ORDER

DAVID C. BURY, District Judge.

Report and Recommendation: Advanced Learning Experiences

On August 13, 2014, the Special Master filed a Report and Recommendation (R&R) (Doc. 1645) relating to the Unitary Status Plan (USP) Section V, Quality of Education, subsection A, Access to and Support in Advanced Learning Experiences (ALEs), which requires TUSD to improve the academic achievement of African American and Latino students and ensure they have equal access to the District's ALEs. (USP1 (Doc. 1713) § V.A.1.)

The R&R was requested by the Plaintiffs Mendoza and joined in by the Fisher Plaintiffs. The Plaintiffs' objections are limited to the annual goals set by TUSD, not the specifics of the detailed plan of action to be undertaken to increase the numbers of these students, and ELL students, in ALEs. (USP § V.A.2-5.) At issue is subsection 2.a, as follows:

(USP § V.a.2.a) (emphasis added).

To implement Section V of the USP, TUSD prepared the ALE Access and Recruitment Plan (ALE Action Plan). The subsection challenged by the Plaintiffs is Section II, Annual Goals and Progress Monitoring, which provides, as follows:

(ALE Action Plan (Doc. 1645-2), Ex. A at § II) (emphasis added).

The 20 % Rule, therefore, sets a goal at a sum certain number NOT less than the minority groups' enrollment rate District-wide. Using the base line years proposed by TUSD, SY 2012-13 to the end of SY 2017-18,3 TUSD's goal for increasing GATE services is 0.19 % per year for African American students and for Latino students 0.29 % per year. For AAC, TUSD's goal is .09 % per year for African American Students. (ALE Plan § II.A and B.) The 20 % Rule is already satisfied for AAC for Latino students. Id. TUSD does not apply the 20% Rule to ELLs. UHS is not at issue, here.

Plaintiffs and the Special Master believe that the annual goals are too low and should be increased, especially because participation among African-American and Latino students, as of SY 2012-13, is relatively close to being not less than 20 % of the minority students' enrollment district-wide. For example: African American students make up 5.8% of the district-wide student population, with the less than 20% goal being 4.64% and the current participation level being 3.7%, therefore, TUSD needs to increase GATE participation for African American students by 1%. The same percentage increase is required for Hispanic students in GATE programs. For AACs, African American students make up 6.2%4 of the district-wide student population, with the less than 20% goal being 4.96% and the current participation level being 4.5%, therefore, TUSD needs to increase AAC participation by half a percent. There is no need to increase participation by Hispanic students in AACs. (R&R (Doc. 1645), Ex. A: ALE Action Plan at 14.)

The Special Master recommends an admittedly arbitrary 15 % increase, instead of less than 20%. Plaintiffs rely on the USP's requirement that the strategies identified in the ALE Plan must "increase the number of African American and Latino students, including ELL Students, enrolling in ALEs." USP § V.2.c; USP § V.3.a.i (specifying measures for increasing GATE services); USP § V.4.a.i (same for AACs). Plaintiffs suggest equal access goals should mirror the percentage of these students in the general student body. For example, parity would be reached for African American Students, who make up 10 % of the student body, when they make up 10 % of the ALE participants.

The Plaintiffs and the Special Master believe goals should be program specific. There are eleven programs: three GATE programs (Self-contained; pull-out, and resource) and eight AACs (Advanced Placement (AP); Advanced Pre-AP; Honors Pre-AP; Dual-Credit; IB; Dual language; UHS, and middle school courses for high school credit). They are all very different from each other. For example, GATE pull-outs provide students with the program less than half a day once a week, whereas, a self-contained GATE is virtually full time. According to Plaintiffs and the Special Master, program effectiveness must be examined by the outcome of student participation in each AAC program. (R&R (Doc. 1645) at 3.)

TUSD disagrees. According to TUSD setting separate goals for each ALE program "will mean that ALE programs will be competing against each other for students." (Objection (Doc. 1654) at 5.) It would warp incentives by pushing students towards ALE programs falling short of the 20% Rule rather than towards the program best fitting their needs. Id. "For example, if 10 Latino students who previously have not participated in ALE's choose to enroll in International Baccalaureate ("IB") courses, rather than AP courses, and as a result TUSD misses the participation target the Special Master would impose for AP courses, the District will be penalized for failing to meet that target, despite the fact it is increasing overall Latino ALE participation in compliance with the USP's unambiguous directive." Id. For example, assuming that a full time GATE program is superior to a once a week GATE program,5 "the District may spend time and resources recruiting a fifth grade Latina student for GATE testing and placement. [She] then may be offered placement at a self-contained GATE program at a school 10 miles away from her home. The student may decide instead to stay at her home school and receive GATE `pull out' services, as do many students. The District has, in this example, successfully recruited, tested, and offered a Latina student self-contained GATE placement, and the student has selected GATE placement that meets her needs. The District should not be penalized because this student has chosen one GATE service over another. Students and their parents have many reasons for selecting particular ALE's, and the District must be permitted to offer this flexibility to serve the varying needs of its students." (Objection (Doc. 1654) at 6.)

