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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Roy and Josie Fisher, et aI., v. Plaintiffs,

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United States of America, Plaintiff-Intervenor, v. Anita Lohr, et aI., Defendants, and Sidney L. Sutton, et aI., Defendants-Intervenors, Maria Mendoza, et aI., Plaintiffs, United States of America, Plaintiff-Intervenor, v. Tucson Unified School District No. One, et aI., Defendants.
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CV 74-90 TUC DCB (lead case)

ORDER

CV 74-204 TUC DCB (consolidated case)

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I. Action The Court approves the Post-Unitary Status Plan adopted by the District's Governing Board on July 30, 2009. The Court orders the Governing Board to file the data and reporting format which at a minimum the Governing Board will direct its internal compliance officer to provide in the Annual Report as an itemized public accounting and analysis of the desegregation/integration funding received and disbursed by the District. The Court orders

the Clerk of the Court to enter Judgment in this case, ending all federal jurisdiction and oversight of the operation of the Tucson Unified School District.

II. Background
On April 24, 2008, this Court granted the Defendant's Petition for Unitary Status, pending acceptance by the Court of a Post-Unitary Status Plan (the Plan) that would ensure the Governing Board would be accountable to the public for the operation of the Tucson Unified School District in compliance with the principles of equality. (Order at 56 (doc.

1270)). The Court found that "[w]hile TUSD made a good faith effort to implement the program changes expressly required under the terms ofthe Settlement Agreement for the first few years, it failed to act in good faith in its ongoing operation of the District, specifically, [it spent millions of dollars arbitrarily] by failing to monitor, track, review and analyze the effectiveness of its programmatic changes." Id. at 55-56. The initial successes by the

Defendant and its later failures factored into this Court's decision to grant the Petition for Unitary Status, pending approval by this Court of a Post-Unitary Status Plan that addresses how the Governing Board intends to ensure its future operation of the district does not exacerbate racial imbalances being caused by the demographic re-segregation of the district and provides every student with equal educational opportunities, and the Plan ensures the public can monitor its effectiveness. The Court incorporates by reference the findings of fact and conclusions of law contained it its prior Order (doc. 1119), filed on February 7, 2006, defming the scope of the

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unitary status inquiry appropriate in this case and the Order (doc. 1270), filed April 24, 2008, granting the Petition for Unitary Status, pending acceptance by this Court of a Post-Unitary Status Plan for the District. The question now before this Court is whether the Post-Unitary Status Plan adopted by the Governing Board on July 30, 2009, is adequate to ensure it will operate TUSD to the equal advantage of every child and take measures when practicable to offset the ongoing demographic resegregation of the school district. It is the Court's responsibility at this

juncture to guard the public against future injury and restore true accountability to the public education system by returning it to the control of local authorities as soon as practicable. (Order at 56 (doc. 1270, filed 4/24/08)). "This Court finds that given the facts of this case,

successful desegregation will exist when the School Board is accountable to the public for its operation of the District in compliance with the above principles of equality." Id. "In

other words, TUSD attains unitary status upon the adoption of a Post-Unitary Status Plan that ensures transparency and accountability to the public regarding the operation of a non-

discriminatory school system." Id. at 56-57. In its April 24, 2008, Order the Court directed the parties to review the plan proposed by the District and revise it to include greater specificity regarding the goals of each proposed program, including benchmarks and measurements of effectiveness and

success, and include plans for data collection and reporting formats for the proposed program. Importantly, the parties were asked to improve the plan's transparency and

accountability, especially in respect to how the Defendant spends thousands of dollars in desegregation funding. The Court ordered the Defendant to address the concerns and

recommendations of the Plaintiffs because they were shared by the Court. The Petition was granted, pending the adoption by the Governing Board of such a Plan and approval by this Court. Id. at 58.

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In response to the Court's Order, the parties met on May 14, 2008, and agreed to and did convene on June 9, 2008, a two day educators' meeting, attended by District Senior Administration ElizabethFagen, Staff, including Superintendent Roger Pfueffer, and Superintendent-elect ICC Representative Silvia Campoy, Fisher Plaintiffs' Representatives, and It can fairly be said that Drs.
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two experts, Dr. Leonard Stevens and Dr. Gary Orfield.

