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Fisher v. United States

United States District Court, D. Arizona

July 30, 2019

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.

          SPECIAL MASTER'S REPORT AND RECOMMENDATION RELATED TO THE 2019-20 BUDGET

          DR. WILLIS D. HAWLEY, SPECIAL MASTER

         Introduction

         The Special Master is making two reports to the Court with respect to (1) the District's proposed budget for 2019-20 and (2) the District's compliance with the budget process. This report deals with the former. On June 6, 2019, the Special Master prepared a draft of his report and recommendation related to the 2019-2020 budget with respect to the expenditure of 910 G funds.[1] The Special Master submitted this draft to the parties inviting corrections relating to facts and omissions. The District (see Exhibit 1) and the Fisher (see Exhibit 3) and Mendoza (see Exhibit 2) plaintiffs provided comments on the draft and those influenced the R&R filed with the Court June 25, 2019. The District then amended its budget and the Mendoza in Fisher plaintiffs filed further objections on July 13 and July 22.

         This R&R should be substituted for the Special Master's June 25 R&R to facilitate the Court's analysis. In this R&R, the Special Master focuses on the objections to the amended budget by the plaintiffs and his own objections to elements of the budget that the District has chosen not address in its final budget submitted to the Governing Board. The Special Master has also read the July 26, 2019 filing by the District which involves a response the Mendoza objections and those of the Special Master.

         An assessment of the District's budget with respect to the use of 910 G funds is inherently problematic. At least two distinctive characteristics of this case complicate the budget review. First, the USP covers of a much broader scope of District activity than most desegregation plans so there are many more issues that affect the decisions that the District makes. Second, there is a sizeable amount of money involved the uses of which our debatable. The District has the legal authority to allocate funds to particular priorities and the plaintiffs and the District, particularly at this stage of the District's pursuit of unitary status, should be given wide berth in the decisions that it makes. This means that the objections of the plaintiffs and the Special Master cannot be grounded on preferences and personal experience. In making objections and recommendations, the Special Master has been guided by the following decision rules with respect to objections:

1. Whenever possible, proposed expenditures should be justified by research. When research is inadequate, expert consensus can be substituted for research.
2. A great many activities in which schools engage are not based on research but on local traditions and conditions. Objections to these practices should be sustained if there is evidence of feasible and more effective strategies to achieve the relevant goals.
3. Expenditures should be targeted on high priority goals that have been clearly identified by the Court or the Governing Board or school leaders vested with relevant authority.
4. The beneficiaries are disproportionately African American and Latino students. This is a desegregation case with a specific amount of funds meant to remedy past discrimination and segregation.
5. 910 G funds should not be used to supplant M&O funds.

         Prior to the award by the Court of unitary status, the parties should agree on the decision rules with respect to the allocation of resources. These decision rules should include formula for adding resources so as to minimize the conflict among the parties going forward.

         Funding for Completion Plans

         There are no funds specifically identified as resources to implement the many completion plans that the District has been ordered by the Court to put in place. When asked about the absence of such funding for the completion plans that must be carried out in order for the District to receive unitary status, the District initially indicated that it would include such expenditures in the third version of the budget. Subsequently, the District indicated that these funds were spread throughout the budget and could not be readily specified. In general, the District appears to believe that it can implement these completion plans, as well as all of the actions it is already undertaking, by assigning the responsibilities for implementing completion plans to existing staff. This practice by the District means that the plaintiffs and the Special Master cannot assess the adequacy of the District's budget proposals for the coming year. It may be that a significant number of District staff are working on tasks that no longer require their efforts or that full-time staff are not, in fact, working full time. In other words, how can staff take on important new responsibilities without undermining the work that they have been engaged in thus far? If either of these explanations explain how existing staff responsibilities essential to the achievement of unitary status, the District should undertake a reevaluation of the duties of current staff.

         In defense of position, the District makes some interesting arguments about budgeting, arguments that the Special Master, who teaches courses on strategic budgeting, finds untenable. The District argues, for example, that there is no relationship between programmatic change and program costs. Further, throughout it critique of the positions taken by the Mendoza plaintiffs and the Special Master, the District implies that it can develop implementation plans without identifying how many people in what positions will be needed.

         Recommendation

         The Court should require the District to submit budgets for the implementation of the completion plans that remain in play. In those cases where the tasks are performed by current employees, the District should identify those tasks that these individual employees will no longer be performing. The Fisher and Mendoza plaintiffs agree with the Special Master's objection and his recommendation.

         Funding for Consultants

         The Special Master and the Fisher and Mendoza plaintiffs have raised questions about the hiring of consultants to carry out tasks that could in the future be the responsibility of District staff. The Special Master has consulted with researchers familiar with District budgets and discovered that the amount invested by the District is not unusual. However, the District is poised to become a national leader in the implementation of culturally responsive and equity focused practices. In almost all cases where consultants are hired to undertake professional development, they bring with them and share with District staff their particular take on whatever the task is they are asked to facilitate. This means that the repertoire of knowledge and skills that the consultants seek to train District staff to undertake are unlikely to emphasize the importance of culturally responsive pedagogy and equity practices. When this is the case, District staff are likely to be confused about what the District priorities are. District staff is almost certainly confused already about priorities when they are evaluated by a number of different instruments that emphasize different priorities and use different language for assessing teacher and administrators' behavior. A senior member of the District leadership team indicated to the Special Master that there were 11 different instruments in TUSD used to assess staff practices.

         Recommendation

         The Special Master believes that the allocation in the proposed budget for consultants is satisfactory assuming that the District intends, as it professes to do, to use consultants to build internal capacity for those practices that prove to be effective. He strongly recommends that the District examine the alignment of the various instruments used to assess teacher and administrator behaviors and that it hire consultants who share the District's commitment to culturally responsive and equity practices. Since it is unlikely that most of the consultants available have relevant expertise, the District should ensure that consultants reinforce rather than undermine the District's efforts to ensure that culturally responsive and equity practices are implemented by all staff. In addition, the District should undertake a review of various instruments used to assess the effectiveness of teachers and administrators to ensure coherence and consistency.

         Out-of-state Travel for Recruitment

         The USP specifies that the District should make efforts to recruit African American and Latinx professional staff from throughout the country and especially in historically black colleges and universities. These efforts are costly and they have been unproductive. This is not surprising. Arizona's funding for public schools and teacher salaries are among the lowest of all the states in the union. This means that TUSD is competing for teachers and administrators, especially African American professionals, with Districts that not only pay more but are more likely to have larger African American populations and the social infrastructure that affects the quality of life of African Americans.

         Recommendation

         The Court should advise the District that out-of-state travel for recruitment of professional staff is henceforth discretionary.

         Reduction in the Number of Mentors Servings Beginning Teachers in Underperforming Schools

         Research in other Districts shows that beginning teachers who are teaching in underperforming schools are more likely to leave the profession if they are not provided extra support. The USP reflects that reality. However, the District had reduced the number of teacher mentors. It justified this action by saying that there are fewer beginning teachers being hired and fewer still being assigned to low performing schools and that Curriculum Service Providers can undertake the responsibilities once performed by mentor teachers. The District has since agreed not to use CSPs this way. However, the formula for allocation of mentors remains opaque and is misstated by the District in its July 26 and would need to be amended clarified if the Court were to act on the following recommendation by the Special Master.

         Reco ...


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