ORDER

DAVID C. BURY, District Judge.

On June 3, 2014, the Special Master filed a Report and Recommendation (R&R) (Doc. 1612) relating to TUSD's Action Plan for Recruitment and Retention, which is TUSD's implementation plan for the Unitary Status Plan (USP), § IV, Administrators and Certificated Staff, subsection C, Outreach and Recruitment, and subsection F, Retention..

Section IV.C.3 requires the following:

Section F, Retention, requires the following:

TUSD initially proposed a summary draft of the Outreach, Recruitment and Retention (ORR) Plan in July 2013, and after revisions to flesh out the details of the ORR Plan in February, March, and April, 2014, the Plaintiffs Mendoza, with Plaintiffs Fisher joining, (R&R (Doc. 1612), Ex. B), asked the Special Master for a R&R to the District's April 24, 2014, version of the Plan, id., Ex. A-4. Apparently, there was another version, May 5, 2014, without substantive changes, and subsequent to the R&R, on May 22, 2014, TUSD agreed to further changes, id., Ex. F:ORR, which the Special Master concluded resolves some of the issues he had raised in the R&R on behalf of the class-Plaintiffs. The class-Plaintiffs would not agree to withdrawal of the R&R, therefore, the Special Master noted areas needing resolution and those he considered moot. In addition to the Special Master's recommendations, the Plaintiffs Mendoza filed objections to the R&R for omissions of two issues: 1) retention provisions aimed at attrition disparity, and 2) advertising outreach provisions. Because TUSD's Objection was limited to the R&R, the Court calls for a Reply to the Plaintiffs' objections related to omissions in the R&R.

The Plaintiff Intervenor, the United States Department of Justice (DOJ), did not seek a R&R on the ORR Plan, but did make comments to the initial summary draft of the ORR Plan: IV.C.3; IV.C.3.a.i-v. Three of the DOJ comments are echoed in the issues raised by the class-Plaintiffs in the R&R as unresolved. The Court finds the DOJ comments helpful.

The R&R addressed seven issues, three of which are now moot because of the May 22, 2014, changes made by TUSD. The three moot issues are: 1) the District will not assert in the ORR Plan that it is not required to develop a retention plan; 2) the District clarified its commitment to nondiscriminatory hiring, and 3) "diversity" in the ORR Plan is defined as racial and ethnic diversity. The remaining four issues from the R&R, which the Court resolves now are as follows: 1) the quality and usefulness of the LMA; 2) the composition of the Recruitment and Retention Advisory Committee; 3) incentives for recruiting and retaining teachers with Spanish bilingual certification, and 4) support for African American and Latino Non-certified staff to attain certification.

The Court considers de novo the express provisions of the USP and whether the ORR Plan satisfies the USP program mandates to the extent practicable. Fisher v. TUSD, 652 F.3d 1131, 1135-1136 (9th Cir. 2011) (citing Missouri v. Jenkins, 515 U.S. 70, 89 (1995); Freeman v. Pitts, 503 U.S. 467, 492 (1992); Bd. of Ed. of Okla. City Public Schs. v. Dowell, 498 U.S. 237, 249-50 (1991), see also Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 12 (1971) (quoting Brown v. Board of Ed., Brown II, 349 U.S. 249, 299 (1955) ("`School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts [ ] have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles.'") The ultimate inquiry is whether the constitutional violator, here TUSD, has complied in good faith with the desegregation decree, here the USP, to eliminate the vestiges of past discrimination to the extent practicable. Id., see also Green v. County School Bd. of New Kent, Va., 391 U.S. 430, 435 (1968).

In its review, the Court considers the R&R, including the attached briefs presented in the first instance to the Special Master regarding the questions addressed in the R&R, and the parties' Objections. The Court may call for further briefing in the event it determines additional information is required to decide the issues and may, sua sponte, set a matter for hearing. Here, the Court finds no additional briefing or oral argument is necessary regarding the parties' objections to the R&R, adopts the R&R, and approves the ORR Plan, with the revisions described below to clarify that the focus of the ORR Plan is to recruit qualified African American and Latino candidates for open administrator and certificated staff positions, and candidates with Spanish language bilingual certification. The Court calls for a Reply from TUSD to the Mendoza Plaintiffs' objection that the R&R omitted a recommendation regarding omissions by TUSD from the ORR of the specific requirements, mandated in the USP, for an annual retention review and revision provision aimed at attrition disparity and the advertising outreach provision.

