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Fisher v. United States

United States District Court, D. Arizona

August 27, 2014

Roy and Josie Fisher, et al., Plaintiffs,
v.
United States of America, Plaintiff-Intervenor,
v.
Anita Lohr, et al., Defendants, and Sidney L. Sutton, et al., Defendants-Intervenors, Maria Mendoza, et al., Plaintiffs, United States of America, Plaintiff-Intervenor,
v.
Tucson Unified School District No. One, et al., Defendants.

ORDER

DAVID C. BURY, District Judge.

The Boundary Review Process: USP § II.D, E and X.E.3

On April 26, 2013, the Court approved boundary changes related to school closures which occurred in 2013. The Court acted on limited information, but the District assured "the Court it was moving forward under the USP with a comprehensive review of boundaries, clustering or pairing schools and otherwise examining boundaries;...." (Order (Doc. 1468) at 4.) At the time, the Plaintiffs Fisher objected to the boundary changes because TUSD failed to make the requisite boundary change assessment, pursuant to the USP § II.D: Attendance Boundaries, Feeder Patterns, and Pairing and Clustering.

1. All schools in the District shall have an attendance boundary unless the District has specifically designated a school to have no attendance boundary.
2. The District shall review and/or redraw its attendance boundaries when it opens a new school; closes, repurposes or consolidates a school; alters the capacity of a school; or designates a school without an attendance boundary. The Parties anticipate that such changes may result in the redrawing of some attendance boundaries. When the District draws attendance boundaries, it shall consider the following criteria: (i) current and projected enrollment; (ii) capacity; (iii) compactness of the attendance area; (iv) physical barriers; (v) demographics (i.e., race, ethnicity, growth projections, socioeconomic status); and (vi) effects on school integration. In applying these criteria, the District shall propose and evaluate various scenarios with, at minimum, the Plaintiffs and the Special Master in an effort to increase the integration of its schools.
3. By April 1, 2013, the District shall review its current attendance boundaries and feeder patterns and, as appropriate, amend such boundaries and patterns and/or provide for the pairing and/or clustering of schools to promote integration of the affected schools.

As is evident from today's date, the April 1, 2013, deadline proscribed in the USP has been extended, with TUSD submitting the Boundary Review Process to the Plaintiffs in summary fashion for consideration on September 16, 2013, with the detailed plan following on February 27, 2014. On March 6, 2014, the Fisher Plaintiffs requested an R&R, which in spite of further revisions the Fisher Plaintiffs continued to press and the Special Master filed the R&Rb on May 27, 2014.

The Implementation Addendum, filed by TUSD on June 20, 2014, (Doc. 1627) at 9), reflects that Final Approval is scheduled for June 2, 2014, which coincides with the June date proposed in § VI, General Timeline, for Final Board Approval of TUSD's proposed Boundary Review Process. (R&R (1601), Ex. A (Doc. 1613): (TUSD Boundary Review Process.) Because Board approval is not required for the process, the Court understands the June 2, 2014, deadline to be the date for Board Approval of actual boundary changes. It appears that this date is past; in its Objection to the R&R the District reports that the Boundary Review Process is well under way. (Objection (Doc. 1614) at 1 n.2.) The Boundary Review Process also serves to inform the magnet plan mandated pursuant to USP § II.E.3, [1] but the Boundary Review Process § VI, General Timeline, does not reflect deadlines which must be met for the Boundary Review Process to serve this purpose.

The Court adopts in part the recommendation of the Special Master to approve the Boundary Review Process, but rejects the Special Master's recommendation to direct the parties to meet to attempt to settle disputed language in the Boundary Review Process and to stipulate to procedures for the exchange of by TUSD to Plaintiffs. The Court adopts the Boundary Review Process, as proposed by TUSD and attached, here, including Governing Board Policies JR and JC-R.[2] TUSD shall re-file the approved Boundary Review Process, with an updated timeline for any now past benchmark dates and deadlines relevant for coordinating the boundary review process with development of the magnet plan. The Court addresses the procedures for Plaintiffs to request information and TUSD to respond.

Fisher Objections: Special Master Recommendations

First, the Fisher Plaintiffs object that the Boundary Committee, established to assist TUSD in developing the boundary plan, is comprised of 24 members, 16 of whom are District employees. There is an Advisory Team as well, which is also comprised of District employees plus external consultants. The Fisher Plaintiffs are concerned that parents and community stakeholders have inadequate representation in the boundary review process. The Special Master notes that these committees are not components of the USP, but that the Boundary Committee should be comprised of between 15-25 members whose racial composition generally reflects the racial composition of the population living in TUSD. The Court agrees that even if the Boundary Committee is not required by the USP, its composition should be consistent with the goals of the USP provisions applicable to reviewing and redrawing TUSD's attendance boundaries, II.D.2 and.3. The Special Master's recommendations would be one way to ensure such consistency.

The Boundary Review Process, Governing Board Policy JC-R, suggests the same by its criteria that members of the Boundary Committee be one or more of the following: a TUSD parent; represent a reasonable mix of the diversity and ethnicity of the affected communities; be a staff member of a school in the potentially affected area, or be an interested member of the community. (JC-R at 2.) The purpose of the Governing Board's policy is to provide a process for boundary changes that includes notification and involvement of stakeholders to improve decisions and create support for boundary changes. (JC-R at 1.) Given the expressed goal by the TUSD Governing Board that parents and community stakeholders will have adequate representation in the boundary review process. The Court leaves it to TUSD to ensure that it applies the committee criteria adopted by the Board in JC-R to accomplish a reasonable mix of diversity and ethnicity of the affected communities on the Boundary Committee and to ensure that the Boundary Committee is distinguishable by its emphasis on stakeholder members from the Advisory Team Committee, which is comprised of TUSD staff and external professional members. Plaintiffs may bring any perceived failure in this regard to the Court's attention should future redress become necessary.

Second, as they did when TUSD proposed boundary changes in response to 2013 school closures, the Fisher Plaintiffs complain that Governing Board Policy JC-R, School Attendance Boundaries for the Planning and Student Assignment Department, does not satisfy the USP criteria specified in § II.D.2, which are as follows: (i) current and projected enrollment; (ii) capacity; (iii) compactness of the attendance area; (iv) physical barriers; (v) demographics (i.e., race, ethnicity, growth projections, socioeconomic status); and (vi) effects on school integration. And in applying these criteria, JC-R fails to require the District to propose and evaluate various scenarios with, at minimum, the Plaintiffs and the Special Master in an effort to increase the integration of its schools. The Special Master proposes the parties be given an opportunity to reconcile the language used in JC-R with the criteria specified in the USP.

The Court has reviewed the language and finds it fully complies with the criteria in the USP. Subsequent to the Court's approval of the 2013 school-closure boundary changes, on February 5, 2014, the Board revised JC-R. The Policy JC-R does not include "growth projections, " but it includes current and projected enrollment and current and projected development patterns and the other "examples" of demographics expressly included in the USP: race, ethnicity, and socioeconomic status. The District's policy requires TUSD to consider its boundaries' effects on school desegregation whereas the USP calls for consideration of various scenarios' efforts to increase integration. (R&R (Doc. 1601, Ex. ...


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