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Fisher v. Tucson Unified School District

United States District Court, D. Arizona

October 24, 2017

Roy and Josie Fisher, et al., Plaintiffs
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,
Tucson Unified School District, et al. Defendants.


          Honorable David C. Bury, United Stales District Judge.

         Advanced Learning Experiences: Goals

         Section V, Quality of Education, Subsection A, Access to and Support in Advanced Learning Experiences (ALEs) requires the District to improve the academic achievement of African American and Latino students in part by ensuring they, including English language learners (ELL) students, have equal access to ALEs. (USP (Doc. 1713) (revised to correct typographical errors); (Doc. 1450) (original filed February 20, 2013) at § V.1 and 2.)

         ALEs are Gifted and Talented (GATE) programs, including GATE Pull-out, GATE Self-Contained, and GATE Resource; Advanced Academic Courses (AACs), including Pre-Advanced Placement (Pre-AP) courses, such as Honors, Accelerated, or Advanced; middle school courses offered for high school credit; Advanced Placement (AP) courses; Dual-Credit courses; International Baccalaureate (IB) courses; and the University High School (UHS). USP § V.A.2.a, 3-5.

         On March 3, 2014, Tucson Unified School District (the District) submitted its plan to enhance and support ALEs. On August 13, 2014, the Special Master filed a Report and Recommendation (R&R) addressing objections from the Mendoza Plaintiffs, [1] and attached the Advanced Learning Experiences (ALE) Access and Recruitment Plan (ALE Action Plan). (R&R, ALE Action Plan (Doc. 1645-2), Ex. A.)

         The Plaintiffs' objections to the ALE Action Plan were limited to the District's proposed statistical goal for assessing success: the “Not less than” 20% Rule. The Plaintiffs did not raise objections to the specifics of the detailed plan of action the District proposed to undertake to increase access to ALE programs for minority students. (Order (Doc. 1771) at 2.) Under the “Not less than” 20% Rule, discrimination may be occurring if any subgroup has a participation rate in something deemed desirable (like ALEs) that is 20% less than the subgroup's total enrollment rate in the district. The District proposed a district-wide goal of reaching this “Not less than” 20% threshold for African American and Latino students within five years.

         The Plaintiffs argued this goal was too low; there should be parity in ALE participation between White and minority students, including outcome parity for minority students participating in each ALE program. The Court rejected the “Not less than” 20% Rule as the ALE goal, but allowed it to be used as a red-flag indicator for when discrimination may exist in one of the ALE programs. The Court noted that TUSD agreed “to continue gathering and tabulating the relevant data necessary to assess each ALE program, individually[.]” (Order (Doc. 1771) at 6.) The Court afforded the parties an opportunity to work together to determine how to comprehensively measure the effectiveness of the ALE Action Plan, including increased participation of ELL students in ALE's. The Court ordered the District to file an ELL Supplement to the ALE Action Plan. Id. at 6-9.

         The District filed the ELL Supplement to the ALE Action Plan (Doc. 1788) on April 14, 2015. Again, the Plaintiffs Mendoza objected that TUSD again proposed a district-wide aggregate measurement of the effectiveness of its ALE Action Plan. The Court denied the Plaintiffs' request that it direct the Special Master to work with the parties to formulate a standard to determine whether the District achieves unitary status with respect to ALEs. The Court reasoned it had already so ordered to no avail. Because it was so close in time to the SY 2016-17 deadline for assessing unitary status, the Court found a better approach was to call for the Special Master to formulate a standard to determine whether the District achieves unitary status with respect to ALEs. Pending the Special Master's R&R, the Court did not adopt the ALE Action Plan or the Supplement. (Order (Doc. 1895)).

         On August 3, 2017, the Special Master filed his R&R. (Doc. 2041.) Again, the Mendoza Plaintiffs object (Doc. 2069), and TUSD responds to the Mendoza objections and makes limited objections to the R&R (Doc. 2073). The Mendoza Plaintiff Reply. (Doc. 2078).

         A. The Report and Recommendation

         The Special Master addresses three broad issues: ALE plan goals, 2016-17 Status of the ALE plan, and recommended improvements.

         1. Goals

         The Special Master believes the District's accountability under the USP for increasing access to ALEs should include goals to increase participation and completion rates in ALE programs. The District agrees to the first goal, but not the latter. Increasing completion rates is especially important because of the voluntary nature of participation in ALEs. It is very difficult for the District to influence increased enrollment in ALEs, but once a student is participating in an ALE program, the District has more direct influence over the student's ability to successfully complete the course by providing any needed academic support.

