NOTICE OF FILING BY SPECIAL MASTER OF REPORT AND RECOMMENDATIONS RELATING TO DIETZ NARA

WILLIS D. HAWLEY, Special Master.

The Special Master hereby respectfully submits the attached Report and Recommendations relating to the Dietz NARA and recommends Court approval of the District's proposal.

On May 9, 2015 TUSD submitted a proposal to the Court to approve the location of two portable classroom buildings on the Dietz K-8 campus to be used beginning in August 2015 (see Exhibit A). Both the Fisher and the Mendoza Plaintiffs oppose the District's Dietz proposal. The Department of Justice has no objection. For the reasons set forth herein, including the undisputed fact that the introduction of portables at Dietz will have no effect on the racial composition of the school or of any other school, the Special Master recommends that the Court approve the District's proposal.

Procedural History

On April 14, 2015, the District administration submitted to the Governing Board a proposal for locating portable buildings on the Dietz campus, and the Board then approved the proposal. On May 1, the District submitted this proposal to the Plaintiffs and the Special Master along with the required Desegregation Impact Analysis and requested approval in order to avoid burdening the Court with a contested Notice and Request for Approval (NARA) (Exhibit B). On May 15, the Mendoza Plaintiffs expressed their objections (Exhibit C) as did the Fisher Plaintiffs expressed their objections (Exhibit D). Also on May 15, the Department of Justice indicated that it had no objection to the District's proposal (Exhibit E).

On May 17, the Special Master sent a memo to the parties indicating what his response to the proposal and the objections would be if he were to submit a Report and Recommendation to the Court on this matter (Exhibit F). The Special Master asked the Fisher and Mendoza Plaintiffs to examine his conclusions and decide whether they wished him to proceed with an R&R. Neither set of Plaintiff responded. On May 22, the District submitted the NARA to the Court (Exhibit G).

Analysis of Objections

Fisher Objections

The Fisher Plaintiffs raise four objections to placing portables at Dietz. The Special Master's response to each of these objections is as follow:

Mendoza Objections

A primary concern of the Mendoza Plaintiffs is that the introduction of CORE enrichment courses that will be offered in the portables should be offered throughout the District and, in particular, should be available in West Side schools. This concern was based, at least to some extent, on misinformation initially provided by the District. In the NARA submitted to the Court, the District corrects earlier information and indicates that the program at issue, which seeks to facilitate the transition of students from self-contained classrooms to classrooms that focus on particular subjects, exists at five West Side K-8 schools, one Central school, and one school on the East Side. This does not suggest that students in West Side schools are disadvantaged because some do not offer this program. Moreover, it is not clear that the program makes a substantial difference in student outcomes.

That there is variation in educational offerings across the District is not, in itself, evidence of discrimination or inequitable distribution of resources. Most school districts struggle with finding a balance between the need for common programs districtwide, especially with respect to core academic curricula, and the desirability of allowing for variation that is responsive to:

Finding the right balance requires analyses that determine that the variation among schools does not result in differences in educational opportunities and outcomes by race, ethnicity and language facility. There is no reason to believe that the introduction of portables at Dietz would have invidious consequences for Latino or African-American students elsewhere in the District. And, 65% of the students at Dietz are Latino or African-American.

The Mendoza Plaintiffs also expressed concern that placing services that address the needs of special education students in portables might stigmatize the students or provide them with inadequate facilities. The District's counter-argument is that student privacy will be enhanced as will space for developing Individual Educational Programs (IEPs) required by law, teacher planning and family conferences, and this contention seems reasonable. The District also points out that many students who are not special-education students will be using the portables. Moreover, most of the instruction that special education students experience will be in regular classrooms. In short, stigmatization is unlikely, and portables should allow for meeting the needs of special education students more appropriately.

Recommendation

The Special Master recommends that the Court approve the District's request to install two portables, each of which has two classroom sized spaces, at the Dietz K-8 School.

Comment on the Need to improve the Consultation Process

That this relatively minor matter — the installation of two portable classroom facilities that will have no effect on integration — made its way to the Court and consumed many hours of time by all the parties and the Special Master with the attendant costs is bleak testimony to the continuing absence of trust and goodwill among the parties and the failure to develop a viable process for approving actions by the District that are subject to the provisions of the USP. On this matter and others, the Plaintiffs object to the District taking action without adequate prior consultation. The District appears to believe that it must fully develop proposals (see Exhibit G, p.4, lines 7-10) before consultation and that it is often desirable to get approval of the Governing Board for such consultation, as is the case in the Dietz issue. And in some cases, the District engages in what can only be seen as preliminary implementation, as in the matter of the Fructhendler/Sabino restructuring that was recently before the Court.

