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Fisher v. Tucson Unified School District

United States District Court, D. Arizona

March 8, 2016

Roy and Josie Fisher, et al., Plaintiffs
v.
Tucson Unified School District, et al., Defendants, and United States of America, Plaintiff-Intervenor, 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

Notice and Requests for Approval (NARA) of Grade Reconfiguration at elementary schools Borman, Collier, Drachman, Fruchthendler and Sabino High School.

On November 16, 2015, TUSD filed the NARA proposing to add 6th-8th grades at Borman K-5; 6th grade at Collier K-5; 7th-8th grades at Drachman K-6, 6th grade at Fruchthendler K-5, and 7th-8th grades at Sabino High School. (NARA (Doc. 1869)). The parties agreed to a briefing schedule as follows: 20 days from the filing date of the NARA for the parties to file any objections previously raised with the Special Master; 20 days from the filing of any objections for TUSD to file a Response, simultaneously, with the Special Master and the Court; the Special Master to have 10 days to file a Report and Recommendation (R&R) and request expedited ruling within 30 days. The parties were allowed five days after the filing of the R&R to file an objection to any new issue raised in the R&R.

The parties filed Objections on December 7, 2015. TUSD responded on December 23, 2015. The Special Master filed the R&R on January 6, 2016. On January 13, 2016, TUSD filed an objection to “new” issues raised in the R&R related to adding 7th and 8th grades at Sabino High School, which include: 1) whether the addition improves integration at Sabino and Magee and does not exacerbate racial concentration; 2) whether the addition takes into account current and future patterns of choice; 3) whether TUSD considered valid survey data indicating significant potential for improving integration through incentive transportation with express buses; 4) whether the 7th-12th grade structure is not unusual, and 5) whether TUSD demonstrates a strong likelihood for positive integrative impacts at Magee with outreach and recruitment efforts to ensure the proposal does not negatively impact other USP obligations. TUSD asked the Court to rule by February 5, 2016.

Changes which open new middle schools and move students from one school to another are not easily undone. Missed opportunities to improve diversity may be missed forever. And of course, changes exacerbating segregation must be avoided. The Court grants the reconfiguration of Drachman, only. The NARA is denied for the remainder of TUSD’s proposed reconfigurations.

Reconfigure Drachman Elementary School K-6 to K-8.

Drachman K-6 Montessori is a nationally-recognized high-achieving magnet school located on the District’s west side on S. 10th Avenue just north of W. 22nd St. Drachman is a racially concentrated school, with 75% Latino students and an incoming class that is 68% Latino. The plan is to use incentive “express bussing” for Anglo students from the north and east sides of the District to attend Drachman K-8. All parties agree that the likely impact of adding grades seven through eight at Drachman will improve integration and afford more students an opportunity to experience an integrated school environment.

Reconfigure Borman Elementary School K-5 to K-8

Borman elementary school is located on the Davis-Monthan Air Force Base (DMAFB). It serves children of military personnel and civil servants living and working on the base. Accordingly, many of the Borman students are not TUSD students and TUSD students cannot attend Borman unless their parents or grandparents are in the military. TUSD argues that adding the middle school at Borman would have virtually no impact on the surrounding middle schools because approximately 70% of the children attending Borman do not attend TUSD middle schools. After Borman, these students move to a charter K-8 on-base school or go to middle schools outside of TUSD. TUSD seeks to add grades six through eight to compete with the on-base charter school and to discourage students at Borman from going to middle schools outside TUSD.

The Court has seen this request before. In 2007, TUSD sought and was denied leave to open then recently closed Lowell Smith Elementary School as an on-base middle school. Then as now, TUSD hoped to compete with the on-base charter school and to prevent students from going to schools outside of TUSD. See (Order (Doc. 1209), see also (Notice of Reconsideration to Reopen Smith (Doc. 1264)). Then as now, the TUSD school serving DMAFB was Roberts-Naylor K-8, which is only 3.5 miles from the front gate of DMAFB. (Order (Doc. 1209)).

In 2007, Roberts-Naylor’s student body was 82% minority, and it had “been designated a failing school under AZLearns and as “underachieving” by the No Child Left Behind Act.” Id. at 2, 4. “The Arizona Department of Education had issued a report describing its deficiencies, identifying needs and proven strategies to improve student academic performance at Naylor Middle School.” Id. (citation omitted).

According to Plaintiffs Fisher, Roberts-Naylor’s student body is now 11% Anglo making it a racially concentrated minority school. (Fisher Objection (Doc. 1877) at 7; NARA (Doc. 1880) at 3, n. 5 (TUSD estimates its minority population at 80% (58% African American; 22% Latino); (NARA (Doc. 1869), Ex. 2: Desegregation Impact Analysis (DIA) at 2)).

Borman’s Anglo student body is 54%. (NARA (Doc. 1869), Ex. 2: DIA at 4.) Borman is an A school (2013-14 SY); Roberts-Naylor is a C school (2013-14 SY). (Fisher Objection (Doc. 1880) at 7). TUSD estimates that 70% of the Borman Area students may not attend TUSD schools after the 5th grade. (Doc. 1869) at 9 (citing Ex. 2 at 5-6.) According to TUSD the Borman proposal will not change anything; it neither improves nor exacerbates ethnic imbalances. Id. It simply retains the status quo which now exists through the 5th grade and extends it through to the 8th grade.

To address any impact on Roberts-Naylor K-8, TUSD proposes to add the Advancement Via Individual Determination (AVID) program to improve its attractiveness and enhance integration there. The AVID program prepares African American and Latino students for success in core classes and Advanced Learning Experiences (ALEs) such as Gate and pre-AP classes. (NARA (Doc. 1869) at 10 (citing Ex. 2: DIA at 2)). TUSD justifies ...


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