United States District Court, D. Arizona
ORDER
HONORABLE DAVID C. BURY UNITED STATES DISTRICT JUDGE.
December
1, 2018 Benchmarks: Supplemental Notices of Compliance
On
September 6, 2018, the Court issued a comprehensive Order
finding that TUSD had attained unitary status in part for
some Unitary Status Plan (USP) programs but had not attained
unitary status in other programs. The Court made express
directives and set benchmark deadlines for compliance where
it identified specific deficiencies in respect to attaining
unitary status for specific programs. In April 2019, the
Court considered substantive programmatic objections to
Notices of Compliance filed by the District on December 1,
2018, as follows:
1)
AASSD and MASSD Operating Plans; 2) FACE Update; 3) ELL Plan;
4) Middle School Courses for Highschool Credit; 5)
Centralized Hiring Process and Certification for Placing
Beginning Teachers at Underperforming and Racially
Concentrated Schools; 6) Teacher Diversity, Grow-Your-Own
Programs, and Attrition; 7) Inclusive School Environments and
Cultures of Civility, and 8) Professional Learning for
Technology. (Order (Doc. 2217), see also (Order
(Doc. 2213)).
In
April 2019, agreeing in part with objections made by the
Plaintiffs and the Special Master to the December 1, 2018,
Notices of Compliance filed by the District, the Court
required the District to make immediate, but not longer than
30 days, revisions to bring the District into compliance with
the September 6, 2018, Order. The Court ordered the District
to show good cause for any further delays in compliance.
(Order (Doc. 2217) at 15.) The Court also ordered the
District to prepare an Executive Summary by December 1, 2019,
to address the interconnectedness of the Unitary Status Plan
(USP) programs before the Court reconsiders unitary status.
(Order (Doc 2213) at 12-20.)
On May
22, 2019, the District filed Supplemental Notices of
Compliance, [1] except on July 1, 2019, the District filed
the Supplemental Notice of Compliance related to the Study of
Strategies for Fostering Inclusiveness and Cultures of
Civility. The Mendoza Plaintiffs have filed Supplemental
Objections. There were no replies. The Special Master has
filed a Report and Recommendation (R&R).
1.
AASSD and MASSD Operating Plans
As
noted in its Orders issued in April 2019, the Plaintiffs did
not make substantive objections to the AASSD and MASSD
Operating Plans, but the Court nevertheless, based on
recommendations from the Special Master, ordered revisions to
be made by September 1. 2019, (Order (Doc. 2213)).
2.
FACE Update
In
addition to FACE Update revisions due on September 1, 2019,
to reflect program interconnectivity (Order (Doc. 2213), the
Court ordered the District to file a Notice of Compliance
with this Court's directive that it immediately ensure,
including updating the FACE Plan, that individual school
websites are kept current regarding family engagement events,
including but not limited to site council, PTO, SCPC, and
Governing Board meetings. (Order (Doc. 2217) at 4.) The
District filed the Supplemental Notice of Compliance (Doc.
2219) reflecting that the FACE Plan now requires school staff
to keep websites updated and current regarding these events.
Plaintiffs do not object to the update.
3.
ELL Plan.
In
addition to FACE Update revisions due on September 1, 2019,
to reflect program interconnectivity (Order (Doc. 2213), the
Court ordered the District to, during this year's annual
review, determine whether the ELL dropout goal is
sufficiently ambitious. The Court clarifies that this review
and determination shall be set out in the 2018-19 District
Annual Report (DAR), excerpted and simultaneously filed as a
Supplemental Notice of Compliance which may contain
additional supporting documentation and/or memorandum. (Order
(Doc. 2217) at 5.)
4.
Middle School Courses for Highschool Credit
In
April, the Court found that no further action was necessary;
such courses were being provided at all middle and K-8
schools. (Order (Doc. 2217) at 6.)
5.
Centralized Hiring Process and Certification for Placing
Beginning Teachers at Underperforming[2] and Racially
Concentrated Schools
In
it's April Order, this Court made several clarifications,
beginning with its assurance to the parties that it was not
confused by their respective arguments over whether there
were or were not too many first-time, inexperienced teachers,
teaching at underperforming or racially concentrated schools.
Ignoring discrepancies in the District's data as to the
exact number of such teachers, the Court noted: “It is
undisputedly ‘clear that in developing the USP no one
intended that the number of beginning teachers in what some
call ‘hard to teach schools' would be as great as
it is.'” (Order (Doc. 2123) at 43 (citing (Special
Master Reply (Doc. 2111) (Second Reply) at 14)). “The
importance of limiting the number of beginning teachers in
these schools cannot be overstated because good experienced
teachers are the most important factor needed to improve
student achievement.” Id. See also (Order
(Doc. 2217) at 6 (reiterating that there are too many
beginning teachers teaching at underperforming or racially
concentrated schools).
In
response to the Supplemental Notice of Compliance, as it did
to the original Notice of Compliance, the Mendoza Plaintiffs
complain about inconsistency in TUSD's data and point out
that Exhibit B2, First Year Teachers at Underperforming
Schools Pre and Post Observational Rubric, reflects 92
teachers, which does not coincide with TUSD's previous
representation of 54 first-year teachers for SY 2018-19.
(Mendoza Objection (Doc. 2227) at 3.) The Court cannot ignore
the inconsistency because accurate identification and
tracking of beginning teachers is essential to an effective
beginning teacher support program and to the District's
910G Budget for beginning teacher mentors. The first is
relevant here. The second is relevant to the Order being
issued simultaneously with this Order, approving the 2019-20
budget.
The
Mendoza Plaintiffs challenge the District's strategies
for support for beginning teachers teaching at
underperforming and racially concentrated schools, Study of
Strategies for Support of First Year Teachers (Supplemental
Notice of Compliance (Supp. NC), Exhibit B (Doc. 2222-2) at
2-7), as lacking any follow-up second-year support strategies
for teachers who are underperforming at the end of the first
year. Id. at 5-7. The Mendoza Plaintiffs complain
that the certification process reflected in the Certification
Form undercuts the Court approved Centralized Process for
Hiring Teachers which requires “a written statement of
those circumstances justifying hiring a beginning teacher for
a position at a racially concentrated or underperforming
school.” (Centralized Process for Hiring Teachers
(2155-1) ¶8.) According to the Mendoza Plaintiffs, they
understood that a description of the efforts that were made
to fill the position with a more qualified and/or more
experienced candidate would be provided by the District, and
the form fails to provide for such a statement. Instead, the
form allows reasons for hiring beginning teachers in
underperforming and racially concentrated schools that are
not related to unavailability of more experienced teachers:
“Promotes a diverse teaching staff” and
“School has 3 years of above District average AZMerit
scores in ELA and Math.” The Mendoza Plaintiffs also
complain that the checklist Certification Form omits creation
of an “individualized mitigation plan for the
placement” and “suggests” that the
determination of whether to certify the assignment may be
made prior to identifying individualized mitigating
strategies for the placement. (Mendoza Objection (Doc. 2227)
at 4-5.)
In
April 2019, the Court ordered the District to show good cause
why it had not conducted the planned study to establish
criteria for making individualized case-by-case
certifications for placing beginning teachers at
under-performing and racially concentrated schools. The Court
clarified that it had approved the District's centralized
process for hiring teachers, except its omission of the
beginning teacher certification criteria, including
individualized mitigating strategies, to be applied when
determining whether to allow a beginning teacher placement at
an underperforming or racially concentrated school. The Court
suggested a checklist type of certification process and
broadly discussed certifying beginning teacher appointments
to improve teacher diversity at racially concentrated schools
and at racially concentrated schools with at least 3 years of
above District average AZMerit scores in ELA and Math. (Order
(Doc. 2217) at 7-8.)
The
Court criticized the District for essentially offering
support strategies to beginning teachers teaching in
hard-to-teach underperforming schools that are nothing more
than support strategies offered to all beginning teachers.
The Court ordered: “The District shall
identify strategies aimed at supporting beginning teachers in
these hard-to-teach schools, such as: reduced class size,
reduction in the number of classes taught, limiting the
number of beginning teachers at any given school, and having
classes co-taught.” (Order (Doc. 2217) at 7-8)
(emphasis added).