1) The Labor Market Analysis (LMA)

The USP requires the District "to develop and implement a plan to recruit qualified African American and Latino candidates for open administrator and certificated staff positions. . . .The plan shall address any and all disparities identified in the Labor Market Analysis." USP § IV.C.3. The ORR Plan shall "establish a nationwide recruiting strategy, based at minimum on the outcome of the Labor Market Analysis," and the ORR Plan shall include all the specifics set out in subsections (i) through (v) of the USP. Id.

The Special Master concluded: that regardless of any results from the LMA, the District is not released from its responsibility to undertake aggressive efforts to increase the numbers of African American and Latino educators, as expressly required pursuant to specific strategies set out in the USP. (R&R at 4.) According to the Special Master, the purpose of the LMA is to identify the potential pool of candidates from which the District might recruit so as to determine whether its efforts at recruitment are adequate to address disparities between the composition of the professional staff of the district and the pools of potential candidates. Id. (emphasis added). In other words, TUSD must develop a plan to implement the agreed to strategies for recruiting administrators and certificated staff, and if any disparities are identified in the LMA, TUSD must also address them.

The USP included: "The District hired an outside expert to undertake a Labor Market Analysis to determine the expected number of African American and Latino administrators and certificated staff in the District, based on the number of African American and Latino administrators and certificated staff in the State of Arizona, in a four-state region, a six-state region and the United States." USP (Doc. 1450), § IV.C.2. In the context of the USP § IV, the expected number refers to the number of candidates which might be recruited in Arizona, in a four-state region, a six-state region and the United States.

In accordance with the USP, the ORR Plan requires TUSD to analyze the findings of the LMA, (R&R (Doc. 1612, Ex. F: ORR § III.A.2), develop a nationwide recruiting strategy based, at minimum, on the outcome of the LMA, and includes specific techniques to recruit African American and Latino candidates, and candidates with Spanish language bilingual certifications from across the country, id. A.4. According to TUSD, it "hired [the] outside consultant to undertake a labor market analysis ("LMA") that compares the actual number of African-American and Latino administrators and certificated staff [in TUSD] to the statistical expectation [for such staff] using various demographic group availability rates derived from labor market data." (R&R (Doc. 1612), Ex. F: ORR § VI.A.2.) According to TUSD's analysis of the findings of the LMA, it "revealed no negative disparities in hiring between TUSD's workforce and the local and state labor markets. (See Appendix A for a Summary of Preliminary Findings)." Id.

As noted by the Special Master, a LMA can include a multitude of factors relevant to determining successful recruiting strategies aimed at a specific pool of employees. (R&R (Doc. 1612) at 5.)1 Here, the LMA looked at whether the racial/ethnic statistical composition of employees in TUSD is reflective of this particular demographic group's representation in the relevant external labor market. According to the LMA, the conclusion is that where the compositions are close it can be found that the employer's employment of that racial/ethnic group is consistent with their availability in the geographic area. The LMA concluded that the numbers of racial/ethnic employees in TUSD are close to the percent of like racial/ethnic employees in Arizona. (R&R (Doc. 1612), Ex. A-4: LMA at 1.) But, the LMA did not stop with concluding TUSD's employment of racial/ethnic employees is consistent with their availability in the geographic study areas. It went further to conclude: "The data fail to produce any evidence whatsoever that these demographic groups are underrepresented in the District's workforce." Id. at 18.

"In light of the findings of the LMA, TUSD has developed a nationwide outreach and recruiting strategy to enhance the racial and ethnic diversity of TUSD's workforce by focusing on "Hard-to-Fill Content Areas, Critical Needs Subject Areas, and staffing Hard-to-Fill sites." (R&R (Doc. 1612), Ex. F: ORR § VI.A.2) (emphasis added). Critical Needs Subject Areas are areas required for graduation (core subjects) and/or required by state or federal law, for which there have been an inadequate pool of qualified candidates. Such subject areas are assessed annually. For school year 2013-14, critical needs subject areas included exceptional education, math, and science. Id. at § IV: Definitions. Hard-to-Fill Content Areas are specialized content areas within the TUSD curriculum for which there are, or have been, an inadequate pool of qualified candidates. For school year 2013-14, hard-to-fill content areas included: dual language and Culturally Relevant Courses (CRCs). Id. A "Hard to Fill Site" is a school where traditionally there have been insufficient applicants for instructional vacancies to meet staffing needs. Id.

