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Fisher v. Tucson Unified School District

United States District Court, D. Arizona

September 5, 2018

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.


          David C. Bury, Judge

         Adoption in Part and Modification in Part: SY 2016-17 SMAR & Unitary Status

         Table of Contents

         Historical Perspective: Unitary Status Review ................................................................................. 4

         Special Master's 2016-17 Annual Review (SMAR): Unitary Status Review ..................................... 7

         1. Student Assignment: USP § II ................................................................................................. 15

         a. § II.E: Magnet Schools and Programs ................................................................................ 19

         2. Transportation: USP § III ........................................................................................................ 34

         3. Administrators and Certificated Staff: USP § IV ..................................................................... 38

         a. Increasing Diversity ............................................................................................................ 39

         b. Reducing Attrition .............................................................................................................. 40

         c. Grow-Your-Own (GYOP) ..................................................................................................... 41

         d. Placement of Beginning Teachers. . .................................................................................... 42

         4. Quality of Education: USP § V ................................................................................................ 45

         a. § V.A: Advanced Learning Experiences (ALEs) ................................................................... 45

         a-1. District-Wide ALEs ...................................................................................................... 51

         a-2. GATE Programs: Elementary Schools and K-8 (grades 1-8) ....................................... 53

         a-3. AACs and GATE Resource: Middle Schools, K-8 (grades 6-8) and High Schools ........ 59

         a-4. ALE Action Plan: Effectiveness of Planned Strategies. . .............................................. 63

         a-5. Summary: ALE Policy Manual ..................................................................................... 97

         b. § V.C: Dual Language Programs ......................................................................................... 98

         c. § V.D: Exceptional Education ........................................................................................... 101

         d. § V.E: Student Engagement and Support ......................................................................... 103

         d-1. Academic Intervention and Dropout Prevention ..................................................... 104

         d-2. ..... Culturally Relevant Curriculum (CRC) and Professional Development and Training for CRC ............................................................................................................................... ........ 105

         d-3. Support Services for African-American and Latino students and Support for Parent and Community Participation .............................................................................................. 118

         e. Maintaining Inclusive School Environments: USP § V.F ................................................... 122

         5. Discipline: USP § VI .............................................................................................................. 124

         6. Family and Community Engagement: USP § VII .................................................................. 132

         7. Extracurricular Activities: USP § VIII ..................................................................................... 137

         8. Facilities and Technology: USP § IX ...................................................................................... 138

         a. Facilities ........................................................................................................................... 138

         b. Technology ....................................................................................................................... 139

         9. Accountability and Transparency: USP § X .......................................................................... 140

         a. Evidence Based Accountability ........................................................................................ 140

         a-1. Professional Learning: Professional Development .................................................. 143

         b. Budget .............................................................................................................................. 146

         Conclusion ............................................................................................................................... ..... 147


         Historical Perspective: Unitary Status Review

         Prior to launching into what will be the most comprehensive analysis of the unitary status of the Tucson Unified School District (the District/TUSD), to be done since the adoption of the Unitary Status Plan (USP) in February 2013, the Court provides a brief historical perspective of this case.[1] In 1974, two class action lawsuits were filed alleging segregation in TUSD between White students and African-American students (Fisher Plaintiffs), CV 74-90 TUC DCB, and Mexican-American students (Mendoza Plaintiffs), CV 74-204 TUC DCB. The cases were consolidated in 1975 and went to trial in 1977.[2]

         In 1978, the Court found that de jure discriminatory segregation existed in TUSD. Regardless of the fact that only Black students were statutorily prohibited from attending White schools, Judge Frey found that even as the District dismantled the “dual Black and White school system and, thereafter, there existed some intentional segregation of minority students (Black and Mexican-American) from Anglo-students.” (Order (Doc. 1119) at 15 n.9), [3] see also Fisher v. Tucson USD, 652 F.3d 1131, 9781 n.9 (9th Cir. 2011) (citing finding of de jure discrimination without criticism). Judgment was entered for Plaintiffs, but nevertheless both Plaintiffs filed motions to amend the Court's findings and prepared to appeal.

         Then, the parties entered into a Settlement Agreement to resolve the consolidated case. “It appears likely that the Settlement Agreement resolved the appellate issues raised by the class Plaintiffs because Judge Frey approved it without ruling on the pending motions and ordered that the Stipulation would be the controlling Order of the Court.” (Order (Doc. 1119) at 4-5); Fisher, 652 F.3d at 1137 n.10 (quoting Settlement Agreement as providing once it was implemented: “the rights and obligations of the parties to be determined solely by its terms and the terms of any subsequent stipulations or orders entered herein pursuant to it.”)

         The 1978 Settlement Agreement provided for TUSD to implement “its proposed desegregation plans in a number of specified schools, cooperate with parents to develop and examine future student assignment policies at several additional schools, and eliminate discrimination in faculty assignments, employee training, and in polices on bilingual education, testing, and discipline.” Fisher, 652 F.3d at 1137 (citing Mendoza, 623 F.2d at 1342). The Settlement Agreement prohibited TUSD from “engaging ‘in any acts or polices which deprive any student of equal protection of the law' based on race or ethnicity.” Id.

         The District was supposed to operate for five years under the terms of the Settlement Agreement before TUSD could file a motion to dissolve it. Around the end of this period, in 1983, the Arizona State Legislature enacted a funding provision, A.R.S. § 15-910G, to allow school districts operating under court orders to generate additional tax revenues above and beyond educational spending limitations to pay for desegregation activities. By and large the express provisions of the Settlement Agreement had been implemented within the five year period, but the case did not end. (Order (Doc. 1119) at 8, 10, 18, 23.) Instead, TUSD spent millions of dollars, id., over the course of approximately twenty years before the Court called for TUSD to show good cause why unitary status had not been attained. (Order (Doc. 1052)). The question was briefed by the parties, and on April 24, 2008, this Court found unitary status had been attained, but not without finding some fault with the District's failure to consider the effectiveness of the programs financed by desegregation dollars over this extended period of time. (Order (Doc. 1270)). This Court's decision was reversed by the Ninth Circuit Court of Appeals on August 10, 2011.

         The case was remanded to this Court “to maintain jurisdiction until it is satisfied that the School District has met its burden by demonstrating - not merely promising-its ‘good-faith compliance . . . with the [Settlement Agreement] over a reasonable period of time.'” Fisher v. Tucson USD, 652 F.3d at 1143-44 (quoting Freeman, 503 U.S. at 498 (1992)). “The court must also be convinced that the District has eliminated ‘the vestiges of past discrimination . . . to the extent practicable' with regard to all of the Green factors.” Id. at 1144 (quoting Freeman, 503 U.S. at 492).

         “The Green factors are such things ‘where it is possible to identify a ‘white school' or a ‘Negro school' simply by reference to the racial composition of teachers and staff, the quality of school buildings and equipment, or the organization of sports activities.'” (Order (Doc. 1119) at 16 (quoting Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 18 (1971)). In the context of educational resource allocations, there are other factors such as teacher assignments for teachers with advanced degrees or more experience, availability of library books, and per-pupil financial expenditures. Id. (citing Freeman, 503 U.S. at 482-83).

         Upon returning the case to its active docket, the Court appointed the Special Master to develop a plan by which the District would attain unitary status. Given the history of the case, this Court directed the plan to be specifically designed to address the Green factors relevant to attaining unitary status in this case and for a plan of action that would avoid a repeat performance of the District operating under court jurisdiction in perpetuity. The parties entered into a stipulated plan, i.e., a consent decree: the USP. The Court adopted the USP in 2013. The USP called for the development of specific action plans for each of its provisions, implementation of the action plans, operation pursuant to the action plans for a time period sufficient for the District to determine the effectiveness of the various plans and make modifications accordingly, and an end date “not prior to the end of the 2016-2017 school year.” (USP (Doc. 1713) § XI.A.2.)

         A desegregation decree, like the USP, is not intended to operate in perpetuity. Id. at 1143 (citing Board of Educ. Oklahoma City Public Sch. v. Dowell, 498 U.S. 237, 247- 48 (1991)). Given “local autonomy of school districts is a vital national tradition, ” the Court adopted the three-year minimum operational component in the USP in order to return TUSD to the control of local authorities at the earliest practicable date to restore true accountability to the government. Id.; Freeman, 503 U.S. at 491. The Court will do this when the District has demonstrated good faith implementation, monitoring, revision, and operation of the District under the USP for at least three years and the elimination of the vestiges of past discrimination to the extent practicable.

         B. Special Master's 2016-17 Annual Review (SMAR): Unitary Status Review

         Annually, the District files a report of activities undertaken pursuant to the USP: the District's Annual Report (DAR). The Special Master follows with his annual report: the SMAR. The parties may make objections. This year marked the three-year presumptive end-date, SY 2016-17, for the USP. Therefore, the Court required both the DAR and SMAR to include a comprehensive analysis of the District's progress under the USP and a status report to the Court on whether or not unitary status has been attained in whole or in part.

         The Special Master recommends that the Court award unitary status for some elements of the USP and retain jurisdiction over other parts of the USP. The Special Master has developed completion plans, including implementation time-lines, for these remaining elements of the USP.

         The USP is an ambitious and comprehensive plan developed to remedy the past vestiges of discrimination and segregation that existed in TUSD.

In addition to strategies to promote and sustain integration, the USP includes provisions to provide students with transportation, increase the diversity and effectiveness of teachers and school administrators; strengthen and enrich the curriculum and increase access to advanced learning experiences; develop safe, productive, inclusive and supportive school environments; provide services to students with special needs; meaningfully engage families; ensure equity in facilities and technology-facilitated learning resources; provide students with extracurricular activities; and create information systems and budgetary processes that facilitate accountability, strategic resource allocation and effective management.

