Mendoza Plaintiffs respond to USP

7/30/2019 Mendoza Plaintiffs respond to USP

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MENDOZA PLAINTIFFS’ RESPONSE CONCERNING THE PROPOSED UNITARY STATUS PLAN

LOIS D. THOMPSON, Cal. Bar No. 093245 (Admitted Pro Hac Vice)[email protected]

JENNIFER L. ROCHE, Cal. Bar No. 254538 (Admitted Pro Hac Vice) [email protected]

PROSKAUER ROSE LLP2049 Century Park East, 32nd FloorLos Angeles, California 90067-3206

Telephone: (310) 557-2900Facsimile: (310) 557-2193

NANCY RAMIREZ, Cal. Bar. No. 152629 (Admitted Pro Hac Vice)[email protected]

MEXICAN AMERICAN LEGAL DEFENSE ANDEDUCATIONAL FUND (MALDEF)634 S. Spring St.11th FloorTelephone: (213) 629-2512 ext. 121Facsimile: (213) 629-0266

Attorneys for Mendoza Plaintiffs

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Roy and Josie Fisher, et al.,

Plaintiffs,

v.

United States of America,

Plaintiff-Intervenors,

v.

Anita Lohr, et al.,

Defendants,

Sidney L. Sutton, et al.,

Defendant-Intervenors,

Case No. 4:74-CV-00090-DCB

MENDOZA PLAINTIFFS’RESPONSE CONCERNING THEPROPOSED UNITARY STATUSPLAN DATED DECEMBER 10, 2012

Case 4:74-cv-00090-DCB Document 1413 Filed 12/14/12 Page 1 of 24



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- 1 -MENDOZA PLAINTIFFS’ RESPONSE CONCERNING THE PROPOSED UNITARY STATUS PLAN

Maria Mendoza, et al.,

Plaintiffs,

United States of America,

Plaintiff-Intervenor,v.

Tucson United School District No. One, et al.,

Defendants.

Case No. CV 74-204 TUC DCB

I. PRELIMINARY STATEMENT

The Mendoza Plaintiffs submit the within Mendoza Plaintiffs’ Response

Concerning the Proposed Unitary Status Plan Dated December 10, 2012 (“Mendoza

Response”) pursuant to this Court’s Orders of September 11, September 24, and October

31, 2012 to address objections to the proposed Unitary Status Plan (“USP” or “Plan”)

discussed in the Legal Memorandum of Objections to Joint Proposed Unitary Status Plan

Noting Areas of Disagreement (“District Objections”) filed by the District (Docket No.

1407), the objection lodged by amicus, the State of Arizona, to the provision of the USP

relating to culturally relevant curriculum, and certain changes made to the version of the

USP previously filed with the Court to add clarity and/or in response to public comment.

It is unfortunate that the District elected to commence its memorandum to the Cour

with assertions that it neither “acknowledge[s] nor admit[s] that vestiges of the segregated

system remain in the District” and “does not acknowledge or agree that the obligations it

undertaking pursuant to the …USP are necessary or required to achieve unitary status.”

District Objections at 2:14-17. The absence of any acknowledgement by the District that

this case was remanded to the District Court for on-going supervision because the “Distric

failed the good faith inquiry and [because the District Court had] raised significant

questions as to whether the District had eliminated the vestiges of racial discrimination to

the extent practicable….” (Fisher v. Tucson, 652 F.3d 1131, 1140 (2011); emphasis added




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is of grave concern. It suggests that the District has yet to recognize that before it can

obtain unitary status and be released from this Court’s supervision, it must satisfy this

Court that it has eliminated all vestiges of discrimination and demonstrate a “‘history of

good-faith compliance’” sufficient to establish that “it has accepted the principle of racial

equality and will not suffer intentional discrimination in the future.’” Id . at 1142; emphasi

in original; citations omitted.

The District’s refusal to acknowledge its on-going and substantial obligations also

underscores why the Plan before this Court is so important. In the absence of any

concession by the District about what it must do to achieve unitary status, all parties and

the Court must look to the Plan to set those benchmarks. It is for that reason among other

that both the Mendoza Plaintiffs and the Fisher Plaintiffs have sought more explicit goals

for District performance than the District would like – hence some of the objections

discussed in detail in the Mendoza Plaintiffs’ Memorandum in Support of Objections

Asserted to Joint Proposed Unitary Status Plan Filed November 9, 2012 (“Mendoza

Objections”) and repeated in response to certain edits made in the December 10 Plan.

It is because of the District’s on-going refusal to acknowledge its derelictions as

well as its past failure “ ‘to monitor, track, review and analyze the effectiveness’ of its

programs and policies” (Fisher at 1140) that the Plan includes substantial and specific

reporting and monitoring requirements. It also is for that reason that the Plan provides --

over the District’s objection -- for an Implementation Committee of three independent

expert advisors to assist the Special Master in monitoring and overseeing the

implementation of the Plan. In the particular circumstances of this case, such a committe

is eminently reasonable – and necessary.

The Mendoza Plaintiffs will provide their full response to each of the District’s

objections below. However, given certain inaccurate or incomplete assertions made by th

District, it first is necessary to address the section on “procedural history” in the District’s

Objections.