There are two problems with TUSD's use of the LMA. First, using the LMA to determine disparities in hiring between TUSD's workforce and the local and state labor markets goes beyond the scope of the use described for the LMA in the USP § IV.C.2 and the ORR, § VI.A.2. Both described the LMA in the context of identifying potential pools of candidates in Arizona, in a four-state region, a six-state region, and the United States, from which the District might recruit to determine whether its recruitment efforts were adequate. In this context, the USP requires that the nationwide recruiting strategy should be based at a minimum on the LMA. The Court finds no requirement nor allowance in the USP for the District to make a "disparity" determination, except pursuant to Subsection E, Assignment of Administrators and Certificated Staff, which requires:

(USP (Doc. 1450) § IV.E.) The Annual Report filed by TUSD, July 31, 2014, reflects that the District completed compiling data for this disparity assessment in July and is currently identifying and analyzing significant disparities. (Annual Report (Doc. 1641) at 25-26.)

Here, § IV.C.3.a, Outreach and Recruitment, of the USP expressly requires TUSD's annual review of recruiting data to assess the "effectiveness" of past recruiting practices in "attracting" qualified African American and Latino candidates, and candidates with Spanish language bilingual certifications. See also, USP § IV.I.3, Professional Support, charged: "By July 1, 2013, "the District shall develop and implement a plan for the identification and development of prospective administrative leaders, specifically designed to increase the number of African American and Latino principals, assistant principals, and District Office administrators." Id. (emphasis added).2 The Court finds these provisions provide the relevant sufficiency markers for the ORR Plan, not whether there is a racial/ethnic disparity in the TUSD work force.

Second, the LMA is not a legitimate basis for TUSD to shift outreach and recruitment from a plan developed "to recruit qualified African American and Latino candidates for open administrator and certificated staff positions" to a plan "aligned with TUSD's general recruiting practices, with a particular focus on recruiting and retaining qualified individuals from historically underrepresented groups and qualified individuals to fill hard-to-fill positions." (R&R (Doc. 1612), Ex. F: ORR § II, Overview.) The ORR Plan "Overview" does not mention the USP goal.

The Executive Summary reflects the ORR Plan will focus on "two separate but interrelated objectives, . . .: (1) fulfilling general human resources needs, and (2) fulfilling specific USP-related human resources needs." Id. § III. The latter objective is mandated by the USP. The former, while it is interrelated to the extent it is benefitted indirectly from the latter, cannot stand on equal footing as an objective for allocation of resources authorized under the USP "to recruit qualified African American and Latino candidates for open administrator and certificated staff positions." The Court finds that the ORR Plan must be revised to make it clear the plan is aimed at this express objective, not at improving ethnic and racial diversity, generally, nor recruiting, generally, for hard-to-fill3 positions.

Given the limited use of the LMA, the Court adopts the recommendation of the Special Master. The Court does not order a new LMA and finds that the LMA does not release the District from implementing the ORR Plan to recruit qualified African American and Latino candidates for open administrator and certificated staff positions and instead implement an ORR Plan to enhance racial and ethnic diversity by recruiting for "Hard-to-Fill Content Areas, Critical Needs Subject Areas, and staffing Hard-to-Fill sites." Additionally, the Court finds that the LMA may not be applied to change the focus of the ORR Plan to address two objectives, one of which is not part of the USP, instead of focusing on the one objective mandated by the USP: "to recruit qualified African American and Latino candidates for open administrator and certificated staff positions."

The Court turns to the class-Plaintiffs concerns that the LMA is flawed. Plaintiffs' complain that a number of questions remain which must be answered to determine the integrity of the study's data and, correspondingly, the integrity of any analysis. To the extent the ORR Plan, includes: "Analyzing the findings of the [LMA]," (R&R (Doc. 1612), Ex. F: ORR § III.A.2, TUSD shall respond to Plaintiffs' questions and produce any data relevant to the those findings. The Court notes that TUSD appears to have answered the questions, which Plaintiffs Mendoza assert remain unanswered. (Mendoza Objection (Doc. 1620) at 3-4; R&R (Doc. 1612), Ex. A-3.) Plaintiffs may always seek to compel answers and/or discovery by way of a Motion to Compel, which may be a better method for briefing the specific deficiencies related to TUSD's answers.4 As noted by the Special Master, a better LMA would require gathering of more and/or different data and require continual updating. He offers some suggestions: analysis of differences in salary and other benefits that influence recruitment; quality of life, including economic considerations in the social context, and time specific analysis because resources change as geographic locals experience economic difficulties and reduce staff or vice a versa. In the event TUSD chooses to update the LMA, it should afford the Special Master and the Plaintiffs an opportunity to submit suggestions regarding the scope and use for any future LMA.

2) Recruitment and Retention Advisory Committee

The Special Master asks that TUSD align the membership of the Recruitment and Retention Committee with the USP and clarify whether the newly identified Committee members will influence the selections of 2014 recruitment and retention efforts. In respect to the ORR Plan the USP requires: "input of a racially and ethnically diverse recruitment team comprised of school-level and district-level administrators, certificated staff and human resources personnel."

TUSD responds that it has so aligned the membership by adding six Latino members, where there was previously only one, for a total of seven Latino members on the 15 member committee. (TUSD Objection (Doc. 1625) at 9 (citing R&R (Doc. 1612), Ex. E: 2014-15 Advisory Committee.) It appears that the composition of the Recruitment and Retention Advisory Committee has been amended to include community members and a member from Pima Community College (PCC). The ORR Plan should note that the changed composition, while not provided for in the USP, corresponds to strategies reflected in the USP §IV.C.3.ii and iii and the ORR Plan, § VI, Outreach and Recruitment, subsections 6, Partnership with Local Employers and 7, Local Programs, Colleges and Universities. TUSD clarifies: "The newly selected Committee members will influence recruitment and retention efforts for school year 2014-15." Id. at 9-10. There is no objection to this change in the composition of the Committee from that which was specified in the USP.

The Court finds that TUSD has addressed the imbalance in the Committee objected to by Plaintiffs Mendoza and made the clarification sought by the Special Master. The Court finds the Special Master's recommendation related to Recruitment and Retention Advisory Committee is moot.

3) Incentives: Recruiting/Retaining Teachers with Spanish Bilingual Certification

The Special Master notes that the USP is replete with requirements to recruit and retain teachers with Spanish bilingual certification. See USP § IV.B.1 (Personnel: TUSD to hire or designate human resource person to be responsible for regular review of applicant pool to ensure TUSD is considering African American and Latino candidates, candidates with demonstrated success in engaging African American and Latino students, and candidates with Spanish language bilingual certifications at the school sites and at the District level); § IV.C.3.a (Outreach and Recruitment: requiring annual review of recruiting data and effectiveness of past recruiting practices in attracting qualified African American and Latino candidates, and candidates with Spanish language bilingual certifications); id. at (i) (nationwide recruiting strategy shall include specific techniques to recruit African American and Latino candidates, and candidates with Spanish language bilingual certifications); § IV.D.1 (Hiring: TUSD to maintain database of all applicants for administrative and certificated staff positions, including all certifications (e.g. bilingual certification . . .)); § IV.E.3 (Assignment of Administrators and Certificated Staff: TUSD to address disparities or address resource needs at a particular campus, TUSD to offer voluntary reassignment of bilingual personnel to campuses with increased numbers of ELL students or to dual language programs).

The ORR Plan mirrors the USP emphasis on recruiting and retaining teachers with Spanish bilingual certification. See ORR § III.A.3: (Outreach and Recruitment: TUSD to review and modify as needed to continually strengthen the Plan's effectiveness in attracting, and retaining, qualified African American and Latino candidates, candidates with demonstrated success in engaging African American and Latino students, and candidates with Spanish language bilingual certifications); id. at A.4 (nationwide recruiting strategy shall include specific techniques to recruit African American and Latino candidates, and candidates with Spanish language bilingual certifications); § VI.3 (Annual Review and Process for Modification: data to be collected and disaggregated by race/ethnicity where applicable, including Critical Needs (Math, Science, Exceptional Education, ELL/Dual language (including candidates with Spanish language bilingual certifications), etc., but see (§ IV Definitions: Critical Needs Subject Areas for school year 2013-14 of exceptional education, math, and science, not including ELL/Dual language or candidates with Spanish language bilingual certifications).

At the urging of the Mendoza Plaintiffs, TUSD added two advertising sites, exclusively aimed at recruiting bilingual candidates: the National Association for Bilingual Education (NABSE) and the Arizona Association for Bilingual Education (NABE). TUSD commits to annually evaluating and modifying on an ongoing bases the in-person recruiting strategies as to effectiveness in attracting diverse candidates, including African American and Latino candidates, and candidates with Spanish language bilingual certifications.

Not required, expressly, by any provision of the USP, TUSD intends to offer recruiting incentives of financial reimbursements and stipends, "targeting" African American and Latino candidates. ORR § VI.A.4.c. The incentives are to be utilized as recruitment tools and are, therefore, not available to all incoming or existing administrators or teachers. Id. TUSD established the incentives for candidates beginning Spring, 2014, with a relocation reimbursement to out-of-state, new-to-TUSD, incoming administrators and teachers filling a position qualifying for a recruitment and retention incentive. The recruitment and retention incentives are financial stipends for the following: 1) Dual language/Bilingual (new or existing teachers with a bilingual certification teaching in a dual-language classroom); 2) Culturally Relevant Courses (CRCs) (incoming or existing CRC teachers meeting certain specified qualifications); 3) Hard-to-Fill Sites (new or existing teachers who voluntarily move to Hard-to-Fill Sites, and 4) Critical Needs (new or existing teachers teaching in critical needs subject areas, which for school year 2013-14 are exceptional education, math, and science.

Again, the Court is concerned that each incentive be clearly linked to the USP objectives of recruiting qualified African American and Latino candidates for open administrator and certificated staff positions, and candidates with Spanish language bilingual certifications. While recruiting qualified teachers is notably an important goal, alone, it is insufficient for allocation of resources limited for the purpose of implementing the USP. The Court notes that the USP § IV, Professional Support, I.3. requires the ORR Plan "to propose methods for `growing your own,' including the possibility of financial support to enable current African American and Latino employees to receive required certifications and educational degrees needed for such promotions." Id. Accordingly, TUSD should link any financial incentives to the USP § IV.I.3 or show why financial incentives are better used as alternatively proposed in ORR Plan § VI.A.4.c. As an aside, the Court questions whether ORR Plan § VI.B.b, Other Measures, Encourage Prospective Leaders to Become Leaders, satisfies USP § IV, Professional Support, I.3, requiring growing-your-own methods. This section of the ORR Plan references § V: Methods for Growing Our Own, but the Court has reviewed the ORR Plan attached at exhibit F to the R&R and finds no mention of any Growing-Our-Own methods.

The Court finds that the ORR Plan must be revised to clarify the links between the incentives and a USP goal, and TUSD should explain why it chose to use financial incentives, alternatively, for recruitment rather than as proposed in the USP as a possible method of enabling current noncertificated African American and Latino employees to receive required certifications and educational degrees needed for promotions to administrators or certificated staff. Id. TUSD should also include the Methods for Growing Our Own in § V, if there was an oversight or provide the Court with a copy of the ORR Plan that includes it, if the copy provided by the Special Master is inaccurate.

4) Certification of Non-certified African American and Latino Staff

The Special Master does not take issue with the ORR Plan for supporting noncertificated staff in obtaining certification. Neither Plaintiff objected to the Special Master's position on this subject. The USP, however, required TUSD to consider financial incentives here. Therefore, TUSD must explain why it chose to not use financial incentives, here, and instead added financial incentives, sua sponte, as a recruitment method.

5) Plaintiffs' Objections to Omissions in the Special Master's R&R

Plaintiffs complain that the R&R omitted any recommendation to the ORR Plan for failing to include the requirement pursuant to the USP § IV.F.1.a: "If disparites [in attrition rates for African American or Latino administrators or certificated staff] are identified, the District shall . . . develop a plan to take appropriate corrective action. If a remedial plan to address disparate attrition is needed, it shall be developed and implemented in the semester subsequent to the semester in which the attrition concern was identified." Plaintiffs complain that the ORR Plan does not reflect that remedial measures are mandatory and required the very semester following the semester in which a disparity is found to exist.

Additionally, Plaintiffs complain that the ORR advertising plan is limited to certain express publications, ORR § VI.A.4.a,5when it should instead reflect the USP's requirement that TUSD advertise job vacancies "on national websites and publications, including career websites, national newspapers, education publications, and periodicals targeting African American and Latino communities." USP § IV.C.3.a.i.

TUSD did not respond to Plaintiffs' Objection to the R&R. Because TUSD has not had an opportunity to respond to Plaintiffs' Objection in respect to omissions in the Special Master's R&R, the Court calls for a Reply.

Accordingly,

IT IS ORDERED that the Court adopts the Report and Recommendation (Doc. 1612) in Part as to the limited use for the LMA. The remainder of the Special Master's recommendations require no action by the Court.

IT IS FURTHER ORDERED that within 21 days of the filing date of this Order TUSD shall file a Reply to the Mendoza Plaintiffs Objection to omissions in the R&R.

IT IS FURTHER ORDERED that TUSD shall have 21 days from the filing date of this Order to revise the ORR Plan to conform to the findings and directives of the Court made herein, including providing an explanation for the use of financial incentives, if used alternatively to the USP proposal to consider financial incentives in the context of a "Grow Your Own" program. Any objection may be filed within 14 days of the filing of the revised ORR. The Court shall rule, thereafter, to adopt the ORR Plan for implementation in TUSD.