District.’” (Order (Doc. 2123) 8

19

(quoting USP (Doc. 1713)] § I.A). “It was a plan designed with ‘specific substantive

20

programs and provisions to be implemented to address all outstanding Green factors and

21

all other ancillary factors.’” Id. (citing Green v. School Bd. of New Kent County, 391 U.S.

22

430, 435-36 (1968)). “In addressing whether or not the District has attained unitary status

23

this Court considers that ‘[t]he duty and responsibility of a school district once segregated

24

by law is to take all steps necessary to eliminate the vestiges of the unconstitutional de

25

jure system.’” Id. (citing USP (1713) )] § I.C.1 (quoting Freeman v. Pitts, 503 U.S. 467,

26

485 (1992)).

27

3.

28

(1) fully and satisfactorily comply with the court’s desegregation decree(s) for a

“‘[This case] falls squarely within the confines of [] de jure [segregation] [] for

“‘Like the 1978 Settlement Agreement, the parties entered into the USP ‘to

“‘A school district under a desegregation order, [such as the USP,] is obligated to:

- 45 -

1

reasonable period of time; (2) eliminate the vestiges of the prior de jure segregation to the

2

extent practicable; and (3) demonstrate a good-faith commitment to the whole of the

3

court’s decrees and to the applicable provisions of the law and the Constitution.’” (Order

4

(Doc. 2123) at 8 (quoting USP (Doc. 1713) § I.A (citing Freeman, 503 U.S. at 491-92;

5

Board of Educ. Oklahoma City Public Sch. v. Dowell, 498 U.S. 237, 248-50 (1991)).

6

4. “‘The test used to determine when unitary status has been achieved and,

7

accordingly, when federal court oversight may end, is well-established: ‘The ultimate

8

inquiry is whether the constitutional violator has complied in good faith with the

9

desegregation decree since it was entered, and whether the vestiges of past discrimination

10

have been eliminated to the extent practicable.’” (Order (Doc. 2123) at 8 (quoting Fisher,

11

652 F.3d at 1134-35 (citations omitted)).

12

5.

13

the school system’s record of compliance because in this regard a school district is better

14

positioned to demonstrate good faith by committing to a predetermined constitutional

15

course of action and undertakings that form a consistent pattern of lawful conduct

16

directed to eliminate earlier violations. Fisher, 652 F.3d at 1135 (citing Freeman, 503

17

U.S. at 491)). Good faith compliance since the inception of a desegregation decree

18

through the entirety of the desegregation plan demonstrates a school district’s

19

commitment to a course of action that gives full respect to the equal protection guarantees

20

of the Constitution and guarantees “that parents, students, and the public have assurance

21

against further injuries or stigma . . ..” Id. at 1141 n.25.

22

6.

23

is not the product of a new de jure violation, and enables the district court to accept the

24

school board's representation that it has accepted the principle of racial equality and [the

25

school system] will not suffer intentional discrimination in the future.’” (Order (Doc.

26

2123) at 9 (quoting Freeman, 503 U.S. at 498–99). “In other words, good faith

27

compliance over time ‘reduces the possibility that a school system’s compliance is but a

28

temporary constitutional ritual.’” Id. (quoting Morgan v. Nucci, 831 F.2d 313, 321 (1st

The Supreme Court has instructed that courts should “give particular attention” to

“‘A history of good-faith compliance is evidence that any current racial imbalance

- 46 -

1

Cir. 1987)). “Therefore, good faith compliance by the District with the USP over a

2

reasonable period of time ‘is a factor to be considered in deciding whether or not

3

jurisdiction [should] be relinquished.’” Id. (quoting Fisher, 652 F.3d at 1141 n. 25 (citing

4

Dowell, 498 U.S. at 249-50)).

5

7.

6

one time operated a statutorily mandated dual school system had an affirmative duty to

7

eliminate all vestiges of the state-imposed segregation.” (Order Doc. 2123) at 9 (citing

8

Green, 391 U.S. at 435-36)). “The Court in Green explained that a school system

9

can make a prima facie case for unitary status by showing that racial imbalances no

10

longer exist in student body assignment, faculty, staff, transportation extracurricular

11

activities and facilities. The Green factors cover things that readily identify a school as

12

White or Black, such as the racial composition of staff, [teachers and administrators,] or

13

quality of school buildings and equipment, [or the organization of sports activities,] or in

14

the context of educational resource allocations, such as teacher assignments for teachers

15

with advanced degrees or more experience, then a prima facie case of violation of

16

substantive constitutional rights under the Equal Protection Clause is shown.” Id. at 9-10

17

(citing Order (Doc. 1119) at 16 (citing Swann v. Charlotte-Mecklenburg Bd. of Ed., 402

18

U.S. 1, 18 (1971); Freeman, 503 U.S. at 482-83)).