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II. PROCEDURAL HISTORY AND USP SCOPE

Consistent with its approach during the unitary status proceedings and on appeal,

the District seeks to minimize the scope of its obligations under the 1978 Settlement

Agreement and the legal mandates to which it is subject. It suggests that the only

“findings” relevant to these proceedings are those adopted by the Court in its Order dated

June 4, 1978. What that ignores, however, are the many findings this Court made in the

course of the unitary status proceedings, including, most significantly, those referenced by

the Ninth Circuit when it remanded the case to this Court for its on-going supervision.1

The District suggests that withdrawal of judicial supervision would be appropriate

with regard to faculty assignment, facilities, and extracurricular activities but fails to

acknowledge that withdrawal of supervision is a matter of court discretion, the exercise of

which must be informed, inter alia, by an assessment of “ ‘…whether the [S]chool

[D]istrict 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 predica

for judicial intervention in the first instance.’” Fisher, 652 F. 3d at 1144, quoting Freema

v. Pitts, 503 U.S. 467, 491 (1992). Here, of course, the Ninth Circuit reversed and

remanded based in part on its conclusion that the District Court’s finding that the District

had “ ‘failed to act in good faith in its ongoing operation …under the Settlement

Agreement’ ” (Fisher 652 F. 3d at 1140, quoting from the District Court’s orders) require

continued court supervision of the District.

As Mendoza Plaintiffs argued in their Memorandum Concerning the “Green

Factors” and Whether Partial Withdrawal of Oversight May Be Appropriate (Mendoza

Plaintiffs’ Green Factors Memo”), Docket No. 1330, filed 10/14/11, it is premature to

consider withdrawal of court supervision in any area, the District having yet to

“demonstrate[] its commitment to a course of action that gives full respect to the equal

1 See, e.g., Fisher , 652 F.3d at 1139, 1140, 1141, 1142, and 1143.




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protection guarantees of the Constitution.” Freeman, 503 U.S. at 491; Mendoza Plaintiffs

Green Factors Memo at 4:8-12.2

The District grudgingly states that in the many years the Settlement Agreement wa

in effect, “the scope of the remedy changed and arguably expanded….” District Objection

at 6:6-7; emphasis added. In fact, during the unitary status proceedings, this Court made

an express finding that during the time the Settlement Agreement was in place, “the partie

have interpreted the Settlement Agreement to reach a broad array of programs…” Order

dated 4/24/2008, Docket No. 1270, at 5:6-7. Therefore, it concluded, it could not limit its

inquiry “to only the express paragraphs of the Settlement Agreement….” Id . at 5:5-6.

Rather, it stated, it would look “to the terms of the Settlement Agreement, as those terms

and conditions have been interpreted by the parties and the Court over the past [then] 27

years.” Order dated 2/7/2006, Docket No. 1119, at 5:4-6. Therefore, the District simply i

wrong when it now argues in its Objections that the parties and this Court should look onl

to the 1978 Settlement Agreement to “define the … scope of any remedial order to be

entered.” District Objections at 6:2-4.

The District also is wrong to the extent it seeks to suggest that the Ninth Circuit

reversed only “in light of the findings of lack of good faith” made by this Court. District

Objections at 6:14. In fact, as noted above, the Ninth Circuit made repeated references to

this Court’s “stated concerns about whether the District had sufficiently eliminated the

effects of past de jure segregation.” Fisher, 653 F. 3d at 1142; see also, Id . at 1140.

The significance of the District’s constricted and erroneous descriptions of both the

scope of its obligations under the Settlement Agreement and the breadth of this Court’s

and the Ninth Circuit’s rulings will be further developed in the discussion of the District’s

specific objections to and comments about the USP since it helps establish why certain of

those objections should be rejected and certain of those comments disregarded.

2 Mendoza Plaintiffs do not want to burden this Court with a repetition of thearguments made in their earlier submission on “the Green factors.” They thereforerespectfully invite the Court’s attention to that filing should it desire additional detailconcerning the specific factors that the District has referenced in its Objections.




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III. STUDENT ASSIGNMENT

The District objects to the provision in the Plan relating to oversubscribed magnet

schools which provides that no more than 50% of the seats available shall be provided to

students residing within the school’s preference area in such a circumstance. Section II, G

2, a, at 10-11. It bases its argument in support of that objection solely on the 1978

Settlement Agreement and court orders entered in 1978 and 1980, asserting that their

provisions suggest that students must “be kept, to the greatest extent possible, in schools

near to their places of residence.” 3 District Objections at 10:3-4.

But much has changed since 1980. In particular, in 1994, Arizona adopted open

enrollment and by the 2005-06 school year referenced by this Court in its Order dated

4/24/2008, approximately one-third of the students in the District attended schools other

than their home attendance zone school. Order dated 4/24/2008, Docket No. 1270, at

20:11-14.

The District’s argument also ignores the fact that currently the District’s magnet

schools are among the most racially concentrated schools in the District4 notwithstanding

that the raison d’etre of these schools is to promote integration. The approach set forth in

the provision to which the District objects is intended to address that troubling

circumstance and increase the integration of the magnet schools. This Court should

overrule and reject the District’s objection.

3 Although the issue of school closings is not yet before the Court, MendozaPlaintiffs cannot but note that the District appears less than consistent in embracing theprinciple of seeking to keep students in schools near to their places of residence since itcurrently is proposing to move large numbers of students to schools outside theirneighborhoods in its pursuit of school “consolidation” and deficit reduction. It thereforeappears at the very least that the District is willing to abandon the principle to save moneybut not to advance school integration.

