Case 4:70-cv-00627-CW Document 212 Filed 12/21/18 Page 1 of 10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

)
KINNEY KINMON LAU, et al., )
)
Plaintiffs, ) No. C70-0627 CW
)
v. ) JUDGE CLAUDIA WILKEN
)
SAN FRANCISCO UNIFIED SCHOOL )
DISTRICT, )
)
Defendants. )
)
UNITED STATES OF AMERICA, )
)
Intervenors. )
)
)

JOINT MOTION TO EXTEND THE TERMINATION DATE

OF THE MODIFIED CONSENT DECREE UNTIL JUNE 30, 2019

Pursuant to Paragraph 109 of the Modified Consent Decree (“MCD”) entered by this

Court on June 29, 2015 [ECF No. 201], Plaintiff Kinney Kinmon Lau, et al. (“Private

Plaintiffs”), Plaintiff-Intervenor United States of America (“United States”) (collectively,

“Plaintiffs”), and Defendant San Francisco Unified School District (“SFUSD” or “District”)

(collectively, “the Parties”), by and through undersigned counsel, hereby jointly move the Court

to extend the termination date of the MCD from December 31, 2018 to June 30, 2019, with

respect to Paragraphs 55.a, 56.a, 57-58, 72, 101.d, 105, and 109 and the definitions in Section III

of the MCD that apply to the foregoing paragraphs. Pursuant to Paragraph 109, the Parties also

stipulate to the termination of all other paragraphs in the MCD.1

In support of this Joint Motion, Plaintiffs and the District collectively state as follows:

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Consistent with N.D. Cal. L. R. Civ. Proc. 7.2(c), the Parties have attached to this Motion a proposed order in PDF
format, and sent a Word version to the address on the court’s website for emailing such orders to the assigned judge.
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1. On June 29, 2015, the Court entered the MCD regarding the District’s English

Learner (“EL”) Program in the above-captioned case [ECF No. 201]. Since that time, the

District has worked to implement the MCD, and the Plaintiffs have monitored that

implementation through onsite visits, correspondence, telephone conferences required by

Paragraph 105, and review of the District’s annual reports filed pursuant to Paragraph 104.

MCD ¶¶ 104, 105. Paragraph 109 of the MCD provides the Plaintiffs with “90 days from the

receipt of the 2017-18 annual report to raise concerns and objections regarding the District’s

compliance.” Id. ¶ 109. Paragraph 109 also allows any party to file a motion to “extend the date

of the [MCD] based on concerns or objections regarding the District’s compliance” within 90

days after receipt of the 2017-18 annual report. Id.

2. The District filed its 2017-18 annual report on October 1, 2018 [ECF 211]. The

United States raised concerns about the District’s compliance in October, November, and

December 2018. As Paragraph 109 requires, the Parties have “work[ed] in good faith to resolve

[these] concerns” and engaged in arms-length negotiations regarding corrective actions to

achieve compliance with Paragraphs 55.a, 56.a, 57-58, 72, and 101.d, of the MCD. MCD ¶ 109.

As a result of these negotiations, the Parties agreed that the disputed areas of compliance should

be resolved by jointly moving to extend the termination date of the MCD until June 30, 2019,

with respect to Paragraphs 55.a, 56.a, 57-58, 72, and 101.d so that the District can take the

corrective actions to achieve compliance. The Parties also agreed that the six-month extension

should apply to Paragraphs 105 and 109 to ensure that the District provides Plaintiff Parties with

documentation of its compliance and the case can be dismissed on June 30, 2019, without further

order of the Court. Pursuant to Paragraph 109, the Parties also agree that the remaining

paragraphs of the MCD may be terminated now.

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3. Extending the termination date for Paragraphs 55.a and 56.a will address the

United States’ concern that the District has not timely assessed the English proficiency of

students identified for assessment by the Home Language Survey or placed ELs identified by the

assessment in leveled EL programs within the timeframes required by Paragraphs 55.a and 56.a.

The extension will allow the District to demonstrate its compliance with such timeframes for the

remainder of the 2018-19 school year.

