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Fisher v. United States

United States District Court, D. Arizona

May 27, 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 Defendants.

NOTICE OF FILING BY SPECIAL MASTER OF REPORT AND RECOMMENDATIONS RELATING TO DIETZ NARA

WILLIS D. HAWLEY, Special Master.

The Special Master hereby respectfully submits the attached Report and Recommendations relating to the Dietz NARA and recommends Court approval of the District's proposal.

On May 9, 2015 TUSD submitted a proposal to the Court to approve the location of two portable classroom buildings on the Dietz K-8 campus to be used beginning in August 2015 ( see Exhibit A). Both the Fisher and the Mendoza Plaintiffs oppose the District's Dietz proposal. The Department of Justice has no objection. For the reasons set forth herein, including the undisputed fact that the introduction of portables at Dietz will have no effect on the racial composition of the school or of any other school, the Special Master recommends that the Court approve the District's proposal.

Procedural History

On April 14, 2015, the District administration submitted to the Governing Board a proposal for locating portable buildings on the Dietz campus, and the Board then approved the proposal. On May 1, the District submitted this proposal to the Plaintiffs and the Special Master along with the required Desegregation Impact Analysis and requested approval in order to avoid burdening the Court with a contested Notice and Request for Approval (NARA) (Exhibit B). On May 15, the Mendoza Plaintiffs expressed their objections (Exhibit C) as did the Fisher Plaintiffs expressed their objections (Exhibit D). Also on May 15, the Department of Justice indicated that it had no objection to the District's proposal (Exhibit E).

On May 17, the Special Master sent a memo to the parties indicating what his response to the proposal and the objections would be if he were to submit a Report and Recommendation to the Court on this matter (Exhibit F). The Special Master asked the Fisher and Mendoza Plaintiffs to examine his conclusions and decide whether they wished him to proceed with an R&R. Neither set of Plaintiff responded. On May 22, the District submitted the NARA to the Court (Exhibit G).

Analysis of Objections

Fisher Objections

The Fisher Plaintiffs raise four objections to placing portables at Dietz. The Special Master's response to each of these objections is as follow:

1. The Fisher Plaintiffs claim that the District's assertion that the student population will increase at Dietz is incorrect. In fact, the District makes no such assertion. Rather, it asserts that the population at Dietz has already increased beyond predictions and explains why this occurred. This increase in the student population, and in particular among students with special needs, is one of the justifications for the proposed portables.
2. The Fisher Plaintiffs argue that the court order relating to school closures February 2013, which limited the use of portables in receiving schools, applies to the Dietz portables. However, no students from closed schools still attend Dietz, and no student will be learning in Dietz portables for any extended period of time during the school day ( see Exhibit A, p.5, Section 3a).
3. The Fisher Plaintiffs claim that the land mass at Dietz is inadequate to support portables and link this claim to an assertion that middle school students at Dietz are receiving an inferior education. No evidence is provided to support this claim (although Dietz is a C school) or to suggest that the introduction of portables would make things worse. One of the reasons given for adding the portables is to increase student access to a broader curriculum and to provide enrichment activities intended to increase student performance.
4. The Fisher Plaintiffs argue that inadequate attention was given to the District-wide impact of placing portables at Dietz. A related argument is made by the Mendoza plaintiffs and is addressed below. The educational opportunities that will be offered or facilitated by the addition of the portables at Dietz do not appear to be unique - similar programs are available at a number of other schools.

Mendoza Objections

A primary concern of the Mendoza Plaintiffs is that the introduction of CORE enrichment courses that will be offered in the portables should be offered throughout the District and, in particular, should be available in West Side schools. This concern was based, at least to some extent, on misinformation initially provided by the District. In the NARA submitted to the Court, the District corrects earlier information and indicates that the program at issue, which seeks to facilitate the transition of students from self-contained classrooms to classrooms that focus on particular subjects, exists at five West Side K-8 schools, one Central school, and one school on the East Side. This does not suggest that students in West Side schools are disadvantaged because some do not offer this program. Moreover, it is not clear that the program makes a substantial difference in student outcomes.

That there is variation in educational offerings across the District is not, in itself, evidence of discrimination or inequitable distribution of resources. Most school districts struggle with finding a balance between the need for common programs districtwide, especially with respect to core academic curricula, and the desirability of allowing for variation that is responsive to:

• differences in student needs
• the availability of community resources that support different opportunities
• unique capabilities of faculty
• traditions
• physical space and facilities
• experimenting with new ideas that might have district-wide usefulness.

