Case 4_74-cv-0090-DCB

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Case 4:74-cv-00090-DCB Document 1299 Filed 12/18/09 Page 2 of 19

1 I. Action

2 The Court approves the Post-Unitary Status Plan adopted by the District's Governing

3 Board on July 30, 2009. The Court orders the Governing Board to file the data and reporting

4 format which at a minimum the Governing Board will direct its internal compliance officer

5 to provide in the Annual Report as an itemized public accounting and analysis of the

6 desegregation/integration funding received and disbursed by the District. The Court orders

7 the Clerk of the Court to enter Judgment in this case, ending all federal jurisdiction and

8 oversight of the operation of the Tucson Unified School District.

9 II. Background

10 On April 24, 2008, this Court granted the Defendant's Petition for Unitary Status,

11 pending acceptance by the Court of a Post-Unitary Status Plan (the Plan) that would ensure

12 the Governing Board would be accountable to the public for the operation of the Tucson

13 Unified School District in compliance with the principles of equality. (Order at 56 (doc.

14 1270)). The Court found that "[w]hile TUSD made a good faith effort to implement the

15 program changes expressly required under the terms ofthe Settlement Agreement for the first

16 few years, it failed to act in good faith in its ongoing operation of the District, specifically,

17 [it spent millions of dollars arbitrarily] by failing to monitor, track, review and analyze the

18 effectiveness of its programmatic changes." Id. at 55-56. The initial successes by the

19 Defendant and its later failures factored into this Court's decision to grant the Petition for

20 Unitary Status, pending approval by this Court of a Post-Unitary Status Plan that addresses

21 how the Governing Board intends to ensure its future operation of the district does not

22 exacerbate racial imbalances being caused by the demographic re-segregation of the district

23 and provides every student with equal educational opportunities, and the Plan ensures the

24 public can monitor its effectiveness.

25 The Court incorporates by reference the findings of fact and conclusions of law

26 contained it its prior Order (doc. 1119), filed on February 7, 2006, defming the scope of the

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1 unitary status inquiry appropriate in this case and the Order (doc. 1270), filed April 24, 2008,

2 granting the Petition for Unitary Status, pending acceptance by this Court of a Post-Unitary

3 Status Plan for the District.

4 The question now before this Court is whether the Post-Unitary Status Plan adopted

5 by the Governing Board on July 30, 2009, is adequate to ensure it will operate TUSD to the

6 equal advantage of every child and take measures when practicable to offset the ongoing

7 demographic resegregation of the school district. It is the Court's responsibility at this

8 juncture to guard the public against future injury and restore true accountability to the public

9 education system by returning it to the control of local authorities as soon as practicable.

10 (Order at 56 (doc. 1270, filed 4/24/08)). "This Court finds that given the facts of this case,

11 successful desegregation will exist when the School Board is accountable to the public for

12 its operation of the District in compliance with the above principles of equality." Id. "In

13 other words, TUSD attains unitary status upon the adoption of a Post-Unitary Status Plan that

14 ensures transparency and accountability to the public regarding the operation of a non-

15 discriminatory school system." Id. at 56-57.

16 In its April 24, 2008, Order the Court directed the parties to review the plan

17 proposed by the District and revise it to include greater specificity regarding the goals of

18 each proposed program, including benchmarks and measurements of effectiveness and

19 success, and include plans for data collection and reporting formats for the proposed

20 program. Importantly, the parties were asked to improve the plan's transparency and

21 accountability, especially in respect to how the Defendant spends thousands of dollars in

22 desegregation funding. The Court ordered the Defendant to address the concerns and

23 recommendations of the Plaintiffs because they were shared by the Court. The Petition was

24 granted, pending the adoption by the Governing Board of such a Plan and approval by this

25 Court. Id. at 58.

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1 In response to the Court's Order, the parties met on May 14, 2008, and agreed to and

2 did convene on June 9, 2008, a two day educators' meeting, attended by District Senior

3 Administration Staff, including Superintendent Roger Pfueffer, and Superintendent-elect

4 ElizabethFagen, ICC Representative Silvia Campoy, Fisher Plaintiffs' Representatives, and

5 two experts, Dr. Leonard Stevens and Dr. Gary Orfield. It can fairly be said that Drs.