19

8.

20

factors that reflect resource disparities because both types of disparities are unlikely to

21

have nondiscriminatory explanations. (Order (Doc. 2123) at 10 (citing Order (Doc. 1119)

22

at 16 (citing Coalition to Save Our Children, 90 F.3d 752, 776-77 (3rd Cir. 1996) (placing

23

the burden of proof on Defendants in respect to Green presumptive factors, but requiring

24

Plaintiffs to prove disparities in student achievement were vestiges of de jure

25

segregation)).

26

9.

27

(Doc. 2123) at 10 (citing Fisher, 652 F.3d at 1135)). “Disparities in Green factors are

28

presumptively vestiges of de jure segregation, but Plaintiffs have the burden to link

“In 1968, the Supreme Court established that a school district, like TUSD, that at

Green creates “a presumption of discriminatory intent which also attaches to

“The burden is on the school district to prove it has attained unitary status.” (Order

- 47 -

1

disparities that fall beyond Green, such as performance disparities in student

2

achievement, to vestiges of de jure discrimination.” Id. (citing Save Our Children, 90

3

F.3d at 776).

4

10.

5

factors, such as demographic shifts, which are not the result of segregation and are

6

beyond the board's control.’” (Order (Doc. 2123) at 8 (quoting Fisher, 652 F.3d at n.4

7

(quoting Manning ex rel. Manning v. Sch. Bd. of Hillsborough Cnty., Fla., 244 F.3d 927,

8

941 (11th Cir. 2001)).

9

11.

“‘A school board has no obligation to remedy racial imbalances caused by external

The District misstates, over simplifies, and conflates the law by asserting the Court

10

must find unitary status because 1) there are no vestiges of the prior dual segregated

11

school system and 2) good faith exists if the Court is confident that there is no risk the

12

District will return to a dual segregated school system if it terminates supervision. (Supp.

13

Petition (Doc. 2461)).

14

12.

15

that the Court cannot find unitary status until the District attains the USP goals to some

16

predeterminate standard: increasing Integrated schools and reducing Racially

17

Concentrated schools, increasing student and faculty diversity, increasing graduation

18

rates and reducing dropout rates; increasing access to ALEs, measured by obtaining

19

passing scores on qualifying exams, and improving student achievement for African

20

American and Latino, including EL, students that narrows and/or eliminates the student

21

achievement gap between these students and White students.

22

13.

23

and the community a disservice by not recognizing the advancements which have been

24

made under the USP. Instead, the Plaintiffs highlight the minimal or lack of data

25

reflecting progress in attaining integration or closing the student achievement gap to

26

argue ineffectiveness, bad faith, and failure. The District ignores the record relied on by

27

the Plaintiffs because any disparity is “not the result of de jure segregation that existed in

28

1978.” The District’s failure to cite to contrary evidence of successes left the Court to rut

The Plaintiffs equally misstate, overly simplify, and conflate the law by asserting

The law is more nuanced than either party asserts, and both parties do this Court

- 48 -

1

through the voluminous record and rely on its own recall of successes and its prior Orders

2

addressing compliance with the various USP provisions. Fisher v. TUSD, 2007 WL

3

2410351 *7 (Ariz. Aug. 21, 2007) (citing United States v. Dunkel, 927 F.2d 955, 956 (7th

4

Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in briefs.”)).

5

14.

6

a proximate way, to the prior violation, but ‘as the de jure violation becomes more

7

remote in time and demographic changes intervene, it becomes less likely that a current

8

racial imbalance is a vestige of the prior de jure system.’” (Order (Doc. 2123) at 10

9

(citing Fisher, 652 F.3d at 1144 n. 30 (quoting Freeman, 503 U.S at 496)). “Still, good

“The District has the burden to show that any current imbalance is not traceable, in

10

faith remains paramount: ‘The causal link between current conditions and the prior

11

violation being even more attenuated if the school district has demonstrated its good

12

faith.’” Id.

13

15.

14

been full and satisfactory compliance with the [Consent Decree] in those aspects of the

15

system where supervision is to be withdrawn; whether retention of judicial control is

16

necessary or practicable to achieve compliance with the [USP] in other facets of the

17

school system; and whether the school district has demonstrated, to the public and to the

18

parents and students of the once disfavored race[s] and ethnicities], its good-faith

19

commitment to the whole of the [USP] and to those provisions of the law and the

20

Constitution that were the predicate for judicial intervention in the first instance.’” (Order

21

(Doc. 2123) at 11 (quoting Fisher, 652 F.3d at 1144 (quoting Freeman, 503 U.S. at 491)).