The Special Master concludes that TUSD does not want to apply the less than 20% Rule to all eleven ALE programs to avoid accountability. True, TUSD does not want to be "penalized" for individual programs that fail to satisfy the 20% Rule, if it increases the overall participation in ALEs by African American and Latino students. The Court does not, however, believe that TUSD can avoid accountability because it agrees to gather and tabulate all the relevant data necessary to assess each ALE program, individually, in respect to the 20 % Rule. TUSD cannot avoid the numbers, which will or will not equal less than 20% of the enrollment rates in the District for African American and Latino students, including ELLS. The problem will not be accountability as long as relevant data is gathered and Plaintiffs and the Special Master are free to point out any individual program where discrimination may exist. The Court notes that the 20% Rule is based on the percentage of African American and Latino students, including ELLS enrolled in the District, which changes annually. Consequently, the annual goal must adjust accordingly.

As the Court sees it, the problem is that the 20% Rule is an over-simplistic measurement for effectiveness, especially if TUSD intends to apply it to determine unitary status.6 The Court is not inclined, without full briefing, to consider whether the 20% Rule, establishing a floor, satisfies the USP mandate to increase the number of minority students participating in ALEs, which suggests a goal somewhere in the ceiling. Because TUSD is close to satisfying the 20% Rule, the Court believes the less than 20% mark can be hit sooner than later, especially by the USP target date: SY 2016-17. This is certainly true in the elementary grades where the pool of potential participants is limited by the district-wide number of minority students, as compared to upper-grades where ALE participants are limited by the number of minority students drawn into the pipeline in elementary school. TUSD may use the 20% Rule as an annual goal for GATE and AACs, but it must reach this minimum standard as soon as practicable, and report data for the 20% Rule for all ALEs so the Parties and Special Master can consider whether discrimination may exist in each individual ALE program.

In short, TUSD may apply the "less than" 20% Rule each year as a rule-of-thumb7 to red-flag areas of concern, including participation by ELL students in ALE programs, which may warrant further inquiry or improvement. However, as TUSD's GATE example illustrates, there are other variables which must factor into TUSD's assessment regarding the effectiveness of the ALE Access and Recruitment Plan. For example, TUSD must consider the feasibility8 of neighborhood access for minority students to self-contained or more rigorous GATE programs. Certainly, goals for increasing participation at the elementary grade levels will be easier to attain than increasing participation in higher grade levels which requires the District to build a pipe-line. TUSD suggests it is not possible to place ELL students in ALEs, yet ELLs were expressly identified in the USP for increased participation. All of these variables require a flexible measurement of success depending on the individual ALE.

The Court agrees with the District that flexibility is necessary, but does not agree with the District that flexibility can be found in the 20% Rule. It is instead an imprecise standard, merely a rule-of-thumb, which may suggest discrimination depending on multiple variables. This is obvious from TUSD's objections to applying the 20% Rule to ELLs or individual ALEs, and TUSD's failure to make grade distinctions. Given that the ALE Action Plan's annual goals result in total increases of participation by minorities in ALEs of zero to one percent, the Court assumes the 20% Rule will not be the sole basis for determining unitary status in respect to USP § V, Access to and Support in Advanced Learning Experiences (ALEs), because if it is—unitary status could certainly be had by the end of SY 2016-17, or sooner. Instead, TUSD proposes an end-date of SY 2017-2018. The Court rejects this. Instead, TUSD should establish the end-goal(s) for improving access for African American and Latino students to ALE programs to attain unitary status by SY 2016-17 and work backwards to set the annual goals.

TUSD should provide the Plaintiffs with a 20% Rule Report for each individual ALE program, by grade level. TUSD should begin consulting with the Plaintiffs and the Special Master regarding how to comprehensively measure the effectiveness of the ALE Action Plan to determine whether TUSD has attained unitary status in regard to the District's responsibility to ensure to the extent practicable that African American and Latino students have equal access to the District's Advanced Learning Opportunities. Subsequently, TUSD should set the requisite annual goals, necessary, to attain unitary status by the end of SY 2016-17, pursuant to the ALE Action Plan.

Accordingly,

IT IS ORDERED that the Special Master's R&R (Doc. 1645) is adopted in part and rejected in part.

IT IS FURTHER ORDERED approving the 20% Rule as a rule-of-thumb annual goal to be met as soon as practicable but no later than the USP target date: SY 2016-17. TUSD has agreed to categorize GATE programs by the amount of time students are engaged in them in a typical week and for all AAC programs to break data down by school level—elementary, middle, K-8, and high school. It shall report the 20% Rule goal in the same way. Within 20 days of the filing date of this Order, TUSD shall provide Plaintiffs and the Special Master with a 20% Rule Report for all eleven ALEs.

IT IS FURTHER ORDERED that TUSD shall develop goals for increasing participation of ELL students in specific ALE programs, where practicable, and provide explanation to the Plaintiffs and the Special Master as to how these goals were derived. Within 20 days of the filing date of this Order, TUSD shall complete this ELL Supplement to the ALE Action Plan Report and provide it to the Plaintiffs and Special Master for review and comment.

IT IS FURTHER ORDERED that TUSD shall, in consultation with the Plaintiffs and the Special Master, develop the comprehensive goals for attaining unitary status by ensuring that African American and Latino students have equal access to the District's Advanced Learning Opportunities. Withing 60 days of the filing date of this Order, TUSD shall file a Supplement to the ALE Action Plan, which shall include these unitary status goals and annual goals for attaining unitary status by the end of SY 2016-17. THERE SHALL BE NO EXTENSIONS OF TIME FOR FILING THE SUPPLEMENT TO THE ALE ACTION PLAN. Plaintiffs and the Special Master may file objections within 14 days of the filing date of the Supplement ALE Action Plan. TUSD may file a Reply within 7 days of the filing date of any Objection.