Leonard Stevens and Gary Orfield represented Plaintiffs' interests. comprised the Post-Unitary Status Plan Committee.

All these individuals

The Committee agreed that the new incoming superintendent, Elizabeth Fagen, should be afforded an opportunity to draft a new Post-Unitary Status Plan instead of using the Plan initially submitted by the District when it filed its Petition for Unitary Status. The Committee would then review and make recommendations regarding revisions to the new

draft Plan. The Plan would be a jointly prepared document to the extent practicable because when a desegregation case is resolved by the parties to their respective satisfaction, there is potential thereafter for cooperation between the communities of the district and the District. Within days of the Committee's meeting, the District filed a notice with the Court that it had been instructed by the Governing Board that the District would file its own revised PostUnitary Status Plan. On June 23,2008, the Court rejected this suggestion by the District and directed that the Post-Unitary Plan be a document drafted by educators and jointly prepared by the parties to the maximum extent practicable. (Order at 1-4 (doc. 1273, filed 6/23/09».

The Court provided the following directions to the Committee: "The Post-Unitary Status Plan shall not contain any component requiring continued court monitoring nor any

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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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student assignment plan that includes the mandatory movement of children based on race." Id. at 5. The draft Post-Unitary Status Plan was to be completed, presented for public

comment, reviewed after public comment by the Committee, finalized by the Committee and submitted simultaneously by the Committee to the Governing Board and the Court. The Governing Board was given 30 days to take action regarding formal adoption of the PostUnitary Status Plan. Id. As recent as May 28,2009, the Court was again forced to prevent an end run around the Committee by the District, when the Committee failed to complete its work on time and the District submitted its draft to the Court instead of seeking an extension of time for the work to be completed by the Committee. 5/28/09)). (Order at 2-3 (doc. 1289, filed

The Court ordered an extension and that it would "not consider any issue,

question, or provision related to the Plan that has not first been considered and addressed by the Committee and the Board." Id. On June 30, 2009, the Committee filed the Proposed Post-Unitary Identifying Areas of Unanimous Agreement and Areas of Disagreement. and Proposed Post-Unitary Status Plan (PP-USP)). Status Plan

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(Notice of Filing

The Committee agreed on all but 16

points in the proposed Plan. The 16 points of disagreement were contained in the document presented to the Governing Board, with each parties' position set out separately below each disputed point. Id., Ex. B: Points of Non-Consensus. After public comment and public Status Plan in most part as

hearings, the Governing Board adopted the Post-Unitary recommended

by the District staff Committee members, but it also made changes not This Court had precluded the Governing Board from

considered by the Committee.

including provisions in the Plan that were not considered by the Committee in an effort to secure a plan document generated by educational experts' instead of school board elected officials.

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2Here, the Court includes in its use of the term "educational experts" all the educators 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 District because in the most part, at least programmatically, it is a document created by

highly qualified educators. The Committee completed its work to the extent practicable with agreement on all matters except for 16 points. The Governing Board's resolution of those disputed points was necessary, and the changes made by the Governing Board which have not been considered by the Committee will be scrutinized by the Court. III. Post-Unitary Status Plan Adopted June 30, 2009 The question is whether the Post-Unitary Status Plan as adopted by the Governing Board and filed with the Court supports the grant of the Petition for Unitary Status and entering final Judgment, ending all jurisdiction by this Court over the operation ofthe Tucson Unified School District. In answering this question, the Court considers the opinions of the educational experts as expressed in the Post-Unitary Status Plan the Committee drafted, and the Plaintiffs' arguments made in their respective briefs filed in opposition to the Post-

Unitary Status Plan adopted and submitted by the District. The Court considers the District's brief in support of the Plan. The Court begins with a general overview ofthe Post-Unitary Status Plan. First, it is apparent that the Committee was highly qualified to prepare this plan. The Committee worked long and hard, and mostly on a volunteer basis, addressing in very precise terms each component of concerns that were the subject of this case. The Strategic Student Assignment section of the Plan provides a non-race based student assignment program to encourage diversity based on open enrollment and magnet programs and schools, which addresses marketing and transportation necessary for the

student assignment program to address desegregation and integration. Strategic Recruitment, Retention, and Placement of Staff provides a plan to develop a diverse workforce of teachers. An Intentional Equal Access program increases opportunities for traditionally underserved students to participate in Gifted and other programs aimed at developing academically

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successful students.

The program for Restorative School Culture and Climate promotes including the following: an action plan for

respect for cultural and ethnic diversity,

administering equitably and fairly the District's discipline policies, a program for parental involvement aimed at keeping students in school and improving academic performance, a student equity program aimed at closing student achievement gaps, and continuation of the Mexican American Studies Department and African American Studies Department (AASD). The Intentional Student Advocacy program provides every student with an adult advocate to promote a successful student body, one student at a time. The Annual Monitoring or Progress and Compliance component ofthe Post-Unitary Status Plan addresses transparency and public accountability so the public may monitor the effectiveness of the Plan, including accountability for the thousands of dollars the District continues to receive to promote the education of minority and socially disadvantaged students. (District's Notice Re: Adoption of Post-Unitary Status Plan, Ex. B: RedlinePost-Unitary Redline P-USP) at 2,5-39.) The Post-Unitary racially/ethnically Status Plan calls for each school, in collaboration with a Status Plan adopted 7/30/2009 (D's

diverse group of staff and community members to develop a site plan to

specifically address the academic needs of African American and Hispanic students who are not performing at grade level and or meeting the standards as assessed by Terra Nova and AIMS. Each site plan should include the applicable components of the Post-Unitary Status Plan such as the issue of under-representation in Honors, AP, and Gifted programs, other The success

indicators of proficiency and achievement, and disproportionate suspensions. of the school's consideration evaluations. site plan will be monitored and reviewed

annually, and taken into

in respect to assessing overall Plan success, site success, and personnel Id. at 3-4.

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The Court finds that the Committee, composed of educators including District staff, generated a plan to meet the needs of African American and Hispanic students for academic improvement, both personal and programmatic. Next, the Court moves to the Post-Unitary Status Plan as adopted by the Governing Board, specifically its resolution of those parts that were disputed at the Committee level and its modifications that were not considered by the Committee. As to the sixteen points in the Plan upon which the Committee members did not agree, the Governing Board adopted 15 of the points as recommended by the District's staff members on the Committee. recommendation As to point number 9, the Governing Board followed the

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

recommended by the Plaintiffs Mendoza. The Governing Board independently modified the Post-Unitary Status Plan, with two categories of changes. Category One changes were technical to provide clarity with respect to plan goals and objectives and assignment of responsibilities. (District'S Briefin Support

of Post-Unitary Status Plan adopted 7/30109 (D's Brief), Ex. A: Transcript of Governing Board Motions at 3.) The Plaintiffs do not object to the technical modifications made by the Governing Board, except for the reassignment to the superintendent and the Governing Board of responsibilities assigned by the Committee to district compliance officers. treats this as a substantive change and will address it accordingly. Category two changes were legalistic and to "reinforce the understanding ... that [the] Plan is not only a legal document but also a 'living' document, adopted with clear understanding that it is subject to periodic review and, as necessary, good faith modification by the Board." Id. (emphasis added). The Court begins with the Preamble included in the motion to adopt the Plan, which Defendants assert was critical to the Plan being approved by the Governing Board. Brief at 3). The Preamble was adopted as follows: (D's The Court

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This Motion is made with the understanding and acknowledgment that this is a plan. As set forth in detail in the Plan, this Governing Board and future Governing Boards will have the opportunity to receive and consider the evaluations of the Plan made by an Internal Compliance Monitor, and External Compliance Monitor and by senior staff as well as input from the public on at least an annual basis, together with recommendations these individuals may make for changes or revisions to the Plan and to individual programs to be implemented under the Plan. Based on these evaluations and recommendations, this or a future Governing Board may from time to time make revisions, amendments and modifications to the Plan as necessary to best implement its underlying goals and objectives. Id. This Preamble is closely linked to the insertion by the Governing Board of a new sub-paragraph (D) under Annual Monitoring of Progress and Compliance, as follows: The Governing Board shall, on at least an annual basis, review all information and reports compiled by the internal and external compliance monitors and all public comments and input regarding the implementation of the Plan. The Governing Board may at any time make such revisions, amendments and modifications to the Plan as the Governing Board determines are necessary to best meet the underlying goals and objectives 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 PostUnitary 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)

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(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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the Board and the Board's reasons therefore and at least two public hearings on the matter, each attended by a majority of the Board members and the Superintendent." See (D's Brief

at 8 (Board voted 5-0 to include this language to resolve the Committee's disputed point 9)). The Governing Board refused to include language in the Plan obligating the District to continue the Student Equity program "so long as the district receives

desegregation/integration

related funds from the federal government."

(PP-USP, Ex. B:

Points of Non-Consensus (point 9) at 61.) Like the Mendoza Plaintiffs, this Court believes that "the District has a moral as well as a legal obligation to actively address academic performance gaps as they impact African American and Hispanic students so long as it receives any desegregation/integration funds." (Mendoza Objections at 11.) in the Post-Unitary Neither

obligation, however, need be memorialized effectiveness of the Plan. The Court finds that the Governing

Status Plan and the

Board's

resolution

of the Committee's

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

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

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integration across the district. (D's Redline P-USP, Strategic Student Assignment, at 5-10.) The Post-Unitary Status Plan calls for the District to gather data over the next two years, and for the Committee, informed by this data, to develop a final or permanent school assignment plan that is to be submitted to the Governing Board by October 1, 2011. Id. In large part, this request and several of the Plaintiffs' objections flow from the Committee's desire to shield the Plan from Governing Board interference. (Mendoza

Objections at 11.) While this may arguably address the Court's first concern in approving a plan that ensures success to the greatest practical extent possible, it is contrary to the other

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equally important goal which is to return responsibility for operating the school district to the Governing Board. The Court's resolution of these two partially conflicting goals is to ensure that the Plan affords the degree of transparency necessary for the public to hold the

Governing Board accountable for the operation of the school district. The Court looks to the adequacy of the Plan's Monitoring of Progress and Compliance section to determine if there is sufficient transparency in the Plan to enable the public to hold the Governing Board accountable for operating a nondiscriminatory school district.

The purpose of the Monitoring of Progress and Compliance section of the Plan is "to enable district administrators, TUSD Governing Board members, and the public to monitor the effectiveness of the Post-Unitary Status Plan." (D's Redline P-USP at 36.) This section assigns the primary responsibility for monitoring the effectiveness of the Post -Unitary Status Plan to an internal compliance officer and an external compliance officer. The former being an employee of the District and the latter being independent. Generally, the Plan

provides for data gathering and reporting to be conducted in-house, with outside expert analysis and reporting, so there will be greater independence from the Governing Board, transparency, and public trust in the process. The primary vehicle for public monitoring and reporting is an Annual Post-Unitary Status Report (Annual Report) from the internal

compliance officer, reports from the external compliance officer, an annual public hearing on the reports, and a Post-Unitary Status Plan web page. Id. at 36-39. "Reports of both the internal and external compliance officers regarding the Plan shall be public records subject to public inspection and disclosure under applicable laws." Id. at 39. The Annual Report shall provide data and analysis to the public and the Governing Board concerning each element of the Plan and shall identify problem areas, problems solved, and progress made with respect to every element and measurable goal in the Plan, along with proposed corrective actions. Id. The Annual Report shall also provide data on expenditures related to plan-related programs and "shall include such analysis of those

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expenditures as the Board or Superintendent may direct the Internal Compliance Officer to prepare." Id. With the exception of the provision for reporting expenditures, which will be discussed later in this Order, the Annual Report guarantees the public will have up-to-date information on an ongoing basis to ensure the public is well informed at any point in time the Governing Board decides to act in respect to the Plan or any program that is a part of it. Under such circumstances, the Board will act at its peril if it ignores, without explanation, the recommendations of its staff and the internal and external compliance officers reflected in the Annual Reports. The Plan, as modified by the Governing Board, places the responsibility for the success of the Post-Unitary Status Plan squarely on its door step. The Governing Board holds the power to implement and maintain the programs adopted in the Plan. This includes the responsibility for developing and adopting a final student assignment program in two years with the Governing Board. The Annual Report provides the mechanism for keeping the [mal student assignment program on track and thereafter for monitoring its effectiveness. The Court has reviewed the disputed points in the Committee's Post-Unitary Status Plan, and the Governing Board's decision to follow its staff's recommendations points. on these

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

Governing Board, is the best plan or would be a better plan if the Governing Board had followed recommendations by Plaintiffs' Committee members. The Court simply considers the adequacy of the Plan, adopted by the Governing Board. The Court finds that the

Governing Board's resolution of the 16 points in the Plan that were not agreed on by the Committee will not undo the Plan. The Governing Board followed reasonable

recommendations from its Committee members, experienced expert academic professionals. The Court finds that the Plan adopted by the Governing Board meets the primary concerns ofthis Court. First, it is a plan based on sound educational principles for addressing

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the types of problems faced by TUSD, aimed at providing equal educational opportunities to minority and other disadvantaged students in the district. The Plan is designed to assist the District in "becoming a model 21 st Century urban school district that ensures personalized success for each student and that manifests principles of equal protection and equal

opportunity in the delivery of educational services to its students." (D's Redline P-USP at 3.) All parents in TUSD should be interested in the success of the Post-Unitary Status Plan because better academically performing students in a school improve the educational

experience for all students. Second, the Plan will operate with sufficient transparency for the public to hold the Governing Board accountable for the effectiveness of its operations. The Court does share some concerns with Plaintiffs that must be mentioned here because they involve the Green factors at issue in this case and expressly addressed in the Consent Decree. Like Plaintiffs, the Court notes the seriousness of the disparities that exist in the district between the racial and ethnic make up of the students and the faculty. In its Order, filed April 24, 2008, the Court noted the disparities had worsened instead of improved over the years. (Order at 27-33 (doc. 1270)). The Plan, necessarily, includes a program for Strategic Recruitment, Retention, and Placement of Staff. The Committee included two affirmative measures aimed at increasing faculty diversity, as follows: 1) Affirmative Action goals that will create priority in recall of underrepresented staff (D's Redline P-USP at 12,

14; PP-USP, Ex. B: Points of Non-Consensus (point 7) at 59); and 2) where needed, institute incentives for teachers and school based administrators to voluntarily transfer in the interest of creating more diverse faculties, (D's Redline P-USP at 14.) The Governing Board rejected these strategies as being discriminatory against nonminority candidates. This Court is not prepared to resolve the legal aspects of including

affirmative action measures in the Post-Unitary Status Plan. The Court finds that in the event the measures agreed to by the parties to address faculty diversity are unsuccessful, the data

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

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affirmative action measures recommended by the Committee are necessary and supportable under the law. The Strategic Recruitment, Retention, and Placement of Staff program drafted by the Committee called for "the Superintendent, with advice of the external compliance officer, to set annual or biennial statistical goals for certified staff diversity district-wide as well as for staff categories specifically addressed in the Post-Unitary Status Plan (e.g., African

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

GATE program, African American and Hispanic new teacher hires)." Id. at 12. This was adopted by the Board. The Committee drafted the Plan so that any disagreement regarding the statistical goals for certified staff diversity would be resolved by the internal compliance officer, who would report directly to the Governing Board. Reporting by the compliance officer to the Governing Board eliminated a layer of bureaucracy, but more importantly "the" resolution of any dispute between the superintendent and the external compliance officer was to be decided by the internal compliance officer. Id. The Governing Board modified this

arrangement so the superintendent reports to the Governing Board any dispute over the statistical goals for staff diversity and "a" rationale for its resolution. Thereafter, the internal and external compliance officers may comment as they deem appropriate in their Annual Reports, id. at 13, but the Governing Board resolves any disagreement regarding the statistical goals for minority teacher recruitment. Id.