Finding the right balance requires analyses that determine that the variation among schools does not result in differences in educational opportunities and outcomes by race, ethnicity and language facility. There is no reason to believe that the introduction of portables at Dietz would have invidious consequences for Latino or African-American students elsewhere in the District. And, 65% of the students at Dietz are Latino or African-American.

The Mendoza Plaintiffs also expressed concern that placing services that address the needs of special education students in portables might stigmatize the students or provide them with inadequate facilities. The District's counter-argument is that student privacy will be enhanced as will space for developing Individual Educational Programs (IEPs) required by law, teacher planning and family conferences, and this contention seems reasonable. The District also points out that many students who are not special-education students will be using the portables. Moreover, most of the instruction that special education students experience will be in regular classrooms. In short, stigmatization is unlikely, and portables should allow for meeting the needs of special education students more appropriately.

Recommendation

The Special Master recommends that the Court approve the District's request to install two portables, each of which has two classroom sized spaces, at the Dietz K-8 School.

Comment on the Need to improve the Consultation Process

That this relatively minor matter - the installation of two portable classroom facilities that will have no effect on integration - made its way to the Court and consumed many hours of time by all the parties and the Special Master with the attendant costs is bleak testimony to the continuing absence of trust and goodwill among the parties and the failure to develop a viable process for approving actions by the District that are subject to the provisions of the USP. On this matter and others, the Plaintiffs object to the District taking action without adequate prior consultation. The District appears to believe that it must fully develop proposals ( see Exhibit G, p.4, lines 7-10) before consultation and that it is often desirable to get approval of the Governing Board for such consultation, as is the case in the Dietz issue. And in some cases, the District engages in what can only be seen as preliminary implementation, as in the matter of the Fructhendler/Sabino restructuring that was recently before the Court.

It seems likely that the District considers consultation with the Plaintiffs and the Special Master a burden, one that impedes its responsibility to get on with the complex task of meeting the needs of its students. The District identifies what it believes to be good ideas and wants, understandably, to implement them expeditiously.

Even though the USP does not require consultation prior to the District's submission of a proposal to the Governing Board, such submissions suggests that the District does not see consultation as productive in shaping its proposals and further does not believe that the Board should be considering the positions of the Plaintiffs or the Special Master when it makes its decisions. When the District moves forward in developing a proposal without consultation, not only does it deny itself the benefit of input from the Plaintiffs and the Special Master, but it engages staff in the development of proposals in which they become invested, thus making acceptance of "external" input more difficult. When such matters go to the Board for action and approval is given, this signals to the community that something is about to be done and puts the Plaintiffs and the Special Master in a position of undermining public confidence in the District and/or in the USP.

The Court is not unaware of this problem and has consistently urged the parties and the Special Master to work collaboratively. From time to time, the parties pledge to work together more constructively and do so. But, this commitment is not consistently applied, and each time it is not, the situation can be perceived by the Plaintiffs as a lack of goodwill on the part of the District.

On the face of it, the solution seems relatively simple. When a significant proposal for new or revised District-wide policies and practices that would fall under provisions for comment and review provided for in the USP is being seriously considered by the District, the District should share these ideas with the Plaintiffs and ask for a one week turnaround for comments. If this feedback suggests that conflict might occur, a telephone conference should be scheduled and the matter discussed. A proposal could then be formalized and the procedures outlined in the USP followed. Arguably, the USP provides for relatively extensive periods of comment and the parties should discuss whether specific timelines should be shortened. The District should not take an action item to the Board about which there is continuing consultation although it surely should inform the Board of issues about which it would need to make a decision during study sessions. At the study sessions, the District should provide the Board with information about the dispositions of the Plaintiffs and the Special Master. Policies would not be enacted by the Board before Court approval in those instances in which the Plaintiffs have requested that a Report and Recommendation be made to the Court by the Special Master.

The Special Master urges the Court to require the parties to, once again, develop a viable procedure for addressing the comment and review provisions of the USP and to make a report to the Court about the results of this effort.

Exhibit A

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* * *NOTE TO PUBLIC ACCESS USERS* * * Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply.