(2016-17 SMAR (Doc. 2096) at 3-4.) These elements are contained within interconnected or interrelated sections of the USP, which generally address: 1) Student Assignment; 2) Transportation; 3) Administrators and Certificated Staff; 4) Quality of Education; 5) Discipline; 6) Family and Community Engagement; 7) Extracurricular Activities; 8) Facilities and Technology, and 9) Accountability and Transparency. (USP (Doc. 1713)).

         Like the 1978 Settlement Agreement, the parties entered into the USP “to resolve the longstanding desegregation case against the District.” Id. § I.A. It was a plan designed with “specific substantive programs and provisions to be implemented to address all outstanding Green factors and all other ancillary factors.” Id. (citing Green v. County School Board of New Kent County VA, 391 U.S. 430 (1968)). In addressing whether or not the District has attained unitary status this Court considers that “‘[t]he duty and responsibility of a school district once segregated by law is to take all steps necessary to eliminate the vestiges of the unconstitutional de jure system.'” Id. at 6 (quoting Freeman v. Pitts, 503 U.S. 467, 485 (1992)).

         “A school district under a desegregation order, [such as the USP, ] is obligated to: (1) fully and satisfactorily comply with the court's desegregation decree(s) for a reasonable period of time; (2) eliminate the vestiges of the prior de jure segregation to the extent practicable; and (3) demonstrate a good-faith commitment to the whole of the court's decrees and to the applicable provisions of the law and the Constitution.” Id. (citing Freeman, 503 U.S. at 491-92; Dowell, 498 U.S. at 248-50). “‘A school board has no obligation to remedy racial imbalances caused by external factors, such as demographic shifts, which are not the result of segregation and are beyond the board's control.'” Fisher, 652 F.3d at n.4 (quoting Manning ex rel. Manning v. Sch. Bd. of Hillsborough Cnty., Fla., 244 F.3d 927, 941 (11th Cir. 2001)).

         “The test used to determine when unitary status has been achieved, and accordingly when federal court oversight may end, is well-established: ‘The ultimate inquiry is whether the constitutional violator has complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination have been eliminated to the extent practicable.'” Fisher, 652 F.3d at 1134-35 (citations omitted).

         The Supreme Court has instructed that courts should “give particular attention” to the school system's record of compliance because in this regard a school district is better positioned to demonstrate good faith by committing to a predetermined constitutional course of action and undertakings that form a consistent pattern of lawful conduct directed to eliminate earlier violations. Fisher, 652 F.3d at 1135 (citing Freeman, 503 U.S. at 491). Good faith compliance since the inception of a desegregation decree through the entirety of the desegregation plan demonstrates a school district's commitment to a course of action that gives full respect to the equal protection guarantees of the Constitution and guarantees “that parents, students, and the public have assurance against further injuries or stigma . . ..” Id. at 1141 n.25. “A history of good-faith compliance is evidence that any current racial imbalance is not the product of a new de jure violation, and enables the district court to accept the school board's representation that it has accepted the principle of racial equality and [the school system] will not suffer intentional discrimination in the future.” Freeman, 503 U.S. at 498-99. In other words, good faith compliance over time “reduces the possibility that a school system's compliance is but a temporary constitutional ritual.” Morgan v. Nucci, 831 F.2d 313, 321 (1st Cir. 1987). Therefore, good faith compliance by the District with the USP over a reasonable period of time “is a factor to be considered in deciding whether or not jurisdiction [should] be relinquished.” Fisher, 652 F.3d at 1141 n. 25 (citing Dowell, 498 U.S. at 249-50).

         In 1968, the Supreme Court established that a school district, like TUSD, that at one time operated a statutorily mandated dual school system had an affirmative duty to eliminate all vestiges of the state-imposed segregation. Green v. School Bd. of New Kent County, 391 U.S. 430, 435-36 (1968). The Court in Green explained that a school system can make a prima facie case for unitary status by showing that racial imbalances no longer exist in student body assignment, faculty, staff, transportation extracurricular activities and facilities. 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, or in the context of educational resource allocations, such as 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. 1119) at 16 (citing Swann, 402 U.S. at 18; Freeman, 503 U.S. at 482-83)). In other words, there is a Green presumption of discriminatory intent which also attaches to factors that reflect resource disparities because both types of disparities are unlikely to have nondiscriminatory explanations. Id. (citing Save Our Children, 90 F.3d at 776-77 (placing the burden of proof on Defendants in respect to Green presumptive factors, but requiring Plaintiffs to prove disparities in student achievement were vestiges of de jure segregation.)

         The test for determining when unitary status has been achieved is two-sided. The District has the burden to show that any current imbalance is not traceable, in a proximate way, to the prior violation, but as the de jure violation becomes more remote in time and demographic changes intervene, it becomes less likely that a current racial imbalance is a vestige of the prior de jure system. Fisher, 652 F.3d at 1144 n.10. Still, good faith remains paramount: ‘The causal link between current conditions and the prior violation being even more attenuated if the school district has demonstrated its good faith.'” Id. The test describes two-sides of the same coin, with the Plaintiffs and Defendants relying on its different sides. The Plaintiffs argue lack of good faith; the Defendants argue lack of any vestiges of the de jure violations which were the subject of the law suit. The analysis is not, however, one test versus the other; the Court must consider both.

         The burden is on the school district to prove it has attained unitary status. Fisher, 652 F.3d at 1135. Disparities in Green factors are presumptively vestiges of de jure segregation, but Plaintiffs have the burden to link disparities that fall beyond Green, such as performance disparities in student achievement, to vestiges of de jure discrimination. Save Our Children, 90 F.3d at 776.

         The Court rejects the District's argument that supervision over the Mendoza class action, CV 74-204 TUC DCB, should be terminated because Judge Frey found TUSD did not operate a dual educational system in respect to Hispanic students. This Court has held that the 1978 Settlement Agreement was the operative document resolving this case, and it did not distinguish remedies between the two classes. (Order (Doc. 1119) at 5-8, 16-17.) This Court, when it previously found unitary status and closed this case, concluded “after careful review of Judge Frey's Findings of Fact and Conclusions of Law, pages 206 to 223, that Fisher/Mendoza falls squarely within the confines of a de jure case for purposes of determining whether or not TUSD has attained unitary status regardless of the fact that only Black students were statutorily prohibited from attending White schools.” Id. at 15 n. 9, see also Fisher, 652 F.3d at 1137 n. 9 (referencing this finding without criticism). The appellate court followed the same approach of not distinguishing between Black and Hispanic classes when it remanded the case for this Court “to decide whether partial withdrawal is warranted in this case.” Fisher, 652 F.3d at 1144. It instructed that this Court's discretion should be informed by the following:

whether there has been full and satisfactory compliance with the [Settlement Agreement] in those aspects of the system where supervision is to be withdrawn; whether retention of judicial control is necessary or practicable to achieve compliance with the [Agreement] in other facets of the school system; and whether the school district has demonstrated, to the public and to the parents and students of the once disfavored race[s] and ethnicities], its good-faith commitment to the whole of the [Agreement] and to those provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance.

Id. (quoting Freeman, 503 U.S. at 491). The parties did not propose partial unitary status upon remand and instead negotiated an updated consent decree, the USP, which was expressly designed to resolve this case. The USP does not treat Hispanic students as less deserving of relief.

         Like the 1978 Settlement Agreement, the USP addresses desegregation pursuant to student assignment policies, student achievement, [4] faculty assignments, employee training, polices on bilingual education, and discipline. The Court considers good faith in the context of the District's implementation, review and operation of TUSD under the USP. The USP was designed expressly to address the Green factors relevant in this case and to be a pathway to attain unitary status to the extent practicable. The Court will assess practicability within the context of the USP's minimum three-year operational time-frame, not an open-ended meandering towards unitary status.

         The Court rejects the Defendant's objection to completion plans as new requirements, not contained in the USP. Completion plans will only be approved by the Court upon a finding that de jure discrimination has not been eliminated to the extent practicable as planned in the action plans. The USP called for the action plans to be developed based on data and research, therefore, the time for conducting studies has passed. Generally, the Court will not authorize further studies unless required pursuant to an action plan, necessary because there are no best practices to draw on to address an issue, or where an action plan addressing an issue failed or was limitedly effective and further study is necessary to determine whether an alternative remedy exists.

         The District makes only three specific objections to issues presented in the SMAR, which are: 1) new ALE participation rate requirements, 2) any requirement to set a required ELL graduation rate, and 3) further requirements in teacher attrition. The Special Master has not recommended any such requirements, and the Court does not order them.

         As for all of the other recommendations made by the Special Master, the District reports “it is deep into planning and execution of the Special Master's many completion steps set out in the SMAR, and will of course comply with all of them that the Court may order. The District began its compliance effort upon receipt of preliminary drafts of the SMAR from the Special Master in December, 2017 and January, 2018, and has worked with the Special Master to refine many of the completion steps set out in the SMAR. Indeed, the District hopes to be able to report completion of a significant number of the steps even before the Special Master's Reply to the parties' objections is due (on May 11, 2017).” (TUSD Response (Doc. 2099) at 4.)

         Over the past year, the Court detected a change in attitude. From its previous reticence, the District now appears committed to bringing this case to a conclusion by implementing Completion Plans for USP provisions where unitary status has not yet been attained. Plaintiffs, however, argue against any finding of unitary status, even in part.

