SUPPLEMENTAL REPORT AND RECOMMENDATION AMENDING THE FEBRUARY 21, 2017 REPORT REGARDING TRANSITION PLAN

DAVID C. BURY, Senior District Judge.

On February 14, 2017, the Mendoza plaintiffs replied to TUSD's responses to the plaintiffs' and Special Master's comments on transition plans for magnet schools (see Exhibit A). While this set of comments did not add new objections to the plans, the Mendoza plaintiffs placed emphasis on six issues, two of which — school integration and narrowing the achievement gap — are high priorities for the Mendoza plaintiffs. The Special Master did not comment on these two concerns in his R&R. This amendment to the R&R submitted by the Special Master on February 21, 2017 seeks to remedy this omission.

Integration

The transition plans were developed for six schools that are losing magnet status. Magnet status is being withdrawn because these schools, despite considerable effort over several years, have been unable to achieve integration that meets the standards set forth in the USP. Had there been a good probability that further investments would have resulted in integration, withdrawal of magnet status would not have been recommended by the Special Master and approved by the Court.

The District has not been successful in its efforts to promote integration. But, if it is to be successful, it should invest in efforts that have some reasonable chance of success. It does not seem that the strategic allocation of resources for the purposes of integration should focus on schools that have been unsuccessful in achieving that goal.

The Court should not require the District to amend the transition plans to include investments in integration. Arguably, the best investment that schools involved could make that would attract white and African American teach students would be to improve the academic performance of the students in those schools. Which is what the District seeks to do.

Narrowing the Achievement Gap

There are two ways to narrow the achievement gap. The first is to improve the academic performance of students who are performing at the lowest levels in the schools in the District. The second is to undermine the performance of students who are performing at the highest levels. The second option, obviously, is not acceptable.

The District agreed with the goal of narrowing the achievement gap when it approved the Comprehensive Magnet Plan in which narrowing the achievement gap is specifically identified as one of the obligations of the District. The District should be held accountable for achieving that goal.

The fact that the District did not use those terms in this discussion does not mean that it has failed to focus attention on enhancing the achievement of the lowest performing students. Indeed, it has explicitly done that. Whether the strategies that it proposes are the best ones that could have been adopted is not being challenged by the Mendoza plaintiffs. In his R&R, the Special Master indicated why it would be difficult for the Court to define a set of strategies different from those advocated by the District.

Given that the District is already obligated to narrow the achievement gap, having it say that that is one of its goals seems unnecessary. If what is being asked by the Mendoza plaintiffs is that the substance of plans should be amended, the consequence would be to recycle the planning process and undermine the already problematic implementation of the transition plans. The Court should not require the District to amend its transition plans to identify narrowing the achievement gap as one of its goals.

MENDOZA PLAINTIFFS' REPLY TO TUSD RESPONSES TO PLAINTIFFS' AND SPECIAL MASTER'S COMMENTS ON THE TRANSITION PLANS FOR MAGNET SCHOOLS

February 14, 2017

Mendoza Plaintiffs have a number of concerns relating to the District's response to the Plaintiffs' and the Special Masters' comments on the transition plans for magnet schools. Because they are particularly troubled by the District's response to those comments that relate to the failure of the transition plans to address key aspects of the USP —its purposes of increasing integration and closing the achievement gap for the District's African American and Latino students — they focus on those concerns here. They then turn to other aspects of the District's response that warrant reply either because they suggest a misunderstanding by the District of the Mendoza Plaintiffs' initial comments or overlook a specific recommendation. Mendoza Plaintiffs' decision not to reply to each of the District's responses should not be understood to mean that Mendoza Plaintiffs no longer press their comments and suggestions of January 31, 2017 not addressed herein.

For ease of reference, they use the same numbering system applied by the District in its response.

Integration (#14)

The District seeks to excuse the absence in the transition plans of any discussion of integration efforts by the six transition schools by asserting that it has assigned this "task" to its Coordinated Student Assignment Committee ("CSA") and that the "CSA will develop comprehensive strategies to improve integration at the six schools in a thoughtful and coordinated manner." (TUSD Response to Plaintiffs' and Special Master Comments on the Transition Plans ("TUSD Response") at 5; emphasis added.)

