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Fisher v. United States

United States District Court, D. Arizona

February 13, 2015

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.

Report and Recommendation: Advanced Learning Experiences

On August 13, 2014, the Special Master filed a Report and Recommendation (R&R) (Doc. 1645) relating to the Unitary Status Plan (USP) Section V, Quality of Education, subsection A, Access to and Support in Advanced Learning Experiences (ALEs), which requires TUSD to improve the academic achievement of African American and Latino students and ensure they have equal access to the District's ALEs. (USP[1] (Doc. 1713) § V.A.1.)

The R&R was requested by the Plaintiffs Mendoza and joined in by the Fisher Plaintiffs. The Plaintiffs' objections are limited to the annual goals set by TUSD, not the specifics of the detailed plan of action to be undertaken to increase the numbers of these students, and ELL students, in ALEs. (USP § V.A.2-5.) At issue is subsection 2.a, as follows:

By [July 1, ][2] 2013, the District shall hire or designate a District Office employee to be the Coordinator of Advanced Learning Experiences ("ALEs"), ALEs shall include Gifted and Talented ("GATE") programs, Advanced Academic Courses ("AACs"), and University High School ("UHS"). AACs shall include Pre-Advanced Placement ("Pre-AP") courses, which were formerly referred to as "Honors, " "Accelerated, " or "Advanced, " and any middle school course offered for high school credit; Advanced Placement ("AP") courses; Dual-Credit courses; and International Baccalaureate ("IB") courses. The ALE Coordinator shall have responsibility for: reviewing and assessing the District's existing ALEs, developing an ALE Access and Recruitment Plan, assisting appropriate District departments and schools sites with the implementation of the ALE Access and Recruitment Plan, and developing annual goals, in collaboration with relevant staff, for progress to be made in improving access for African American and Latino students to ALE programs. These goals shall be shared with the Plaintiffs and the Special Master and shall be used by the District to evaluate effectiveness.

(USP § V.a.2.a) (emphasis added).

To implement Section V of the USP, TUSD prepared the ALE Access and Recruitment Plan (ALE Action Plan). The subsection challenged by the Plaintiffs is Section II, Annual Goals and Progress Monitoring, which provides, as follows:

In creating annual goals for progress monitoring, the District has used the "20% Rule", which was presented by Donna Ford, Ph.D. of Vanderbilt University to the United States District Court For The Northern District of Illinois Eastern Division in Mcfadden v. Board of Education for Illinois School District U-16. Dr. Ford further explains the rule and how it should be used in districts working to eliminate discrimination in her book, Recruiting and Retaining Culturally Different Students in Gifted Education (2013).
In that book, Dr. Ford offers a relatively simple rule for identifying discrimination in the data. According to her, discrimination may be occurring if any subgroup has a participation rate in something deemed desirable (like ALEs) that is 20% less than their enrollment rate in the district. "For example, if Black students are 10% of a school district, then they should be at least 8% of ALEs... If Hispanic students are 40% of a school district, then they should be at least 32% of ALEs)." Thus, goals in this plan will be designed to increase all minority subgroup (sic) to a <20% threshold="" within="" five="" years,="" using="" sy="" 2012-13="" as="" the="" baseline="" year="" for="" both="" white="" and="" minority="">

(ALE Action Plan (Doc. 1645-2), Ex. A at § II) (emphasis added).

The 20 % Rule, therefore, sets a goal at a sum certain number NOT less than the minority groups' enrollment rate District-wide. Using the base line years proposed by TUSD, SY 2012-13 to the end of SY 2017-18, [3] TUSD's goal for increasing GATE services is 0.19 % per year for African American students and for Latino students 0.29 % per year. For AAC, TUSD's goal is.09 % per year for African American Students. (ALE Plan § II.A and B.) The 20 % Rule is already satisfied for AAC for Latino students. Id. TUSD does not apply the 20% Rule to ELLs. UHS is not at issue, here.

Plaintiffs and the Special Master believe that the annual goals are too low and should be increased, especially because participation among African-American and Latino students, as of SY 2012-13, is relatively close to being not less than 20 % of the minority students' enrollment district-wide. For example: African American students make up 5.8% of the district-wide student population, with the less than 20% goal being 4.64% and the current participation level being 3.7%, therefore, TUSD needs to increase GATE participation for African American students by 1%. The same percentage increase is required for Hispanic students in GATE programs. For AACs, African American students make up 6.2%[4] of the district-wide student population, with the less than 20% goal being 4.96% and the current participation level being 4.5%, therefore, TUSD needs to increase AAC participation by half a percent. There is no need to increase participation by Hispanic students in AACs. (R&R (Doc. 1645), Ex. A: ALE Action Plan at 14.)

The Special Master recommends an admittedly arbitrary 15 % increase, instead of less than 20%. Plaintiffs rely on the USP's requirement that the strategies identified in the ALE Plan must "increase the number of African American and Latino students, including ELL Students, enrolling in ALEs." USP § V.2.c; USP § V.3.a.i (specifying measures for increasing GATE services); USP § V.4.a.i (same for AACs). Plaintiffs suggest equal access goals should mirror the percentage of these students in the general student body. For example, parity would be reached for African American Students, who make up 10 % of the student body, when they make up 10 % of the ALE participants.

The Plaintiffs and the Special Master believe goals should be program specific. There are eleven programs: three GATE programs (Self-contained; pull-out, and resource) and eight AACs (Advanced Placement (AP); Advanced Pre-AP; Honors Pre-AP; Dual-Credit; IB; Dual language; UHS, and middle school courses for high school credit). They are all very different from each other. For example, GATE pull-outs provide students with the program less than half a day once a week, whereas, a self-contained GATE is virtually full time. According to Plaintiffs and ...


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