Oral deposition of Larry Berkley

Deposition taken at the Friday, Eldredge and Clark Law Firm, Little Rock, Arkansas
This transcript was created using Optical Character Recognition and may contain some errors.
CERTIFIED COPY IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT, PLAINTIFF vs No.LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL, DISTRICT NO . 1, ET AL DEFENDANT MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL INTERVENORS INTERVENORS DEPOSITION OF MR. LARRY BERKLEY DATE: October 5, 2001 TIME: 10:21 a.m. PLACE: The Friday, Eldredge & Clark Law Firm 400 west Capitol, Suite #2200 Little Rock, AR 72201-3493 APPEARANCES On Behalf of the Plaintiff: On Behalf of the Defendants: Mr. John w. Walker, Attorney John w. Walker Law Firm 1723 Broadway Street Little Rock, AR 72206 Mr. Clay Fendley, Attorney Friday, Eldredge & Clark 400 west Capitol, Suite 2200 Little Rock, AR 72201-3493 ALSO PRESENT Joy Springer, The John w. Walker Law Firm Tony Rose, Sue Strickland, & Katherine Mitchell, Deponents Cobb Court Reporting P . o. Box #4 Sweet Home , AR 72164- 0004 Phone : (501) 490 - 0066 (501) 490 - 0926 - Fax 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 CERTf Ff ED COPY PAGE AGREEMENT OF COUNSEL ..................... 3 SWEARING OF THE WITNESS. EXAMINATION OF MR. LARRY BERKLEY . . . . . . . . 3 By Mr. Walker ..................... 3-38 SIGNATURE SHEET. . . . . . . . . . . . . . . . . . . . . . . 4 0 ERRATA SHEET. . . . . . . . . . . COURT REPORTER'S CERTIFICATION .. * * * * * * * * * Cobb Court Reporting P. o. Box #4 sweet Home, AR 72164-0004 Phone: (501) 490-0066 (501) 490-0926 - Fax . . . 41 . 42 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CE TIFIED COPY 3 STIPULATIONS The deposition of Larry Berkley, produced, sworn and examined at the Friday, Eldredge & Clark Law Firm, 400 West Capitol, Suite #2200, Little Rock, AR 72201-3493 commencing at 10:21 a.m., on October 5, 2001, in the captioned cause at the instance of counsel for the Plaintiff, and said deposition being taken according to the terms and provisions of the Arkansas Rules of Civil Procedure. It is stipulated and agreed all forms and formalities in the taking, transcribing, forwarding and filing of said deposition by witness, are hereby waived by the parties, the right being expressly reserved to object to the testimony of the witness at the time of trial as to incompetency, irrelevancy and immateriality, other than those with respect to the form of questions as propounded to the witness. * * * * * P R O C E E D I N G S THEREUPON, LARRY BERKLEY having been called for examination by counsel for the plaintiff, and having been first duly sworn, was examined and testified as follows: DIRECT EXAMINATION Questions by Mr. Walker: Q. Mr. Berkley, you have given depositions before have you Cobb Court Reporting P. o. Box #4 Sweet Home, AR 72164-0004 Phone: (501) 490-0066 (501) 490-0926 - Fax 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY 4 not? A. Yes. Q. I'll just go straight to the issue. How long have you been a member of the Board of Education of the Little Rock School District? A. Five years. REPORTER: Both of you speak up a little bit, please. A. Okay. I've been on it five years. Q. Do you hold an office on the board? A. Not at this time. Q. Have you ever served as either president or vice president of the board? A. Both. Q. When were you president of the board? A. '98 I think. I'll have to go back and look at the records. Q. All right. A. Yes, okay. I'll lean forward. Q. Do you hold an office at that time? A. I do not. Q. What is your education? A. I have a Masters Degree in Physics from the University of Missouri and a bachelors degree and masters degree in physics. Q. What work do you do? A. I'm a medical physicist. I'm Vice President of Medical Cobb Court Reporting P. o. Box *4 Sweet Home, AR 72164-0004 Phone: (501) 490-0066 (501) 490-0926 - Fax 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY Physics and Engineering at CARTI. Q. I see. Is that with UAMS? 5 A. we have a facility at UAMS but CARTI in independent of all the facilities that we serve. Q. I see, all right. Mr. Berkley are you familiar with the revised desegregation and education plan? A. Yes. Q. Have you and the board members had occasion to, as a board in a public meeting, ever discuss that plan together as a board since 1998? A. we have received regular updates from administration and from the consultants and--- Q. I understand, my question though doctor, Mr. Berkley, have you and the other board members in a public session ever had occasion to discuss that in a public setting? FENDLEY: I'm going to object to the--Q. Not simply to receive reports. A. Well, in conjunction with receiving those reports and I believe there was some discussion related to the management study that we had done that related to the deseg plan. Q. Have you had occasion to receive information that, from you lawyers in a public session regarding the revised desegregation and education plan in so far as its implementation was concerned? I'm talking about in a public meeting instead of one-on-one? Cobb Court Reporting P . o . Box t4 Sweet Horne , AR 72164-0004 Phone : (501) 490-0066 (501) 490 - 0926 - Fax 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY 6 A. I believe there have been updates from them. Q. In a public meeting? A. I honestly can"t recall that. Q. Have you and the board members before today ever met with the lawyers privately regarding the revised desegregation and education plan? A. Privately? Q. Yes, sir. FENDLEY: Do you mean independently or together? WALKER: Two persons at one time at any time or more. A. I do not recall doing that. Q. I see. Has it been your practice as a board that whenever two board members met that you would give notice to the press of that meeting? A. Ah, it is our practice yes. Q. I see. Has it been your practice that you would do that even if it were for something as mondain as lunch? A. As a general rule, yes