Mendoza Plaintiffs respectfully suggest that this is too little, too late and that effective strategies to improve integration should have been an integral part of each school's plan. This is particularly so because, as magnet schools, each of these schools already has been charged with focusing on increasing integration at the school and each had a plan in place to do so. (Mendoza Plaintiffs understand that those plans would have had to have been revised to address the changes in the schools as a consequence of the change from magnet status but that is very different from the District's suggestion that the CSA, at some unspecified future time, will undertake a process of developing integration strategies for these schools.) A plan to plan or "develop integration strategies" is, in fact, not a plan. Further, to the extent any such strategies would entail expense, they should already have been part of the planning for this year's budget cycle given that Budget Draft #1 was provided to the parties on January 20, 2017.

In this regard Mendoza Plaintiffs also note that the District plainly already has devoted attention to the individual marketing plans of some schools (but not the six transition schools)1 and their attendant costs since it expressly addresses funding for certain individual school marketing plans in its Budget Draft #1. (See Activity Code #204.) Once again, this suggests that the District has unduly delayed the preparation of plans to advance integration in the six transition schools and it raises a question concerning what "comprehensive strategies" the District intends to develop since Budget Draft #1 reveals that some strategies already are in place.

Mendoza Plaintiffs are additionally concerned about the absence of attention to integration in the transition plans given two other troubling statements by the District:

Mendoza Plaintiffs therefore reiterate their statements that the transition plans should be revised to include integration initiatives.

Achievement (#20)

In its response, the District both denies an obligation to seek to close the achievement gap between the District's white students and those who are members of the Plaintiff class and ignores the Mendoza Plaintiffs' express statement about how the achievement gap must be evaluated given the fact that the six transitional schools are racially concentrated. (TUSD Response at 8; compare Mendoza Plaintiffs' Transition Plan Comments at 4.)

In the TUSD Response, the District asserts that in its communications with Dr. Hawley concerning the transition plans, he never included a specific recommendation to reduce the achievement gap at these schools. (Id.) The short answer is that no such recommendation should have been necessary because the USP itself directs that student engagement and support strategies should "seek to close the achievement gap and eliminate the racial and ethnic disparities for these students in academic achievement . . . ." (USP, Section V, E, 1) and in its Order dated November 19, 2015 (Doc. 1870) directing the District to prepare transition plans the Court expressly stated that the plans "should address how best to meet the needs of students in schools that are at risk of not meeting the standards for academic achievement identified in the CMP." (Id. at 10: 22-24; emphasis added.) As the District well knows, each of the individual magnet school improvement plans, developed as part of the CMP, set explicit goals for closing the achievement gap. Therefore, it should come as no surprise that in reply to the District's assertion that in its discussions with the Special Master he had not explicitly referenced the need to close the achievement gap, the Special Master stated: "The issues raised by the Mendoza plaintiffs are raised explicitly by academic provisions of the CMP, which the District agreed to. I assume that losing magnet status does not mean that the District would not pursue the academic goals cited in the CMP for students in these six schools." (Comments on District Response to Concerns about Transition Plans, dated February 9, 2017 ("Special Master Reply") at 4.)

In their comments to the transition plans, Mendoza Plaintiffs clearly stated that they understood that for the purposes of assessing progress in closing the achievement gap, "intra school comparative data cannot be used . . .since the six schools have so few white students." (Mendoza Plaintiffs' Transition Plan Comments at 4.) They then wrote: "in setting goals and measuring success, the plans should focus on achievement not only within each school but also as compared to District-wide outcomes, with specific focus on narrowing the achievement gap." (Id.) Yet, notwithstanding those plain statements, the District suggests that Mendoza Plaintiffs were urging attention only to the achievement gap "at these schools" (TUSD Response at 8) and suggests that what Mendoza Plaintiffs were recommending is unworkable because the numbers of white students at these schools are not "big enough . . .to constitute a representative sample." (Id., at 8, n 1.) That the District failed to address the issue actually raised by the Mendoza Plaintiffs is underscored by the Special Master's reply. He observed: "The DR (District Response) does not address the issue raised here, which is to look at performance district-wide to assess academic progress of the students in the schools." (Special Master Reply at 4; emphasis added.)

Mendoza Plaintiffs therefore reiterate their statements that the transition plans should be revised to include express undertakings, like those that existed in the six schools' magnet improvement plans, to close the achievement gap, looking at performance district-wide to assess academic progress at these schools.