The
District's Supplemental Notice of Compliance includes: a
proposed checklist form, Exhibit A: Certification Form, to be
completed whenever the District finds it necessary to hire a
first year teacher for a position at a racially concentrated
or underperforming school, and Exhibit B, Study of Strategies
for Support of First Year Teachers, which also identifies the
District's currently employed strategies, the Beginning
Teacher Performance Rubric, the Rubric Report for beginning
of the year (BOY) and end of the year (EOY), and a synopsis
of the various teacher-support studies reviewed by the
District. As the Court understands the Supplemental Notice of
Compliance, the District has, based on these best-practices
studies, formalized the process for certifying assignment of
a first-year teacher to an underperforming or racially
concentrated school.
To
off-set the negative impact of placing inexperienced teachers
in these schools, the District proposed, and the Court
approved, providing teacher-mentors to new teachers during
their first two years of teaching: first-year teacher mentor
ratios 1:10 at underperforming and racially concentrated
schools, 1:15 (2 points) at all other schools; second-year
teacher mentor ratios 1:15 (2 points) at underperforming and
racially concentrated schools, 1:15 (1 point) at all other
schools. (TUSD Objection to R&R (Doc. 2256) at 6) (citing
(Order (Doc. 2086) at 5, 7-8.))[3] On September 6, 2018, the Court
ordered the District to study support strategy alternatives
to offset the negative impact of a beginning teacher to the
extent practicable. The Court ordered that “either the
Superintendent or his delegate shall strategically
grant exceptions to the prohibition against placing beginning
teachers in racially concentrated or under-achieving schools,
including mitigating strategies. The Superintendent shall
certify each exception and expressly identify the strategies
being employed in the school to mitigate the negative impact
of the beginning teacher appointment.” Id. at
45 (emphasis added).
For the
purpose of reducing the number of appointments of beginning
teachers in lower achieving schools, where a beginning
teacher appointment cannot be avoided, the Court ordered the
District to, pursuant to the study, “identify
mitigating strategies which must be in place at a school for
such an appointment to be approved. These mitigating
strategies shall inform on a case by case basis the
Superintendent's certification of each exceptional
placement, with the certification expressly identifying the
mitigating strategy or strategies being employed in the
school where the beginning teacher is being
appointed.” (Order (Doc. 2123) at 45) (emphasis
added).
In
April 2019, the Court rejected the District's assertion
that placing beginning teachers at underperforming and
racially concentrated schools “‘was not a major
issue'” and “besides little can be done
because in all instances of these placements there were no
other more experienced teacher applicants.” (Order
(Doc. 2217) at 6.) For the Court's rationales, the
parties may re-read the Court's prior orders, but in
summary the Court meant to preclude carte blanch appointments
of beginning teachers in underperforming or racially
concentrated schools. The Court ordered the District to
conduct the study and to comply with the directives contained
in its September 6, 2018, Order.
The
Court reiterates its discussion from the September 6, 2018,
Order because as noted, therein, the Green factors
cover things that readily identify a school as White or
Black, such as the racial composition of staff or quality of
school buildings and equipment, and in the context of
educational resource allocations, those type of things
include teacher assignments for teachers with advanced
degrees or more experience, --then a prima facie case of
violation of substantive constitutional rights under the
Equal Protection Clause is shown. (Order (Doc. 2123) at 10
(citing (Order (Doc. 1119) at 16 (citing Swann v.
Charlotte-Mecklenburg Bd. Of Ed., 402 U.S. 1, 18 (1971);
Freeman v. Pitts, 503 U.S. 467, 482-83 (1992)). The
USP § IV.E.5 “requires that TUSD ‘increase
the number of experienced teachers and reduce the number of
beginning teachers hired to teach in racially concentrated
schools or schools in which students are
‘underachieving academically.'” (Order (Doc.
2123) at 42 (quoting (Order (Doc. 2086) at 5) (addressing for
budget purposes staffing ratios for peer-mentoring of
beginning teachers placed at these schools)). “This is
an issue which affects student achievement because
inexperienced teachers are less ...