there may have been exceptions to that. Q. I see. Do you know under the Freedom Of Information Act the only exception is to discuss personnel matters? FENDLEY: Object as to form. Q. You may answer. A. I believe that there is some, one interpretation of that Cobb Court Reporting P . o. Box #4 Sweet Home , AR 72164-0004 Phone : ( 501) 490-0066 (501) 490 - 0926 - Fax 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY 7 that says that. Q. Mr. Berkley do you recall being informed by Dr. Les Carnine that the district had substantially complied with the expectation of the revised desegregation and education plan? A. Yes. Q. When did he do that? A. I can"t give you a date. Q. All right. Did he do it over a period of time? A. We have had regular reports from the administration particularly Mr. Babbs ah, that's a regular part of our meetings. Q. Well, I understand that. Did Mr. Babbs or anyone else inform you and the other board members in a public session and all my questions will be about public sessions because I presume you all cannot act in private? A. That's correct. Q. That the requirements of the revised desegregation and education plan had been fulfilled? A. I don't recall the exact words but I think substantial compliance is the corrects words. Q. Okay. Do you recall that I've appeared before the board on several occasions to complain that the plan requirements were not being met? A. You? Q. Yes, sir. Cobb Court Reporting P . o. Box 44 sweet Home , AR 72164- 0004 Phone : (501) 490-0066 (501) 490-0926 - Fax 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY a A. I remember you coming to the board concerned about ah, a position be potentially eliminated as a result of the management plan that we had done. Q. Is that all you recall about that meeting? A. Yes. Q. I see. We have prepared responses to your counsel's interrogatories. Have you seen the interrogatories which were prepared by your counsel and submitted to the Joshua Intervenors? BERKLEY: umrn, have I seen it? REPORTER: I'm sorry, I didn't hear you. FENDLEY: I don't think you have. A. No. Q. I want to show--- FENDLEY: I"m not suppose to answer, if you don't recall--- BERKLEY: I don"t recall, I don"t recall seeing them. Q. I see. In order to refresh your memory about that meeting I give you a response to those interrogatories, Response #2 to Interrogatory #7, this is the response to interrogatory #2 and #17. And this purports to be a tape, "tape of John Walker before LRSD School Board July 22, 1999", that was prepared by the secretary of the district. Would you look at that and see, it's four pages, would you look at that for a moment and see if Cobb Court Reporting P , o. Box #4 Sweet Home , AR 72164- 0004 Phone : (501) 490 - 0066 (501) 490 - 0926 - Fax 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY 9 it refreshes your recollection. A. This is something at King School? Q. Just look at it and see if it refreshes your recollection. FENDLEY: Do you want him to read it all? WALKER: No, just, just--- FENDLEY: Well, what do you want him to do with it? WALKER: Well, if he want's to, he can read it if he wishes. I presume he reads fast, he's a physicist. FENDLEY: He can read it at whatever pace he pleases. A. I do recall you coming to the board with concerns--- Q. No, my question was does that refresh your recollection? A. About ah, you coming to the board another time about some concerns at Hall High. Q. Did this refresh your recollection about complaints that we were making regarding implementation as early as July 22, 1999
does this refresh your recollection? A. No. Q. That's fine. Now did you ever--you were the president during that year weren't you? A. I can look and see. Q. '99 to 2000? A. August '99, that would have been '98, '99? Q. Well, this was July. Cobb Court Reporting P. o. Box #4 sweet Horne, AR 72164-0004 Phone: (501) 490-0066 (501) 490-0926 - Fax 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY 10 A. July '99 I would have been president. Q. Yes, sir. A. That's right. Q. All right. Now do you remember as president of the board ever asking Dr. Carnine or any administrator to respond to the comments that I had made after giving them thoughtful consideration on July 22, 1999? A. No. Q. Do you recall any board member ever asking the administration to give any response to the board to any of the comments that I've made regarding criticisms with implementations of the desegregation plan? Any written, anything to the board members or any staff members regarding those things? FENDLEY: I'm going to object, I'm not sure I understand the question. WALKER: Well, let me make sure you understand. Q. Now usually when people appear before the board unless it's a matter where some person has a particular comment to be made, you all generally say nothing
isn't that generally what happens? A. When the public comes before the board? Q. Yes. A. Yes. Q. All right. Now isn't it also fair to say that when I have Cobb Court Reporting P. o. Box #4 sweet Home , AR 72 164-000 4 Pho ne : (50 1 ) 490 - 00 66 (50 1 ) 490 -0 92 6 - Fax 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY appeared before the board most of the board members have basically been silent. A. I wouldn't--- Q. That's fine. A. make a statement like that. 11 Q. Have you all, when I've come before the board especially in July and made these kinds of complaints about nonimplementation, is it fair to say that you did not ask Dr. Carnine or any other administrator to give a response to these considerations at that time? A. I can't speak for the other board members. Q. But you didn't did you? A. I did not