6 Leonard Stevens and Gary Orfield represented Plaintiffs' interests. 1 All these individuals

7 comprised the Post-Unitary Status Plan Committee.

8 The Committee agreed that the new incoming superintendent, Elizabeth Fagen,

9 should be afforded an opportunity to draft a new Post-Unitary Status Plan instead of using

10 the Plan initially submitted by the District when it filed its Petition for Unitary Status. The

11 Committee would then review and make recommendations regarding revisions to the new

12 draft Plan. The Plan would be ajointly prepared document to the extent practicable because

13 when a desegregation case is resolved by the parties to their respective satisfaction, there is

14 potential thereafter for cooperation between the communities of the district and the District.

15 Within days of the Committee's meeting, the District filed a notice with the Court that it had

16 been instructed by the Governing Board that the District would file its own revised Post-

17 Unitary Status Plan.

18 On June 23,2008, the Court rejected this suggestion by the District and directed that

19 the Post-Unitary Plan be a document drafted by educators and jointly prepared by the parties

20 to the maximum extent practicable. (Order at 1-4 (doc. 1273, filed 6/23/09».

21 The Court provided the following directions to the Committee: "The Post-Unitary

22 Status Plan shall not contain any component requiring continued court monitoring nor any

IDr. Stevens served at the request of the Mendoza Plaintiffs. (Plaintiffs' Report Re:Progress on Post-Unitary Plan Negotiations and Request for Court Intervention (doc. 1272),

Attachment B, Ex. 2: Stevens' Declaration at ~1.) Dr. Orfield was enlisted by Plaintiffs

Fisher. Id., Ex. 3: Orfield Declaration at ~ 2. Both are highly qualified experts and

volunteered their time to serve on the Committee.

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1 student assignment plan that includes the mandatory movement of children based on race."

2 Id. at 5. The draft Post-Unitary Status Plan was to be completed, presented for public

3 comment, reviewed after public comment by the Committee, finalized by the Committee and

4 submitted simultaneously by the Committee to the Governing Board and the Court. The

5 Governing Board was given 30 days to take action regarding formal adoption of the Post-

6 Unitary Status Plan. Id. As recent as May 28,2009, the Court was again forced to prevent

7 an end run around the Committee by the District, when the Committee failed to complete its

8 work on time and the District submitted its draft to the Court instead of seeking an extension

9 of time for the work to be completed by the Committee. (Order at 2-3 (doc. 1289, filed

10 5/28/09)). The Court ordered an extension and that it would "not consider any issue,

11 question, or provision related to the Plan that has not first been considered and addressed by

12 the Committee and the Board." Id.

On June 30, 2009, the Committee filed the Proposed Post-Unitary Status Plan

14 Identifying Areas of Unanimous Agreement and Areas of Disagreement. (Notice of Filing

15 and Proposed Post-Unitary Status Plan (PP-USP)). The Committee agreed on all but 16

16 points in the proposed Plan. The 16points of disagreement were contained in the document

17 presented to the Governing Board, with each parties' position set out separately below each

18 disputed point. Id., Ex. B: Points of Non-Consensus. After public comment and public

19 hearings, the Governing Board adopted the Post-Unitary Status Plan in most part as

20 recommended by the District staff Committee members, but it also made changes not

21 considered by the Committee. This Court had precluded the Governing Board from

22 including provisions in the Plan that were not considered by the Committee in an effort to

23 secure a plan document generated by educational experts' instead of school board elected

24 officials.

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262Here, the Court includes in its use of the term "educational experts" all the educators

27 who served on theCommittee not just Drs. Stevens and Orfield.

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Nevertheless, the Court will consider the Post-Unitary Status Plan submitted by the

2 District because in the most part, at least programmatically, it is a document created by

3 highly qualified educators. The Committee completed its work to the extent practicable with

4 agreement on all matters except for 16 points. The Governing Board's resolution of those

5 disputed points was necessary, and the changes made by the Governing Board which have

6 not been considered by the Committee will be scrutinized by the Court.

7 III. Post-Unitary Status Plan Adopted June 30, 2009

8 The question is whether the Post-Unitary Status Plan as adopted by the Governing

9 Board and filed with the Court supports the grant of the Petition for Unitary Status and

10 entering final Judgment, ending all jurisdiction by this Court over the operation ofthe Tucson

11 Unified School District. In answering this question, the Court considers the opinions of the

12 educational experts as expressed in the Post-Unitary Status Plan the Committee drafted, and

13 the Plaintiffs' arguments made in their respective briefs filed in opposition to the Post-

14 Unitary Status Plan adopted and submitted by the District. The Court considers the District's

15 brief in support of the Plan.

16 The Court begins with a general overview ofthe Post-Unitary Status Plan. First, it

17 is apparent that the Committee was highly qualified to prepare this plan. The Committee

18 worked long and hard, and mostly on a volunteer basis, addressing in very precise terms each

19 component of concerns that were the subject of this case.

20 The Strategic Student Assignment section of the Plan provides a non-race based

21 student assignment program to encourage diversity based on open enrollment and magnet

22 programs and schools, which addresses marketing and transportation necessary for the

23 student assignment program to address desegregation and integration. Strategic Recruitment,

24 Retention, and Placement of Staff provides a plan to develop a diverse workforce of teachers.

25 An Intentional Equal Access program increases opportunities for traditionally underserved

26 students to participate in Gifted and other programs aimed at developing academically

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1 successful students. The program for Restorative School Culture and Climate promotes

2 respect for cultural and ethnic diversity, including the following: an action plan for

3 administering equitably and fairly the District's discipline policies, a program for parental

4 involvement aimed at keeping students in school and improving academic performance, a

5 student equity program aimed at closing student achievement gaps, and continuation of the

6 Mexican American Studies Department and African American Studies Department (AASD).

7 The Intentional Student Advocacy program provides every student with an adult advocate

8 to promote a successful student body, one student at a time. The Annual Monitoring or

9 Progress and Compliance component ofthe Post-Unitary Status Plan addresses transparency

10 and public accountability so the public may monitor the effectiveness of the Plan, including

11 accountability for the thousands of dollars the District continues to receive to promote the

12 education of minority and socially disadvantaged students. (District's Notice Re: Adoption

13 of Post-Unitary Status Plan, Ex. B: RedlinePost-Unitary Status Plan adopted 7/30/2009 (D's

14 Redline P-USP) at 2,5-39.)

15 The Post-Unitary Status Plan calls for each school, in collaboration with a

16 racially/ethnically diverse group of staff and community members to develop a site plan to

17 specifically address the academic needs of African American and Hispanic students who are

18 not performing at grade level and or meeting the standards as assessed by Terra Nova and

19 AIMS. Each site plan should include the applicable components of the Post-Unitary Status

20 Plan such as the issue of under-representation in Honors, AP, and Gifted programs, other

21 indicators of proficiency and achievement, and disproportionate suspensions. The success

22 of the school's site plan will be monitored and reviewed annually, and taken into

23 consideration in respect to assessing overall Plan success, site success, and personnel

24 evaluations. Id. at 3-4.

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24 The Court begins with the Preamble included in the motion to adopt the Plan, which


1 The Court finds that the Committee, composed of educators including District staff,

2 generated a plan to meet the needs of African American and Hispanic students for academic

3 improvement, both personal and programmatic.

4 Next, the Court moves to the Post-Unitary Status Plan as adopted by the Governing

5 Board, specifically its resolution of those parts that were disputed at the Committee level and

6 its modifications that were not considered by the Committee.

7 As to the sixteen points in the Plan upon which the Committee members did not

8 agree, the Governing Board adopted 15 of the points as recommended by the District's staff

9 members on the Committee. As to point number 9, the Governing Board followed the

10 recommendation of its Committee members in part and accepted some of the language

11 recommended by the Plaintiffs Mendoza.

12 The Governing Board independently modified the Post-Unitary Status Plan, with two

13 categories of changes. Category One changes were technical to provide clarity with respect

14 to plan goals and objectives and assignment of responsibilities. (District'S Briefin Support

15 of Post-Unitary Status Plan adopted 7/30109 (D's Brief), Ex. A: Transcript of Governing

16 Board Motions at 3.) The Plaintiffs do not object to the technical modifications made by the

17 Governing Board, except for the reassignment to the superintendent and the Governing Board

18 of responsibilities assigned by the Committee to district compliance officers. The Court

19 treats this as a substantive change and will address it accordingly.

20 Category two changes were legalistic and to "reinforce the understanding ... that

21 [the] Plan is not only a legal document but also a 'living' document, adopted with clear

22 understanding that it is subject to periodic review and, as necessary, good faith modification

23 by the Board." Id. (emphasis added).

25 Defendants assert was critical to the Plan being approved by the Governing Board. (D's

26 Brief at 3). The Preamble was adopted as follows:

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7 Id.

This Motion is made with the understanding and acknowledgment that thisis a plan. As set forth in detail in the Plan, this Governing Board and futureGoverning Boards will have the opportunity to receive and consider theevaluations of the Plan made by an Internal Compliance Monitor, andExternal Compliance Monitor and by senior staff as well as input from the

public on at least an annual basis, together with recommendations theseindividuals may make for changes or revisions to the Plan and to individualprograms to be implemented under the Plan. Based on these evaluationsand recommendations, this or a future Governing Board may from time totime make revisions, amendments and modifications to the Plan asnecessary to best implement its underlying goals and objectives.

8 This Preamble is closely linked to the insertion by the Governing Board of a new

9 sub-paragraph (D) under Annual Monitoring of Progress and Compliance, as follows:

10 The Governing Board shall, on at least an annual basis, review all

information and reports compiled by the internal and external compliance11 monitors and all public comments and input regarding the implementation

of the Plan. The Governing Board may at any time make such revisions,12 amendments and modifications to the Plan as the Governing Board

determines are necessary to best meet the underlying goals and objectives13 of the Plan, and to serve the needs of the District as the Governing Board

deems appropriate.

(D's Redline P-USP at 39.)

Plaintiffs object to the addition of the above paragraph because it effectively gives

the Governing Board unfettered power to undo the Plan. Dr. Stevens is of the opinion that

the provision would render meaningless the work of the Committee and the superintendent,

since the Plan they agreed on would be subject to instant change by the Board. (Mendoza

Objections, Stevens' Dec. at,-r 14.) This provision does not undo the fact that the Post-

Unitary Status Plan is a legal document, adopted by both the Governing Board and approved

by this Court. While the Plan is subject to change by the Governing Board, it may not be

changed, modified, or vacated, without notice, a public hearing, comment, and vote made in

an open meeting before the public. A.R.S. § 38-431 et seq; see also (Ds' Brief at 3)

(describing the Plan as a legal document).

Additionally, the Board agreed that before the critical Student Equity component of

the Plan may be "disestablished" there "must be a sixty day public notice of such intent by

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1 the Board and the Board's reasons therefore and at least two public hearings on the matter,

2 each attended by a majority of the Board members and the Superintendent." See (D's Brief

3 at 8 (Board voted 5-0 to include this language to resolve the Committee's disputed point 9)).

4 The Governing Board refused to include language in the Plan obligating the District

5 to continue the Student Equity program "so long as the district receives

6 desegregation/integration related funds from the federal government." (PP-USP, Ex. B:

7 Points of Non-Consensus (point 9) at 61.) Like the Mendoza Plaintiffs, this Court believes

8 that "the District has a moral as well as a legal obligation to actively address academic

9 performance gaps as they impact African American and Hispanic students so long as it

10 receives any desegregation/integration funds." (Mendoza Objections at 11.) Neither

11 obligation, however, need be memorialized in the Post-Unitary Status Plan and the

12 effectiveness of the Plan.

13 The Court finds that the Governing Board's resolution of the Committee's

14 disagreement over point 9 does not undo the Post-Unitary Status Plan or the student equity

15 program.

16 Both Plaintiffs ask the Court to retain jurisdiction over the case until further

17 advances are made by the District, including the two-year pilot student assignment program

18 that is aimed at gathering and analyzing data related to the impact of student assignments on

19 integration across the district. (D's Redline P-USP, Strategic Student Assignment, at 5-10.)

20 The Post-Unitary Status Plan calls for the District to gather data over the next two years, and

21 for the Committee, informed by this data, to develop a final or permanent school assignment

22 plan that is to be submitted to the Governing Board by October 1, 2011. Id.

23 In large part, this request and several of the Plaintiffs' objections flow from the

24 Committee's desire to shield the Plan from Governing Board interference. (Mendoza

25 Objections at 11.) While this may arguably address the Court's first concern in approving

26 a plan that ensures success to the greatest practical extent possible, it is contrary to the other

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20 "Reports of both the internal and external compliance officers regarding the Plan


1 equally important goal which is to return responsibility for operating the school district to the

2 Governing Board. The Court's resolution of these two partially conflicting goals is to ensure

3 that the Plan affords the degree of transparency necessary for the public to hold the

4 Governing Board accountable for the operation of the school district. The Court looks to the

5 adequacy of the Plan's Monitoring of Progress and Compliance section to determine if there

6 is sufficient transparency in the Plan to enable the public to hold the Governing Board

7 accountable for operating a nondiscriminatory school district.

8 The purpose of the Monitoring of Progress and Compliance section of the Plan

9 is "to enable district administrators, TUSD Governing Board members, and the public to

10 monitor the effectiveness of the Post-Unitary Status Plan." (D's Redline P-USP at 36.) This

11 section assigns the primary responsibility for monitoring the effectiveness ofthe Post -Unitary

12 Status Plan to an internal compliance officer and an external compliance officer. The former

13 being an employee of the District and the latter being independent. Generally, the Plan

14 provides for data gathering and reporting to be conducted in-house, with outside expert

15 analysis and reporting, so there will be greater independence from the Governing Board,

16 transparency, and public trust in the process. The primary vehicle for public monitoring and

17 reporting is an Annual Post-Unitary Status Report (Annual Report) from the internal

18 compliance officer, reports from the external compliance officer, an annual public hearing

19 on the reports, and a Post-Unitary Status Plan web page. Id. at 36-39.

21 shall be public records subject to public inspection and disclosure under applicable laws."

22 Id. at 39. The Annual Report shall provide data and analysis to the public and the Governing

23 Board concerning each element of the Plan and shall identify problem areas, problems

24 solved, and progress made with respect to every element and measurable goal in the Plan,

25 along with proposed corrective actions. Id. The Annual Report shall also provide data on

26 expenditures related to plan-related programs and "shall include such analysis of those

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1 expenditures as the Board or Superintendent may direct the Internal Compliance Officer to

2 prepare." Id.

3 With the exception of the provision for reporting expenditures, which will be

4 discussed later in this Order, the Annual Report guarantees the public will have up-to-date

5 information on an ongoing basis to ensure the public is well informed at any point in time the

6 Governing Board decides to act in respect to the Plan or any program that is a part of it.

7 Under such circumstances, the Board will act at its peril if it ignores, without explanation,

8 the recommendations of its staff and the internal and external compliance officers reflected

9 in the Annual Reports.

10 The Plan, as modified by the Governing Board, places the responsibility for the

11 success of the Post-Unitary Status Plan squarely on its door step. The Governing Board

12 holds the power to implement and maintain the programs adopted in the Plan. This includes

13 the responsibility for developing and adopting a final student assignment program in two

14 years with the Governing Board. The Annual Report provides the mechanism for keeping

15 the [mal student assignment program on track and thereafter for monitoring its effectiveness.

16 The Court has reviewed the disputed points in the Committee's Post-Unitary Status

17 Plan, and the Governing Board's decision to follow its staff's recommendations on these

18 points. The Court does not decide whether the Post-Unitary Status Plan, adopted by the

19 Governing Board, is the best plan or would be a better plan if the Governing Board had

20 followed recommendations by Plaintiffs' Committee members. The Court simply considers

21 the adequacy of the Plan, adopted by the Governing Board. The Court finds that the

22 Governing Board's resolution of the 16 points in the Plan that were not agreed on by the

23 Committee will not undo the Plan. The Governing Board followed reasonable

24 recommendations from its Committee members, experienced expert academic professionals.