U.S. District Court

DISTRICT OF ARIZONA

Notice of Electronic Filing

The following transaction was entered by Brown, Samuel on 5/8/2015 at 10:15 PM MST and filed on 5/8/2015

NOTICE re: Notice and Request for Approval by Tucson Unified School District re Dietz K-8 Portable Classrooms. (Attachments: # (1) Exhibit)(Brown, Samuel)

4:74-cv-00090-DCB Notice has been electronically mailed to:

Andrew H Marks amarks@markslawoffices.com

Cynthia Valenzuela Dixon cvalenzuela@maldef.org, agodinez@maldef.org

Edmund D Kahn kahnstaff@qwest.net

J William Brammer, Jr wbrammer@rllaz.com, jlinaman@rllaz.com

James Eichner James.Eichner@usdoj.gov

Jennifer L Roche jroche@proskauer.com

Jinju Park jinju.park@azag.gov, EducationHealth@azag.gov

Juan Rodriguez jrodriguez@MALDEF.org, Iaparicio@MALDEF.org

Julie Cooper Tolleson julie.tolleson@tusd1.org, margaret.leonard@tusd1.org, samuel.brown@tusd1.org

Kevin D Ray Kevin.Ray@azag.gov, EducationHealth@azag.gov

Kristian Harrison Salter kristian.salter@azbar.org

Lois D Thompson lthompson@proskauer.com

Matthew David Strieker matthewstrieker@hotmail.com

Michael John Rusing mrusing@rllaz.com, swaller@rllaz.com

Oscar Steven Lizardi olizardi@rllaz.com, smoore@rllaz.com

Patricia V Waterkotte pvictory@rllaz.com, jlinaman@rllaz.com

Rubin Salter, Jr rsjr3@aol.com

Samuel Emiliano Brown samuel.brown@tusd1.org, samuelbrownesq@gmail.com, samuelebrown@hotmail.com

Thomas A Saenz tsaenz@maldef.org

Willis Hawley wdh@umd.edu

Zoe M Savitsky zoe.savitsky@usdoj.gov, crtedu.filings@usdoj.gov

4:74-cv-00090-DCB Notice will be sent by other means to those listed below if they are affected by this filing:

The following document(s) are associated with this transaction:

Document description:Main Document
Original filename:n/a
Electronic document Stamp:
[STAMP dcecfStamp_ID=XXXXXXXXXX [Date=5/8/2015] [FileNumber=XXXXXXXX-X] [816fab8b7a7a970dc9297053fdfa01710e3495568f4499fadfe805d32752ec46330 bcb02593a6288a18a99815384e8f78e0f6a7f53f267f852204c7d4222ad44]]
Document description:Exhibit
Original filename:n/a
Electronic document Stamp:
[STAMP dcecfStamp_ID=XXXXXXXXXX [Date=5/8/2015] [FileNumber=XXXXXXXX-X] [80920c559bb6326972fdab8e28770d4d0a6f915645c501462fb67a68aee7e8ed8a9 386f6ae0bc891ea005348c32f76073d115288dab075329a727e71b5dd7714]]

Exhibit B

From: William Brammer [mailto:WBrammer@rllaz.com]

Sent: Friday, May 01, 2015, 7:24 PM

To: Willis D. Hawley; Rubin Salter Jr. (Rsjr3@aol.com); Juan Rodriguez; Lois Thompson (Lthompson@proskauer.com); Anurima Bhargava (Anurima.Bhargava@usdoj.gov); Savitsky, Zoe (CRT) (Zoe.Savitsky@usdoj.gov); James.Eichner@usdoj.gov

Cc: Julie Tolleson (Julie.Tolleson@tusd1.org); Desegregation (deseg@tusd1.org); Nodine, Bryant (Bryant.Nodine@tusd1.org); Gallegos, Ana (Ana.Gallegos@tusd1.org); TUSD

Subject: Request for consideration to approve addition of portable buildings to Dietz school campus

Dr. Hawley and counsel:

Please find attached a memo from TUSD directed to you all, attached to which is a DIA. The memo requests your consideration and approval of the district's request to add two portable buildings to the Dietz campus. As can be seen from the request, the buildings would be used for many purposes, including instruction.

This request is made with the hope we can avoid the dustup we currently are experiencing over the Fruchtendler/Sabino situation. Your approval of this proposal is solicited to the goal of all parties with the Special Master's approval stipulating that the court could enter an order approving the proposal.

If you feel you cannot approve and so stipulate, the district respectfully requests you tell us as why soon as possible so perhaps any concern you might have can be satisfied. We are hoping there will not be any concerns with this straightforward request.

As you can see from the attached, this matter just began bubbling up from the school site, so it has been brought to your attention as soon as the district had the information it believed you would want in order to consider the request. The district recognizes the need to involve you all as early in the process as possible, and this is that time.

We would like to conclude this process soon, so if the district needs to file a NARA with the court to obtain approval it can occur as quickly as possible. The district would need to have the matter resolved in time to transport and place the buildings before the beginning of school at the end of July. I would guess the court should have this matter presented to it by the middle of this month in order to have the time to consider and rule before we run out of time for the district to do whatever it must to secure placement of the buildings.

Thank you very much for your consideration of this request, and we hopefully look forward to your vote of approval. Have a terrific weekend and thanks!

Bill

CONFIDENTIALITY NOTICE - THIS ELECTRONIC MAIL TRANSMISSION AND ANY DOCUMENTS ACCOMPANYING IT CONTAIN CONFIDENTIAL OR PRIVILEGED INFORMATION BELONGING TO THE SENDER. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE PERSON TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY REVIEW, DISCLOSURE, COPYING, DISTRIBUTION OR USE OF THIS COMMUNICATION OR ANY OF THE INFORMATION IT CONTAINS IS STRICTLY PROHIBITED. ANY UNAUTHORIZED INTERCEPTION OF THIS TRANSMISSION IS ILLEGAL. IF YOU RECEIVED THIS MESSAGE ERRONEOUSLY, PLEASE IMMEDIATELY DELETE THIS COMMUNICATION AND ANY ATTACHMENTS FROM YOUR SYSTEM AND DESTROY ANY COPIES. PLEASE ALSO NOTIFY THE SENDER THAT YOU HAVE DONE SO BY REPLYING TO THIS MESSAGE. THANK YOU.

To: Dr. Willis Hawley, Counsel for Plaintiffs, Department of Justice Via Email Only

Re: Notice of the Addition of Two Portables at Dietz K-8

Dr. Hawley/Counsel:

TUSD hereby notifies the Special Master and Parties of its intention to add two portable buildings (four-classrooms) to Dietz K-8 school to accommodate growth and enhance educational opportunities for Dietz students. The District requests a stipulation to the addition based on the information provided below in hopes of avoiding a prolonged NARA process (similar to the stipulation to the sale of the Fremont parking lot this past fall). However, if one or more parties will not stipulate to the action at this time, we ask that the parties will agree to a truncated timeline (described below) as the addition of the two portable buildings is not a complex matter and we have worked diligently[1] to provide the following information on the front-end to reduce the time necessary for the parties to analyze any impacts to student assignment or to TUSD's obligations under the USP.

Background

In February 2013, the court approved the closures of several schools, and ordered the Special Master to "oversee the implementation of the recommended assurances" required pursuant to the Order. Order of February 15, 2013, ECF# 1447. One of the recommendations was that "[r]eceiving schools should not turn to portable classrooms to accommodate the influx of students from closed schools." Id . at 10.

In March 2013, in relation to TUSD's request to close schools (which included the expansion of Dietz as a receiving school), TUSD filed a NARA to renovate Dietz to facilitate the expansion from a K-5 elementary school to a K-8 school. NARA for Bond-Funded Construction Projects, March 11, 2013, ECF #1451. In its request, TUSD explained that "students attending 5th grade at Dietz will have the option to remain there as open enrollment students for 6th grade, and 7th and 8th grades will be added in future years." Id . at 4. TUSD further explained the projects were necessary "to accommodate the addition of students to these schools as a result of the school closures, " and that "the schools that are being converted to K-8 campuses have sufficient capacity but need to be modified to serve the broader age range of students. Id . at 5. No party objected to the conversion of Dietz to a K-8, and the Special Master submitted a memo to the Court recommending the approval "for bond-funded construction needed to successfully implement" the February Order, and identifying that the "projects were identified in the District's request for approval for school closures." Order of March 20, 2013 at 3 ECF# 1452.

In April 2013, after TUSD sought approval for boundary changes related to school closures, the Court ordered the Special Master to file a status report related to the recommended assurances outlined in the February 2013 Order. Order of April 26, 2013, ECF# 1468 at 6.

In June 2013, the Special Master submitted the following report to the Court related to the recommended assurance labeled "Condition D - Portables:"

Special Master's Comments
No school is adding portables to accommodate students from sending schools. However, students from sending schools could be learning in portables. There are three different conditions where this will occur:
1. When portables are used for special programs in which students will be in portables for a limited time each day.
2. If facilities under construction are not ready at the beginning of the year, students will be in the portables in the interim. This is the case at Whitmore.
3. When receiving schools have been using portables for classes in the past, students from receiving schools could be assigned to these classrooms. One of these is at Magee, where the District's Alternative to Suspension program is housed. If Howenstine students select Rincon or Cholla as their home school, they could be in portable classrooms. See section on Howenstine students below.
The District's response meets the specific provisions of the Court Order.

Currently, Dietz utilizes one portable (two classrooms) which falls under condition #3 above as Dietz has "been using portables for classes in the past" (since 2012) and students "could be assigned" to the portable classrooms for a limited time each day (either one period of Language Arts or one period of Orchestra).

Changes to Capacity

When Dietz was remodeled as a K-8 school, two classrooms were converted to project labs and one was converted to two changing rooms for physical education. These changes resulted in a reduction of capacity from 520 to 490 students. Dietz currently uses one double portable (two classrooms), which increases the capacity by approximately 50 students. Thus, it would appear that Dietz has capacity, without adding additional portables, to serve the 502 students projected for SY 2015-16. However, three factors have further reduced the capacity of Dietz:

1. The number of Exceptional Education Cross-categorical (CCS) students increased as the additional grades were added (.5 FTE added).
2. Under new leadership at Dietz, the K-8 has converted from its original model (self-contained 6-8th grade), to a more-traditional middle school model in which students rotate from room to room for core subjects and electives. In this model, teachers have planning/teaming periods so rooms are not used for instruction at least one period each day.
3. As an OMA Gold school, space is needed to provide students with resource and elective opportunities.

Impact on Integration/Desegregation

In school year 2013-14, Dietz added a 6th grade component; a 7th grade component was added in SY 2014-15. In SY 2015-16, Dietz will add an 8th grade component. In part, the necessity for additional portable buildings stems from the addition of the 8th grade component. However, the addition of the portables will have virtually no impact on the racial/ethnic makeup of Dietz's student population as outlined below (2/3 of Dietz students are African-American or Latino):

Anglo Afr Am Hisp Nat Am Asian-PI Multi Total 2014-2015, 40th Day Enrollment 111 63 225 4 8 34 445 25% 14% 51% 1% 2% 8% Anglo Afr Am Hisp Nat Am Asian-PI Multi Total 2015-2016, Projected Enrollment 124 71 255 6 8 37 502 with Change 25% 14% 51% 1% 2% 7%

Overall, the school enrollment is not projected to change much in future years; current K-5 grade sizes are all approximately 60 students (one-third of whom are non-neighborhood students), the school accepts all open-enrollment students and projected entry grades are not expected to change in the future.

Purposes for the Additional Portables

TUSD operates thirteen K-8 schools. Of those, only three K-8s are east of Country Club Road - the street used generally to mark TUSD's geographical center. Roberts-Naylor K-8 is mid-town; Booth-Fickett and Dietz are located on TUSD's eastside. Booth-Fickett is a magnet school, leaving Dietz as the only non-magnet K-8 school serving TUSD's eastside families. As a result, interest in Dietz K-8 has exceeded our 2013 projections - not due to students from the former Carson area selecting Dietz over other options (i.e. Secrist), but due to significant numbers of open enrollment students selecting the Dietz option.[2]

As alluded to above, the addition of two portable buildings would not be necessary had Dietz remained with the original model (elective-light, self-contained), and/or if Dietz had not become so attractive to open enrollment students and families.

Dietz requests the two additional portables: to improve academic achievement for 6th graders; to provide space for Exceptional Education staff, testing, and privacy; and to expand elective opportunities for K-8 students. For each of these purposes, students will only be in the portable buildings for a limited time each day.

1. Improving Academic Achievement

A new principal took over at Dietz in SY 2013-14, and she has worked hard to increase academic achievement. To this end, one portable classroom will be used as a CORE Enrichment class for all 6th graders to improve ...


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