Additional Issues

Timing (#19, #28)

As the Special Master noted in his reply, the District appears to have misunderstood the issues and concerns that he and the Mendoza Plaintiffs were raising. (Special Master Reply at 4-5.) To be clear: Mendoza Plaintiffs have not argued for "the immediate implementation of major instructional initiatives, in the middle of a school year" (TUSD Response at 15) or that the schools or the District should "skip[] over several foundational steps in the implementation process." (Id.) Rather, the Mendoza Plaintiffs recommended that "hiring, training and preparation" (Mendoza Plaintiffs' Transition Plan Comments at 3) occur earlier than the summer 2017 and later periods set forth in the transition plans.

It also is worth noting that part of what the Mendoza Plaintiffs urged with respect to timing appears to be embraced by the District even as it argues with the Mendoza Plaintiffs' comments. Citing a number of what it refers to as "leading change" experts, the District asserts that "cultural change" should precede "technical change" and that "stakeholders must clearly understand the rationale for the recommended changes." (Id.) Yet it fails to address the Mendoza Plaintiffs' comment, which they therefore reiterate here:

Mendoza Plaintiffs therefore reiterate their suggestion that the District immediately take steps to hire the outreach liaisons who are included in each of the transition plans. Further, given the assertions in the TUSD Response that it seeks to follow the approaches of "leading change" experts, specifically including Michael Kotter, the plans should be revised to set forth how these liaisons, working with the school principals4 and the transition coordinators, will immediately act to create the sense of urgency, build coalitions, and articulate how the future will be different from the past as well as how the planned changes will move the schools to a new and better future, as recommended by Michael Kotter in his 8-Step Process for Leading Change.

Timing and Proposed Dual Language Expansion (#24)

The District takes Mendoza Plaintiffs to task for suggesting that it should defer adding a dual language program to Ochoa and expanding the Spanish language program at Pueblo next year because they previously criticized the District for its failure to expand dual language programs in the District and for having taken so long to finalize and commence implementation of the Two Way Dual Language Program. (TUSD Response at 12, n. 2 and 15.)

The District's criticism is misplaced. That Mendoza Plaintiffs objected to the District's failure to comply with its USP-mandated obligation to expand its dual language programs does not mean that they are required to support an initiative that raises many issues, as they detailed in their extensive comments on the District's proposals (see Mendoza Plaintiffs' Transition Plan comments at 5-8), particularly given that the District now admits that "important commitments made and steps identified in the TWDL access plan have not been followed . . . ." (TUSD Response at 12.)5

Cholla (#25)

The District's Response fails to address two explicit observations and requests in the Mendoza Plaintiffs' comments on the Cholla plan. They therefore repeat them here:

The 2015-16 Annual Report stated (at pages V-155) that Cholla was interested in expanding its 9th and 10th grade offerings to implement the IB Middle Years Programme for 9th and 10th grade students. Mendoza Plaintiffs did not see confirmation that this has happened or is to occur in the 2017-18 school year and therefore request confirmation in that regard.

The Annual Report also stated that Cholla proposed to apply for IB Career-related Programme (CP) for SY 2017-18 as part of its goal of becoming a full IB World School (id. at V-156), and repeats that aspiration in its transition plan (at page 116 of 158, Doc. 1984-1). However, the transition plan is not clear that that will occur. To the extent there may be any ambiguity or lack of clarity in this regard in the plan, Mendoza Plaintiffs recommend that it be addressed and that Cholla's participation in the CP be confirmed. (Mendoza Plaintiffs' Transition Plan Comments at 8; emphasis added.)

Utterback (#26)

The District states that it is not "trying to sustain the performing arts program" at Utterback but "seek[s] to maintain the robust fine art electives . . . ." (TUSD Response at 4.) It then asserts that there is "ample research that access to, and participation in, fine and performing arts contributes to academic success." (Id.) This seems if anything to be a step backwards, abandoning an "arts program" and providing for a series of stand-alone arts "electives". What the District continues to fail to address is the point that both the Special Master and the Mendoza Plaintiffs have made: that to contribute to academic success "[i]t seems necessary that the school's approach to arts education have a more explicit academic purpose. There are `arts integration' programs that do this and TUSD has experience" with them. (Special Master Comments at #13.) Indeed, in Budget Draft #1, TUSD is proposing an arts integration initiative for Tully Magnet School.

As they did in their comments on Budget Draft #1, Mendoza Plaintiffs again recommend that the same approach (scaled up to the requirements of a middle school) be implemented at Utterback.