22

16.

23

establish good faith in its 20-year operations under the 1978 Settlement Agreement. A

24

failure to demonstrate past good faith cannot be cured by promises of future

25

improvements. “To the contrary, it is only ‘[a] history of good-faith compliance’ that

26

‘enables the district court to accept [a school district's] representation that it has accepted

27

the principle of racial equality and will not suffer intentional discrimination in the

28

future.’” Fisher, 652 F.3d at 1142 (quoting Freeman, 503 U.S. at 498). Consequently, the

A finding of unitary status is informed by the following: “‘whether there has

A finding of unitary status is informed by the fact that the District failed to

- 49 -

1

District’s record of good faith compliance since remand is a paramount consideration in

2

determining unitary status.

3

17.

4

the context of this case is not whether the District has done all it can to comply with the

5

decree or even all it can to promote integration.’” (U.S. Intervenor Resp. (Doc. 2475) at

6

5) (emphasis added). “To the contrary, the District’s good faith compliance with the

7

requirements of the USP is a critical basis on which its Supplemental Petition for unitary

8

status must be assessed.” Id. (citing Missouri v. Jenkins, 515 U.S. 70, 87-89 (1995);

9

Freeman, 503 U.S. at 491-92; Dowell 498 U.S. at 248-50)).

“The District is [] incorrect in arguing . . . that ‘[a]s a matter of law, good faith in

This Court has a “responsibility [] to retain jurisdiction until [the District] has

10

18.

11

demonstrated good faith and eliminated the vestiges of past discrimination to the extent

12

practicable.” Fisher, 652 F.3d at 1143.

13

19.

14

supervision. Indeed, to extend federal court supervision indefinitely is neither practicable,

15

desirable, nor proper.’” (Supp. Petition (Doc. 2461) at 13-14 (quoting Save Our Children,

16

90 F.3d at 760), accord Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 318

17

(4th Cir. 2001); Manning ex rel. Manning, 244 F.3d at 943 n. 29.

18

20.

19

(Order (Doc. 2123) at 6 (citing Fisher, 652 F.3d at 1143 (citing Board of Educ.

20

Oklahoma City Public Sch. v. Dowell, 498 U.S. 237, 247-48 (1991)). “Given ‘local

21

autonomy of school districts is a vital national tradition,’ the Court adopted the three-year

22

minimum operational [benchmark] in the USP in order to return TUSD to the control of

23

local authorities at the earliest practicable date to restore true accountability to the

24

government.” Id.at 7 (quoting Freeman, 503 U.S. at 491).

25

21.

26

compliance” may [the Court] craft “an orderly means for withdrawing from control.’”

27

Fisher, 652 F.3d at 1143 (quoting Freeman, 503 U.S. at 490). “‘[T]he court's end purpose

28

must be to remedy the violation and, in addition, to restore state and local authorities to

Practicability “‘implies a reasonable limit on the duration of that federal

“A desegregation decree, like the USP, is not intended to operate in perpetuity.”

Only after the District has “‘shown that [it] has attained the requisite degree of

- 50 -

1

the control of a school system that is operating in compliance with the Constitution.’” Id.

2

(quoting Freeman, 503 U.S. 489).

3

22.

4

the USP, federal court oversight ends in its entirety. (U.S. Intervenor (Doc. 2475) at 6-7

5

(citing DeKalb Cnty. Sch. Dist. v. Schrenko, 109 F.3d 680, 692 (11th Cir. 1997) (once

6

district achieved unitary status, role of the district court ends); Pasadena City Board of

7

Education v. Spangler, 427 U.S. 424, 436-37 (1976) (reiterating force of principle set out

8

in Swann, 402 U.S. at 31-32); Lee v. Talladega County Bd. of Education, 963 F.2d 1426,

9

1430 (11th Cir. 1992) (unitary status means the school board has remedied their

When the Court finds the District has attained unitary status on all provisions of

10

constitutional violations and transition to racially non-discriminatory school system is

11

complete and judicial remedial authority ends); United States v. Overton, 834 F.2d 1171,

12

1177 (5th Cir. 1987) (once declared unitary, district is released from judicial oversight,

13

and the district is on the same footing as all other state actors)).

14

23.

15

with all obligations under the USP and all Orders of the Court, including the January 6,

16

2012, Order, appointing the Special Master “to formulate a post unitary status plan to

17

guide the District in maintaining constitutional compliance after the release of court

18

supervision.” (Order (Doc. 1350) at 3.)