4. Because the Parties anticipate that in March 2019 the State Board of Education

will revise the threshold scores that the District uses on the Initial English Language Proficiency

Assessments for California (“ELPAC”) to identify which students are ELs and which are

Initially Fluent English Proficient (“IFEP”) under Paragraphs 55.a and 56.a, the Parties discussed

how these two paragraphs would apply during the requested six-month extension of the MCD.

The Parties agree that if the State Board increases the threshold scores on the Initial ELPAC

before June 30, 2019, then under Paragraphs 55.a and 56.a the District will: (a) use these

increased threshold scores to identify future ELs and IFEPs; (b) apply these scores retroactively

to students whom the District previously identified as IFEP in the 2018-19 school year under the

State’s original threshold scores; and (c) offer EL services for those students whose Initial

ELPAC scores no longer meet the increased threshold scores. Consistent with Paragraph 55.a,

“within thirty days” of a State Board vote to increase the scores, the District also will notify the

parents/guardians of those students “in a language the parent/guardian understands” that: their

child’s Initial ELPAC scores fall below the State’s increased threshold scores defining English

proficiency; their child would benefit from being placed in EL services; and the parent/guardian

has “the right to refuse that placement.” Id. ¶ 55.a.

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5. Extending the termination date for Paragraphs 57 and 58 until June 30, 2019, will

address the United States’ concern that the District did not comply with these requirements when

it selected threshold scores that were too low to demonstrate “proficiency in English” on the

Summative ELPAC. Id. ¶¶ 57-58. The District selected threshold scores of 3 out of 4 for the

Overall, Oral Language, and Written Language composite performance levels, and the United

States determined that these scores do not comply with the terms of Paragraphs 57 or 58. The

District disputes this determination, but recognizes that the State Superintendent of Public

Instruction in California recommended in November 2018 that the State Board increase the

threshold scores for the 2019 administration of the Summative ELPAC, “particularly where

ELPAC level 3 ends and level 4 begins,” in response to a validation study and supplemental

empirical analyses recommending that the State Board increase the ELPAC level 4 threshold

scores.2 (See CA State Bd. of Educ. Nov. 2018 Agenda, Item #09, at 2 (Ex. 1).)

6. Extending Paragraphs 57 and 58 will allow the Parties to resolve their dispute

over the District-selected threshold scores on the 2018 Summative ELPAC by having the District

(i) apply the state-recommended 2019 threshold scores for Overall, Oral Language, and Written

Language, see Ex. 1, Attach. 1, to all students who have 2018 Summative ELPAC scores and (ii)

define who has achieved English proficiency on this test under Paragraphs 57 and 58 as follows:

a. Grades K-12: Scores of 4 in Overall, Oral Language and Written Language,

provided that no score is a 1 in any of the four language domains; or

2
The California Department of Education provided interim guidance to local education agencies on the use of the
Summative ELPAC in January and September 2018, permitting these agencies to determine their own ELPAC
threshold scores for reclassification purposes (i.e., the score needed to identify a student as English proficient). See
CA Dept. of Educ. Sept. 14, 2018 Interim Reclassification Guidance for 2018-19, at 1, available at
https://www.cde.ca.gov/sp/el/rd/interimreclass1819.asp.

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b. Grades K-3: Scores of 4 in Overall and at least 3 in Oral Language and

Written Language, provided that no score is a 1 in any of the four language

domains, and the student has a “meets or exceeds expectations” score on the

Fountas & Pinnell Benchmark Assessment in 2018 or 2019; or

c. Grades 4, 5, and 12: Scores of 4 in Overall and at least 3 in Oral Language

and Written Language, provided that no score is a 1 in any of the four

language domains; or

d. Grades 6-9: Scores of 4 in Overall and at least 3 in Oral Language and Written

Language, provided that no score is a 1 in any of the four language domains,

and for students who have only a 3 in Oral Language or a 3 in Written

Language, a Performance Level of 3 or 4 on the 2018 SBAC ELA test; or

e. Grades 10 and 11: Scores of 4 in Overall and at least 3 in Oral Language and

Written Language, provided that no score is a 1 in any of the four language

domains, and (i) in 10th grade a Readers Inventory (RI) score of 1025 and

above, or (ii) in 11th grade an RI score of 1050 and above.

7. To comply with Paragraphs 56.a, 57, and 58 of the MCD, the Parties agree that

for students who have not “achieved proficiency in English” on the 2018 Summative ELPAC

consistent with Paragraph 6 of this Motion and the District’s other reclassification criteria:3

a. the District will notify these students’ parents/guardians in a language they

understand by February 1, 2019, that their child will remain in EL programs

for the remainder of the 2018-19 school year unless the parents refuse that

3
See Lau Report of Oct. 1, 2018 [ECF 211, Attach. 3, Ex. o. 2018-19 Reclassification Criteria by Grade Level
Revised 9.6.18_English]).

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placement in writing, and that their child will take the 2019 Summative

ELPAC sometime between February and May 2019; and

b. by February 1, 2019, “the District will ensure that ELs have been properly

placed in EL programs, and if not, adjust their placements to appropriately

reflect their ELP levels,” as required by Paragraph 56.a.

See MCD ¶¶ 56.a, 57, & 58.

8. Extending the termination date for the first sentence of Paragraph 72 will address

the United States’ concern that the District has yet to comply with its obligation to use “available

data, the monitoring process described … in Paragraph 102, as well as the annual audits to

address the consistent and effective provision of EL services” through its language pathways. Id.

¶ 72. Paragraph 72 outlines a process for the District to modify or eliminate pathways that are

not effective. Based on outcome data provided in the annual Lau Reports and multiple site visits,

the United States has repeatedly raised concerns about the performance of the Spanish Biliteracy

and Spanish Dual Language Immersion pathways (“Spanish pathways”). In light of those

concerns, and in accordance with Paragraph 72, the District approved modifications to the

Spanish pathways designed to improve student performance and achieve consistency and fidelity

across these pathways. (See SFUSD Spanish Biliteracy and Dual Immersion Allocation Charts

(Ex. 2).) The District also adopted a new English Language Development (“ELD”) curriculum

to provide consistent and effective ELD services across the pathways. The District has started to

implement the Spanish pathway and ELD curriculum changes and has plans to complete their

rollout goals through June 30, 2019, in all elementary schools by June 30, 2019. (See SFUSD

ELD Planning Tool (Ex. 3), SFUSD ELD Rollout Plan (Ex. 4), SFUSD Spanish Guidelines

Engagement Roll Out and Support Plan (Ex. 5), & SFUSD Planning Tool for Content and

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Language Allocation Implementation (Ex. 6).). Extending the termination date for the first

sentence of Paragraph 72 until June 30, 2019, will address the United States’ concern that the

District has not yet fully implemented these modifications and will allow the District to achieve

the goals through June 30, 2019 of the plans set forth in Exhibits 2-6.

9. Extending Paragraph 101.d. until June 30, 2019, will address the United States’

concerns that the District’s monitoring of schools through the Internal Oversight Committee

(“IOC”) audits has missed certain compliance issues and failed to correct other issues. The

extension also will allow the District to use the IOC audits in Spring 2019 to monitor

implementation of the corrective actions that the District has agreed to take by the end of the

2018-19 school year to achieve compliance with the paragraphs of the MCD that will remain

open during the six-month extension. Given the narrowed scope of the remaining issues under

the MCD, the Parties agree that audit topic (vi) of Paragraph 101.d may be dismissed from the

District’s Spring 2019 IOC audit requirements.

10. During the six-month extension of the MCD, the Parties agree that audit topics (i),

(ii), (vii) and (ix) of Paragraph 101.d remain applicable to all District schools to specifically

address the District-wide concerns about EL identification, placement, and reclassification and

the ELPAC score changes and related parent communications discussed in paragraphs 4, 5, and 6

above. Audit topics (iii), (iv), (v) and (viii) will be limited to elementary schools to specifically

address the District’s implementation of the new K-5 ELD curriculum and elementary Spanish

pathway modifications to address compliance concerns raised by the United States. The Parties

agree that the IOC will use the roll-out and planning tools in Exhibits 2-6 to monitor schools’

implementation of these modifications and use its existing audit tool to identify and address

insufficient Chinese materials by pooling and sharing Chinese materials in language arts, math,

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science, and social studies that have been developed within the District and developing a plan to

obtain available external resources. Additionally, given the Parties’ focus on achieving

compliance in elementary schools with respect to ELD curricula and language pathways, the

Parties agree that the IOC will conduct its Spring 2019 audits at six elementary schools, two

middle schools, and two high schools. The District will provide the Plaintiffs with the first audit

report by April 1, 2019, the next four audit reports by May 1, 2019, and the last five audit reports

by June 1, 2019. The District will provide Plaintiffs with a final report detailing progress on the

implementation plans (set forth in Exhibits 2-6) by June 4, 2019.

11. The bases set forth herein in the Parties’ Joint Motion to Extend the Termination

Date of the MCD from December 30, 2018 until June 30, 2019, are the product of arm’s length

negotiations to resolve “the [Plaintiffs’] concerns or objections regarding the District’s

compliance” with the MCD. MCD ¶ 109. The Parties agree that extending the termination date

until June 30, 2019, for Paragraphs 55.a, 56.a, 57-58, 72 (the first sentence only), and 101.d (as

well as the definitions in Section III of the MCD that apply to these paragraphs), will allow the

District to achieve compliance with these paragraphs as set forth above and as described in its

implementation plans in Exhibits 2-6. Extending Paragraphs 109 and 105 (the first sentence

only) also will ensure that the District provides Plaintiffs with reports documenting its good faith

compliance with the few paragraphs that remain open and will permit the effective and orderly

termination of this case without the necessity of any further order from the Court.

12. The Superintendent of the District has approved this motion and the proposed

order and will recommend its ratification to the District’s Board of Education at the Board of

Education’s regular meeting on January 15, 2019. If the District’s Board of Education fails to

ratify the motion and proposed order on January 15, 2019, the Parties agree that that this joint

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motion and the proposed order will be considered withdrawn and the District shall so notify the

Court within three business days of this occurrence. The Parties further agree, however, that in

such event, the United States and Private Plaintiffs may file a motion with any further objections

or concerns the Plaintiffs may wish to bring to the Court’s attention and propose a new order no

later than February 5, 2019, and the District may file a response to the motion and proposed

order by February 19 , 2019.

13. WHEREFORE, for the reasons set forth above in the Parties’ Joint Motion to

Extend the Termination Date of the MCD until June 30, 2019, the Parties request that the Court

grant this motion and enter the proposed order.

Respectfully submitted this 21st day of December, 2018,

ERIC S. DREIBAND
Assistant Attorney General
Civil Rights Division

/s/ Aziz Ahmad

SHAHEENA SIMONS, Esq., Chief
EMILY H. MCCARTHY, Esq., DC # 463447
AZIZ AHMAD, ESQ, DC # 1004817
Educational Opportunities Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Patrick Henry Building, Suite 4300
Washington, D.C. 20530
Tel: (202) 305-3223
Fax: (202) 514-8337

U.S. Department of Justice for Plaintiff-Intervenor United States of America

/s/ Christopher Ho
CHRISTOPHER HO, Esq.
For Plaintiff Kinney Kinmon Lau, et al.

/s/ Mary T. Hernandez

MARY T. HERNANDEZ, Esq.
For Defendant San Francisco Unified School District

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CERTIFICATE OF SERVICE

I hereby certify that on December 21, 2018, I electronically filed the foregoing document
with the Clerk of Court using the CM/ECF system, which will send notification of such filing to
all registered counsel of record.

/s/ Aziz Ahmad_______________________

AZIZ AHMAD, DC # 1004817
Attorney for the United States
U.S. Department of Justice
Civil Rights Division
Educational Opportunities Section
950 Pennsylvania Avenue, NW
Patrick Henry Building, Suite 4300
Washington, DC 20530

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