4 According to the data in Appendix C to the Plan, of the total number of elementarymiddle, and K-8 non-magnet schools in the District, 32 % are racially concentrated. Bycontrast, 71% of the magnet elementary, middle and K-8 schools fall within that categoryIt should be noted in this regard that the Independent Citizens’ Committee (“ICC”) thatwas created by the 1978 Settlement Agreement long argued for re-siting of the District’smagnet programs and other remedies to address this problem – to no avail. See, e.g., ICCCompliance Report, attached to Mendoza Plaintiffs’ Response and Memorandum of Lawin Opposition to Defendants’ Petition for Unitary Status and Termination of CourtOversight, Docket No. 1137, as Exhibit A.




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IV. ADMINISTRATORS AND CERTIFIED STAFF

The District has withdrawn the objections discussed in subsections B and C based

on edits in the December 10, 2012 USP.

“Grow Your Own”

Mendoza Plaintiffs believe that the District is wrong when it asserts that the

provision to which it objects would “require” the District “to provide financial support to

enable current Latino and African American employees to secure the required

certifications to become administrators.” District Objections at 12:14-15. Rather, it state

that the District shall develop a plan to increase the number of African American and

Latino principals and other administrators and that that plan “shall propose methods for

‘growing your own,’ including the possibility of financial support to enable current Africa

American and Latino employees to receive the required certifications and educational

degrees needed for such promotions.” Section IV, I, 3 at 22; emphasis added. Therefore,

it has been left for the District to propose creative methods to attain the stated goal and the

parameters for receipt of financial support to attain that goal.

The District has elected to rely on a labor market study it commissioned (and to

which the Fisher Plaintiffs have made express objection) notwithstanding that neither the

parties nor the Special Master yet have had occasion to carefully review that study, consu

with their own experts, present their specific objections to aspects (or all) of the study, an

request additional data or analysis that may be relevant. (The USP expressly states that th

parties and the Special Master shall have until February 1, 2013 to accomplish all this. Se

USP at Section IV, C, 2 at 16.) Mendoza Plaintiffs therefore object to the District’s

suggestion that this Court should rely on any information contained in that study for the

purpose of ruling on the District’s objections, or indeed, for any purpose, at this time.

Professional Development for Educators Working with ELL Students

The District has asserted an objection to one particular subsection of the Plan

provision that mandates critically important professional development for District

administrators, teachers, and other certificated staff to ensure that they are well prepared t




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work with students with diverse needs so that those students can achieve the educational

outcomes that – if meaningfully and well implemented – the USP is designed to

accomplish. That objection (to Section IV, J, 3, b, vii) should be rejected both because it

premised on a narrow and incorrect statement of the scope of the District’s obligations

under the Settlement Agreement and because it would undermine the Plan’s design: to

provide a uniform approach to professional development organized through the director o

culturally responsive pedagogy and instruction and the coordinator of professional

development.

The District asserts that the professional development subsection that calls for the

creation of a district-wide professional development plan for all educators working with

ELL students is “outside the scope of this Order.” December 10, 2012 Plan at 24. In

support of that assertion, it points to the Settlement Agreement which, it argues, imposed

very limited obligations on the District relating to bilingual education. Once again,

however, the District ignores how the Settlement Agreement was interpreted and

implemented over the years it was in effect and this Court’s ruling that it “would not limit

its inquiry to only the express terms of the Settlement Agreement because over the … 27

years [the Agreement was in place] the parties have interpreted the Settlement Agreement

to reach a broad array of programs.” Order dated 4/24/08 at 5:5-7.

Of particular note is the 2008 Annual Report that the District prepared to catalogue

its activities under the Settlement Agreement for the preceding year. Exhibit D to that

Report lists programmatic changes made pursuant to the Settlement Agreement as require

by Paragraph 17 of that Agreement. It includes: at Cragin, a new program called Avenue

described as a language program for ELL students; at Manzo, a new ELL tutoring

program; at Maxwell, a “CompEd” program described as after school tutoring for ELL

students; at Tully, a focus on all ELL strategies to be implemented in the classroom.

Further, and of particular relevance given the District’s objection, the Annual Report

includes a list of in-service training programs offered pursuant to Paragraph 12 of the

Settlement Agreement, which required training for all District employees involved in




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implementing the Agreement. According to the Annual Report, those programs included

the following: at Borton, ELL Avenues workshop; SEI endorsement training; ELL

summer school training; at Howell, guidelines for grading ELL’s; at Roskruge: vocabular

development strategies (ELL strategies) and dual language model (best practices); at Tully

effective reading for ELL’s; at Whitmore, math interventions – ELL support. TUSD 2008

Annual Report, Docket No. 1266.

In an April 2008 Order relating to the scope of the District’s obligations, this Court

found that “as a measure of effectiveness, student achievement is relevant to TUSD’s goo

faith commitment to the entirety of the Settlement Agreement, even if ‘the Stipulation doe

not make any specific reference to minority student achievement, nor [] require that TUSD

close the gap between minority student test scores and Anglo student test scores.’” Order

dated 4/24/2008 at 52:11-15. (Tellingly, given the arguments the District now is asserting

in its Objections, the Court was quoting – and rejecting—the unduly narrow interpretation

of the Settlement Agreement for which the District then was arguing.) After ruling that

student achievement was a factor on which it would focus, the Court then reviewed the

scores of TUSD students of different racial and ethnic groups on the AIMS test and said

the following concerning the scores of English Language Learners:

‘Most troubling are the low achievement rates by EnglishLanguage Learners [(ELL)] on the Arizona Instrument toMeasure Standards (AIMS) exam.’ From 2002 through 2004,ELL students failed the reading section of AIMS in grades 3, 5,8, and 10 between 73 and 96%. Anglo student failure rateranged from 20 to 42%. ELL students failed the mathematicssection up to 98% as compared to the highest percentagefailure rate of 70% for Anglo students in the 8

thgrade.

Excluding the 8th

grade, the highest percentage failure rate forAnglo students was 56% in 10

thgrade math as compared to a

95% failure rate for the ELL students.

Id . at 54:20-55:2; citations omitted. Plainly what flows from the numbers the Court recite

is a need for the District aggressively to address how its ELL students are being taught an

what techniques and approaches teachers might adopt to enhance the reading and math

achievement of these ELL students.




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In light of the foregoing, the District should be embracing the opportunity to have

the professionals in the newly created positions of director of culturally responsive

pedagogy and instruction and coordinator of professional development join forces to

fashion a district-wide professional development plan for all educators working with ELL

students. This Court should reject the District’s request that its objection be accepted and

that [p]rofessional development to assist teachers in working with ELL students [be]

handled by the Language Acquisition Department outside the auspices of this case.

District Objections at 15:25-16:2.

V. QUALITY OF EDUCATION

The District prefaces its discussion of the objections it has asserted to specific

portions of this Section with the assertion that it has no legal obligation to address

disparities in achievement between the District’s white students and the District’s African

American and Latino students. Once again, it ignores the findings of this Court, in

particular, this Court’s ruling that student achievement is indeed a factor to be considered

in assessing the District’s good faith, as discussed in the immediately preceding section.

UHS Admissions Criteria

The District has asserted an objection because it wants the Governing Board to

“ultimately be responsible for adopting admissions criteria for UHS.” District Objections

at 17:7. Mendoza Plaintiffs understand that the Governing Board wants input into the

revision of the UHS admissions procedures – just at it presumably wants and will have

input into other policies and procedures mandated by the Plan. The issue, however, is wh

has “ultimate” responsibility so long as the District is under court supervision. The answe

to that question of course is clear: this Court. No language should be added to the Plan

that suggests in any way that the Court, acting initially through the Special Master, does

not have ultimate responsibility for the terms of the Plan.

Culturally Relevant Courses of Instruction

The District objects to the requirement that it “develop and implement culturally

relevant courses of instruction designed to reflect the history, experiences, and culture of




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African American and Mexican American communities” (Section V, D, 6, a, ii, at 36-37)5

on the basis that “it is unprecedented in a desegregation case …to mandate specific course

or curriculum” and it objects to the courses being offered as “core” courses. District

Objections at 17:11-14; December 10, 2012 Plan at 37.

The USP’s inclusion of culturally relevant curriculum is designed to promote

student engagement and improve educational outcomes for African American and Latino

students. The strategies promoted in the Student Engagement and Support section of the

USP (Section V, D at 31-39) seek to close the achievement gap and eliminate the racial

and ethnic disparities in academic achievement, dropout and retention rates, and discipline

among other identified disparities. The strategies in this section of the Plan address the

quality of education in the District, a critical component of a unitary system and the title o

the section where these strategies are found. Freeman, 503 U.S. at 492.

Data from the District, a research study and a curriculum audit of the District’s

former Mexican American Studies (“MAS”) program all demonstrate that participation in

culturally relevant courses of instruction focused on Mexican American cultural and

historical experiences improve students’ graduation rates and test scores. As TUSD stated

in its Report on the Status of Implementation of the PUSP (“TUSD PUSP Report”)

(Docket No. 1353, filed 1/23/12, at 35), “[s]tudents enrolled in [Mexican American Studie

Department] classes at Cholla, Catalina, Pueblo, Rincon and Tucson High Schools were

found to have graduation rates that were substantially higher for district-defined ‘Low

5 Mendoza Plaintiffs note that unlike the November 9, 2012 proposed USP, theDecember 10, 2012 Plan expressly references courses that reflect the history, experiencesand culture of Mexican American communities rather than speaking of Latino

communities. This change was made in response to substantial public comment. It shoulbe noted, however, that notwithstanding the assumption that undergirds the amicus brief submitted by the State, the Plan’s inclusion of culturally relevant courses of instructionfocused on Mexican American communities is not a mandate to reinstate MexicanAmerican studies classes that are absolutely identical to those that were in place in Januar2012, when all such courses were suspended. The Plan provides a framework fordeveloping a curriculum for culturally relevant courses for “core English and social studiecredit” and requires that the courses be “developed using the District’s curricular reviewprocess” and that they “meet District and state standards for academic rigor.” Section V,D, 6, ii at 36.




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Income’ and ‘Very Low Income’ students.” The TUSD PUSP Report stated that low-

income students who had enrolled in MAS courses had a 7.8% higher graduation rate than

low-income students who were not enrolled in MAS courses. Id. It also found that very

low income students who had enrolled in MAS courses had a 14.7% higher graduation rat

than very low income students who were not enrolled in MAS courses. Id. In the 2009-1

school year, seniors who took MAS courses had a 10.9% higher graduation rate than their

peers who had not enrolled in the courses. TUSD PUSP Report at 36.