19

24.

20

contingencies, does not preclude a finding of unitary status. The Court “‘possesses ample

21

discretion to fashion equitable relief [in this case], to tailor that relief as progress is made,

22

and to cede full control to local authorities at the earliest appropriate time.’” (Order (Doc.

23

2123) at 13 (quoting Freeman, 503 U.S. at 486-92)).

24

25.

25

addressing accountability and transparency necessary to guide community oversight

26

pursuant to normal governmental systems.

The USP, § XI, Final Termination, of the USP, requires good faith compliance

The subsequent drafting of the Post-USP, like the other identified noncompliant

The Special Master shall oversee the District’s development of a Post-USP

27
28

- 51 -

1

CONCLUSION

2

The USP is more than a paper-plan. After its adoption, the plan provisions were

3

developed as best practices, research based, and data driven strategies. The USP strategies

4

have been fully implemented, except for the contingencies noted herein which primarily

5

involve planning for future post unitary status operations. The Court retains jurisdiction to

6

resolve any issues relevant to determine final compliance for these contingencies. This

7

does not preclude the Court’s finding that the District has demonstrated its good-faith

8

commitment to the whole of the USP.

9

The District has operated, pursuant to implemented USP strategies, for

10

approximately three years for most of the plan provisions, with some programs not being

11

fully operational until this past year. These operations, whether three years or more or less,

12

have been long enough for review, evaluation, and adjustments to ensure the USP strategies

13

and programs are effective to the extent practicable over this time period, and fully vetted

14

over this time period to weed out ineffective strategies. The USP programs permeate all

15

levels of District operations from individual schools to the administration, including

16

training, performance evaluations, and operational structures from policies to practices

17

necessary for performance and use of the USP strategies. Has the USP been effective in

18

increasing and improving access to educational opportunities or student achievement for

19

African American and Latino, including EL, students? Some say “yes.” Some say “no.”

20

Some say, the District has not operated under the USP long enough to know this answer,

21

and the Court must retain jurisdiction over this case until there are actual increases and

22

improvements evincing the District has attained the USP goals, including narrowing or

23

closing the student achievement gap with White students for African American and Latino,

24

including EL, students. The Court agrees that longer operation of the District will lead to

25

improved equity and parity between the races but does not agree that the Court must retain

26

jurisdiction until the USP goals are actually attained. Based on its findings of good faith

27

above for compliance with every provision of the USP, the Court is confident that the

28

District will continue USP operations, especially those that are already moving the needle

- 52 -

1

in the right direction. There is no reason to believe that the District will walk away now

2

from this massive six-year undertaking. To deny unitary status would not only be contrary

3

to the law, it would be counterproductive. The District must be free to respond to the needs

4

of TUSD’s students, including African American and Latino students, outside the

5

cumbersome confines of litigation. The COVID-19 pandemic has made this fact

6

abundantly clear.

7

For example, without any assertions of disparate resource allocation or even

8

impropriety on the part of TUSD, the Fisher Plaintiffs question how the District can in

9

good conscience, actually petition for unitary status when evidence suggests African

10

American and Latino students have received substantially more failing grades than their

11

White peers. In other words, “it is obvious that the achievement gap . . . has definitely

12

widened during the pandemic due to profound disparities in the virtual classroom

13

experienced by minority students.” (Fisher Supp. Objection (Doc. 2571) at 2, 4.) By

14

ignoring whether any evidence exists linking District conduct during the pandemic to this

15

new academic disparity, the Plaintiffs fail to consider whether the USP, its strategies, the

16

District’s operations pursuant to these strategies, or even any other conduct of the District,

17

failed these students during the COVID-19 pandemic. All parties, not just the Defendants,

18

must consider the effectiveness of USP programs and strategies to address disparities.

19

Otherwise, valuable time and resources are wasted focusing on school programs to address

20

inequities that actually cannot be corrected by any school program, not even one designed

21

under the USP.

22

The recent Supplemental Objections to unitary status reinforce the Court’s

23

conclusion to award unitary status now. The Plaintiffs do not challenge any USP strategy

24

contained in the Wakefield MS and Innovation HS NARAs, which like all the USP

25

strategies were research based and best practices, adopted by the Court with review and

26

input from the Plaintiffs and the Special Master. The Plaintiffs would have this Court deny

27

unitary status because these schools are Racially Concentrated, yet it was anticipated that

28

student enrollment pulled from within a three-mile radius of these school might be 85%

- 53 -

1

and 84% Hispanic, respectively for Wakefield MS and Innovation Tech. HS (Wakefield

2

MS NARA (Doc. 2373-2) at 5); (Bridges (Innovation Tech. (HS) NARA (Doc. 2336-1) at

3

2).

4

In the context of Wakefield MS and Innovation Tech HS, the District opened two

5

specialized schools in minority concentrated neighborhoods, aimed at improving academic

6

opportunities and student achievement for African American and Latino students, with

7

proposed strategies to increase integration, including open enrollment, lottery, targeted

8

marketing, incentive bussing, etc., The recent objections reflect the tension that can exist

9

between integration and improving student achievement for African American and Latino

10

students because TUSD is demographically majority-minority and geographically racially

11

segregated. Sometimes, the District must strike a delicate balance between the two

12

priorities. The teeter cannot totter back and forth depending on the argument of the day.

13

The District must plan for the best result, which is what it did in the NARAs, and stay the

14

course long enough to secure results. That is all that is practicable.

15

The Court is confident that the District is committed to staying the course and grants

16

unitary status because the District is best positioned to balance these interests and chart the

17

course forward to the end, using the building blocks set down these past six years under

18

the USP.

19

Accordingly,

20

IT IS ORDERED the Special Master’s Reports and Recommendations (Docs.

21

2468, 2469, 2494 (Reply R&R) and recommendation that the Court award unitary status is

22

adopted based on the Findings of Fact and Conclusions of Law made by this Court.

23

IT IS FURTHER ORDERED that the Supplemental Petition for Unitary Status

24

(Doc. 2461) is GRANTED for all USP provisions, except for those provisions reserved for

25

noncompliance as follows:

26

1. USP § V.A, ALE: Revised Policy Manual, Appendixes Fulltime GATEs and

27

AAC-AP Alignment, and correspondingly § III, Revised Transportation Plan,

28

see also supra ¶¶ 89, 92;

- 54 -

1

2. USP § X, Transparency, Post-USP to: identify benchmark events scheduled to

2

occur beyond the date of this Order; continue DARs for a reasonable period of

3

time to facilitate the transition of oversight of USP operations, including

4

addressing the recent “comparative data” challenge that the District adopted new

5

academic achievement measures for SY 2020-21, which was raised by Mendoza

6

Plaintiff’s March 23, 2021 (Mendoza Supp. Opposition (Doc. 2570)); retain the

7

practice of transparency, including the District’s website, to facilitate transition

8

from judicial to public accountability.

9
10

IT IS FURTHER ORDERED that the Court retains jurisdiction for the limited
purpose of determining compliance with these remaining contingencies.

11

IT IS FURTHER ORDERED that the Special Master’s approval of the District’s

12

training of administrators to evaluate CRP competency (Order (Doc. 2508) at 28-29, 33),

13

USP § V.E.6.a.i-ii, shall be filed with the Court by May 31, 2021, and the District shall file

14

the UHS express shuttle-bus report by this same date.

15

IT IS FUTHER ORDERED that the District shall respond to the Plaintiffs’

16

Supplemental Opposition to the Petition for Unitary Status challenging that Wakefield

17

Middle School and Innovation Tech. High School are Racially Concentrated by addressing

18

whether the strategies outlined in the NARAs to promote integration at these schools have

19

been implemented, and if not why.

20

IT IS FURTHER ORDERED that the District shall respond to the In its Supplemental

21

Opposition ((Doc. 2571) at 13-14), the Fisher Plaintiffs charge that it is in violation of the

22

Court’s Order (Doc. 2557) by failing to include the “Academic Performance (African

23

American and Latino Students) criteria in the 2020-21 MSPs.

24

IT IS FURTHER ORDERED that pending issues of compliance shall be

25

addressed by the Court pursuant to current briefing schedules, and the District’s Responses

26

to the Plaintiffs’ Supplemental Opposition to the Petition (Doc. 2570) shall be filed within

27

14 days of the filing date of this Order. The Plaintiffs shall file Replies within 7 days. If

28

- 55 -

1

the Court finds it would be helpful, it will call for an R&R from the Special Master and

2

afford the parties an opportunity to file responses.

3

IT IS FURTHER ORDERED that the Special Master shall consult the Plaintiffs

4

and oversee the District’s development of the Post-Unitary Status Plan, which shall be filed

5

with the Court within 30 days of the filing date of this Order. The Special Master shall have

6

14 days to file a R&R explaining any objections he has to the Post-USP. The Plaintiffs may

7

file Objections within 30 days of the Special Master’s R&R, and the District may file a

8

Reply within 14 days.

9

Dated this 19th day of April, 2021.

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

- 56 -