no, sir. Q. All right. Now do you know of any official action being taken with respect to the remarks made by the Joshua Intervenors, myself, or Mrs. Springer at any time as a board? A. As a board? Q. Yes, as a board. A. And official action by the board--Q. Yes, sir
yes, sir--- A. in response to your request? Q. Yes, sir. FENDLEY: And let me just clarify, a request made to the board at a meeting? WALKER: Or comments, yes. Cobb Court Reporting P. o. Box #4 Sweet Home, AR 72164-0004 Phone: (501) 490-0066 (501) 490-0926 - Fax 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY 12 FENDLEY: So you"re talking about at a meeting? WALKER: At a meeting, any public session
yes. A. I do not recall any official action by the board. Q. I see. Now do you recall that we have consistently told you that the plan required the involvement of Drs. Roberts and Ross in the divination and promulgation of policies, programs, and procedures as contemplated by the revised desegregation plan? A. I remember reading your words about your interpretation of the plan that you should be involved with that. Q. Well, what about the, you do not recall me having said on the 22nd that ors. Roberts and Ross would be integrally involved and there was an understanding that these two persons would have a role in planning, development and divination of new policies, programs, and procedures for moving us beyond where we were into where we wanted to be
you don"t recall that? A. I don"t recall that but it does make sense. Q. Pardon? A. It does make sense. Q. It does? A. Yes. Q. I see. Now have you had a report from anyone setting forth whether or not Dr. Roberts was involved in the establishment of policies, programs and procedures regarding the revised Cobb Court Reporting P. o. Box i4 Sweet Home, AR 72164-0004 Phone, ( 501) 490-0066 (501) 490-0926 - Fax 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY 13 desegregation plan, did anybody tell you that he was involved? A. No, sir but I will say this: I asked Dr. Roberts in a public meeting and at least one occasion, I think more than one occasion whether he had any concerns about our compliance with the plan and he said no. Q. Well, did you ask him whether he was involved? A. Well, I would assume that that would part of compliance. Q. Well, did he have, what was his role, what was your understanding if his role with respect to developing policies, programs, and procedures by which to implement the desegregation plan
what was your understand was his role, not whether or not he had some concerns? A. My understanding was that he was an individual that you had approved and that the administration and you and he would decide what was appropriate. Q. That's fine. That was your clear understanding wasn't it? A. I can't tell you details about what his involvement should be or should have been but he is an individual who you approved and we agreed would be a good person to take on that task and during the course of those years except for these ah, few exceptions that you"re referring to, we didn't hear much from you. Q. Is it your belief that you didn"t hear much from me? Did you not get numerous--- A. We had public meetings twice a month for three years. Cobb Court Reporting p , o . Box H Sweet Horne , AR 7216 4-0004 Phone : (501) 490 - 0066 (501) 490 - 0926 - Fax 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY 14 Q. Did you not receive reports from Dr. Carnine that he was meeting with me from time-to-time? A. Oh, yes. Q. So would you not have been hearing from me in that way? Let me go on to something else. Did you get the impression that Dr. Carnine was an honest and candid man? A. Yes. Q. Did you get the impression that he was giving you full reports regarding and accurate reports regarding implementation of the plan? A. He had delegated that primarily to Mr. Babbs. Q. I see. Did you get the impression that Mr. Babbs was a knowledgeable and competent person that could perform the task that you all assigned him? A. Yes. Q. I see. Were you in court when his testimony was given after ah, in July? A. I was not. Q. I suppose you read his testimony? A. I have not. Q. Has anyone given you an appraisal of his testimony or a summary of his testimony regarding program implementation? A. No official. Q. I see. Anybody unofficially? A. Ah, I wouldn"t want to say that. Cobb Court Reporting P . o. Box 14 Sweet Home , AR 72164-0004 Phone : (501) 490-0066 (501) 490-0926 - Fax 2 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY 15 Q. I see. Now the plan calls for, does it not call for remediation of achievement disparities between African-American and none African-American students? A. The revised desegregation plan? Q. Yes, sir
yes, sir. A. I think it refers to attempts to do that. Q. I see, that's fine. Is it your position that you all did not commit to address elimination of the disparity between black and white achievement? FENDLAND: I'm going to object to the form--WALKER: You can still answer. FENDLAND: in that it did not address that, we committed to--- WALKER: I notice Mrs. Magness shaking her head while your deposition is being given, so that's fine
