Fisher v. Tucson Unified School District

          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 ...