Here, the Plan provides for comments by the internal and external compliance officers in their Annual Reports regarding teacher diversity. This will afford the public

adequate information to monitor the effectiveness of the Plan in improving faculty diversity and to participate in any public hearings held by the Governing Board to resolve any dispute over the statistical goals for staff diversity and the Board's annual review of the Plan's

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overall effectiveness, which will include the Strategic Recruitment, Retention, and Placement of Staff program. Plaintiffs Mendoza asked the Governing Board to include a commitment to

"racial/ethnic integration of students visible through both policy and practice, and that it will not knowingly segregate students on the basis of ethnicity, national origin, race, and/or linguistic background within a school setting, classroom setting, and! or programmatic setting, and District monies shall not be utilized to support such practices." of Non-Consensus (PP-USP, Ex. B: Points

(point 16) at 69.) The Governing Board declined because the Arizona

Department of Education and Arizona law requires it to use desegregation funds to segregate students who are not English proficient. See A.R.S. § 15-752 (once English learners have

acquired a good working knowledge of English and are able to do regular school work in English, they shall no longer be classified as English learners and shall be transferred to English language mainstream classrooms). Plaintiffs Mendoza "understand the pedagogical rational and legal basis" for the Governing Board's action, but ask that, "at the very least, the Plan include the statement: "The District's commitment to racial/ethnic integration of

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students will be visible through both policy and practice" as well as an express commitment to the full integration of English language learners when they are not participating structured English immersion programs. (Mendoza Objections at 15-16.) Symbolic language is not a necessary component of the Plan, but here a pull-out program based on language will undisputably segregate Hispanic minority students from other students, and such a program must be carefully tailored to the language needs of these students or the District will be subject to charges of illegal discrimination. circumstances, Under such in

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symbolism becomes more important to the community and may make the

program less suspect. However, it is for the Governing Board to determine the wisdom of 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 protocols for programs addressing the needs of African American students. The Court agrees with the District that the Plan generally addresses their concerns. Additionally, nothing in

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the Plan precludes developing protocols to address many of the points raised and provisions requested by the Fisher Plaintiffs. Importantly, the Fisher Plaintiffs ask that the Plan require the African American Studies Department(AASD) "be notified 48 hours prior to any

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disciplinary hearings that may result in in-house, short term, and long term suspensions, abeyance contracts, or expulsions." (PP-USP, Ex. B: Points of Non-Consensus (point 13)

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at 58.) The District declined because this "would mean that a school administrator could not implement any of the enumerated disciplinary measures against an African American student, regardless of the nature of the infraction or the practicality of allowing that student to return to the classroom, for 2 full days before taking any disciplinary action." (D's Brief at 10

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

of any

disciplinary measure. The Court finds that a protocol can be developed to give AASD timely notification of disciplinary actions impacting African American students. The Plan's Disciplinary program itself calls for the Department of Student Equity (DSE) to work in partnership with administrators and teachers to design, implement, and evaluate protocols that minimize referrals and suspensions, especially those of African American and Hispanic students." (D's Redline P-USP at 25). The Disciplinary program's Goal 2 is to reduce the disproportionate number of suspensions of African American and Hispanic Students, id., which can be reduced by certain factors, including "positive adult relationships with students, restorative practices, student-centered learning environments and school-community networks that support student and family" id. at 25-26. For African-

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American students these factors are in large part addressed through AASD. Id at 33, AASD at ~ (C) (2).

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Pursuant to the Plan's disciplinary program, schools will train in-house suspension teachers in restorative-based or similar practices and require them to integrate these practices into in-house suspension programs. These in-house suspension teachers might be a logical liaison between the individual school and services available through AASD for an African American student facing a disciplinary action. The Plan also includes an Intentional Student Advocacy program aimed at providing a one-on-one advocate for each student at each school to "monitor academic achievement, attendance, and associated issues." Id. at 34, Intentional Student Advocacy at ~ III(B». This individual might also be a logical liaison for notifying AASD when an African American student may be suspended. If not the in-house suspension teachers or the individual student advocate, the Plan's AASD program calls for TUSD to identify and train a current staff member to be a liaison on every campus, with AASD's assistance, to serve as an advocate for unbiased, equitable, and appropriate placement for African American students during the child study,

multidisciplinary teams, and TAT. Id. at 32, AASD at ~ VI(B)( d). This specially designated AASD liaison might also be the responsible contact person during disciplinary actions against African American students. The point being that the Plan creates a network for

interface and interaction between the individual schools and AASD to better serve the needs of African American students, which includes advocacy and support when a student's conduct jeopardizes his or her success at schooL The action plan for AASD is "to address the rate of attrition for African American students by collaborating with central office personnel, assistant superintendents, site

administrators, teachers, and staff to identify African American students at risk of dropping out, being suspended, or being expelled and providing prevention and intervention services where appropriate." Id. at 33, AASD at ~ (C)(2). The protocol requested by AASD that it

be notified 48 hours prior to any disciplinary hearing is directly related to this action plan. While the Plan need not include the protocol requested by the Plaintiffs Fisher, the Court

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directs that the protocol developed by DSE pursuant to the Disciplinary program's Goal 1, Action Plan, subsection c, include timely notice to AASD when an African American student faces a disciplinary hearing so that AASD may provide advocacy and support services to that student and his or her parents, without impeding the normal course of the disciplinary proceedings. The last and most important objection lodged by the Plaintiffs Fisher is that the Plan fails because it has not met "the requirement of transparency called for by this Court (Order, filed 08/2112007 at 25 lines 5-14) because it does not include provisions for an itemized and public accounting of all desegregation funding received and disbursed by the District." (Fisher Objections at 2.) The Plaintiffs Fisher are correct. If the Court were to criticize the Committee's work at all it would be in this regard. In fact, it was the Governing Board that added the language upon which this Court must look to determine whether the Plan ensures the public will have adequate fiscal information to monitor the effectiveness of the Plan in terms of what is being spent on it. The Governing Board added the following provision: "The Annual Report shall also provide data on expenditures related to plan related programs and shall include such analysis of those expenditures as the Board or Superintendent may direct the Internal Compliance Officer to prepare. This information and analysis shall be provided for advisory purposes only." (D's Redline P-USP at 39, Annual Monitoring of Progress and Compliance at ,-r This provision will be adequate, with the addition of the "data collection and

(III)(A)).

reporting format," which the Court ordered on April 24, 2008, to be included in the Plan, (Order at 58 (doc. 1270)). The data, its analysis, and the format for its presentation must be such that the public will be informed regarding any desegregation/integration money

received by the District and provide a money-trail showing how it is disbursed by the District in respect to the programs associated with the Plan. The fiscal reporting format shall ensure that the public may monitor the effectiveness of the Plan and its respective programs.

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With the addition of the specific "data and reporting format" the Governing Board intends at a minimum to direct its internal compliance officer to provide in the Annual Report, the Court finds that in all respects the Plan as drafted by the Committee, modified and approved by the Governing Board ensures adequate transparency for public

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

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IT IS ORDERED that the Post-Unitary

Status Plan adopted by the TUSD

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

IT IS FURTHER ORDERED that within 30 days of the filing date ofthis Order,
the Governing Board shall file the data and reporting format for expenditures, which at a minimum the Governing Board will direct its internal compliance officer to provide in the Annual Report, as more specifically described above.

IT IS FURTHER ORDERED that this case is closed and all federal juridical
oversight of the operation of the Tucson Unified School District is ended.

IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment
accordingly. DATED this 17th day of December, 2009.

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