she can do that. A. we ah--- Q. or is it your position, you've heard her statement--FENDLAND: I'll note for the record that he can't see Mrs. Magness, she's sitting behind me. WALKER: I saw Mrs. Magness shaking her head like this--- FENDLAND: Well now, that doesn't matter. Q. Well now you heard Mrs. Magness' statement, I'll just change the question, you heard Mrs. Magness' statement in ah, Cobb Court Reporting P . o. Box #4 Sweet Home , AR 72164-0004 Phone : (501) 490 - 0066 (501) 490 - 0926 - Fax 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY 16 the public meeting the other night when Dr. Darty made his comments and when Mr. Curris made his comments--- A. Uh-huh. Q. that the plan did not require elimination or addressing African-American achievement disparities
you heard that didn't you? FENDLAND: Let me--- A. Is this my testimony of Mrs. Magness? Q. Did you hear her, did you--- FENDLAND: Let me object to the form of the question, please. You asked address, you asked two questions. WALKER: I'll change it but before I ask this question do you all plan to make the e-mails available after March 15th? FENDLAND: In accordance with the court's order. WALKER: After March 15th? FENDLAND: We'll let you know that sometime today. WALKER: I may have to then, continue these depositions after today because I don"t want to go into things that are not, the court's not going to let us address and she said that you couldn't have it both ways. FENDLAND: I understand. WALKER: All right. FENDLAND: And I don't mind telling you more Cobb Court Reporting P . o. Box t4 sweet Home , AR 72164- 0004 Phone : (501) 490-0066 (501) 490-0926 - Fax 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY 11 than likely we're going to go with her option 2. them in? WALKER: Which is to let them in? Not to let FENDLAND: Not, not--WALKER: That's fine. FENDLAND: no e-mails after March 15th. WALKER: That's fine. Q. Now you"re familiar with the revised plan and I'm just going to put it--you have it in front of you I see
all right. Can you draw my attention to the section that deals with remediation of achievement disparities and to help you I'll suggest that it's around 2.7. A. Right. Not around 2.7, it is 2.7. Q. I see. A. Designed to improve--Q. Yes, sir. A. and that does not mean it is a commitment to achievement. Q. All right. Little Rock show imple,emt programs designed to improve and remediate the acievement desparities, the academic achievement. Do you take the position that the district has not agreed to make a conscienous effort to eliminate achievement disparities between the races? A. Say that again, please. Q. Do you take the position that the district has not agreed to make a conscienious effort to eleminate the achievement Cobb Court Reporting P. O. Box *4 sweet Home, AR 72164-0004 Phone, ( 501) 490-0066 (501) 490-0926 - Fax 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY disparities between the races? A. I believe that the deseg, revised deseg plans speaks for itself. Q. Let me ask it again. 18 A. The commitment is to design program with the intent to reduce the disparity. The difference is ah, is there anything in the plan which requires us to achieve that reduction in disparity. We did make a commitment to design the programs to attempt to remove the disparity. Q. Do you agree that the only legitimate means to eliminate the racial disparity in achievement is by improving AfricanAmerican achievement? A. Say that again. Q. Do you agree that the only legitimate means to eliminate the racial disparity in achievement is by improve AfricanAmerican achievement? A. Oh, that's not the only legitimate way, it's the only acceptable way. Q. Is that the only legitimate way? A. You can reduce the performance of the non-African-American kids and reduce the disparity. That's not acceptable but it's legitimate. Q. I see. Now do you recall that there was a brief submitted in 1998 which recognized that the Court Of Appeals said that you could not retreat, the board could not retreat from among Cobb Court Reporting P. o. Box #4 Sweet Home, AR 72164-0004 Phone: (501) 490-0066 (501) 490-0926 - Fax 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY 19 other things the agreed effort to eliminate disparity between the races, it didn't say--let me show you. A. This is germaine to this revised deseg plan? Q. I'm asking you do you agree that the 8th Circuit has indicated that there would be no retreat approved from the agreed effort to eliminate achievement disparity between the races? A. If that's what you say
I wasn't aware of it before that. Q. You weren't? Well, are you aware of the brief that your counsel prepared in conjunction with me and submitted to the court, this is for everybody so I won't have to go over it again. "The 8th Circuit identified seven elements of the LRSD's existing desegregation obligations which it considered crucial, and with respect to which no retreat should be approved. Id. at 256. Those elements were: (1) double funding for students attending incentive (virtually all-black) schools
(2) operation of the agreed number of magnet schools according to the agreed timetable
(3) operation of the agreed number of interdistrict schools according to the agreed timetable
(4) intradistrict desegregation of PCSSD according to the agree timetable
(5) the agreed effort to eliminate achievement disparity between the races
(6) the agreed elements of early childhood education, at least in the incentive shcools
and, (7) appropriate involvement of parents." were you aware of that? I'll show it to you [hands Cobb Court Reporting P. o. Box #4 sweet Home, AR 72164-0004 Phone: ( 501) 490-0066 (501) 490-0926 - Fax 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CE. TIFIED COPY 20 document to wi tness]. A. 1998? Q. Yes, sir. A. Okay. Q. were you aware of it? A. No. Q. All right. Now with respect to the plan itself which you have before you, look at it on page 1, were you aware that this plan requires that the orders of the District Court and Court of Appeals interpreting or enforcing sections A through D above will be in effect followed? A. Yes. Q. All right. Now do you still take the position as Mrs. Magness stated, as I understand she stated in a public board meeting that you all simply had to make an effort to do it