         The interconnectivity of the various programs called for under the USP makes it awkward, but not impossible, to grant partial unitary status on elements that may have been achieved in one section but not another of the USP. Hesitancy to grant unitary status in part is offset by the goal of returning TUSD to the control of local authorities and to enable the public to hold them accountable. More importantly, the Court finds it is important for the community to understand the progress made by the District pursuant to the USP and for the District and the community to focus on the work that remains under the USP.

         “To be sure, district courts possess ample discretion to fashion equitable relief in school desegregation cases, to tailor that relief as progress is made, and to cede full control to local authorities at the earliest appropriate time.” Fisher, 652 F.3d at 1142 (citing Freeman, 503 U.S. at 486-92). This Court will not, however, “abdicate its responsibility [in part or in whole] to retain jurisdiction until [the District] has demonstrated good faith and eliminated the vestiges of past discrimination to the extent practicable.” Id. at 1143. Only after the District has “‘shown that [it] has attained the requisite degree of compliance” may [the Court] craft “an orderly means for withdrawing from control.'” Id. “‘[T]he court's end purpose must be to remedy the violation and, in addition, to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution.'” Id. (quoting Freeman, 503 U.S. at 489) (emphasis added).

         The Plaintiffs are concerned, as expressed by the Fishers, “that granting partial unitary status could cause the District to lose focus in these areas and allow the situation to return to unsatisfactory levels.” (Fisher Response (Doc. 2100) at 2.) The Plaintiffs and the Special Master are not, however, without recourse where the Court has awarded unitary status in part, should future problems, foreseen or unforeseen, arise. The Court expressly retains jurisdiction to enforce every term of the USP, whether or not partial unitary status has been awarded or not. The Notice and Request for Approval (NARA) provisions of the USP § X.C will continue to apply in full without exception to any award of partial unitary status. Data reporting requirements remain in place unless removed by the Special Master by recommendation, with opportunity for Plaintiffs to be heard and approval by the Court. The District shall continue to report annually on all USP provisions.

         “The Court affirms the January 6, 2012, Order, paragraph 7, directive that annual extensions of judicial oversight beyond three years will be based on reasons of unattained compliance by the District with the USP. Three years out, the Court is taking an inventory of the District's progress towards unitary status.” (Order (Doc. 2086) at 2.)

         The District has filed the 2016-17 DAR, (Docs. 2057-2068), and the corresponding Analysis of Compliance with USP (USP RAC) (Doc. 2075), and Revised ALE USP RAC (Doc. 2092). The 2016-17 SMAR tracks the District's compliance analysis. Pursuant to the Special Master's authority to make recommendations to this Court regarding his compliance assessments, (Order (Doc. 2086) at 3) (citations omitted), the Special Master identifies specific non-compliance issues, makes specific recommendations for activities necessary for compliance, and provides specific deadlines for the District to complete such activities. The Plaintiffs, who have had full and ongoing discovery rights including the ability to make requests for disclosures and answers, have filed Responses and made objections, which this Court directed should be equally detailed and specific. This Court has reviewed thousands of pages, including the above referenced briefs and any referenced supporting evidence.

         The Court grants unitary status in part only to provisions of the USP where it is confident that there has been full and satisfactory compliance with the express terms of the USP. The Court does not grant unitary status in full because it finds that the School District has not yet demonstrated to the public, including African-American and Hispanic parents and students, its good-faith commitment to the whole of the USP and to those provisions of the law and the Constitution that predicated judicial intervention.

         The Court will look to this Order when making further unitary status determinations as to the parts of the USP over which it continues to retain jurisdiction. The Court finds that an extension of judicial oversight beyond three years is necessary for reasons of unattained compliance by the District with the USP as identified below.

         1. Student Assignment: USP § II

         The Student Assignment provision of the USP provides that “[s]tudents of all racial and ethnic backgrounds shall have the opportunity to attend an integrated school.” (USP (Doc. 1713) § II.A.1.) The USP required the District to develop and implement a coordinated process of student assignment, incorporating as appropriate four strategies for assigning students to schools: attendance boundaries; pairing and clustering of schools; magnet schools and programs, and open enrollment. Id. The Special Master recommends that unitary status be granted with respect to these districtwide integration efforts pursuant to § II, Student Assignment, of the USP, except for magnet schools.

         The Court takes a hard look at student assignment because it is one of the vestiges expressly addressed in the original 1978 Settlement Agreement. When this case commenced in 1974 and when the Settlement Agreement was entered into by the parties, segregation was addressed by strategically changing school boundaries and bussing students to achieve desegregation. Now, students may attend any school by choice, A.R.S. § 15-816 et seq, with charter and out-of-District schools competing for student enrollment, A.R.S. § 15-181 et seq. Given today's choices, student assignment strategies aimed at remediating segregation are more limited, less direct, and less effective. Demographic changes in the District require special definitions. An “Integrated school” (INT) is any school in which no racial or ethnic group varies from the district average for that grade level (elementary, middle, K-8 schools, and high schools) by more than 15 percentage points, and in which no single racial or ethnic group exceeds 70% of the school's enrollment. A “Racially Concentrated” (RC) school is any school in which any racial or ethnic group exceeds 70% of the school's total enrollment. (USP (Doc. 1713) § II.B.1-2.)

         According to the Special Master, “[t]he District has done those things with respect to student assignments that it was required to do by the USP, putting aside its ambivalence with respect to magnets.” (2016-17 SMAR (Doc. 2096) at 8.)

         He reports recent progress in integrating TUSD schools, which he attributes to the cumulative effect of more productive implementation of provisions of the USP and the relevant action plan for integration, such as the District's recent undertaking to advise families of research showing the benefits of an integrated education and its creation of an Integration Initiative. He reports that integration is trending up.[5] He relies on reductions in racial concentration (Hispanic) at Racially Concentrated magnet schools which began dropping below the 70% mark in SY 2016-17. Id., Table II-3 (Doc. 2096-1) at 1. There has been a reduction in Racially Concentrated schools in the District from 40.7% in SY 2013-14 to 35.3% in SY 2017-18. Integrated schools have increased from 21.2% to 31.8% for these same years, with all Integrated schools being magnet schools. In this way, although the opportunity for students to attend Integrated schools dipped from 19% in SY 2013-14, 2014-15, and 2015-16, to 18% in 2016-17, the opportunity to attend an Integrated school increased to 25% in SY 2017-18. Id. at Table II-2 (Doc. 2096-1) at 2.

         “In no other state are the challenges of integrating schools greater than in Arizona where state policy not only strongly supports charter schools but essentially incentivizes suburban schools to recruit students from more diverse Districts like TUSD.” (2016-17 SMAR (Doc. 2096) at 8.) “The geographic and demographic characteristics of the District work together to make the time getting from home to a school beyond students' ‘neighborhood schools' greater than is the case in many districts.” Id. In short, “[i]n a voluntary desegregation plan such as the USP, the primary tools for integration are magnet schools. Moreover, magnet schools have the potential of bringing new families to the District.” Id. at 9.

         The Special Master reports that “[t]he District has shown limited interest in strengthening magnet schools much less expanding its magnet options.” Id. at 10. As evidence, the Special Master reports the following:

The District frequently hires consultants to help it with important initiatives (e.g., dropout prevention, discipline and dual language). But it did not hire a consultant to help its development of a proposal for federal funding of magnet schools (the proposal was not funded).
In its marketing efforts to advise families about the choices they can make among schools - including video, handouts, text on the website - there had been no mention until the recruitment for the 2017-18 school year of the significant research showing that attending an integrated school provides students with important learning opportunities they would not otherwise have.
As a result of demands by the plaintiffs and pursuant to a requirement approved by the Court, the District finally launched an “Integration Initiative” in the spring of 2016 - more than three years after the approval of the USP.
Until recently, the staff member serving as Director of Magnet Schools who was appointed in the fall of 2016 reported to the Director of Operations whose primary responsibilities deal with facilities and transportation. Given that magnet schools are fundamentally education programs, the success of which are important to the attainment of unitary status, one might have expected the person responsible for this integration initiative to report to District leaders on the academic side.
In its Annual Report, the District asserts that changes in the grade structures at Borman and Drachman enhanced integration. However, the racial composition at Borman changed little and the changes at Drachman resulted in less rather than more integration.
The person who served as Director of Magnet Schools through the 2014-15 was a forceful advocate for magnet schools. However, the scope of her responsibility was continuously narrowed until she was not allowed to perform her functions. The position of Director of Magnet Schools, which is provided for in the USP, was left unfilled for half of the 2015-16 school year. When a new director was appointed during the fall term of 2016-17, that position was redefined from fulltime to half-time. When the plaintiffs and the Special Master objected to this violation of provisions of the USP, the District removed the half-time appointee and replaced him with an interim director. The interim director was later appointed as Director without a search.
In the development of its magnet school plans, the District has allowed several schools to set achievement goals lower than those they already had attained. This can be explained as a lack of commitment to higher achievement in magnet schools or a failure to monitor the development of the plans.
During the development of the 2017-18 budget, the Mendoza plaintiffs argued that the District was not adequately funding the magnet schools. The District responded by saying that it would reconsider its goals when it had the opportunity to analyze the new AZMerit scores. The plaintiffs and the Special Master took this response as an indication that the budgets would be revisited. But the District made no changes in magnet budgets after review of the state test scores despite the fact that students at two of the magnets previously thought of as highly effective academically - Drachman and Palo Verde - performed below the District average in the growth of student performance in English language arts and mathematics schoolwide. Further, students in these two schools who were performing in the bottom 25% scored below expectations in both of the subjects tested.

Id. at 10-11.

