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Fisher v. Tucson Unified School District

United States District Court, D. Arizona

January 26, 2016

Roy and Josie Fisher, et al., Plaintiffs and United States of America, Plaintiff-Intervenor,
v.
Tucson Unified School District, et al., Defendants, and Sidney L. Sutton, et al., Defendants-Intervenors, Maria Mendoza, et al., Plaintiffs, and United States of America, Plaintiff-Intervenor,
v.
Tucson Unified School District, et al. Defendants.

ORDER

David C. Bury United States District Judge

Teacher and Principal Evaluations (TPE)

On August 28, 2014, at the request of the Mendoza Plaintiffs, the Special Master filed a Report and Recommendation (R&R) related to TUSD’s Teacher and Principal Evaluations (TPE). He recommended that the Court direct TUSD to submit Action Plans for dealing with the procedures for evaluating teachers and principals. (Doc. 1659.) Correspondingly, the Special Master had reported in his 2014 Annual Report, that the development of teacher and principal evaluation procedures was delayed. (Doc. 1641.)

TUSD took the position that it had developed such procedures and would begin training to implement them in SY 2013-2014, and the USP did not require the development of an Action Plan for this task, which would trigger USP review and comment by the Plaintiffs and Special Master. The Court found: “The teacher and principal evaluation procedures at issue in this R&R are new and will involve significant changes contemplated to implement the USP, such as basing evaluations on effective efforts to include, engage, and support students from diverse racial, ethnic, cultural, and linguistic backgrounds using culturally responsive pedagogy.” (Order (Doc. 1760) at 3.) The Court found the express and unambiguous terms of the USP § I.D.1, [1] therefore, required the Special Master and the Plaintiffs to have an opportunity to review and provide input regarding Teacher Evaluation Procedures and Principal Evaluation Procedures. The Court ordered TUSD to prepare an Action Plan and afford the Special Master and the Plaintiffs an opportunity to review and provide input prior to final scheduled approval by the Board of the teacher and principal evaluation procedures. Id. at 3-4, 6.[2]

A year to the day after the first R&R related to teacher and principal evaluations, on August 28, 2015, the Special Master filed a second R&R, again at the urging of the Mendoza Plaintiffs. The section of the USP at issue is § IV.H, which provides, with emphasis added as follows:

By July 1, 2013, [3] the District shall review, amend as appropriate, and adopt teacher and principal evaluation instruments to ensure that such evaluations, in addition to requirements of State law and other measures the District deems appropriate, give adequate weight to: (i) an assessment of (I) teacher efforts to include, engage, and support students from diverse racial, ethnic, cultural, and linguistic backgrounds using culturally responsive pedagogy and (II) efforts by principals to create school conditions, processes, and practices that support learning for racially, ethnically, culturally and linguistically diverse students; (ii) teacher and principal use of classroom and school-level data to improve student outcomes, target interventions, and perform self-monitoring; and (iii) aggregated responses from student and teacher surveys to be developed by the District, protecting the anonymity of survey respondents. These elements shall be included in any future teacher and principal evaluation instruments that may be implemented. All teachers and principals shall be evaluated using the same instruments, as appropriate to their position.

By September 25, 2015, the parties had resolved all but two of the Mendoza Plaintiffs’ concerns that prompted their request for the R&R. The Special Master filed a revised R&R addressing only those two issues: 1) whether TUSD agrees to reassess the effectiveness of the teacher evaluation process, if the Mendoza Plaintiffs agree to accept 10 percent, as proposed by TUSD, instead of 17 percent, as proposed by the Special Master, for weighting student surveys in teacher evaluations; and 2) whether teacher and student surveys should be weighted, aggregately, as proposed by TUSD at 10 percent in principal evaluations or at 17 percent as proposed by the Mendoza Plaintiffs and Special Master. (R&R (Doc. 1845)).

As noted by the Special Master: “[T]he two most important in-school influences on student outcomes are teacher and principal effectiveness. Moreover, these are interrelated. Any district’s ability to foster improvement of teacher and principal performance depends on having good knowledge of the level of effective practice. Thus, teacher and principal evaluation plans are critically important to achieving the goals of the USP.” (R&R (Doc. 1845) at 3.) This explains the context for the Mendoza Plaintiff’s request for the R&R.

In the context of TUSD’s objections to the Special Master’s recommended 17 percent, TUSD refuses to “consider the weights assigned to surveys of teachers and students despite analysis of its own staff concluding that the impact of the [10%] weights identified in both plans will be negligible.” Id. at 3, see also (TUSD Objection (Doc. 1853) at 1-3, 4-6.)

In its Objection to the R&R, TUSD informs the Court that it “agrees to review the efficacy of the weight assigned to student surveys as they inform teacher evaluation and does not address that issue further.” (TUSD Objection (Doc. 1853) at 2.) This agreement resolves the first issue addressed in the R&R, but TUSD has agreed to do no more than it is required to do under the law, the USP, and the Court’s January 6, 2012, Order. Cf., Fisher v. TUSD, 652 F.3d 1131, 1141-42 (9th Cir. 2011) (citing this Court’s findings that TUSD failed to make the most basic inquiries necessary to assess the ongoing effectiveness of student assignment plans and failed to assess program effectiveness to address racial imbalances as impossible to reconcile with a finding that TUSD acted in good faith to cure vestiges of segregation to extent practicable); see Order (Doc. 1350) at 7-8, § III: Ongoing Oversight (requiring Special Master’s oversite to include annual reports to include evaluation of the effectiveness of programs and provisions established in the USP and recommendations for further review or revisions to these programs and provisions); USP § X: Accountability and Transparency (requiring evidence-based accountability and incorporating the oversight role of the special master as described in the January 6, 2012, Order). Like all the USP provisions, TUSD must review them on an on-going basis for efficacy and, therefore, TUSD must review both the teacher and principal evaluation procedures and instruments especially given the arbitrary nature of the weights set here.

According to TUSD: “The parties are before this Court, incurring thousands of taxpayer dollars for the Special Master, TUSD and Plaintiffs to litigate a 7% weight allocation in principal evaluation instruments, when this decision should be left with TUSD.” (TUSD Objection (Doc. 1853) at 2.) TUSD asks the Court to review this issue de novo, Fed.R.Civ.P. 53, and uphold the District’s evaluation instruments if it “‘conforms to the consent decree entered into by the parties and … is compatible with the Constitution.’” (TUSD Objection (Doc. 1853) at 4 (quoting United States v. South Bend Community School Corp., 511 F.Supp. 1352, 1360 (N.D. Ind. 1981)). Here, the Mendoza Plaintiffs and the Special Master assert the Teacher Principal Evaluation (TPE) procedures do not conform to the USP.

TUSD argues that if the Court sets the weight for student and teacher surveys for principal evaluations, it will be acting as a ‘super school board’ by micro-managing a programmatic decision which should rightfully be left to the District. Id. at 4 (citing Anderson v. Canton Mun. Separate School Dist., 232 F.3d 450, 454 (5th Cir. 2000); Richmond Welfare Rights Org. v. Snodgrass, 525 F.2d 197, 207 (9th Cir. 1975); Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 12 (1971) (citing Brown v. Bd. of Ed., Brown II, 349 U.S. 249, 299 (1955) (“School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts [] have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles.”)) TUSD asserts that “the USP expressly affords TUSD discretion in this instance”: to determine what is “adequate” weight to afford the teacher and student surveys in principal evaluations. Id. at 5.

The Court does not agree. The concept of adequacy, i.e., “being good enough, ” is not wholly discretionary. It is used in the context of principal evaluations, required pursuant to the USP, which provides that TUSD adopt a principal evaluation instrument using a rubric which gives weight to three things: 1) the efforts by principals to create school conditions, processes, and practices that support learning for racially, ethnically, culturally and linguistically diverse students; 2) the use of classroom and school-level data to improve student outcomes, target interventions, and perform self-monitoring; and 3) aggregated responses from student and teacher surveys which protect the anonymity of survey respondents. Of course, TUSD may consider other things such as state law requirements and other appropriate measures. (USP (Doc. 1713) § IV.H.) TUSD proposes the following weighting rubric: 1) Principal Performance (57%); Student Academic Progress (33%); SAI (the Arizona Department of Education Teacher Survey on Leadership (2%); TUSD Teacher Survey (4%), and TUSD Student Survey (4%). The rubric provides for 100 total points.

The Special Master explains that the State guidelines constrain the number of points that can be assigned to teacher and student surveys to 17% and that the parties agreed to attribute 10 points to student surveys in teacher evaluations. Plaintiffs Mendoza and the Special Master believe 10% is too low, but as noted above they agreed to it for this year contingent on TUSD’s review of its efficacy to evaluate principal performance required pursuant to the USP. TUSD admits the 10-points are “negligible” in assessing a teacher’s overall score. This is because the results of the Danielson observations, Principal Performance) are weighted the most heavily and at 57% will have the greatest impact on a teacher’s overall score. Academic Growth represents 33% of the total model so that it can impact a teacher’s overall ...


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