do you take that position that you simply can make an effort to do it and then fulfill the expectations of this case? A. The way I understood what that said is that shall not retreat from the effort to do that. Q. Okay. A. And I don"t believe that we have done that. Q. Well, I take it that you all do not agree that you are required to eliminated the achievement disparity? A. Read the whole thing. Q. I'm asking do you, I'm asking you now do you--first of all Cobb Court Reporting P . o. Box t4 sweet Horne, AR 72164-0004 Phone : (501) 490-0066 (501) 490-0926 - Fax 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED copy 21 did you ever agree to eliminate the achievement disparity at least to the extent in the state's settlement agreement--- A. Ah, as I recall that is a fuzzy, the end point was not clearly defined. Q. Did it not say that the achievement disparity would be eliminated to the point there would--- A. How do you define that, that--- Q. That's fine. A. My understanding that the issue was that at the end point was not clearly defined
there"s the problem. Q. I see. Well have you all, during the intervening years, ever sought as a public board to define the end point? A. Nope. Q. I see. Why haven"t you done that and why haven"t you as a board member sought to have it done? A. Because it's not a trivial thing to do. Q. But it's twelve years 1989 until now and in twelve years you could have addressed it as a board, could you not have? A. we could have but I don't think that we--- Q. That's fine. A. we are not educators, we are not experts in how you would define such a thing like that. Q. I see, that"s fine. Now Mr. Berkley can you tell me what programs were specifically developed by which to eliminate achievement disparity between the races for which you have seen Cobb Court Reporting P . O. Box i4 Sweet Home, AR 72164-0004 Phone : (501) 490-0066 (501) 490-0926 - Fax 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY an evaluation? Have you ever seen any of the evaluations of any programs? A. Yes, but I don't recall the detail of those. 22 Q. Are you familiar, I call you attention to page 148 of your March 15 program? FENDLAND: Which one? REPORTER: I'm sorry, I didn't hear you? FENDLAND: I said which one. WALKER: Well, let me go back, let me go back to that
thank you Mrs. Springer. Q. Can you identify any programs which were designed to eliminate achievement disparity between the races? A. In particular ah, I don't know if you would call it a program but a process to ah, ah, increase the participation of African-American kids in ah, pre-AP and AP classes. Q. I'm asking you about a program to remediate the achievement disparities--- A. Well, that's the intent, that's the--- Q. So your answer is that putting more black kids into pre-AP and AP courses, is that your answer? A. That's the one I can think of right now. Q. Can you thi nk of any other program, is that a program or is that a process, did you say? A. I don't how you would define it, I think of it as a process. Cobb Court Reporting P. o. Box t4 Sweet Home, AR 72164-0004 Phone : (501) 490 - 0066 (501) 490-0926 - Fax 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY 23 Q. Well, let me ask you. Has the board ever approved any program itself other than process for remediating achievement of African-American students? A program? A. Well, the Early Childhood Literacy Program, I think is intended to increase the reading level of all kids particularly those who are behind and the intent of that would be as well to reduce the disparity. Q. That was the intent, so that would deal with the pre-K kids, right? A. And up through 3. Q. Up through 3. Now what are the programs that apply to the children in grades 4 and 5 by which to remediate achievement disparities? A. There well may be but I don't recall that. Q. You don't know of any. Have you ever asked the question? A. I have not. Q. All right. What are the programs for remediating the achievement disparities of students who happen to be AfricanAmerican who are in special education? A. I don't recall specific programs. Q. I see. Do you know of any other programs which have been designed to eliminate achievement disparities between AfricanAmerican and white students or nonwhite students--nonblack students? A. I don't recall any right off. Cobb Court Reporting P . o. Box #4 Sweet Home , AR 72 164-0004 Phone : ( 501) 490 - 0066 (501) 490 - 0926 - Fax 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY 24 Q. I see. Now since one of your board members says the plan doesn't say you have to close the gap it says best effort, good faith effort, look at your plan and draw my attention to where those statements are made, please. A. You said 2.7. Q. 2.7 doesn't say that in my opinion, maybe if you want to say 2.7 I'll go on. A. Repeat your question, please. WALKER: Would you repeat it, please. [The reporter did as requested]. REPORTER: You may continue, sir. A. Well, there are several sections that can influence the--Q. No, I want you, I want you to just draw my attention--FENDLAND: Well, let him finish his answer, please. WALKER: Well that's fine, if you said there are several sections
just tell me where those several sections are. A. You didn't let me finish. Well, influence the performance of the African-American kids including parential involvement, eligibility, and participation in extracurricular activities--Q. Just a moment, please listen to my question. FENDLEY: Well, are you finished Mr. Berkley? BERKLEY: Yes. Q. Well the point, now I want you to draw my attention to the Cobb Court Reporting P . o. Box t4 Sweet Horne, AR 7216 4-0004 Phone : ( 501) 490 - 0066 (501) 4 90 - 0926 - Fax 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY 25 sections of the plan which say that you do not have to actually close the gap but only as Mrs. Magness said, use your best effort and good faith effort to do so. I want to see any where in here where it said good faith effort and best effort to address achievement of the disparity gap? A. Well, there's a few places in this document that says that we do not have to do but I don't believe it says that. Q. Thank you. Now were you shown by any, by Dr. Carnine a program assessment each year of the academic programs which were in place for improving African-American achievement? A. No. Q. All right. 2.71 says that LRSD shall assess the academic programs implemented pursuant to 2.7 after each year in order to determine the effectiveness of the academic programs in improving African-American achievement. As a board did you all ever do that after each year? A. You mean all programs? Q. Yes, sir. A. Evaluate all programs? Q. Well, the ones that were implemented pursuant to 2.7 in order to determine the effectiveness of the academic programs in improving African-American achievement, did you ever do that as a board? A. Not specifically that. Q. That's fine. Cobb Court Reporting P. o. Box #4 sweet Home, AR 72164-0004 Phone, ( 501) 490-0066 (501) 490-0926 - Fax 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY A. we did review academic performance of African-American kids. 26 Q. My question was--well that fine, you said you reviewed it. Did any of those assessments reveal that a program was not and was not likely to improve African-American achievement, did you all make that kind of assessment? A. I don"t remember that. FENDLEY: As a board? WALKER: As a board. A. I don't remember it. Q. Now did you see written assessments that you would contend as a board member and as a physicist which comply with 2.71 from your administrative staff on an annual basis? A. No, I don't recall all of the assessments that we got Mr. Walker. Q. Well, isn't it fair to say that you were never, that all of your assessments would have been presented to you in a public board meeting--- A. Yes. Q. or through the mail? A. Yes. Q. Okay. A. Now they would have been done in a public assembly. Q. And isn't it fair to say that you all never discussed in a public board meeting whether any program was improving African-cobb Court Reporting P. o. Box #4 Sweet Horne, AR 72164-0004 Phone: (501) 490-0066 (501) 490-0926 - Fax 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY 27 American achievement, any particular program? A. It would be fair to say that I don"t recall that. Q. That's fine. Do you know of any particular program which has overall improved African-American achievement
a program, I'm not talking about a process now? A. But there are individual schools where we"ve had programs that improved academic performance of African-American kids. Q. Well, can you tell me what those programs are? A. No, I don"t recall those. Q. Can you tell me where those schools are? A. Not--- Q. All right. A. off the top of my head
no. Q. All right. Are you aware of the test, the standardize test that were in place in 1989 at the time the commitment was made with the state in the original plan to remediate achievement disparities
were you familiar with the test that were in place at that time? FENDLEY: I'll object to the form of the question
it assumes facts not in evidence. Q. Well all right, let me ask. You were aware that testing had been going in this school district long before you became a school board member? A. Correct. Q. And when you came on some five years ago which would have Cobb Court Reporting P. o. Box #4 Sweet Home, AR 72164-0004 Phone: (501) 490-0066 (501) 490-0926 - Fax 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY been 1996, you were aware that the test in place that were standardize were nationally standardize test
were you not? A. Correct. Q. You were aware that they included at least the SAT IX? A. Correct. Q. And other SAT test? A. Right. 28 Q. I see. Did you know of any nationally standardize test that were being utilized by the Little Rock School District at the time you came onto the board? A. No. Q. I see. So if the plan, you said something about this being vague, so if the only standardize test being used were the SAT tests, would you not expect that those were the test that would have been the benchmark for determining improvement of remediation or remediation of achievement disparities between black and white students? FENDLAND: Let me object, the question calls for speculation by the witness on what drafters of the 1989 settlement agreement intended. Q. That"s fine, that's fine. Now you can still go ahead and answer the question. A. Please repeat it. Q. The question basically is that those are the test in use, would you not--first of all are those tests still in use? Cobb Court Reporting P. o. Box #4 Sweet Home, AR 72164-0004 Phone: ( 501) 490-0066 (501) 490-0926 - Fax 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY 29 A. Yes. Q. I see. Have you met with any school board members to change those tests for evaluation purposes? You and the board, have you all changed those tests for any reason, any purpose? A. Well, I think we"ve reduced the number of tests
I don"t recall exactly which ones have been eliminated. Q. All right. But the test that were in place when you came onto the board are still in place, are they not? A. Right. Q. I see. Now has the board determined that it will change that particular test, the SAT IX test? A. I don"t think so. Q. What is the purpose of giving these students the SAT IX test in the f i rst place in your opinion as a physicist and as a board member? A. A physicist doesn't have much to do with it. Q. Well, physicist suppose to be among our most bright people, most logical. A. It's to assess our performance relative to national norm. Q. That's right. And also to determine from year-to-year how students are improving their academic performance, isn"t that correct? A. Yes. Q. All right. A. Hopefully improving. Cobb Court Reporting P . o. Box t4 sweet Horne , AR 72164-0004 Phone : ( 501) 490-0066 (501) 490-0926 - Fax 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY 30 Q. I see. Now doesn't 2.1 say that if you find that programs are not working--- FENDLEY: 2.7.1. WALKER: 2.7.1, I"m sorry. Q. Doesn't that in effect say that if your programs are not working you have to throw them out and get some others? A. It says either modifying how the program is implemented or replacing the program. Q. That's basically the same thing isn"t it? A. No. Q. I see. Well have you all ever modified any program or replaced any program that you determined was not working--first of all did you all ever determine that a particular program was not working? A. I don"t recall that. FENDLEY: Let me just clear up are you meaning the board rather than him? WALKER: Meaning the board, meaning the board. He can"t act individually. A. No. I rely on the administrators to do that. Q. Have t he administrators ever come to you and told you that in their opinion after assessment or evaluation, particular programs were not working to improve African-American achievement? A. I don"t recall that but I"m sure that that kind of activity Cobb Court Reporting P . o. Box t4 sweet Home , AR 72164- 0004 Phone : ( 501) 490 - 0066 (501) 490 - 0926 - Fax 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY 31 goes on all the time. Q. Well, at least to the board it isn't. No persons on the administrative staff have come before the board to inform you that a particular program, any program has not worked and is not likely to work to improve African-American achievement? A. You know, I don't recall that but it could well be that when they introduce new programs that is, they wouldn't say this program is bad, they would say we're implementing a new progr am because we think it's better
and that doesn't mean they didn't go through that process and I'm not aware of it. Q. This says that you shall assess the academic programs each year and then change it if it's not working. A. Right. Q. Now does that mean that you as a board tolerated change without an assessment? Change such as the one you mentioned, people coming up like Dr. Les was saying, well we think that this will be better than what we have
therefore, we don't need to make this assessment we'll just put this other thing in place? A. Mr. Walker I don't believe that happened. Q. I see. Well, you said that some people have come up, that means basically your instruction department doesn't it? A. Right. Q. And they"ve come up with other programs, is that right? A. Right. Cobb Court Reporting P . o. Box t4 Sweet Horne, AR 72164-0004 Phone : ( 501) 490-0066 (501) 490-0926 - Fax 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY Q. But that, that was not after an assessment that preexisting programs were not working? A. I wouldn't make that assumption. 32 Q. I see. And you have not seen such an assessment have you? A. I don't recall seeing it. Q. That's fine. Now you understand, would you assume that under this plan the assessments that were being made ah, had to be documented? A. I don't know about that
I don't know what the standard is as far as--there's all kind of program evaluations. Q. I see. A. There are informal program evaluations and there are formal evaluations. Q. What does your plan call for? A. It says evaluate. Q. Doesn't it say that the evaluation has to be pursuant--did you all as a board not adopt a particular writing regarding program evaluation, do you recall that? A. I recall implementing a program within the last couple of years for program evaluations. Q. Do you not recall specifically developing a program evaluation written format? A. I don't recall that
no, sir. Q. Now as a physicist you know that if you're going to evaluate anything it has to be pursuant to and you evaluating Cobb Court Reporting P . o. Box t4 Sweet Home, AR 72164- 0004 Phone : (501) 490 - 0066 (501) 490-0926 - Fax l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY 33 things in a series of things that are somewhat related, it has to be pursuant to criteria and standards that are uniformly applied, would you not say that? A. Sometimes. Q. Is that any reason why there should be education and then an investigation? A. Yes. Q. What's the reasons? A. It"s a very different world. Q. Well, I mean what's so different about it? I mean, the, the, the--- A. Logic is highly quantifiable and there are a lot of things in education that are not quantifiable. Q. You assume that? A. No, I know that. Q. How do you know it? A. Oh, I work as a medical physicist and in medical physic there are a lot of things, biological things that are not quantifiable like there are in pure physics. Just as in education you can"t define all the parameters, you can't measure every parameter and when you mix all these parameters together you, the end result is something which is sometimes not quantifiable. REPORTER: One moment. You may continue, sir. Q. Now I call your attention to page 148 and I show you thing Cobb Court Reporting P. o. Box #4 Sweet Home, AR 72164-0004 Phone: ( 501) 490-0066 (501) 490-0926 - Fax 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 so you won't have any problem. A. What's is this document? CERTIFIED COPY 34 Q. That's in the report that you all submitted saying that you were ready for release from court supervision. A. Right. Q. That deals with program evaluation. Look at the bottom of the page, can you tell me, there is listed a number of programs that the district says it evaluated. A. Right. Q. Have you ever seen those evaluations? A. I don't recall Mr. Walker, we see lots of evaluations and lots of reports and I can't recall every one of them. Q. Now I"ve been trying to see some of these evaluations, now I haven't seen them and I'm wanting to tell--if you tell me that you have seen them then that's fine. Just tell me which ones you have seen that you recall, any one that you recall seeing? A. I really can't tell you. Mr. Walker there's so much stuff that comes in front of us, by us that--- Q. Now you understand--- A. now I'm not going to say that I haven't seen something because--- Q. Well--- A. I don't remember a lot of what I've seen. Q. Were you aware that the judge had said that she's really Cobb Court Reporting P. o. Box *4 Sweet Home, AR 72164-0004 Phone: (501) 490-0066 (501) 490-0926 - Fax 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY 35 concerned about your evaluations, that's what we're focusing upon now--- A. Right. Q. and upon remediation efforts. A. Right. Q, All right. Now can you tell me as you sit here today Mr. Berkley before you go onto the stand if you go on the stand, if you before March 15 had seen any written evaluation of any of those programs that are listed there? A. Again Mr. Walker, I don't recall seeing them--Q. That's fine. A. but it could well be that I have seen them. Q. Well, I've given it to you so that you can refresh your--A. Okay. Q. Now you've met with Mr. Fendley before today haven't you? A. Correct. Q. You've had a chance to be made aware that the court was concerned about the evaluation issue. A. Correct. Q. All right. And not withstanding that meeting with Mr. Fendley and the court's concerns that were made known to you, you still can't come up with a single program evaluation that you've ever seen can you? FENDLEY: I'm going to object, he's asked and answered
he doesn't evaluation he's seen. Cobb Court Reporting P. o. Box #4 sweet Horne, AR 72164-0004 Phone: (501) 490-0066 (501) 490-0926 - Fax 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY Q. But I'm asking right now, you've had a chance to--A. I'm not going to change my answer. 36 Q. you don't have to change your answer but he can't tell you not to change your answer
I'm going to ask another question. Did you think about the issue of evaluation before you came to this deposition today? A. Before is a long time. Q. Before today. Anytime? A. I thought about it when the hearing was going on--Q. All right. A. and that there was concern about it. Q. All right. Now you were in court during that time--A. Some of that time--- Q. at least one day--- A. some of the time. Q. now since that time, being aware of the court's concern, can you say you have reviewed any evaluation that was in writing regarding any of the programs that are on page 148 of your report saying that you had done those things? A. I do not recall that. WALKER: That's fine. Just a moment. [A recess was taken at 11:14 a.m., proceedings resumed at 11:15 a.m., to-wit:] REPORTER: We are on the record, sir and you may continue. Cobb Court Reporting P. o. Box #4 Sweet Home, AR 72164-0004 Phone: ( 501) 490-0066 (501) 490-0926 - Fax 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY DIRECT EXAMINATION CON'T Questions by Mr. Walker Con't: 37 Q. Did you ever receive a report from any administrator that your Evaluation Department before March 15 was not performing at a professional level? FENDLEY: Object to the form, March 15 what year? WALKER: 2001. A. I did not receive a report that they were not performing as professionals. Q. I see. Do you have at this time at PRE Evaluation Department, PRE Department? A. I think that we are reorganizing it. Q. So that you don"t have one? A. I think that--- FENDLEY: He's answered the question. WALKER: Just a moment, now. Q. I want you to tell me if you have a PRE Department in your opinion? A. In my opinion? Q. Yes, sir. A. I do not know that a department per sa exist. Q. I see. A. That does not mean that evaluations aren't going to happen. Q. What is the last date that you had an Evaluation Cobb Court Reporting P . o. Box #4 sweet Home , AR 72164- 0004 Phone : (501) 490 - 0066 (501) 490-0926 - Fax 2 3 4 5 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY 38 Department, a PRE Department? FENDLEY: Object, that assumes that we don't have one now which is not his testimony. REPORTER: You need to speak up. Q. What is the last date that you had a PRE staff of more than two people? A. I don't know. Q. What is the last date that you have had a conversation with any person in a PRE Department regarding PRE evaluation of programs that had the purpose of assessing the effectiveness of academic programs in improving African-American achievement? A. Repeat the question. WALKER: Would you do so? [The reporter did as requested.] REPORTER: All right, sir. FENDLEY: Let me say an objection as to the form of the question. