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Fisher v. Tucson Unified School District

United States District Court, D. Arizona

September 9, 2019

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.



         2019-20 910G USP Budget

         On July 1, 2019, the District filed the 2019-20 Budget for 910G funding for implementation and operation of the District under the Unitary Status Plan (USP). Prior to filing the Budget with the Court, the parties went back and forth approximately three times addressing various concerns expressed by the Plaintiffs and the Special Master. The School Board adopted the budget on June 25, 2019.[1]

         The Plaintiffs filed objections, and the District responded. The Special Master filed the Report and Recommendation (R&R) on July 30, 2019. The Mendoza Plaintiffs and the District filed objections to the R&R. The last brief was filed by the District on August 18, 2019. With over a month having passed since the Board adopted the budget and school having already commenced, the Court rules as expeditiously as possible and approves the budget. Without these time constraints, the Court would have called for further briefing on some issues. Instead, the Court will adopt the Special Master's recommendation for a $1, 000, 000 USP set aside, contingent on further briefing of issues raised challenging the budget which have substantive programmatic implications.

         Simultaneously with the budget submission, the District also filed Notices of Compliance to directives issued by the Court in April 2019, when it found the District to be non-compliant with directives made by the Court in September 2018. The Court considers both the budget objections and the program issues because several are intertwined. Here, the Court addresses the USP budget issues.[2] The Court, simultaneously, issues a separate, second, Order to consider the Notices of Compliance and program issues.

         The Court adopts the budget as explained herein. In some instances, the Court has painted broadly to provide the District, the Parties, and the Special Master with fiscal priorities as the Court understands them for USP programs. The Court's rulings are in keeping with the Special Master's recommendation that budget decisions be based on the following: 1) expenditures should be justified by research based projects or programs that improve integration or student achievement for minority students; 2) cost-effectiveness should be considered, especially when expenditures are not research based but instead have devolved over time due to local traditions and conditions; 3) 910G funds should disproportionately benefit African American and Latino students, and 4) 910G funds should not be used to supplant Maintenance and Operations (M&O) funds. (R&R (Doc. 2246) at 3.)

         Completion Plan Budgets

         The District's spending for various USP provisions, including the Completion Plans, is spread throughout the budget and cannot be readily identified as the budget for any specified USP program and/or Completion Plan. Therefore, the Plaintiffs and the Special Master report that it is difficult to determine whether there is sufficient funding being allocated for each of the Completion Plans. The problem of determining adequate program funding is compounded where the District is allocating Completion Plan responsibilities to be performed by existing full-time employees (FTEs), raising questions about whether the District intends to add to or change existing staff responsibilities. Obviously because existing staff are FTEs, the District must be doing the latter. The Special Master reports that the District has failed to identify how many people in what positions are needed for the various USP program Completion Plans. He asks the Court to order the District to submit budgets for the implementation of the Completion Plans that remain in play where tasks are to be performed by current FTEs, the District should identify those tasks that existing staff will no longer be performing.

         The Special Master shall provide a list of the Completion Plan budgets that he needs to review and the employee information he seeks, such as identification of FTEs who are in what positions, currently performing what responsibilities related to the Completion Plans and how those responsibilities change for 2019-20. In other words, the District shall provide the Special Master with the information he requests as being necessary for him to determine whether the District has conducted a needs-based determination of staffing levels for the Completion Plans as reflected in the 2019-20 USP Budget.

         Magnet School Budgets

         The Special Master shall address the Mendoza Plaintiff's FTE concerns related to the Magnet School budgets.

         The remainder of the Mendoza Plaintiff's objection to the budget will be treated like a substantive program challenge. The Mendoza Plaintiffs, like they did last year, challenge the District's perpetuation of the same Magnet School budgets year after year after year. For example, the Holladay Elementary School (ES) 2018-19 budget allocation was $609, 332 and in 2019-20 it is $609, 332.25. The Special Master describes this as particularly troubling because this year, the District changed its budget method to actual numbers where it had previously used average teacher salaries and estimated program costs. The Mendoza Plaintiffs submit this as evidence that the District fails to make the requisite needs-based assessment, based on program effectiveness, to improve student achievement. Both the Mendoza Plaintiffs and the Special Master ask for an explanation.

         The District provides an explanation. According to the District, the Court need look no further than the Magnet Site Plans (MSPs) to see that the District is assessing the academic and integration progress at each school and, based on these program evaluations, is developing budgets based on program effectiveness and need. Each magnet school uses the Arizona Department of Education's Comprehensive Needs Assessment (CNA) process to identify school strengths and weaknesses across six School Improvement Action Plan (SIAP) Principles. Each MSP builds academic achievement strategies and efforts around three of the six CNA principles so in this way, each magnet school aligns its MSP with its SIAP, using the CNA to inform the funding needs for both.

         Simultaneous with this CNA process, the magnet department engages magnet schools in a parallel process to assess magnet staffing, programs, data, effectiveness, and needs based through the lens of the MSPs and magnet budgets.

         These two processes result in the District developing magnet budgets based on multiple sources: “the CNA, monthly site visits, reviews of quarterly reports, observations, analyses of academic progress on benchmarks, program assessments, and meetings focused specifically on developing plans and funding based on identified need.” (District Response (Doc. 2244) at 8.) “Through meetings with the magnet department, sites adjust how resources are used, but work to remain within their existing budget amounts. That budget amounts remain constant between years shows fiscal responsibility, not lack of assessment.” Id. According to the District, the Mendoza Plaintiffs have conflated “budget” with “budget amount.” Admittedly, budget amounts stay the same but the budgets change year to year because the programs change. Id. at 6.

         The District refers to Holladay ES again, as an example:

For example, the 2018-19 MSP for Holladay ES included instructional specialists (3 FTE), master teachers (3 FTE), and magnet teachers (3 FTE). Based on multiple need assessments, the District eliminated instructional specialists and master teachers, reduced magnet teachers from three to two, and added an instructional data intervention specialist (1 FTE), and teaching assistants (2.5 FTE). The 2018-19 USP budget allocation for Holladay was $609, 332 (9.5 FTE); the 2019-20 USP budget allocation for Holladay was $609, 332.25 (10 FTE). The District conducted needs assessments, worked with Holladay on how best to utilize its resources to meet those needs, and did so within the existing budget amount.

Id. at 8. The Court finds that the District stops short on its explanation. How did the need for 3 FTE instructional specialists, 3 FTE master teachers, and 3 FTE magnet teachers get whittled down to: no instructional specialists, no master teachers, and 2 FTE magnet teachers, 1 FTE instructional data intervention specialist, and 2.5 FTE teaching assistants? The Court realizes that the MSP identified the need for 9 FTE and the 910G budget allocated 9.5 FTE at Holladay ES, but FTEs are not all equal. The Mendoza Plaintiffs and the Special Master are correct, the District does need to explain how this prioritization process, seemingly designed to crunch USP program needs into predetermined budgets, does not undermine the need-based assessments to an extent that jeopardizes the effectiveness of Magnet school programs. The Court agrees to start with the MSPs. The District should provide the same comparison for each Magnet School that it provided here for Holladay ES. In addition, the Court will allow the Mendoza Plaintiffs to conduct limited discovery, through the Special Master, related to the question of whether disparities between MSPs and budget allocations for the past three years have compromised program integrity. In other words, are the Magnet School's MSP goals being realized. After discovery, the Mendoza Plaintiffs may reurge their Objection to the District's process for developing Magnet School budgets.

         Consultants, including Out-side Vendors for Tutoring Services

         The Special Master repeats his past criticism of the District's use of consultants to carry out tasks that in the future may fall to District employees because it would be a better use of 910G funds to build in-house expertise. He recommends that due to the uniqueness of TUSD operations under the USP, consultants should not be used to conduct professional training unless they have expertise in culturally responsive pedagogy and equity practices. He suggests that using multiple resources has led the District to have multiple instruments to assess professional proficiency, which could be confusing. He recommends professional training and instruments of measurement be aligned to ensure coherence and consistency. The Special Master should undertake an investigation to determine whether either of these problems exist, and if so reurge his recommendations.


         The Court, like the Special Master and the Plaintiffs, is disappointed that the District has been unable to expand the in-house model used at Cholla High School which has proved to be highly effective for affecting student success in International Baccalaureate courses. Instead, the District reports it has been forced to use private companies to provide tutoring services. Previously, the Court has considered use of tutors in the context of tutoring services being provided by AASSD and MASSD and has repeatedly held that student tutoring programs require certified teaching staff. In the event the ...

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