         The Court agrees with the Special Master and finds that his recommendation is in accordance with the USP provisions contained in § V, which include: § 1, defining purpose as ensuring equal access to ALEs; § 2.a, assigning the District the responsibility to develop ALE Access and Recruitment Plan, implement it, and develop annual goals for progress; § 2.b, requiring a school by school assessment of existing access gaps, barriers to enrollment and successful completion of ALEs offered at each school, and to develop means for tracking student access and participation; § 2.c, requiring District to develop ALE action plan including strategies to encourage enrollment, increase number of ALE students, and to support students in successfully completing ALEs; § 2.d, requiring District to recruit and encourage application and enrollment with strategies, including development and distribution of materials describing ALE programs, community based promotion of ALE programs, and providing professional development to administrators and certificated staff to identify and encourage African American and Latino students, including ELL students, to enroll; § 2.v, requires the District to ensure equitable access to ALES by assessing feasibility of testing all students at appropriate grade levels using multiple measures of selection, increasing academic preparation programs such as AVID, eliminating barriers to enrollment including providing weighted grades for pre-AP and AP students, offering free and reduced AP exams fees, waiving other participation fees, integrating ALE preparedness into summer academies, and creating structure for peer mentoring and pairing, and providing requisite resources for ALEs.

         The Special Master agrees with the District's proposed “Not less than” 15% Rule, which is more challenging than the earlier proposed “Not less than” 20% Rule. He agrees with their proposal to apply the “Not less than” 15% Rule to each ALE district-wide, except for ELL students and students with disabilities. The logic for the exclusions is due to program uniqueness, which applies equally to Dual Language ALEs. Also, without objection from the District, [2] the Special Master recommends excluding UHS because admission there is determined by an examination and prior academic performance. The Court adopts the Special Master's recommendation regarding applicability of the 15% Rule.

         The “Not less than” 15% Rule calculation compares the number of minority students for each subgroup, African American and Latino, in each ALE program to the total number of those students enrolled in the grade level in which the ALE is offered, to derive a representative percentage for the subgroup and then sets the “Not less than” 15% goal for participation in that ALE. The 15% Rule has not been applied retroactively or to individual schools. See example: Table II-Self-Contained GATE enrollment in Middle School grades 1-5 for SY 2016-2017 (Latino) (reflecting 59.85% Latino students enrolled in elementary schools grades 1-5, resulting in a 15% Rule goal of 50.87%, with a “less than” actual participation rate of 42.52%). (R&R (Doc. 2041), Attachment 1.)

         District-wide progress, or lack thereof, is reflected by actual percentage participation levels for each subgroup going back to SY 2012-2013. See example: Table II-Self-Contained GATE enrollment in Middle School grades 1-5 for SY 2016-2017 (Latino) (reflecting actual participation rates for SY 2015-16 at 43.20 %; SY 2014-15 at 46.30%; SY 2013-14 at 45%, and SY 2012-13 at 45%).[3] There is no explanation by the Special Master or the Parties regarding the reductions in participation over the life of the USP.

         As the Special Master notes, the district-wide focus “masks differences by school.” (R&R (Doc. 2041) at 11.) And, differences, if studied by the District, might lead them to solutions on how to increase access to ALEs for minority students. He recommends that the District compare individual schools by ALE to determine if either some schools and/or some ALE programs are more successful at increasing participation than others. After assessing the reasons for these differences, the District should eliminate/reduce or initiate/increase, if possible, any influences determining these differences.

         He agrees with the District that the main difference between White and minority ALE enrollments is that enrollment is voluntary and there is no accounting for parental decisions, which he describes as significantly shaped by family and community environments and these community characteristic are in turn correlated with race. Alternatively, as described by the District, “‘individual school participation rates can be heavily influenced by the racial and ethnic makeup of the particular school rather than the effectiveness of [the] school.'” (R&R (Doc. 2041) at 24).

         Nevertheless, according to the Special Master all is not lost. While the District has implemented the marketing aspects of the ALE Action Plan, the Special Master recommends as an offset to the problematic voluntary nature of ALE programs that District solicit parents of children participating successfully in particular ALEs to recruit others to participate. He believes that the shared background between these families will result in parent-to-parent recruitment efforts being highly persuasive. Peer to peer recruitment seems a viable option to more traditional marketing venues, which may or may not be warranted depending on the effectiveness of the implemented traditional marketing strategies. Cf., USP § V.2.d. (providing for community involvement as means to recruit students for ALEs)

         Misconceptions regarding disadvantages from taking ALE courses can be addressed with public education programs. See USP § VII.A.1: Family and Community Outreach (requiring District to adopt strategies to increase family and community engagement in schools, including providing information to families about services, programs and courses of instruction available in the District).

         The Special Master advises that the District can address explanations for access differences between schools, as follows: differences based on teacher interest, teacher qualifications, and grade structure (K-8 and middle schools can have different schedules). Most importantly the District should focus on developing school-wide cultures where academic excellence is valued and celebrated. According to him, an ethos of achievement can be developed and sustained by school administrators, teachers, counselors and families. Because of the District's limited ability and responsibility for overcoming socio-economic discriminatory effects, the District needs to make clear efforts to influence access where it can. This is why it is important for the District to implement measures, such as those outlined in the ALE Action Plan, which are aimed at ensuring support for African American and Latino students, once enrolled in ALEs, stay in them and successfully complete them, including taking and ...

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