It seems likely that the District considers consultation with the Plaintiffs and the Special Master a burden, one that impedes its responsibility to get on with the complex task of meeting the needs of its students. The District identifies what it believes to be good ideas and wants, understandably, to implement them expeditiously.

Even though the USP does not require consultation prior to the District's submission of a proposal to the Governing Board, such submissions suggests that the District does not see consultation as productive in shaping its proposals and further does not believe that the Board should be considering the positions of the Plaintiffs or the Special Master when it makes its decisions. When the District moves forward in developing a proposal without consultation, not only does it deny itself the benefit of input from the Plaintiffs and the Special Master, but it engages staff in the development of proposals in which they become invested, thus making acceptance of "external" input more difficult. When such matters go to the Board for action and approval is given, this signals to the community that something is about to be done and puts the Plaintiffs and the Special Master in a position of undermining public confidence in the District and/or in the USP.

The Court is not unaware of this problem and has consistently urged the parties and the Special Master to work collaboratively. From time to time, the parties pledge to work together more constructively and do so. But, this commitment is not consistently applied, and each time it is not, the situation can be perceived by the Plaintiffs as a lack of goodwill on the part of the District.

On the face of it, the solution seems relatively simple. When a significant proposal for new or revised District-wide policies and practices that would fall under provisions for comment and review provided for in the USP is being seriously considered by the District, the District should share these ideas with the Plaintiffs and ask for a one week turnaround for comments. If this feedback suggests that conflict might occur, a telephone conference should be scheduled and the matter discussed. A proposal could then be formalized and the procedures outlined in the USP followed. Arguably, the USP provides for relatively extensive periods of comment and the parties should discuss whether specific timelines should be shortened. The District should not take an action item to the Board about which there is continuing consultation although it surely should inform the Board of issues about which it would need to make a decision during study sessions. At the study sessions, the District should provide the Board with information about the dispositions of the Plaintiffs and the Special Master. Policies would not be enacted by the Board before Court approval in those instances in which the Plaintiffs have requested that a Report and Recommendation be made to the Court by the Special Master.

The Special Master urges the Court to require the parties to, once again, develop a viable procedure for addressing the comment and review provisions of the USP and to make a report to the Court about the results of this effort.

Exhibit A

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* * *NOTE TO PUBLIC ACCESS USERS* * * Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply.

U.S. District Court

DISTRICT OF ARIZONA

Notice of Electronic Filing

The following transaction was entered by Brown, Samuel on 5/8/2015 at 10:15 PM MST and filed on 5/8/2015

NOTICE re: Notice and Request for Approval by Tucson Unified School District re Dietz K-8 Portable Classrooms. (Attachments: # (1) Exhibit)(Brown, Samuel)

4:74-cv-00090-DCB Notice has been electronically mailed to:

Andrew H Marks amarks@markslawoffices.com

Cynthia Valenzuela Dixon cvalenzuela@maldef.org, agodinez@maldef.org

Edmund D Kahn kahnstaff@qwest.net

J William Brammer, Jr wbrammer@rllaz.com, jlinaman@rllaz.com

James Eichner James.Eichner@usdoj.gov

Jennifer L Roche jroche@proskauer.com

Jinju Park jinju.park@azag.gov, EducationHealth@azag.gov

Juan Rodriguez jrodriguez@MALDEF.org, Iaparicio@MALDEF.org

Julie Cooper Tolleson julie.tolleson@tusd1.org, margaret.leonard@tusd1.org, samuel.brown@tusd1.org

Kevin D Ray Kevin.Ray@azag.gov, EducationHealth@azag.gov

Kristian Harrison Salter kristian.salter@azbar.org

Lois D Thompson lthompson@proskauer.com

Matthew David Strieker matthewstrieker@hotmail.com

Michael John Rusing mrusing@rllaz.com, swaller@rllaz.com

Oscar Steven Lizardi olizardi@rllaz.com, smoore@rllaz.com

Patricia V Waterkotte pvictory@rllaz.com, jlinaman@rllaz.com

Rubin Salter, Jr rsjr3@aol.com

Samuel Emiliano Brown samuel.brown@tusd1.org, samuelbrownesq@gmail.com, samuelebrown@hotmail.com

Thomas A Saenz tsaenz@maldef.org

Willis Hawley wdh@umd.edu

Zoe M Savitsky zoe.savitsky@usdoj.gov, crtedu.filings@usdoj.gov

4:74-cv-00090-DCB Notice will be sent by other means to those listed below if they are affected by this filing:

The following document(s) are associated with this transaction:

Exhibit B

From: William Brammer [mailto:WBrammer@rllaz.com]

Sent: Friday, May 01, 2015, 7:24 PM

To: Willis D. Hawley; Rubin Salter Jr. (Rsjr3@aol.com); Juan Rodriguez; Lois Thompson (Lthompson@proskauer.com); Anurima Bhargava (Anurima.Bhargava@usdoj.gov); Savitsky, Zoe (CRT) (Zoe.Savitsky@usdoj.gov); James.Eichner@usdoj.gov

Cc: Julie Tolleson (Julie.Tolleson@tusd1.org); Desegregation (deseg@tusd1.org); Nodine, Bryant (Bryant.Nodine@tusd1.org); Gallegos, Ana (Ana.Gallegos@tusd1.org); TUSD

Subject: Request for consideration to approve addition of portable buildings to Dietz school campus

Dr. Hawley and counsel:

Please find attached a memo from TUSD directed to you all, attached to which is a DIA. The memo requests your consideration and approval of the district's request to add two portable buildings to the Dietz campus. As can be seen from the request, the buildings would be used for many purposes, including instruction.

This request is made with the hope we can avoid the dustup we currently are experiencing over the Fruchtendler/Sabino situation. Your approval of this proposal is solicited to the goal of all parties with the Special Master's approval stipulating that the court could enter an order approving the proposal.

If you feel you cannot approve and so stipulate, the district respectfully requests you tell us as why soon as possible so perhaps any concern you might have can be satisfied. We are hoping there will not be any concerns with this straightforward request.

As you can see from the attached, this matter just began bubbling up from the school site, so it has been brought to your attention as soon as the district had the information it believed you would want in order to consider the request. The district recognizes the need to involve you all as early in the process as possible, and this is that time.

We would like to conclude this process soon, so if the district needs to file a NARA with the court to obtain approval it can occur as quickly as possible. The district would need to have the matter resolved in time to transport and place the buildings before the beginning of school at the end of July. I would guess the court should have this matter presented to it by the middle of this month in order to have the time to consider and rule before we run out of time for the district to do whatever it must to secure placement of the buildings.

Thank you very much for your consideration of this request, and we hopefully look forward to your vote of approval. Have a terrific weekend and thanks!

Bill

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To: Dr. Willis Hawley, Counsel for Plaintiffs, Department of Justice Via Email Only

Re: Notice of the Addition of Two Portables at Dietz K-8

Dr. Hawley/Counsel:

TUSD hereby notifies the Special Master and Parties of its intention to add two portable buildings (four-classrooms) to Dietz K-8 school to accommodate growth and enhance educational opportunities for Dietz students. The District requests a stipulation to the addition based on the information provided below in hopes of avoiding a prolonged NARA process (similar to the stipulation to the sale of the Fremont parking lot this past fall). However, if one or more parties will not stipulate to the action at this time, we ask that the parties will agree to a truncated timeline (described below) as the addition of the two portable buildings is not a complex matter and we have worked diligently1 to provide the following information on the front-end to reduce the time necessary for the parties to analyze any impacts to student assignment or to TUSD's obligations under the USP.

Background

In February 2013, the court approved the closures of several schools, and ordered the Special Master to "oversee the implementation of the recommended assurances" required pursuant to the Order. Order of February 15, 2013, ECF# 1447. One of the recommendations was that "[r]eceiving schools should not turn to portable classrooms to accommodate the influx of students from closed schools." Id. at 10.

In March 2013, in relation to TUSD's request to close schools (which included the expansion of Dietz as a receiving school), TUSD filed a NARA to renovate Dietz to facilitate the expansion from a K-5 elementary school to a K-8 school. NARA for Bond-Funded Construction Projects, March 11, 2013, ECF #1451. In its request, TUSD explained that "students attending 5th grade at Dietz will have the option to remain there as open enrollment students for 6th grade, and 7th and 8th grades will be added in future years." Id. at 4. TUSD further explained the projects were necessary "to accommodate the addition of students to these schools as a result of the school closures," and that "the schools that are being converted to K-8 campuses have sufficient capacity but need to be modified to serve the broader age range of students. Id. at 5. No party objected to the conversion of Dietz to a K-8, and the Special Master submitted a memo to the Court recommending the approval "for bond-funded construction needed to successfully implement" the February Order, and identifying that the "projects were identified in the District's request for approval for school closures." Order of March 20, 2013 at 3 ECF# 1452.