Recently, the Special Master requested an analysis to examine the relationship

between participation in the TUSD MAS courses and student achievement, including

AIMS test passing and high school graduation.6 MAS students who had initially failed at

least one AIMS test “were significantly more likely to ultimately pass all three AIMS

tests.” An Empirical Analysis of the Effects of Mexican American Studies Participation

on Student Achievement within Tucson Unified School District, submitted June 20, 2012

to Willis D. Hawley, Ph.D., by Nolan L. Cabrera, Ph.D., Jeffrey F. Milem, Ph.D., Ronald

W. Marx, Ph.D., University of Arizona College of Education (“Empirical Analysis”) foun

at www.tucsonusp.com at 5. MAS students in the 2010 cohort were 64% more likely to

pass their AIMS tests and those in the 2008 cohort were 118% more likely to pass. Id.

“MAS participation was a significant, positive predictor of graduation” at any time “for

three of the four cohorts, and ranged from MAS students being 46 percent more likely to

graduate (2011) to 150 percent more likely than non-MAS students to graduate (2008).”

Empirical Analysis at 6. The analysis concluded that “there is a consistent, significant,

positive relationship between MAS participation and student academic performance.” Id.

at 7.

6 As noted above (at 8), when this Court held that student achievement is relevant toan assessment of the District’s good faith, it specifically commented on the relatively lowAIMS scores of the District’s Latino students. That the District now objects to a USPprovision demonstrated to enhance AIMS scores of Latino students is, to say the least,disappointing.




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A curriculum audit by Cambium Learning of TUSD’s Mexican American Studies

Department from March 7, 2011 through May 2, 2011 commissioned by the Arizona

Department of Education (“Cambium Audit”) supports these findings. Among the

Cambium Audit’s findings are that “[Mexican American Studies Department (“MASD”)]

programs are designed to improve student achievement based on the audit team’s findings

of valuable course descriptions aligned with state standards….” Cambium Audit, Nationa

Academic Educational Partners, Curriculum Audit of the Mexican American Studies

Department, Tucson Unified School District, May 2, 2011, relevant excerpts of which are

attached as Exhibit 1, at 31.7

With regard to whether statistically valid measures indicated

student achievement occurred, the Audit findings “agree student achievement has occurre

and is closing the achievement gap….” Id. at 43, 68.

Among the Cambium Audit’s conclusions is that between 2005 and 2010, students

who failed the reading and writing AIMS subtests in their sophomore year and then took a

MAS course during their junior year “were indeed more likely than the comparison group

to pass these two AIMS subjects by the end of their junior year.” Id. at 45. Importantly,

“[s]tudents who complete a MASD course during their senior year of high school are mor

likely to graduate than compared to non-MASD counterparts.” Id. at 47.

Inclusion of curriculum as part of a remedy in a desegregation case is not

unprecedented and is supported by the history of the present case, case law and consent

decrees in other desegregation cases. This Court, in its August 21, 2007 Order, recognized

that in earlier orders in this case, curriculum provisions were mandated to remedy prior

discrimination. As this Court stated in its August 21, 2007 Order with regard to Safford

Middle School, “the Court approved a plan for Safford, which instead of closing it

established it as a ‘new school’ for the 1981-82 school year with an alternative curriculum

7Because the Cambium Audit is so lengthy, Mendoza Plaintiffs have not included

the entire Audit in this submission. However, should the Court wish to review the fullAudit, Mendoza Plaintiffs will provide it.




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focused on basic skills, bilingual instruction, math and science, environmental education

and fine arts.” Order dated 8/21/2007, Docket No. 1239, at 16:19-22.

Other federal courts have adopted curricular mandates that include specific courses

offered in specific grade levels as remedial measures in desegregation cases. In a school

desegregation case involving two predominantly white school districts and one

predominantly African American district, the court-ordered remedy provided for revisions

to curriculum content including requiring an annual elective course on American race

relations in each high school in each of the three school districts and a recommendation

“that study of minority cultures be included in curriculum at all grade levels throughout

these three school districts.” Berry v. School Dist. of City of Benton Harbor , 515 F. Supp.

344, 374 (W.D. Mich.1981) (emphasis added). The court in Berry specified what the race

relations courses should include-- “reading, discussion and study of the history of race

relations in this country and efforts to improve relationships between the races.” Berry,

515 F. Supp. at 374. The court also suggested opportunities for students to study “black

literature, history, music and art” in separate courses or within existing course offerings at

the high school level. Id.

Similarly, the district court in Hoots v. Pennsylvania, 118 F. Supp. 2d 577 (W.D.

Pa. 2000), while finding the school district had achieved unitary status, retained

jurisdiction over the district’s curriculum and ordered the district to revise the math

curriculum by eliminating lower level math courses and providing a single math

curriculum for all students at the secondary level.8 Hoots at 613. The court also ordered

“revision of the implementation of Connected Mathematics for all students in the 6th, 7th

and, perhaps, 8th grades; the implementation of PUMP Algebra for all students at the sam

grade level; and the elimination of pre-algebra, math 7, and math 8.” Id.

8 Dr. Christine Rossell, expert for Arizona in support of its amicus brief in this actiotestified on behalf of defendant school district in this case. Her involvement in Hoots callsinto question the assertion in her declaration that in her experience “courts do not orderschool districts to offer particular courses.” (Declaration of Christine H. Rossell at 3:7-8)In fact, they do.




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TUSD’s reliance on Keyes v. School District No. 1, Denver, Colorado, 521 F.2d

465 (10th Cir. 1975), claiming that Keyes held that a school district “could not be required

to provide particular curricular offerings to or for its minority students” is misplaced.

District Objections at 18:2-3. In Keyes, the Tenth Circuit Court of Appeals rejected the

district court’s adoption of the Cardenas Plan, a plan that was much broader and far-

reaching than the curricular provision to which TUSD objects here.

According to the Court in Keyes, the Cardenas Plan required “an overhaul of the

system’s entire approach to education of minorities” and established ten committees

“composed in part of persons from outside the school system” to evaluate district

programs. Keyes at 480-481. The Cardenas Plan’s proposals “touch[ed] virtually every

aspect of curriculum planning, methodology and philosophy presently the responsibility o

local school authorities.” Id. at 481. In addition to its curricular requirements, the

Cardenas Plan proposed “adoption and publication of certain educational principles,

provision of early childhood education…and adult education for minorities, and provision

of adequate clothing for poor minority school children.” Id.

The Circuit stated that it was rejecting the district court’s adoption of the Cardenas

Plan because it “would impose upon school authorities a pervasive and detailed system”

for educating minority children. Id. at 482. It also rejected the Plan because it would

“interfere” with “state and local attempts to deal with the myriad economic, social, and

philosophical problems connected with the education of minority students.” Id. Unlike th

Cardenas Plan, the USP section on culturally relevant curriculum focuses solely on a

particular curricular approach demonstrated to increase academic achievement.

Consent decrees and settlement agreements in various desegregation cases also hav

mandated curriculum requirements. In Sinajini, et al. v. Board of Education of the San

Juan County School District, et al., a desegregation case brought on behalf of Native

American children, the 1997 order and consent decree includes a section entitled

“Curriculum” that provides for the establishment of a curriculum committee to review the

school district’s curriculum and make revisions as necessary. Sinajini, et al. v. Board of




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Education of the San Juan County School District, et al., 1997 Order and Consent Decree

U.S. District Court, District of Utah, Central Division, Civ. No. 2:74-CV-346-S, April 24

1997, attached as Exhibit 2, at 83. Likewise, in Meyers, et al. v. Board of Education of

the San Juan County School District, et al., the 1996 agreement and consent decree

requires the school district to involve community members of the Navajo nation in the

curriculum development of a new high school. Meyers, et al. v. Board of Education of th

San Juan County School District, et al., 1996 agreement and consent decree, U.S. District

Court, District of Utah, Central Division, No. 93-C-1080 J, Nov. 22, 1996, attached as

Exhibit 3, at 5. In a settlement agreement in a desegregation case involving seven school

districts in Garland County, Arkansas, the Arkansas Department of Education agreed to

provide multicultural curriculum development workshops so that the subject districts coul

develop their own multicultural curricula as well as a curriculum specialist to assist in

selecting textbooks to reflect the multicultural curriculum established by each district and

to assist the district in developing a self-esteem curriculum to be integrated into the regula

curriculum to raise the self-esteem of at-risk students. Garland County School

Desegregation Case Comprehensive Settlement Agreement, 1991, attached as Exhibit 4, a

7.

The foregoing clearly establishes that curriculum requirements that provide for

particular courses at particular grade levels like that in the USP are supported by the

history in this case, case law, and consent decrees and settlement agreements in other

desegregation cases.

TUSD also objects to the directive that culturally relevant courses focusing on

African American and Mexican American experiences in the District’s high schools be

core9

courses. However, it currently offers as core courses Native American Literature in

9 The State of Arizona in its amicus brief states that the USP’s reference to “core”courses is vague. The December 10, 2012 Plan revised the language referencing “core”courses from the Nov. 9, 2012 version and refers to “courses of instruction for coreEnglish and Social Studies credit.” Section V, D, 6, a, ii at 36. Further, Appendix Aincludes a definition of “Core class” as one “offered for core (i.e., graduation) credit in aparticular subject area (e.g. Social Studies, English), which a student may choose to take.”Appendix A at 2.




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grade 11 and American History, Native American Perspectives, in grades 9, 10, 11 and 12

TUSD High School Course Catalog 2012-2013 (“Course Catalog”) excerpted pages

attached as Exhibit 5, at 43, 95. TUSD cannot justify distinguishing English and Social

Studies courses with a Native American perspective from similar courses with a focus on

African American and Mexican American perspectives for purposes of obtaining required

graduation credits.

Racial classifications are suspect and subject to the most rigorous scrutiny. Bolling

v. Sharpe, 347 U.S. 497, 499 (1954). The Supreme Court in Brown v. Board of Education

of Topeka, 347 U.S. 483 (1954), reminds us that “in the field of public education the

doctrine of ‘separate but equal’ has no place.” 347 U.S. at 495. The Supreme Court also

explained that to treat a group of students separately denotes “inferiority.” Id. at 494. Th

sense of inferiority is generated when courses focused on African American and Mexican

American experiences are not considered core courses while similar courses with a Native

American focus are maintained as core courses. In spite of this, the District insists that th

culturally relevant courses for English and Social Studies credit called for in the Plan be

elective courses along with courses like Office Aide, School Work Experience, and Drive

and Traffic Safety. Course Catalog at 37, 39, 36, listing “elective” courses. The course

offerings required in the USP with an emphasis on African American and Mexican

American experiences should remain core courses.

The State of Arizona in its amicus brief also raised several objections to the Plan’s

inclusion of culturally relevant courses of instruction. Among its objections, Arizona

argues that the state has adopted academic standards and performance objectives that

require that multicultural curricula be implemented by every school district and that such

requirements render the Plan’s provision for culturally relevant courses of instruction and

multicultural curriculum unnecessary. Arizona’s Objection to the Draft Unitary Status

Plan for Tucson Unified School District No. 1 (“Arizona Objection”), Docket No. 1409,

filed 11/28/12, at 2-3, 17. It also objects on the basis that the federal court “exceeds




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appropriate limits of federal judicial authority when it intrudes on a state’s right to

determine the curricula and education of its citizens.” Arizona Objection at 14.

What Arizona fails to acknowledge in its amicus brief is that TUSD is under an

obligation to remedy the constitutional violation of its Latino and African American

students’ rights to equal educational opportunities and that the federal constitutional

obligations of a school district supersede any contrary state laws. See, Griffin v. County

School Bd. of Prince Edward County, 377 U.S. 218 (1964) (holding that school board’s

closure of county public schools and use of public funds for private schools that excluded

African American children was violation of equal protection); North Carolina St. Bd. of

Ed. v. Swann, 402 U.S. 43 (1971) (holding that state statute forbidding assignment of any

student on account of race and forbidding busing for such purpose was unconstitutional

violation of equal protection).

The remedies included in the USP, and in particular the mandate for culturally

relevant courses of instruction, are designed to promote student engagement and improve

educational outcomes by addressing disparities in academic achievement and dropout

rates, among others. Data from the District, the Empirical Analysis and a curriculum aud

commissioned by Arizona’s Department of Education all confirm the positive impact of

TUSD’s former MAS program on students’ AIMS passage and high school graduation

rates. The culturally relevant curriculum requirement in the USP seeks to replicate the

strategies from the MAS courses that have proven successful.

Arizona also argues that the culturally relevant courses of instruction will segregat

students. This argument has no merit. There is no requirement that these courses promot

or restrict enrollment based on race or ethnicity. During the public forums on the USP we

heard from many parents whose children had taken MAS courses and from former MAS

students who supported the USP’s inclusion of culturally relevant courses of instruction

and who were not Mexican American. Aside from the aforementioned section, the Plan

includes multiple strategies for promoting integration beginning with the Student

Assignment section (Section II at 6-14) and including the Access to and Support in




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Advanced Learning Experiences (Section V, A at 26-31), which focus on improving acce

of African American and Latino students to Advanced Academic Courses. All of this

confirms that the Plan is designed to promote integration, not lead to segregation, as the

State incorrectly asserts.

This Court should reject the District’s and the State of Arizona’s objections to the

inclusion of culturally relevant courses in the USP.

VI. EXTRACURRICULAR ACTIVITIES; FACILITIES AND TECHNOLOGY

Mendoza Plaintiffs do not agree that the District is “unitary” with respect to the

above-referenced factors and again respectfully invite the Court’s attention to their

Memorandum Concerning the “Green Factors” and Whether Partial Withdrawal of

Oversight May Be Appropriate and the discussion above at pages 3-4.

VII. ACCOUNTABILITY AND TRANSPARENCY

Budget Process and Timelines

As this Court well knows, the problem of being able to “follow the money,”

particularly the District’s receipt and expenditure of “desegregation funds” has plagued th

Plaintiffs (the public--and, indeed, this Court--) for years. Not surprisingly, the need for

transparency and for true accountability for the funds to be expended to implement the

USP was the subject of public comment after the Plan was released in its November 9,

2012 form.

The Plan as drafted provides the minimum time Plaintiffs require in order to be abl

to perform a meaningful review of, first, the District’s plan for allocating “desegregation

funds” and then the actual USP Budget.

It should be noted that in significant part the time constraint about which the

District complains appears to be self-created. The District indicates that it has not yet

started work on a proposed methodology and process for allocating “desegregation funds”

(“the Desegregation Funds Expenditure Plan”) but gives no credible reason for its delay,

the parameters of the USP having been clear at least since November 9, when the filing of

the proposed Plan revealed few, if any, objections likely to materially impact costs to




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implement the Plan and none that were likely to have affected the ability of the District to

propose a methodology and process for allocating funds. That failure is of particular

concern – and should not now be used as a reason to deprive Plaintiffs and the Special

Master of adequate time to review and comment on a Desegregation Funds Expenditure

Plan proposed by the District – given that this Court expressly included the following

language in its Order dated 7/13/12, Docket. No. 1377:

IT IS FURTHER ORDERED that nothing in this Order shallbe interpreted to cause any delay by the District in theimplementation of provisions which all Parties agree will becomponents of or required for the implementation of any USPand work by the District should continue to move forward insuch regard.

7/13/12 Order at 4:17-20.The District has interposed in the discussion of its objection concerning the dates

within which Plaintiff and Special Master review of the Desegregation Funds Expenditure

Plan and budget are to occur a request that the Court “reconsider any aspects of its Octobe

26, 2012 Order that are inconsistent with the process agreed to by the Parties in the Draft

USP for the creation, review and adoption of the USP Budget.” District Objections at

23:9-19. The District does not identify any supposed “inconsistencies” and Mendoza

Plaintiffs do not believe any exist. To the extent the District may be implying with its

statement that the budget process set forth in the USP “keeps the responsibility for creatin

a budget within the District” (District Objections at 23:14-15) that the services of E.

Joseph Schneider are no longer needed or that the Special Master should not be “working

with the District in building a budget for the USP and identifying the funding necessary fo

its implementation” (Order dated 10/26/12, Docket No. 1402, at 3:5-8), Mendoza Plaintif

disagree.

Advisory Panel

As noted at the outset of this submission and as this Court well knows, during the

years the Settlement Agreement was in force, the District “failed to make the most basic

inquiries necessary to assess the ongoing effectiveness of its student assignment plans,




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policies and programs,” “exacerbated the inequities of [] racial imbalances [in District

schools] because its failure to assess program effectiveness … impeded its ability to use it

resources to the extent practical to secure its minority students equal access to educational

opportunity,” and failed “to monitor, track, review and analyze the effectiveness” of

program changes it put into place. Order dated 4/24/2008 at 27:6-10; 27:14-16; 55:26-

56:1. To remedy those grave failings, the USP requires the District to do significant

reporting and assessment with respect to each of the Green factors. Monitoring of Plan

implementation, reporting and assessment will be demanding. But, particularly in the

circumstances of this case, it is essential.

The Special Master, who now has been working on this case for almost one year

and is fully familiar both with the terms of the USP and the resources of the District, has

determined that his ability to effectively monitor and oversee implementation of the USP

will be enhanced if he is assisted by three independent expert advisors. The Special

Master’s judgment about how best to proceed should be respected. Particularly given tha

the parties will have the right to object to the Special Master’s choice of expert if they

determine that they have a sound basis to do so and that this Court will be asked to approv

each designation and each expert’s compensation, the District’s objection should be

rejected.

VII. CHANGES MADE TO THE NOVEMBER 9. 2012 USP

Working with the Special Master, the parties made a number of changes to the

proposed USP that was filed with the Court on November 9, 2012 both to add more clarity

and to respond to public comment. Mendoza Plaintiffs address certain of those changes

below.

Dual Language Programs

The December 10, 2012 USP adds a new sub-Section C (Dual Language Programs

to Plan Section V on Quality of Education (at p.31). This sub-Section was added in

response to significant public comment in support of both dual language programs and a

bi-lingual approach to securing English language proficiency for English Language




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Learners. Many who commented requested that dual language programs be included in

sub-Section A of Section V concerning Advanced Learning Experiences (which starts at

page 26). The parties broke it out as a separate sub-Section because the focus of sub-

Section A is on access to and support of African American and Latino students in

advanced learning experiences while the focus of the dual language program provision is

to ensure that the District expands these programs, supports them, and acts to encourage

new and current certificated staff with dual language certifications to teach in these

programs.

Goals for ALEs

Both the Mendoza Plaintiffs and the Fisher Plaintiffs objected to the absence in the

November 9, 2012 USP of goals for increasing the access to and retention of African

American and Latino students in what the Plan designates as Advanced Learning

Experiences (“ALEs”). The December 10, 2012 USP addresses these objections to a

limited degree with the addition of language providing that the new Coordinator of ALEs

is to “develop[] goals…for progress to be made,” that those goals are to be shared with th

Plaintiffs and the Special Master and that the District is to use those goals to “evaluate

effectiveness.” Section V, A, 2, a, at 27. Mendoza Plaintiffs acknowledge the addition of

this provision but have maintained their objections ( see USP at 29) for two reasons: (1)

the language they have proposed seeks to ensure that goals are set annually and that their

express purpose must be “to steadily increase the number and percentage” of African

American and Latino students who are participating in the referenced ALE; and (2) those

goals (and then, concomitant effort) must expressly focus on increasing the number of EL

and special education students who are participating in the ALEs.

VIII. CONCLUSION

For the reasons set forth in the Mendoza Plaintiffs’ Memorandum in Support of

Objections Asserted to Joint Proposed Unitary Status Plan Filed November 9, 2010 and fo

the reasons set forth above, this Court should reject the objections to the USP interposed




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by the District and by the State of Arizona, as amicus, and should incorporate the changes

and edits proposed by the Mendoza Plaintiffs through their objections.

Respectfully submitted,

Dated: December 14, 2012 PROSKAUER ROSE LLPLOIS D. THOMPSONJENNIFER L. ROCHE

MEXICAN AMERICAN LEGAL DEFENSEAND EDUCATIONAL FUNDNANCY RAMIREZ

By: s/ Nancy RamirezNancy Ramirez




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CERTIFICATE OF SERVICE

I hereby certify that on December 14, 2012, I electronically submitted the foregoin

Mendoza Plaintiffs’ Response Concerning the Proposed Unitary Status Plan Dated

December 10, 2012 to the Office of the Clerk of the United States District Court for the

District of Arizona for filing and transmittal of a Notice of Electronic Filing to the

following CM/ECF registrants:

Heather K. [email protected]

Nancy [email protected]

Rubin Salter, [email protected]

Zoe [email protected]

Anurima [email protected]

I further certify that on December 14, 2012, I sent an e-mail copy of the foregoing

Mendoza Plaintiffs’ Response Concerning the Proposed Unitary Status Plan to the

following who is not a CM/ECF registrant:

Special MasterDr. Willis D. [email protected]

Dated: December 14, 2012

s/ Imelda AparicioImelda Aparicio


Documents

Mendoza Plaintiffs respond to USP