         In assessing whether unitary status has been attained in the context of the District's Comprehensive Magnet Plan (CMP), it is important to look at whether the District has the commitment and capability to engage in a process of continuous improvement with respect to magnets now in place and likewise to expand magnets that would attract families to the District. Recently, the District developed a walk-through protocol (WTP) for assessing the effectiveness of magnet schools. The Special Master reports that the WTP, coupled with the systematic analysis of student outcomes, are essential tools for facilitating continuous school improvement. He suggests that unitary status not be ordered until the District demonstrates effective use of these processes and procedures over time.

         The Special Master also recommends the Court retain supervision with respect to magnet schools until the District can demonstrate its commitment to future identification and implementation of new magnet schools with the clear potential to increase the opportunities TUSD students have to benefit from an integrated education. The Court agrees, and finds that this will serve the dual purpose of affording the District ample time to establish an effective WTP. The Court shall reconsider the WTP in the context of reconsidering unitary status of the Magnet program as set out below.

         a. § II.E: Magnet Schools and Programs

         The USP Magnet School Plan provision provides:

By April 1, 2013, the District shall develop and provide to the Plaintiffs and the Special Master a Magnet School Plan, taking into account the findings of the 2011 Magnet School Study and ensuring that this Plan aligns with its other student assignment strategies and recruitment efforts. In creating the Plan, the District shall, at a minimum: (i) consider how, whether, and where to add new sites to replicate successful programs and/or add new magnet themes and additional dual language programs, focusing on which geographic area(s) of the District are best suited for new programs to assist the District in meeting its desegregation obligations; (ii) improve existing magnet schools and programs that are not promoting integration and/or educational quality; (iii) consider changes to magnet schools or programs that are not promoting integration and/or educational quality, including withdrawal of magnet status; (iv) determine if each magnet school or school with a magnet program shall have an attendance boundary; (v) determine admissions priorities/criteria for each magnet school or program and a process for review of those criteria; and (vi) ensure that administrators and certificated staff in magnet schools and programs have the expertise and training necessary to ensure successful implementation of the magnet.
Pursuant to these considerations, the Magnet School Plan shall, at a minimum, set forth a process and schedule to: (vii) make changes to the theme(s), programs, boundaries, and admissions criteria for existing magnet schools and programs in conformity with the Plan's findings, including developing a process and criteria for significantly changing, withdrawing magnet status from, or closing magnet schools or programs, that are not promoting integration or educational quality; (viii) add additional magnet schools and/or programs for the 2013-2014 school year as feasible and for the 2014-2015 school year that will promote integration and educational quality within the District, including increasing the number of dual language programs; (ix) provide necessary training and resources to magnet school and program administrators and certificated staff; (x) include strategies to specifically engage African American and Latino families, including the families of English language learner (“ELL”) students; and, (xi) identify goals to further the integration of each magnet school which shall be used to assess the effectiveness of efforts to enhance integration.

(USP (Doc. 1713) § II.E.3.)

         Pursuant to the USP, “The District shall, to the extent practicable, implement elements of the Plan in the 2013-2014 school year, and shall fully implement the Plan in the 2014-2015 school year.” (USP (Doc. 1713) § II.E.4.)

         It is undisputed that the USP § II.E.3 Magnet School Plan (CMP), was not completed by the District until January 28, 2016. The Court does not repeat the long and torturous path taken by the District to draft the CMP to comply with the provisions of the USP, especially those provisions that required it to identify goals to further integration at each magnet school which could be used to assess effectiveness or lack thereof. Progress stalled when it came to changing existing magnet schools or programs to better promote integration and educational quality, especially if change meant withdrawing magnet status. See e.g., (Orders (Docs. 1753, 1870) (describing deficiencies and requiring revisions)).

         On January 16, 2015, the Court rejected the CMP as adopted by the Board on July 15, 2014, and required a major rework. Specifically, the Court adopted two goals as measures for assessing the effectiveness of a magnet school: 1) progress towards achieving the USP definition of an Integrated school and 2) progress towards enhancing the educational quality of the school. The Court required an immediate implementation schedule for improvement plans, transition plans, and removal of non-compliant schools or programs as magnets.

         It bears repeating, here:

Integration and student achievement are linked together because the goal of a magnet school is by definition “to attract a racially diverse student body by creating a school so distinctive and appealing - so magnetic - that it will draw a diverse range of families from throughout the community eager to enroll their children, even if it means having them bused to a different, and perhaps, distant neighborhood. To do so, the magnet schools must offer educational programs of high caliber that are not available in other area schools.” (2011 Magnet Study (Doc. 1738) at 3). In the best magnet schools, the magnet components, many of which are associated with effective schools, add up to higher student achievement. Id. In other words, high academic standards will draw students to a magnet school, and an effective magnet program will improve student achievement.

(Order (Doc. 1753) at 10.)

         The Court held that it could not approve the CMP because it was not a comprehensive plan as required by the USP. The Court complained that it had to piece together information from various studies and reports. The Court asked for one comprehensive plan reflecting that within the time frame for attaining unitary status the District had developed, implemented, and would operate a magnet plan to attain the USP goal: “Students of all racial and ethnic backgrounds shall have the opportunity to attend an integrated school.” Id. at 16 (quoting USP (Doc. 1713) § II.A.1).

         The Court expressly identified the CMP deficiencies, as follows:

The CMP fails to present for easy comparison and evaluation the basic rubric information for the current magnet schools and programs or identify the strength of the various magnet themes operating in these schools. The Court does not know how each school fits into an overall magnet feeder school plan. In short, the CMP fails to reflect the District's vision for a meaningful operational Magnet School Plan, which it can support long term. Within the context of implementing such a plan, the CMP fails to identify the specific activities which must be undertaken by each school to attain magnet status. There is no budgetary assessment as to how much money it will take to make the requisite improvements or even how many schools it can maintain as magnets long term. There is no transportation component in the CMP, which is the most expensive factor in operating a magnet school system. School boundaries have not yet been factored into the plan. The CMP speaks to developing Improvement Plans, but until detailed plans, complete with budget and resource estimates, are prepared for a school, it is impossible to ascertain what actions, if any, a school can undertake to attain true magnet status by the USP target date for attaining unitary status: SY 2016-17.

Id. (emphasis added).

         The Court ordered the District to revise the CMP and file it within four months. Id. at 18.

         On June 11, 2015, TUSD filed a Revised CMP which upon filing already did not conform to further stipulations between the parties for further revisions. On November 19, 2015, the Court approved the Revised CMP as further revised by stipulation and ordered the District to file the Final Revised CMP. On January 28, 2016, the District filed the Final 2015-16 CMP (Doc. 1898).

         The Court has reviewed the District's SY 2016-17 Annual Report (DAR) and its USP compliance report (USP RAC). As would be expected, given the development of the CMP in 2015-16, the bulk of magnet program activity has occurred since SY 2015-16. In short, the criteria for magnet schools has been developed and used for evaluating the effectiveness of the existing magnet schools, see (CMP (Doc. 1898) (establishing criteria for magnet improvement plans and developing improvement plans for magnet schools where necessary)), magnet status has been withdrawn from some schools and programs that did not meet the criteria for the designation, (Order) (Doc. 1983), and transition plans were developed and implemented at these schools.

         In SY 2015-16, TUSD identified 19[6] magnet schools/programs in the CMP, with only two meeting the magnet criteria: Dodge Middle School and Palo Verde High School. (CMP (Doc. 1898) at 10.) Four magnet schools, Borton Elementary School, Booth Fickett K-8, Dodge Middle School, and Palo Verde, met the integration criteria for magnet status, with 1) every racial or ethnic student population being within 15% of the District average for the relevant racial/ethnic group at the relevant grade level, and 2) no group exceeding 70% of the school's total population, i.e., the school is not Racially Concentrated. (USP RAC § II (2075-2) at 19.) Improvement plans were developed for the remainder. On December 27, 2016, magnet status was withdrawn from Ochoa and Robison elementary schools, Safford K-6, Utterback 6-7, and Cholla and Pueblo high schools. (Order (Doc. 1983) at 2.) Thirteen remained.

         In 2016-17, five magnet schools were Integrated: Borton, Holladay, and Tully elementary schools, Dodge Middle School, and Palo Verde High School. Id. (citing 2016-17 DAR (2057-1) at 53.) At seven schools, Hispanic students exceeded 70% of the school's total student population, i.e., they were Racially Concentrated: elementary schools (Bonillas 71%), Carillo (79%) and Davis (75%)); K-8 schools (Drachman (71%) and Roskruge (78%)); Mansfield Middle School (73%), and Tucson High School (73%). Carrillo failed both integration tests, and Booth Fickett failed the 15% integration test. (2016-17 DAR (2057-1) at 53.)

         The Court notes by September 28, 2017, the District's 40th Day enrollment report reflects the addition of four more Integrated Schools: Bonillas and Davis elementary schools and Drachman K-8 and Mansfield Middle School. (Mendoza Response, Ex. 1 (Doc. 2101-1) at 2-3: 40th Day Enrollment 9/28/2017).[7] In other words, nine magnet schools were Integrated schools.

         To be clear, there are two magnet school criteria, Integration and Student Achievement, which are as follows:

[1.] Integration: [a]) is being an Integrated school as defined under the USP using the 70% and 15% thresholds and [b]) a school is progressing towards integration if it is Integrated at the incoming class at its lowest grade and such integration can be maintained as these student matriculate through two grades.

(CMP (Doc. 1898) at 10);[8] see also (Order (Doc. 1753) at 9), (USP RAC § II (2075-2) at 58 (Data Markers for Integration)).

[2.] Student Achievement: [a]) A or B school as defined by the state school letter grade system; [b]) students score higher than the state median in reading and math on the state assessment; [c]) show academic growth of all students higher than the state median growth in reading and math; [d]) secure the growth of the bottom 25% of the students of the school at a rate higher than the state median growth, and [e]) reduce achievement gaps between ethnic groups so that achievement gaps between these groups are less than those in schools with similar demographics and socio economic factors and that are not magnet schools in the district. The gap shall be defined as the difference between performance in math and reading/literacy of the highest ethnic group compared to other ethnic groups within the school.

(CMP (Doc. 1898) at 15); see also (Order (Doc. 1753) at 9-10), (USP RAC § II (2075-2) at 59 (Data Markers for Achievement)).

         The Court points out that the first three criteria for measuring student achievement are aimed at ensuring the school is academically attractive to potential students: the school's student achievement profile. The last two criteria measure the effectiveness of a school to teach students, especially minority students. This distinction is important because, as noted above: “high academic standards will draw students to a magnet school, and an effective magnet program will improve student achievement.” Both are necessary components of a successful magnet school or program.

         In the District's USP RAC, it records that “it is not possible” to report on all of the goals as delineated by the Court, and hence it measures academic achievement by only two criteria: 1) proficiency rates for magnet schools meet or exceed the overall state proficiency rates and 2) achievement gaps between racial groups participating in magnet programs will be less than the achievement gaps between racial groups not participating in magnet programs. (USP RAC § II (Doc. 2075-2) at 62.) Of special concern to the Court is the District's omission of the State's accountability scores for the schools. The Court notes that the State Board of Education is mandated by law, A.R.S. § 15-241, to provide annual achievement profiles: A-F Accountability Scores (AZMerit grades). On May 21, 2018, the State Board of Education finalized the AZMerit grades for 2017-18. The 2017-18 AZMerit grades dramatically differed from prior accountability scores, which TUSD relied on in the CMP, as follows: Bonillas (INT) C to B; Borton (INT) C (no change); Carillo (RC) A to B; Davis (INT) B (no change); Holladay (INT) D to C; Tully (INT) C (no change); Drachman (INT) A to F; Booth-Fickett C to D; Roskruge B to D; Dodge (INT) A to B; Mansfeld (INT) C to B; Palo Verde (INT) A to D, and Tucson High (RC) B to C.

         Even with improved integration, the existing magnet schools cannot survive the CMP criteria that they be A or B schools. No parent choosing a school will ignore its highly visible, publically posted AZMerit grade. Neither can the District. It must propose an alternative measure of the school's student achievement profile capable of countering a low AZMerit grade. For example: Is there a means to identify C schools that are ascending, i.e., C schools? Should there be a 2-year probationary period before a low AZMerit grade triggers termination. The point is, magnet criteria such as the “A or B AZMerit grade” included in the CMP and adopted by the Court may be revised, but cannot be ignored.[9] This is especially true because, pursuant to the CMP, these schools are subject to termination as magnets. The District cannot move forward by ignoring the elephant in the room: an academically “failing” magnet school or program.

         The Special Master is currently responsible for recommending the termination of non-compliant magnet schools or programs, with the exception of any school or program where the District has prepared an improvement plan for that school no later than October 1, 2018, which has been approved by the Special Master. In both instances, the Special Master shall expressly identify the criteria guiding these determinations as being relevant to improving: 1) integration, 2) the minority student achievement gap, [10] and 3) the school's student achievement profile. The Court notes that improvement plans[11] were developed for these schools in 2015. Therefore, these magnet schools or programs are subject to having their magnet status withdrawn immediately, unless the Special Master finds it is highly likely that magnet status will be attained by SY 2018-19. (2016-17 SMAR (2096) at 12.)

         The Special Master shall base his recommendations on express criteria and guidelines for identifying a successful magnet school or program. Such criteria and guidelines, developed by the Special Master, shall be provided to the District for incorporation into the CMP for future use. Clear criteria and standards for magnet schools or programs are especially important to guide the District in making the sometimes politically unpopular decisions that are required to create and operate a viable district-wide magnet plan now and in the future. The record must reflect that the District can move forward of its own accord before the Special Master and the Court may step away. Now is the time for the District to make that record.

         The District shall review the existing criteria and standards and propose modifications to address the inadequacy of the A & B AzMerit grades and to be used in the future to determine magnet status. The District should the procedures for creating new magnet programs and procedures for terminating future non-compliant magnet programs. The Court assumes it goes without saying that the District shall establish a review schedule for the Magnet Program, thereby creating potential need for future improvement plans and transitions plans. The District with the Special Master's assistance should review the CMP sections Processes and Schedules to Improve Magnet Programs, Strategies to Improve Student Achievement, and Processes and Strategies to Eliminate Magnet Programs and revise them to be generic prototypes for future use in the event magnet schools and programs fail to meet the magnet criteria and standards in the future. To be clear, the Court does not mean to suggest that any of the current non-compliant magnet schools and programs may remain so after SY 2018-19; the existing improvement plans and transitions plans apply to them.

         The Court refers the parties and the Special Master to the discussion in its Order (Doc. 1753) issued January 16, 2015, at pages 13 through 17, describing the deficiencies in the CMP at that time. They remain today and are the focus of the Special Master's request that the District demonstrate its commitment and capability to identify and implement new magnet schools and programs to maintain a vibrant magnet plan which affords future increased opportunities for TUSD students to benefit from an integrated education. (2016-17 SMAR (2096) at 10.)

         The Court adopts the Special Master's recommendation that the District undertake an assessment of potential magnet schools or programs for TUSD, including identifying preferred choices and explaining its reasoning for selecting options and deciding whether such options should be implemented. Id. at 13. The Court agrees. The Court provides the discussions above and below to guide that endeavor, which shall culminate with the District's filing a 3-Year Plus Integration Plan: CMP (3-Year PIP: CMP) by the end of this school year.

         The District reports that residential patterns across the District are racially concentrated within particular geographic areas, with the overall Hispanic student population being 61%. (USP RAC § II (Doc. 2075-2) at 1-2, 15.) The integrative impact of a magnet school or program is limited by the distances between target populations and Racially Concentrated schools. To have an effective Magnet School Plan, “the District must strategically place magnet schools in central locations, generally, within an eight mile radius of the center of the District, because parents will not send their children where travel time exceeds approximately 20 minutes.” (Order (Doc. 1753) at 13), see also (2016-17 DAR (2057-1) at 108 (describing the District as spanning 231 square miles, including east-west span greater than 30 miles[12] without a crosstown freeway). For example, in SY 2016-17, the District introduced a pilot[13] Express Bus Program to move students south-east to south-west from Mansfield and Magee middle schools to the Drachman Montessori K-8 (INT), and south-east to north-east from Cholla (RC) and Tucson (RC) high schools to Sabino High School.

         There is an up-side to the confluence of the District's racially concentrated demographics and geographic sprawl with State policies like ARS 15-861.01 (mandatory open enrollment) and ARS 15-181 et seq. (tuition-free charter schools), that “create[s] difficult challenges” in addressing segregation. (USP RAC § II (2075-2) at 5.) These same factors limit plan options and simplify the planning process. With all the variables and options known, there is no reason to delay adopting a future CMP for the District.

         Given the direct link between magnet status and more money for a school, which incentivizes and politicizes the creation of magnet schools and programs without regard for magnet requirements, CMP criteria and guidelines shall be rationally related to identifying schools that have the ability to act as magnets for integration purposes. The existing CMP is a start, but as of now the District relies far too much on the discretion of the Special Master and the judicial authority of this Court to make the hard decisions necessary to operate an effective Magnet Program. See (2016-17 SMAR (Doc. 2096) at 12 (proposing that Special Master shall determine by September 2018 whether each magnet school has met the standards for a magnet school and “may” recommend to the Court at any time that the school lose magnet status). The Court finds that the District is well positioned to phase-out the discretionary role of the Special Master. He shall develop the criteria and guidelines for identifying currently effective magnet schools and programs and follow them for making his recommendations for removing the existing magnet schools and programs. He shall provide these criteria and guidelines to the District for incorporation in the 3-year PIP: CMP for future use by the District in developing new magnets and/or eliminating old ones.

         The District has already developed criteria for assessing the viability of adding a new magnet school, revising an existing magnet program, and/or relocating a magnet program, which include: racial/ethnic composition; academic achievement; facility condition/capacity; and geographic location. (Order (Doc. 1753) at 14.) The District also recognizes that budget and pipeline concerns factor into future magnet school and program planning. (CMP (Doc. 1898) at 8-9.)

         October 6, 2016, Marzano Research, a private consultant for the District issued a Report (Marzano Report), (2016-17 DAR (2057-1) at 72-73) (citing Marzano Report (2058-3) at 145-168), identifying the top five magnet themes parents find the most attractive: STEAM, Fine and Performing Arts, Early College preparatory, Dual Language English/Spanish, and GATE. (USP RAC § II (2075-2) at 10.) The USP expressly requires the District to increase the number of dual language programs. (USP (Doc. 1713) § II.E.3.) The Special Master reports that “[t]here are themes not explored by the District that have been proven successful elsewhere.” (Reply (Doc. 2111) (Second Reply) at 7.) The District shall explore these “proven successful magnet themes” to be included 3-Year PIP: CMP. The 3-Year PIP: CMP shall “inform[] and support the direction to be taken in [the future for] developing magnet initiatives.” (USP RAC § II (2075-2) at 10 (citing 2016-17 DAR (2057-1) at 103-13)). Schools interested in developing magnet themes should have an approved array of theme choices with proven track records.

         For each potential future magnet school or program, the District shall apply the criteria and guidelines for assessing the strength of its ability to improve integration, including the school's student achievement profile and potential for improving the achievement gap between minority and non-minority students enrolled in the magnet program. The CMP should overlay the criteria for ranking the strength of the proposed magnet for each of these requisite assessments in a manner to allow easy comparisons and prioritization. The 3-Year PIP: CMP shall “demonstrate [] how any proposed new magnet school or program will demonstrably increase the number of students attending integrated schools in the District.” (Mendoza Response (Doc. 2101) at 13.)

         In short, the District knows where existing schools are located, and it knows the District's demographics, including the racial concentrations within school boundaries and in its schools. This is the beginning point for the 3-Year PIP: CMP. In other words, geographic and demographic information which reflects the physical location of potential magnet schools and programs in relation to target populations within 20 to 30 minute travel distances shall inform the plan. A target population is a student population in a “racially concentrated boundary, ”[14] racially diverse from the racial composition of the student population of the magnet school. In this way, the District shall identify candidate schools for magnet status. Without taking this first step, the District runs the risk of moving students for the sake of moving them, which is a concern reflected in the Mendoza objection that the District presents no direct evidence that integration is being achieved due to the District's efforts. Cf., (2016-17 SMAR (Doc. 2096) at 12) (“Some current magnet schools are [I]ntegrated only because of the neighborhood enrollment and others have failed to demonstrate that they can provide a quality education to the students they enroll. It would make little sense to sustain those schools as magnets.”)[15]

         The Court notes the difference between the Sabino High School Express Bus and the Drachman Express Bus. The Sabino Express Bus moved 20 students from Cholla (RC) and Tucson (RC) high schools, both Racially Concentrated schools, north to Sabino High School, which is neither an Integrated nor Racially Concentrated school. It is also not a magnet. It is, however, a B school in comparison to Cholla High School (RC), a D school, and Tucson High Magnet School (RC), a C school. It is undisputed that these 20 students made Sabino High School more integrated.

         Only five students used the Magee Drachman Express shuttles routing students first from elementary schools Mansfield Magnet, a B school, and Howell (INT), a C school, to Magee Middle School, a D school, and next from Magee and Whitmore Elementary School, a C school, to Drachman Montessori Magnet K-8 (INT), an F school. The Mansfield and Howell (INT) elementary schools are both Integrated schools and Whitmore Elementary School is neither Integrated nor Racially Concentrated. Drachman Montessori Magnet (INT) is Integrated already, so the logic for this east west movement is not apparent, without explanation.[16] The Mendoza Plaintiffs are right to complain that the District has not even tracked the race of students using the express busses.[17]

         The logic for selecting future magnet schools and programs must include budgetary considerations based on estimated resource needs and availability, projected over time to arrive at planned start-up dates for future magnet operations. Given magnet schools and programs are the primary mechanisms available for integrating the District, the Court rejects the conclusion that “budget capacity does not exist to adequately resource and staff new and replicated programs.” (CMP (Doc. 1898) at 8.) If true, there is no comprehensive integration plan for the District because its primary component is in jeopardy. The 3-Year PIP: CMP shall factor in budgetary costs and constraints, based on resource demands including staffing, marketing, and transportation, to arrive at a long-term fiscally sustainable CMP.

         While the Magnet Program may be the most effective and primary integration strategy, it is only one tool in the District's toolbox for promoting integration in TUSD. The USP does not call for integrated magnet schools; it requires district-wide integration. The Mendoza Plaintiffs object to the Special Master's treatment of non-magnet and magnet schools by “lumping” them together to support his recommendation that unitary status be awarded for integration district-wide because almost all the Integrated schools are magnet schools. (Mendoza Response (Doc. 2101) at 5, 8, 10.) The Court finds no fault in the Special Master's conclusion that more TUSD students now attend Integrated schools. He is correct. Still, the Mendoza Plaintiffs' point is well taken. As the Sabino Express Bus pilot project demonstrates, integration can be promoted at non-magnet schools. The natural consequence of identifying TUSD schools that are potential future magnet schools is the identification of schools that are not. For these schools, the 3-Year PIP: CMP shall identify viable non-magnet strategies like the Sabino High School Express Bus that promote integration. On a school-by school basis, the District shall identify the non-magnet strategies, if any, that would improve integration at that school and adopt school specific integration plans. Priority shall be given to creating Integrated schools and integrating Racially Concentrated schools.

         This brings the Court to the Plaintiffs' objection that the Court should not award unitary status, not even in part, to the District because not enough non-magnet schools meet the USP definition of an Integrated school. The 3-Year PIP: CMP will inform the more relevant question to be answered on a school-by-school basis: what non-magnet undertakings, if any, are practicable to reduce racial concentration and promote integration. The Mendoza Plaintiffs ask for further inquiry and study related to integrating non-magnet schools. As noted in the context of the Magnet Program, viable options for integration are limited, with all the variables and options being known. Just as there is no reason to delay in developing the future CMP for the District, there is no need to delay future non-magnet integration plans. It may be the natural consequence of this comprehensive inquiry that the District identifies schools that are currently and in the future may always be Racially Concentrated or never Integrated. For these schools, the 3-Year PIP: CMP shall include individual plans to improve integration, where practicable, and focus on academic student achievement.

         To be sustainable, both future magnet and non-magnet integration plans require factoring in budgetary costs and constraints, based on actual resource availability and demands including staffing, marketing, and transportation, to arrive at estimated start dates for implementation.

         The District shall include a transportation plan in the 3-Year PIP: CMP, considering it as a budget item and a criterion for assessing the strength or weakness of potential candidates for future designations as magnet or Integrated schools. Because transportation is a driving force fiscally, it must inform future plans or the District may annually repeat its determination that “budget capacity does not exist to adequately resource and staff new and replicated programs.” The purpose of the 3-Year PIP:CMP is sustainability, with geographically and demographically focused transportation plans that limit costs while at the same time maximizing transportation's impact on integration or student achievement.

         The Court retains jurisdiction over USP §§ II.I, Outreach and Recruitment, and III, Transportation, with its jurisdiction over these sections of the USP limited in context to assessing unitary status subsequent to the filing by the District of the 3-Year PIP: CMP.

         Since the adoption of the USP, the District's integration efforts, pursuant to § II, have been ongoing and are continuing now and in the future. The Court finds that unitary status may not be awarded in relation to the USP, § II.E, Magnet Programs, for all the reasons explained above. Likewise, the Court retains jurisdiction over § II.I, Outreach and Recruitment, to the extent necessary to review whether unitary status has been attained in relation to § II.E.

         The parties and the Special Master refer the Court to the SY 2017-18 Integration Initiative described as a pro-active, pro-integrative marketing strategy, which resulted in a “surge” of magnet program applications: 3, 803 magnet applications in SY 2016-17 surged to 9, 790 applications in SY 2017-18. (2016-17 DAR (Doc. 2057-1) at 52), see also (USP RAC (2075-DAR (Doc. 2075-1) at 66-77). The same marketing strategies resulted in increased open enrollment applications of 3, 803 in SY 2016-17 to 4, 834 in SY 2017-18. (2016-17 DAR (Doc. 2057-1) at 83.) The Court has reviewed the parameters of the District's new marketing strategies, including geo-advertising, social-media, new marketing venues and a mobile enrollment unit, community partnerships for positive messaging, web-based video tours of schools, new school websites, YouTube videos, and bilingual marketing materials including a Facebook page, Instagram and Twitter accounts. The Court does not repeat here all the new 2016-17 Outreach and Recruitment developments, but they are described in great detail in the 2016-17 DAR. Id. at 88-93.

         The Court finds that the District is now well positioned to review the effectiveness of these new initiatives with past marketing practices, such as the MORE Plan developed in 2013-14. The USP requires the District “to review and revise strategies for the marketing to and recruitment of students to District schools to provide information to African American and Latino families and community members throughout the District about the educational options available in the District.” (USP (Doc. 1713) § II.I.) The USP also calls for the development of an Advanced Learning Experiences (ALE) Access and Recruitment Plan, which overlaps to a large extent in strategies. Id. § V.A.2.c-d.

         It is time for the District to assess the effectiveness of the various outreach, marketing and recruitment strategies for its Magnet Program, which are equally effective for the ALE Program, and identify the strategies found to be the most effective at promoting integration to be used by the District going forward. This Outreach and Recruitment Addendum shall identify strategies universally applicable to both the Magnet and ALE programs, and identify strategies limited to one or the other. The intent is for the Outreach and Recruitment Addendum to satisfy both §§ II and V, discussed later herein, of the USP. The District may rely on the Addendum, as appropriately referenced, for either the Magnet Program or the ALE Program.

         The District shall file the 3-Year PIP: CMP by the end of this school year, including non-magnet integration plans for individual schools where practicable, with the Outreach and Recruitment Addendum attached. This filing shall trigger reconsideration of unitary status for the USP § II.E.

         2. Transportation: USP § III

         The Mendoza Plaintiffs object to the Special Master's conclusion that the District has demonstrated satisfactory compliance with USP § III, Transportation. The Plaintiffs reiterate their concern that the District is not tracking/reporting the racial/ethnic configurations for students using transportation. This accusation harkens back to the 1978 Settlement Agreement when the District spent desegregation money in schools with predominately minority students and asserted compliance because it benefitted African-American and Mexican-American students. The Mendoza Plaintiffs are correct that the District must do more than merely establish that, indisputably, it provides non-discriminatory transportation routes to all students. So for example, the activity busses placed by the District at magnet and Integrated schools give all students attending these schools the opportunity to participate in extracurricular activities. This makes these schools more attractive to all students, but it is especially important for the magnet program to make the school attractive to out-of-boundary students, whose attendance increases integration. Here, the bus is linked to integration.