In April 2013, after TUSD sought approval for boundary changes related to school closures, the Court ordered the Special Master to file a status report related to the recommended assurances outlined in the February 2013 Order. Order of April 26, 2013, ECF# 1468 at 6.

In June 2013, the Special Master submitted the following report to the Court related to the recommended assurance labeled "Condition D — Portables:"

Currently, Dietz utilizes one portable (two classrooms) which falls under condition #3 above as Dietz has "been using portables for classes in the past" (since 2012) and students "could be assigned" to the portable classrooms for a limited time each day (either one period of Language Arts or one period of Orchestra).

Changes to Capacity

When Dietz was remodeled as a K-8 school, two classrooms were converted to project labs and one was converted to two changing rooms for physical education. These changes resulted in a reduction of capacity from 520 to 490 students. Dietz currently uses one double portable (two classrooms), which increases the capacity by approximately 50 students. Thus, it would appear that Dietz has capacity, without adding additional portables, to serve the 502 students projected for SY 2015-16. However, three factors have further reduced the capacity of Dietz:

Impact on Integration/Desegregation

In school year 2013-14, Dietz added a 6th grade component; a 7th grade component was added in SY 2014-15. In SY 2015-16, Dietz will add an 8th grade component. In part, the necessity for additional portable buildings stems from the addition of the 8th grade component. However, the addition of the portables will have virtually no impact on the racial/ethnic makeup of Dietz's student population as outlined below (2/3 of Dietz students are African-American or Latino):

Overall, the school enrollment is not projected to change much in future years; current K-5 grade sizes are all approximately 60 students (one-third of whom are non-neighborhood students), the school accepts all open-enrollment students and projected entry grades are not expected to change in the future.

Purposes for the Additional Portables

TUSD operates thirteen K-8 schools. Of those, only three K-8s are east of Country Club Road — the street used generally to mark TUSD's geographical center. Roberts-Naylor K-8 is mid-town; Booth-Fickett and Dietz are located on TUSD's eastside. Booth-Fickett is a magnet school, leaving Dietz as the only non-magnet K-8 school serving TUSD's eastside families. As a result, interest in Dietz K-8 has exceeded our 2013 projections — not due to students from the former Carson area selecting Dietz over other options (i.e. Secrist), but due to significant numbers of open enrollment students selecting the Dietz option.2

As alluded to above, the addition of two portable buildings would not be necessary had Dietz remained with the original model (elective-light, self-contained), and/or if Dietz had not become so attractive to open enrollment students and families.

Dietz requests the two additional portables: to improve academic achievement for 6th graders; to provide space for Exceptional Education staff, testing, and privacy; and to expand elective opportunities for K-8 students. For each of these purposes, students will only be in the portable buildings for a limited time each day.

1. Improving Academic Achievement

A new principal took over at Dietz in SY 2013-14, and she has worked hard to increase academic achievement. To this end, one portable classroom will be used as a CORE Enrichment class for all 6th graders to improve students' study approaches and their success in the middle school.

2. Exceptional Education Needs

The number of Exceptional Education Cross-categorical (CCS) students increased as the additional grades were added (.5 FTE added). As a result, more space is needed for IEP meetings, to provide privacy for meetings with families and students, for small-group instruction, for testing space, and to serve as a "home base" for CCS teachers (the initial projection anticipated the need for only one room, but two are now needed).

3. Expanding Electives

Additional space will be used for fine arts electives, and multi-purpose space for opera, strings, orchestra, and Taiko drums. Students are primarily served in the main building and would be in a portable classroom for no more than 60 minutes per day.

Proposed Timeline

Although TUSD is seeking agreement on this action, should a formal NARA become necessary, TUSD requests that the parties agree to the following schedule:

Please respond no later than May 4, 2015 so that we can plan to develop the NARA if necessary. However, we hope that the information provided will lead to a stipulation so that we can complete this work in the next 60 days to be ready for the start of the school year. Please feel free to contact us with any questions or concerns.

Attachment: Desegregation Impact Analysis

ATTACHMENT

TUCSON UNIFIED SCHOOL DISTRICT DESEGREGATION IMPACT ANALYSIS

Action: Add two double portable classrooms to Dietz K-8.

Summary

Dietz was approved, as a K-8 school in the spring of 2013 at the same time the closure of Carson Middle School was approved. As Dietz has transitioned into a K-8, the enrollment at the school has increased. The school is requesting additional portable classrooms at the school to accommodate increases in enrollment as well as the elective aspects of the K-8 program and the school's strong fine arts programs.