25 The Court finds that the Plan adopted by the Governing Board meets the primary

26 concerns ofthis Court. First, it is a plan based on sound educational principles for addressing

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1 the types of problems faced by TUSD, aimed at providing equal educational opportunities

2 to minority and other disadvantaged students in the district. The Plan is designed to assist

3 the District in "becoming amodel 21 stCentury urban school district that ensures personalized

4 success for each student and that manifests principles of equal protection and equal

5 opportunity in the delivery of educational services to its students." (D's Redline P-USP at

6 3.) All parents in TUSD should be interested in the success of the Post-Unitary Status Plan

7 because better academically performing students in a school improve the educational

8 experience for all students. Second, the Plan will operate with sufficient transparency for

9 the public to hold the Governing Board accountable for the effectiveness of its operations.

10 The Court does share some concerns with Plaintiffs that must be mentioned here

11 because they involve the Green factors at issue in this case and expressly addressed in the

12 Consent Decree. Like Plaintiffs, the Court notes the seriousness of the disparities that exist

13 in the district between the racial and ethnic make up of the students and the faculty. In its

14 Order, filed April 24, 2008, the Court noted the disparities had worsened instead of improved

15 over the years. (Order at 27-33 (doc. 1270)). The Plan, necessarily, includes a program for

16 Strategic Recruitment, Retention, and Placement of Staff. The Committee included two

17 affirmative measures aimed at increasing faculty diversity, as follows: 1)Affirmative Action

18 goals that will create priority in recall of underrepresented staff (D's Redline P-USP at 12,

19 14; PP-USP, Ex. B: Points of Non-Consensus (point 7) at 59); and 2) where needed, institute

20 incentives for teachers and school based administrators to voluntarily transfer in the interest

21 of creating more diverse faculties, (D's Redline P-USP at 14.)

22 The Governing Board rejected these strategies as being discriminatory against non-

23 minority candidates. This Court is not prepared to resolve the legal aspects of including

24 affirmative action measures in the Post-Unitary Status Plan. The Court finds that in the event

25 the measures agreed to by the parties to address faculty diversity are unsuccessful, the data

26 and evidence compiled pursuant to the Plan will enable the District to reconsider whether the

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1 affirmative action measures recommended by the Committee are necessary and supportable

2 under the law.

3 The Strategic Recruitment, Retention, and Placement of Staff program drafted by the

4 Committee called for "the Superintendent, with advice of the external compliance officer,

5 to set annual or biennial statistical goals for certified staff diversity district-wide as well as

6 for staff categories specifically addressed in the Post-Unitary Status Plan (e.g., African

7 American and Hispanic special education teachers, African American and Hispanic teachers

8 of Advanced PlacementlHonors courses, African American and Hispanic teachers in the

9 GATE program, African American and Hispanic new teacher hires)." Id. at 12. This was

10 adopted by the Board.

11 The Committee drafted the Plan so that any disagreement regarding the statistical

12 goals for certified staff diversity would be resolved by the internal compliance officer, who

13 would report directly to the Governing Board. Reporting by the compliance officer to the

14 Governing Board eliminated a layer of bureaucracy, but more importantly "the" resolution

15 of any dispute between the superintendent and the external compliance officer was to be

16 decided by the internal compliance officer. Id. The Governing Board modified this

17 arrangement so the superintendent reports to the Governing Board any dispute over the

18 statistical goals for staff diversity and "a" rationale for its resolution. Thereafter, the internal

19 and external compliance officers may comment as they deem appropriate in their Annual

20 Reports, id. at 13, but the Governing Board resolves any disagreement regarding the

21 statistical goals for minority teacher recruitment. Id.

22 Here, the Plan provides for comments by the internal and external compliance

23 officers in their Annual Reports regarding teacher diversity. This will afford the public

24 adequate information to monitor the effectiveness of the Plan in improving faculty diversity

25 and to participate in any public hearings held by the Governing Board to resolve any dispute

26 over the statistical goals for staff diversity and the Board's annual review of the Plan's

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1 overall effectiveness, which will include the Strategic Recruitment, Retention, and Placement

2 of Staff program.

3 Plaintiffs Mendoza asked the Governing Board to include a commitment to

4 "racial/ethnic integration of students visible through both policy and practice, and that it will

5 not knowingly segregate students on the basis of ethnicity, national origin, race, and/or

6 linguistic background within a school setting, classroom setting, and!or programmatic setting,

7 and District monies shall not be utilized to support such practices." (PP-USP, Ex. B: Points

8 of Non-Consensus (point 16) at 69.) The Governing Board declined because the Arizona

9 Department of Education and Arizona law requires it to use desegregation funds to segregate

10 students who are not English proficient. See A.R.S. § 15-752 (once English learners have

11 acquired a good working knowledge of English and are able to do regular school work in

12 English, they shall no longer be classified as English learners and shall be transferred to

13 English language mainstream classrooms). Plaintiffs Mendoza "understand the pedagogical

14 rational and legal basis" for the Governing Board's action, but ask that, "at the very least, the

15 Plan include the statement: "The District's commitment to racial/ethnic integration of

16 students will be visible through both policy and practice" as well as an express commitment

17 to the full integration of English language learners when they are not participating in

18 structured English immersion programs. (Mendoza Objections at 15-16.)

Symbolic language is not a necessary component of the Plan, but here a pull-out

20 program based on language will undisputably segregate Hispanic minority students from

21 other students, and such a program must be carefully tailored to the language needs of these

22 students or the District will be subject to charges of illegal discrimination. Under such

23 circumstances, symbolism becomes more important to the community and may make the

24 program less suspect. However, it is for the Governing Board to determine the wisdom of

25 including the symbolic language requested by the Plaintiffs Mendoza in the Plan.

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Plaintiffs Fisher ask that several components to the Plan include more specific

2 protocols for programs addressing the needs of African American students. The Court agrees

3 with the District that the Plan generally addresses their concerns. Additionally, nothing in

4 the Plan precludes developing protocols to address many of the points raised and provisions

5 requested by the Fisher Plaintiffs. Importantly, the Fisher Plaintiffs ask that the Plan require

6 the African American Studies Department(AASD) "be notified 48 hours prior to any

7 disciplinary hearings that may result in in-house, short term, and long term suspensions,

8 abeyance contracts, or expulsions." (PP-USP, Ex. B: Points of Non-Consensus (point 13)

9 at 58.) The District declined because this "would mean that a school administrator could not

10 implement any ofthe enumerated disciplinary measures against anAfrican American student,

11 regardless of the nature of the infraction or the practicality of allowing that student to return

12 to the classroom, for 2 full days before taking any disciplinary action." (D's Brief at 10

13 (citing Celania-Fagen Affid. at ~ 17». The Court does not understand how notice to AASD,

14 without something more, impedes in any way the District from implementation of any

15 disciplinary measure. The Court finds that a protocol can be developed to give AASD timely

16 notification of disciplinary actions impacting African American students.

17 The Plan's Disciplinary program itself calls for the Department of Student Equity

18 (DSE) to work in partnership with administrators and teachers to design, implement, and

19 evaluate protocols that minimize referrals and suspensions, especially those of African

20 American and Hispanic students." (D's Redline P-USP at 25). The Disciplinary program's

21 Goal 2 is to reduce the disproportionate number of suspensions of African American and

22 Hispanic Students, id., which can be reduced by certain factors, including "positive adult

23 relationships with students, restorative practices, student-centered learning environments and

24 school-community networks that support student and family" id. at 25-26. For African-

25 American students these factors are in large part addressed through AASD. Id at 33, AASD

26 at ~ (C) (2).

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1 Pursuant to the Plan's disciplinary program, schools will train in-house suspension

2 teachers in restorative-based or similar practices and require them to integrate these practices

3 into in-house suspension programs. These in-house suspension teachers might be a logical

4 liaison between the individual school and services available through AASD for an African

5 American student facing a disciplinary action. The Plan also includes an Intentional Student

6 Advocacy program aimed at providing a one-on-one advocate for each student at each school

7 to "monitor academic achievement, attendance, and associated issues." Id. at 34, Intentional

8 Student Advocacy at ~ III(B». This individual might also be a logical liaison for notifying

9 AASD when an African American student may be suspended.

10 If not the in-house suspension teachers or the individual student advocate, the Plan's

11 AASD program calls for TUSD to identify and train a current staff member to be a liaison

12 on every campus, with AASD's assistance, to serve as an advocate for unbiased, equitable,

13 and appropriate placement for African American students during the child study,

14 multidisciplinary teams, and TAT. Id. at 32, AASD at ~VI(B)( d). This specially designated

15 AASD liaison might also be the responsible contact person during disciplinary actions

16 against African American students. The point being that the Plan creates a network for

17 interface and interaction between the individual schools and AASD to better serve the needs

18 of African American students, which includes advocacy and support when a student's

19 conduct jeopardizes his or her success at schooL

20 The action plan for AASD is "to address the rate of attrition for African American

21 students by collaborating with central office personnel, assistant superintendents, site

22 administrators, teachers, and staff to identify African American students at risk of dropping

23 out, being suspended, or being expelled and providing prevention and intervention services

24 where appropriate." Id. at 33, AASD at ~ (C)(2). The protocol requested by AASD that it

25 be notified 48 hours prior to any disciplinary hearing is directly related to this action plan.

26 While the Plan need not include the protocol requested by the Plaintiffs Fisher, the Court

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1 directs that the protocol developed by DSE pursuant to the Disciplinary program's Goal 1,

2 Action Plan, subsection c, include timely notice to AASD when an African American student

3 faces a disciplinary hearing so that AASD may provide advocacy and support services to that

4 student and his or her parents, without impeding the normal course of the disciplinary

5 proceedings.

6 The last and most important objection lodged by the Plaintiffs Fisher is that the Plan

7 fails because it has not met "the requirement of transparency called for by this Court (Order,

8 filed 08/2112007 at 25 lines 5-14) because it does not include provisions for an itemized and

9 public accounting of all desegregation funding received and disbursed by the District."

10 (Fisher Objections at 2.) The Plaintiffs Fisher are correct. If the Court were to criticize the

11 Committee's work at all it would be in this regard. In fact, it was the Governing Board that

12 added the language upon which this Court must look to determine whether the Plan ensures

13 the public will have adequate fiscal information to monitor the effectiveness of the Plan in

14 terms of what is being spent on it.

15 The Governing Board added the following provision: "The Annual Report shall also

16 provide data on expenditures related to plan related programs and shall include such analysis

17 of those expenditures as the Board or Superintendent may direct the Internal Compliance

18 Officer to prepare. This information and analysis shall be provided for advisory purposes

19 only." (D's Redline P-USP at 39, Annual Monitoring of Progress and Compliance at , - r

20 (III)(A)). This provision will be adequate, with the addition of the "data collection and

21 reporting format," which the Court ordered on April 24, 2008, to be included in the Plan,

22 (Order at 58 (doc. 1270)). The data, its analysis, and the format for its presentation must be

23 such that the public will be informed regarding any desegregation/integration money

24 received by the District and provide a money-trail showing how it is disbursed by the District

25 in respect to the programs associated with the Plan. The fiscal reporting format shall ensure

26 that the public may monitor the effectiveness of the Plan and its respective programs.

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1 With the addition of the specific "data and reporting format" the Governing Board

2 intends at a minimum to direct its internal compliance officer to provide in the Annual

3 Report, the Court finds that in all respects the Plan as drafted by the Committee, modified

4 and approved by the Governing Board ensures adequate transparency for public

5 accountability in respect to TUSD' s future operation as a non-discriminatory school district.

6 Accordingly,

7 IT IS ORDERED that the Post-Unitary Status Plan adopted by the TUSD

8 Governing Board on July 30, 2009, filed by the District with this Court on August 4, 2009,

9 is approved by the Court.

10 IT IS FURTHER ORDERED that within 30 days of the filing date ofthis Order,

11 the Governing Board shall file the data and reporting format for expenditures, which at a

12 minimum the Governing Board will direct its internal compliance officer to provide in the

13 Annual Report, as more specifically described above.

14 IT IS FURTHER ORDERED that this case is closed and all federal juridical

15 oversight of the operation of the Tucson Unified School District is ended.

16 IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment

17 accordingly.

18 DATED this 17th day of December, 2009.

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Documents

Case 4_74-cv-0090-DCB