         Compare, the Mendoza Plaintiffs' Express Bus concerns. On the one hand, an express bus moves students from Racially Concentrated C and D schools, Tucson and Cholla high schools, to a B school that is not Racially Concentrated, Sabino High School. The other express bus moves students from Integrated schools on the east side of the District to Drachman Montessori, an Integrated magnet school, on the west side. There is no link for the Drachman express to either USP goal, integration or improved student achievement. It is legitimate for the Mendoza Plaintiffs to question whether the Drachman Express Bus pilot program has been an effective integration strategy.

         The USP provides, as follows:

The District has (a) utilized transportation services as a critical component of integrating schools; (b) made transportation decisions that promote student attendance at Integrated and magnet schools and programs; (c) included District transportation administrators in planning and monitoring activities related to student assignment and integration; (d) provided free transportation to District students enrolled in magnet schools and programs and to students enrolled in racially-concentrated schools where such transfers increase the integration of the receiving school and when those students live outside the “walking zone” of the school in which they are enrolled; (e) provided prospective and enrolled families with information regarding the availability of free transportation at school sites, Family Centers, the District office, and on the website; (f) not permitted race- or ethnicity-based discrimination by a private party with which it contracts to provide transportation; (g) included the transportation each student receives in the student's data dashboard entry by July 1, 2013; and (h) included data in the Annual Reports regarding student use of transportation, disaggregated by school attended and grade level.

(USP RAC, Transportation (Doc. 2075-3) at 3 (citing USP (Doc. 1713) § III.A-C)).

         There are no challenges to the Special Master's conclusion that the District is doing these things. The challenge is whether or not the District can show that it is using transportation as a critical component of its integration plan. The Mendoza Plaintiffs ask for actual ridership data and user surveys.

         The District reports that by 2013 it was including the transportation each student was “eligible” to receive in the student's data dashboard record. “For USP purposes, the District reports on eligible riders.” (2013-14 DAR (Doc. 1686) at 66.)

         In SY 2014-15, the District explained:

It does not track actual riders, either manually or electronically, because such tracking is neither possible nor realistic. The manual method would require the bus drivers to check the identity of each student boarding the bus, which would increase the amount of time required for boarding the bus; additional buses would then need to be added to the fleet to keep transit times reasonable. The electronic method would require a barcode reader to be installed on each bus, and students would be required to carry an ID card with a barcode. The District did not have the needed equipment on the fleet, but would consider proposals for implementing this method in the future. Moreover, because of the USP mandate to provide magnet and incentive transportation, the resulting routes must be planned and driven whether usage is high or low, and the cost is largely a function of mileage rather than the number of riders.

(Amended 2014-15 DAR (Doc. 1918-1) at 71.)

         “In the absence of ridership data, the District uses eligibility to report ridership.” Id. “‘Eligible students' includes all students offered free transportation to and from school, excluding any students who specifically declined it.” Id. This has been described as: “students enrolled in magnet schools and programs and to students enrolled in racially-concentrated schools where such transfers increase the integration of the receiving school and when those students live outside the ‘walking zone' of the school in which they are enrolled, ” (USP RAC (Doc. 2075-3) at 3), or “all students enrolled in magnet schools and programs, and to students who transfer and enroll in racially concentrated schools where the transfer increases the integration of the receiving school, ” id., see also (2016-17 DAR (Doc. 2057-1) at 107) (describing eligible students as: “students attending a school beyond home attendance boundaries if the student's attendance improved integration at the target school”). The District is tracking ridership based on student enrollment/attendance criteria that track the USP integration goals. Therefore, the reported data is meaningful to establish whether the District is using transportation to promote integration.

         Seemingly, ridership should mirror increases in students attending magnet schools[18] and reductions in Racially Concentrated schools. Transportation numbers are, however, stagnate, if not down. For example, total eligible ridership went from 23, 618 in 2013-14, to 23, 450 in 2014-15, to 22, 746 in 2015-16, and 22, 557 in 2016-17. Id. 48. Why?

         This inquiry should inform the District as it moves forward to plan for the future. Transportation is critical to attaining the USP's goals. For example, in the context of student achievement, the Mendoza Plaintiffs highlight the dichotomy in connection with the GATE program. The District's Revised ALE USP RAC reflects “that one of the reasons most frequently given for why families decide not to send their qualified students to self-contained programs is transportation.” (Mendoza Response (Doc. 2101) at 14) (quoting Revised ALE USP RAC (Doc. 2092-1) at 88.) According to the Revised ALE USP RAC, “representatives of the TUSD GATE and Transportation Departments met to discuss increasing alternative routes to reduce travel time to GATE sites but ‘[b]udget constraints prevented significant transportation changes.'” Id.

         The District tracks transportation for students enrolled in Advanced Learning Experiences (ALE) - Gifted and Talented Education (GATE), Advanced Academic Courses (AACs) and University High School (UHS). The District tracks data regarding transportation availability by site, disaggregated by grade level as required by USP § III(C). Although not required by the USP, the District also tracks district-wide data on transportation availability disaggregated by program and by race and ethnicity. The Court finds that the District is sufficiently tracking transportation data and rejects the Mendoza Plaintiffs' request for further data and studies, except for the express bus pilot projects. The Court finds that the past three years of operations under the USP provides sufficient data and information for the District to develop sustainable future transportation plans to support ongoing and future integration and student achievement programs planned for the District.

         The Court retains jurisdiction over the USP § III, Transportation, to the extent relevant to the questions of unitary status remaining.

         3. Administrators and Certificated Staff: USP § IV

         This Green factor is aimed at identifying the vestiges of discriminatory hiring of administrators and certificated staff, i.e., teachers; there is no assertion of discriminatory hiring practices in TUSD. The USP goal is to increase staff diversity because: 1) teachers [and administrators] of color tend to expect more from minority students, and those higher expectations can lead to increased academic achievement; 2) positive exposure to a variety of races and ethnic groups can help reduce stereotypes, and 3) children who see people like themselves as role models are more likely to follow in their footsteps. (2016-17 DAR, Appendix IV-29 (Doc. 2060-2) at 2.)

         The USP, § IV, includes provisions addressing: 1) outreach and recruitment, 2) hiring, 3) staffing assignments, 4) retention, 5) reductions in force, 6) evaluations, and 7) professional support and professional development. According to the Special Master, “[t]he District has done what it was asked to do by the USP and the relevant action plan.” (2016-17 SMAR (Doc. 2096) at 15.) Nevertheless, “[o]ver the last five years, the District has made little progress with respect to increasing the proportions of African American and Latino teachers and administrators.” Id. at 14. With one exception, he reports there has been a small increase (quite small) in African-American central office administrators. Id.

         The District finally began reporting data distinguishing between certified staff and teachers in 2015-16. As of today, approximately 3% of teachers are African-American and approximately 27 or 28% are Latino. The Special Master recommends four areas where the District should be directed to make improvements, with the District attaining partial unitary status as to the remainder of § IV. The four areas are: 1) increasing the diversity of teaching staff at the school-site level, 2) reducing employee attrition, 3) developing Grow-Your-Own programs (GYOP), and 4) reducing the number of first year teachers teaching at lower achieving schools. The Mendoza Plaintiffs would add: increasing the diversity of administrative staff and reducing the number of first year teachers teaching at Racially Concentrated schools.

         The Special Master describes a severe nationwide teacher shortage as a fundamental problem facing TUSD's efforts to recruit diverse teaching staff. Teacher shortages affect administrative diversity because administrators typically come from the ranks of teachers. “Moreover, Arizona ranks at the bottom among the states as attractive places for teachers to start their careers.” Id. at 15. Arizona teacher salaries are 17% lower than jobs that require similar levels of experience and education; “Arizona teachers who head families of four are eligible for seven need-tested federal aid programs--more than teachers in any other state.” Id. at 15 n.8.

         a. Increasing Diversity

         In 2016, the Special Master, working with the District, developed a Teacher Diversity Plan (TDP), which was just implemented in the spring semester. With agreement from the parties, the Special Master excepted dual language schools with Spanish speaking teachers and schools with diverse teaching staff from the plan. The TDP targeted 26 schools with “significant disparities” (more than the 15% USP INT/RC distinction) between African-American and Latino certificated staff and the district-wide minority percentages for schools at the comparable grade level. After spring and summer hiring in 2017, twelve remain without sufficiently diverse teaching staff. (2016-17 SMAR (Doc. 2096) at 16.) The Court has reviewed the TDP and finds it to be an ambitious and commendable undertaking by the District. (2016-17 DAR, Appendix IV-28 (Doc. 2060-1) at 184-186.)

         Without objection, the Special Master recommends continued implementation of the TDP. “No later than April 15, 2018, the District shall evaluate additional incentive program(s) to add to the TDP to increase its impact, determine what incentives, if any, to add for the 2018-19 school year, and prepare a report for the Special Master and the plaintiffs identifying the option(s) considered, and explaining the rationale for its decision.” (2016-17 SMAR (Doc. 2096) at 19.) The Court adopts the recommendation.

         The Court is eager to see the District's assessment of the TDP's effectiveness, especially the review of the financial incentives. While it is not possible for the District to increase salaries to make employment in TUSD more competitive with other school districts, the TDP reflects that the District can offer bonuses, stipends, and other incentives of monetary value which logically may extend to new hires to increase the District's ability to confront teacher shortages. See e.g., (2016-17 DAR, Appendix IV-28 (Doc. 2060-1) at 184) ($3000 school supply stipend for recruiting and hiring teacher who reduces racial disparity). For reasons explained below, the Court finds that the TDP should extend to administrators, not just teachers, and directs that incentives used successfully this past year be expanded to promote GYOP.

         b. Reducing Attrition

         The Special Master recommends a study be undertaken to identify ways to reduce attrition. The study will enable the District to identify ways to improve working conditions and leadership behavior, which in-turn will reduce teacher turnover and the number of new teachers, thereby improving both teacher performance and corresponding student performance. (2016-17 SMAR (Doc. 2096) at 17.) There is no objection to this recommendation, but the Mendoza Plaintiffs call for an inquiry into an alleged blacklist maintained by the District which Plaintiffs believe may have impeded the progress of the District to improve staff diversity. The Special Master reports that in November 2017, the District examined the records of professional staff that have been listed as “not to hire, ” i.e., blacklisted. The District then invited any wrongly categorized former employee to be a candidate for employment. He reports that there were a few responses, but no hires from this relatively small group of former employees. He finds no reason to delay awarding unitary status due to this alleged blacklist. (Reply (Doc. 2109) (First Reply) at 15.) The Court has reviewed the District's response to the Special Master's inquiry regarding this matter, id., Ex. 1: TUSD Response (Doc. 2109-1) at 1-2), and agrees. Strategies resulting from the attrition study determined to be effective to reduce attrition shall be included in the 2018-19 TDP.

         c. Grow-Your-Own (GYOP)

         The District has GYOPs. The Special Master reports the District is now identifying TUSD graduates who are attending the University of Arizona to recruit them as future teachers in TUSD. The Special Master reports that the biggest problem with the District's GYOPs is that the District “could no doubt” improve on them by evaluating what it has learned from its programs and “what is known about the effectiveness of GYOPs existing across the country, especially those aimed at increasing the proportion of African American and Latino professional educators.” (2016-17 SMAR (Doc. 2096) at 17-19.) The Special Master recommends such an inquiry: to “identify options with potential for TUSD, assess their costs and benefits, and determine what if any modifications to make to existing programs. This review shall also consist of an assessment of the District's own recruitment efforts, especially as they relate to Latino and/or African-American staff participation.” Id. at 19. The Special Master recommends that the District prepare a report describing its review and analysis, and explaining the basis for its decision regarding existing programs. Id. There are no objections, and the Court adopts it. The Court finds it is clearly practicable for the District to review and assess the effectiveness of its GYOPs and determine whether other or additional programs exist that are more effective.

         Additionally, the Court adds that the study shall identify the promising GYOP initiatives the District intends to implement in SY 2018-19, with a GYOP Addendum added to the 2018-19 TDP. Specifically, the District shall report on the GYOP involving TUSD graduates who are attending the University of Arizona to recruit them as future teachers in TUSD, especially as CRC teachers.

         The Mendoza Plaintiffs are correct that the USP makes no distinction between school-site and non-site administrative staff. Both the Special Master and the Plaintiffs agree that over the last five years there has been virtually no increased diversity in teaching or administrative staff at its schools or central office. The Court finds no reason for the District's GYOPs to be limited to teaching staff or site-based administrators, especially because “virtually all administrators come from the ranks of teachers.” (2016-17 SMAR (Doc. 2096) at 15.) The GYOP study should determine whether there is a viable pilot program for African-American administrators and, if possible, implement it this year. The study shall include the type of proactive recruitment programs suggested by the Special Master, such as those adopted by the military which seek out and groom individuals with leadership potential from entry level positions through assigned career paths leading to the District's top administrative positions. Id. at 17. The study shall provide for incentives, including monetary bonuses and stipends, to be applied in the GYOP to the maximum extent possible. Strategies resulting from the GYOP study shall be included in the 2018-19 TDP, as a GYOP Addendum.

         The District shall file the 2018-19 TDP, revised pursuant to the directives given here, which shall trigger reconsideration of unitary status for USP § IV.A, F.1, and I.3.

         d. Placement of Beginning Teachers.

         The Court turns to § IV.E.5 of the USP, which 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. 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 effective teachers. Attrition rates are higher for beginning teachers where students are lower performing than in above-average schools, which compounds the problem of securing the most effective teachers for the students who need effective teachers the most. (2016-17 SMAR (Doc. 2096) at 18.)

         Therefore, the USP requires the District to place more experienced teachers where the need is greatest to improve student achievement. Again, the Special Master reports difficulty in attaining this USP goal due to nation-wide teacher shortages. As has previously been brought to this Court's attention, new teachers are being hired to teach at both Racially Concentrated and academically underachieving schools. Id. To off-set the negative impact of placing inexperienced teachers in these schools, the District is providing teacher-mentors to new teachers during their first two years of teaching, pursuant to § IV.I.1. Id. at 20.

         In his 2016-17 SMAR, the Special Master continues to point out, as he did when this issue was previously before this Court, that there is nothing about racial concentration that makes “it more difficult to teach students in [R]acially [C]oncentrated schools than in schools where students achieve above the District average.” While true, Racially Concentrated[19] schools are a necessary consideration because, as noted in the Student Assignment analysis above, integration as defined under the USP may not be possible in some schools; for these schools, student achievement will be of the utmost importance. The Court will not eliminate the “beginning teacher” prohibition at Racially Concentrated schools until it is convinced that this express protection is not necessary for this constitutionally protected suspect class of students. The District may, however, provide student achievement data for Racially Concentrated schools that are “high achieving”[20] to exempt them as a group or grant exemptions on a case by case basis.

         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.” (Reply (Doc. 2111) (Second Reply) at 14.) Whether the Court relies on the Special Master's number (75%) or the Mendoza Plaintiffs' higher estimates (77.5 or 78.7%) for beginning teachers teaching in under-achieving and Racially Concentrated schools, the numbers are too high. 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.

         With this in mind, the Court finds that further studies regarding alternative strategies for placing beginning teachers more strategically is insufficient. The Court adopts the Special Master's recommendation to centralize the teacher-hiring process. The Special Master explains that currently teachers apply directly to and are hired directly by school Principals. “The consequence of this practice is that many teacher candidates do not typically seek out schools that serve large proportions of low achieving students or schools serving children who come from low income families. Like exceptional coaches who seek out the best players, effective principals seek to recruit teacher candidates they believe have the greatest promise. The consequence of this is that the District lacks the capacity to place beginning teachers in schools that do not have diverse teaching staffs or to recruit teachers with the greatest promise of effectiveness to schools serving students who are performing below the district average.” (Reply (Doc. 2111) (Second Reply) at 15.)

         The Court finds that the USP called for such centralization, (USP (Doc. 1713) § IV.E.5), and adopts the recommendation that “the District alter its recruitment and placement policies with respect to all teachers, including beginning teachers, so that the central office can act more strategically with respect to the placement of teachers than is now the case.” Likewise, the Court finds that the USP charges the Superintendent with making exceptions to the “beginning teacher” provisions on a case by case basis. Id. The Special Master notes that the Mendoza Plaintiffs complain that the Superintendent does not review the appointment of each individual teacher but delegates this responsibility. The Court finds that such delegation of responsibility is within the spirit of the USP which allows the Superintendent to delegate responsibilities for offices and positions. (USP (Doc. 1713) § I.D.8.)

         The Court finds that what is more important is 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, and include mitigating strategies. The Superintendent shall certify each exception and expressly identify the strategy or strategies being employed in the school to mitigate the negative impact of the beginning teacher appointment. For example, the appointment might be accompanied by a mentoring or alternative strategy for providing extra support for new or struggling teachers. At the other extreme, the appointment might not require any extra support if made in a Racially Concentrated, high-achieving, school.

         The Court adopts the recommendation by both the Special Master and the Mendoza Plaintiffs for the District to undertake a study to identify effective strategies, if any, for reducing the number of appointments of beginning teachers in lower achieving schools or, where a beginning teacher appointment cannot be avoided, the study shall 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. Over the current school year the District shall implement any strategies identified by the study, centralize the hiring procedures, and implement the certification procedures for beginning teacher appointments at Racially Concentrated and lower achieving schools.

         The District shall file a Notice and Report of Compliance regarding the directives herein related to centralizing the hiring process and certification for placing beginning teachers at Racially Concentrated or under-achieving schools, which shall trigger reconsideration of unitary status.

         4. Quality of Education: USP § V

         a. § V.A: Advanced Learning Experiences (ALEs)

         The purpose of § V.A is “to improve the academic achievement of African American and Latino students in the District and to ensure [these] students have equal access to Advanced Learning Experiences [(ALEs)].” (USP (Doc. 1713) § V.A.1.) ALEs include: “Gifted and Talented (“GATE”) programs, Advanced Academic Courses (“AACs”), and University High School (“UHS”).” Id. § V.A.3-5.

         “AACs include Pre-Advanced Placement (Pre-AP) courses, which were formerly referred to as Honors, Accelerated, or Advanced, and any middle school course offered for high school credit; Advanced Placement (AP) courses; Dual Credit [high school for college credit] courses; and International Baccalaureate (IB) courses.” Id. § V.A.2.

         UHS offers a rigorous academic curriculum and is a highly-ranked college preparatory high school. Id. § V.A.5.

         The Special Master emphasizes that there are limitations to the District's ability to improve student achievement, generally, and especially in the context of increasing access, i.e., actual participation in ALE.

It is important to recognize that student participation in an ALE is voluntary and that outcomes students experience from any given ALE are significantly affected by influences on student learning - such as student prior academic experiences and education and developmental factors that reside in families and communities. These influences mitigate or enhance student outcomes regardless of how effectively an ALE is designed and implemented.

(2016-17 SMAR (Doc. 2096) at 21.) “Access to some ALEs is conditioned by tests and the performance of students on these tests is shaped significantly by the family and community environments in which students live. Family and community characteristics are, in turn, correlated with race. . . . And, as noted, participation in ALE is voluntary on the part of students and large ...

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