Although the K-8 aspects of the school were already approved, this analysis shows the impacts of adding the eighth grade next year and some additional increases in enrollment that are primarily expected in the sixth grade. It also presents the proposed uses of the portable classrooms.

Impact Analysis

Current K-7 enrollment

As shown in the table below, the 2014-2015, 40th-day enrollment, Dietz is relatively integrated, though it does not meet the USP definition of integrated because the Hispanic student composition (51%) is more than 15% from the average for District K-8 schools (73%).

Impact on Dietz as a K-8 School

The change component at Dietz, and part of the reason for the portable classroom additions, is the addition of the 8th grade next year. This is estimated based the current 7th graders transitioning into the 8th grade. As shown in the table below, the result is virtually no change to the racial-ethnic composition of Dietz.

Enrollment Projections for the School

Overall, the school enrollment is not projected to change much in future years; current K-5 grade sizes are all approximately 60 students (one-third of whom are non-neighborhood students), the school accepts all open-enrollment students and projected entry grades are not expected to change in the future.

Changes to the Capacity and Room Use at the School

When Dietz was remodeled as a K-8 school, two classrooms were converted to project labs and one was converted to two changing rooms for physical education. This reduced the capacity of the Dietz main building from 520 to 490. Dietz now has one double portable classroom, which increases the capacity by approximately 50 students. Thus it would appear that Dietz now has capacity, without adding additional portable classrooms, to serve the 502 students projected for SY2015-16. However, three factors have further reduced the capacity of Dietz:

The current portable classroom at the school (a double with two classrooms) houses a sixth grade language arts rooms and, next year, with the increase in students, also will house a seventh and eighth grade math program. The additional portable buildings (four classrooms) proposed for Dietz are support rooms that would be used as follows:

Exhibit C

This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended.

* * *NOTE TO PUBLIC ACCESS USERS* * * Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply.

U.S. District Court

DISTRICT OF ARIZONA

Notice of Electronic Filing

The following transaction was entered by Rodriguez, Juan on 5/15/2015 at 2:58 PM MST and filed on 5/15/2015

Docket Text:

OBJECTION re: [1798] Notice (Other) Mendoza Plaintiffs Objections to TUSDs Notice and Request for Approval of Portable Classrooms at Dietz K-8 School by Plaintiffs Edward A Contreras, Maria Mendoza. (Attachments: # (1) Exhibit A, # (2) Exhibit B, # (3) Exhibit C, # (4) Exhibit D)(Rodriguez, Juan)

4:74-cv-00090-DCB Notice has been electronically mailed to:

Andrew H Marks amarks@markslawoffices.com

Cynthia Valenzuela Dixon cvalenzuela@maldef.org, agodinez@maldef.org

Edmund D Kahn kahnstaff@qwest.net

J William Brammer, Jr wbrammer@rllaz.com, jlinaman@rllaz.com

James Eichner James.Eichner@usdoj.gov

Jennifer L Roche jroche@proskauer.com

Jinju Park jinju.park@azag.gov, EducationHealth@azag.gov

Juan Rodriguez jrodriguez@MALDEF.org, Iaparicio@MALDEF.org

Julie Cooper Tolleson julie.tolleson@tusd1.org, margaret.leonard@tusd1.org, samuel.brown@tusd1.org

Kevin D Ray Kevin.Ray@azag.gov, EducationHealth@azag.gov

Kristian Harrison Salter kristian.salter@azbar.org

Lois D Thompson lthompson@proskauer.com

Matthew David Strieker matthewstrieker@hotmail.com

Michael John Rusing mrusing@rllaz.com, swaller@rllaz.com

Oscar Steven Lizardi olizardi@rllaz.com, smoore@rllaz.com

Patricia V Waterkotte pvictory@rllaz.com, jlinaman@rllaz.com

Rubin Salter, Jr rsjr3@aol.com

Samuel Emiliano Brown samuel.brown@tusd1.org, samuelbrownesq@gmail.com, samuelebrown@hotmail.com

Thomas A Saenz tsaenz@maldef.org

Willis Hawley wdh@umd.edu

Zoe M Savitsky zoe.savitsky@usdoj.gov, crtedu.filings@usdoj.gov

4:74-cv-00090-DCB Notice will be sent by other means to those listed below if they are affected by this filing:

The following document(s) are associated with this transaction:

Exhibit D

From: azddb_responses@azd.uscourts.gov [mailto:azddb_responses@azd.uscourts.gov]

Sent: Friday, May 15, 2015 8:12 PM

To: azddb_nefs@azd.uscourts.gov

Subject: Activity in Case 4:74-cv-00090-DCB Fisher, et al v. Tucson Unified, et al Objection

This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended.

* * *NOTE TO PUBLIC ACCESS USERS* * * Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply.

U.S. District Court

DISTRICT OF ARIZONA

Notice of Electronic Filing

The following transaction was entered by Salter, Rubin on 5/15/2015 at 5:11 PM MST and filed on 5/15/2015

Docket Text:

OBJECTION re: [1798] Notice (Other) Fisher Plaintiffs' Objection to TUSD's Notice and Request for Approval of Portable Classrooms at Dietz K-8 School by Plaintiffs Josie Fisher, Roy Fisher. (Attachments: # (1) Exhibit Email correspondence, # (2) Exhibit Fisher Plaintiffs' 05/07/15 preliminary comments on TUSD Dietz NARA)(Salter, Rubin)

4:74-cv-00090-DCB Notice has been electronically mailed to:

Andrew H Marks amarks@markslawoffices.com

Cynthia Valenzuela Dixon cvalenzuela@maldef.org, agodinez@maldef.org

Edmund D Kahn kahnstaff@qwest.net

J William Brammer, Jr wbrammer@rllaz.com, jlinaman@rllaz.com

James Eichner James.Eichner@usdoj.gov

Jennifer L Roche jroche@proskauer.com

Jinju Park jinju.park@azag.gov, EducationHealth@azag.gov

Juan Rodriguez jrodriguez@MALDEF.org, Iaparicio@MALDEF.org

Julie Cooper Tolleson julie.tolleson@tusd1.org, margaret.leonard@tusd1.org, samuel.brown@tusd1.org

Kevin D Ray Kevin.Ray@azag.gov, EducationHealth@azag.gov

Kristian Harrison Salter kristian.salter@azbar.org

Lois D Thompson lthompson@proskauer.com

Matthew David Strieker matthewstrieker@hotmail.com

Michael John Rusing mrusing@rllaz.com, swaller@rllaz.com

Oscar Steven Lizardi olizardi@rllaz.com, smoore@rllaz.com

Patricia V Waterkotte pvictory@rllaz.com, jlinaman@rllaz.com

Rubin Salter, Jr rsjr3@aol.com

Samuel Emiliano Brown samuel.brown@tusd1.org, samuelbrownesq@gmail.com, samuelebrown@hotmail.com

Thomas A Saenz tsaenz@maldef.org

Willis Hawley wdh@umd.edu

Zoe M Savitsky zoe.savitsky@usdoj.gov, crtedu.filings@usdoj.gov

4:74-cv-00090-DCB Notice will be sent by other means to those listed below if they are affected by this filing:

The following document(s) are associated with this transaction:

Exhibit E

From: Eichner, James (CRT) [mailto:James.Eichner@usdoj.gov]

Sent: Friday, May 15, 2015 5:58 PM

To: Eichner, James (CRT); Willis D. Hawley

Cc: Savitsky, Zoe (CRT)

Subject: RE: Activity in Case 4:74-cv-00090-DCB Fisher, et al v. Tucson Unified, et al Notice (Other)

This time actually attached. Have a good weekend.

From: Eichner, James (CRT)

Sent: Friday, May 15, 2015 5:58 PM

To: `Willis D. Hawley'

Cc: Eichner, James (CRT); Savitsky, Zoe (CRT)

Subject: FW: Activity in Case 4:74-cv-00090-DCB Fisher, et al v. Tucson Unified, et al Notice (Other)

From: azddb_responses@azd.uscourts.gov [mailto:azddb_responses@azd.uscourts.gov]

Sent: Friday, May 15, 2015 5:54 PM

To: azddb_nefs@azd.uscourts.gov

Subject: Activity in Case 4:74-cv-00090-DCB Fisher, et al v. Tucson Unified, et al Notice (Other)

This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended.

* * *NOTE TO PUBLIC ACCESS USERS* * * Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply.

U.S. District Court

DISTRICT OF ARIZONA

Notice of Electronic Filing

The following transaction was entered by Eichner, James on 5/15/2015 at 2:54 PM MST and filed on 5/15/2015

Case Name: Fisher, et al v. Tucson Unified, et al

Case Number: 4:74-cv-00090-DCB

Filer: United States of America

Document Number: 1800

Docket Text:

NOTICE re: No Objection to the Notice and Request for Approval of Portable Classrooms at Dietz K-8 School by United States of America . (Eichner, James)

4:74-cv-00090-DCB Notice has been electronically mailed to:

Andrew H Marks amarks@markslawoffices.com

Cynthia Valenzuela Dixon cvalenzuela@maldef.org, agodinez@maldef.org

Edmund D Kahn kahnstaff@qwest.net

J William Brammer, Jr wbrammer@rllaz.com, jlinaman@rllaz.com

James Eichner James.Eichner@usdoj.gov

Jennifer L Roche jroche@proskauer.com

Jinju Park jinju.park@azag.gov, EducationHealth@azag.gov

Juan Rodriguez jrodriguez@MALDEF.org, Iaparicio@MALDEF.org

Julie Cooper Tolleson julie.tolleson@tusd1.org, margaret.leonard@tusd1.org, samuel.brown@tusd1.org

Kevin D Ray Kevin.Ray@azag.gov, EducationHealth@azag.gov

Kristian Harrison Salter kristian.salter@azbar.org

Lois D Thompson lthompson@proskauer.com

Matthew David Strieker matthewstrieker@hotmail.com

Michael John Rusing mrusing@rllaz.com, swaller@rllaz.com

Oscar Steven Lizardi olizardi@rllaz.com, smoore@rllaz.com

Patricia V Waterkotte pvictory@rllaz.com, jlinaman@rllaz.com

Rubin Salter, Jr rsjr3@aol.com

Samuel Emiliano Brown samuel.brown@tusd1.org, samuelbrownesq@gmail.com, samuelebrown@hotmail.com

Thomas A Saenz tsaenz@maldef.org

Willis Hawley wdh@umd.edu

Zoe M Savitsky zoe.savitsky@usdoj.gov, crtedu.filings@usdoj.gov

4:74-cv-00090-DCB Notice will be sent by other means to those listed below if they are affected by this filing:

The following document(s) are associated with this transaction:

Exhibit E

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

The United States does not object to the Court approving the request of the Tucson United School District No. One ("the District" or "TUSD") to relocate two double-portables ("portables") to Dietz K-8 School ("Dietz").1 The United States has no objection to the way in which the District consulted with the United States about this project or the timing of that consultation. Moreover, the United States has no reason to believe the requested action violates the Unitary Status Plan or any related desegregation orders (hereinafter collectively "desegregation obligations").

I. CONSULTATION PROCESS

The United States does not object to the District's consultation process because it understands the practical realities the District faces in running its day-to-day operations. The District is required to consult with the United States, the other plaintiffs, and the Special Master, and ultimately obtain the approval of this Court, when decisions it makes may implicate its desegregation obligations. Those decisions also require approval from appropriate TUSD officials and governing bodies. Given these two approval chains, the District must determine in what order and on what timetable to seek approval from each.

The United States understands that the District might want, as it has done in this case, to take steps to ensure that the TUSD officials and governing bodies actually want to pursue a course of action before beginning the consultation process. The United States will not object to the District taking steps to gain those approvals as long as it ultimately engages in the consultation and approval process required for the action at issue and does not take any actions that cannot be reversed if the Court ultimately does not approve the action. Given that the District consulted with the plaintiffs and the Special Master, and does not appear to have taken any irrevocable actions, the United States believes the District has met its consultation obligations.

II. DESEGREGATION IMPACT

Based on the information it has been provided, the United States believes the proposal to add portables at Dietz does not violate the District's desegregation obligations. First, the addition of portables at Dietz does not change student assignment at Dietz, it merely provides additional space for students already assigned to the school. Therefore, adding portables cannot negatively impact the District's desegregation efforts in regard to student assignment.

Second, that the District is using the portables to implement a middle-school model, initiate a sixth grade enrichment program, provide additional space to serve exceptional students and expand elective offerings does not violate its desegregation obligations. There is no reason to believe that any of these uses will harm students at Dietz, and in fact the District reasonably asserts that each will benefit those students. In addition, there is no evidence that providing these benefits to students at Dietz presents any barriers to providing similar benefits to other District students at other schools. Therefore, the United States sees no reason to object to the proposed portables.

III. CONCLUSION

For the reasons set forth above, the United States has no objection to the Court approving the addition of portables at Dietz.

CERTIFICATE OF SERVICE

I hereby certify that on May 15, 2015, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

I hereby certify that on May 15, 2015, I electronically transmitted the attached document to the following, who is not a CM/ECF registrant:

Exhibit F

Re: Dietz NARA

As I have done in the past, I am submitting to you a summary of the positions I will be taking in my recommendations to the Court with respect to the addition of portables at Dietz. I will be recommending, assuming no additional information comes to light, that the Court approve the district request. While I do not want to be presumptuous, my hope is that the Fisher and Mendoza plaintiffs will conclude that the Court is likely to approve the Dietz proposal and that it would be desirable to take this matter off the table with respect to future court action.

I note that I share the plaintiffs' concern that the district went forward with this proposal and sought Board approval before appropriate consultation and before approval by the court. This practice seems to be the default position of the district and I believe that it is counterproductive.

Fisher Objections

The Fisher plaintiffs raise three objection to placing portables at Dietz. I will address each in turn.

Mendoza Objections

A primary concern of the Mendoza plaintiffs is that the introduction of CORE enrichment courses that will be offered in the portables should be offered throughout the district and, in particular, should be available in west side schools. This concern was based, at least to some extent, on misinformation initially provided by the District. In the NARA submitted to the Court, the District corrects earlier information and indicates that the program at issue, which seeks to facilitate the transition of students from self-contained classrooms to classrooms that focus on particular subjects, exists at five west side K-8 schools, one central school and one school on the east side. This does not suggest that students in westside schools are disadvantaged because some do not offer this program. Moreover, it is not clear that the program makes a substantial difference in student outcomes.

That there is variation in educational offerings across the district is not, in itself, evidence of discrimination or inequitable distribution of resources. Most school districts struggle with finding a balance between the need for common programs districtwide, especially with respect to core academic curricula, and the desirability of allowing for variation that is responsive to:

Finding the right balance requires analyses that variation does not result in differences in educational opportunities and outcomes by race, ethnicity and language facility. I find no reason to believe that the introduction of portables at Dietz would have invidious consequences for Latino and African-American students elsewhere in the district. And, 65% of the students at Dietz are Latino or African-American.

Mendoza plaintiffs also expressed concern that placing services that address the needs of special education students in portables might stigmatize the students or provide them with inadequate facilities. The District's counterargument that student privacy will be enhanced as will space for developing Individual Educational Programs (IEPs) required by law, teacher planning and family conferences seems reasonable.

EXHIBIT G

From: azddb_responses@azd.uscourts.gov [mailto:azddb_responses@azd.uscourts.gov]

Sent: Friday, May 22, 2015 8:11 PM

To: azddb_nefs@azd.uscourts.gov

Subject: Activity in Case 4:74-cv-00090-DCB Fisher, et al v. Tucson Unified, et al Reply

This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended.

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U.S. District Court

DISTRICT OF ARIZONA

Notice of Electronic Filing

The following transaction was entered by Brown, Samuel on 5/22/2015 at 5:11 PM MST and filed on 5/22/2015

Docket Text:

REPLY re: [1801] Objection, [1800] Notice (Other), [1802] Objection to the Dietz NARA by Defendant Tucson Unified School District. (Attachments: # (1) Exhibit A — Declaration of Martha Taylor, # (2) Exhibit B — Declaration of Samuel Brown)(Brown, Samuel)

4:74-cv-00090-DCB Notice has been electronically mailed to:

Andrew H Marks amarks@markslawoffices.com

Cynthia Valenzuela Dixon cvalenzuela@maldef.org, agodinez@maldef.org

Edmund D Kahn kahnstaff@qwest.net

J William Brammer, Jr wbrammer@rllaz.com, jlinaman@rllaz.com

James Eichner James.Eichner@usdoj.gov

Jennifer L Roche jroche@proskauer.com

Jinju Park jinju.park@azag.gov, EducationHealth@azag.gov

Juan Rodriguez jrodriguez@MALDEF.org, Iaparicio@MALDEF.org

Julie Cooper Tolleson julie.tolleson@tusd1.org, margaret.leonard@tusd1.org, samuel.brown@tusd1.org

Kevin D Ray Kevin.Ray@azag.gov, EducationHealth@azag.gov

Kristian Harrison Salter kristian.salter@azbar.org

Lois D Thompson lthompson@proskauer.com

Matthew David Strieker matthewstrieker@hotmail.com

Michael John Rusing mrusing@rllaz.com, swaller@rllaz.com

Oscar Steven Lizardi olizardi@rllaz.com, smoore@rllaz.com

Patricia V Waterkotte pvictory@rllaz.com, jlinaman@rllaz.com

Rubin Salter, Jr rsjr3@aol.com

Samuel Emiliano Brown samuel.brown@tusd1.org, samuelbrownesq@gmail.com, samuelebrown@hotmail.com

Thomas A Saenz tsaenz@maldef.org

Willis Hawley wdh@umd.edu

Zoe M Savitsky zoe.savitsky@usdoj.gov, crtedu.filings@usdoj.gov

4:74-cv-00090-DCB Notice will be sent by other means to those listed below if they are affected by this filing:

The following document(s) are associated with this transaction: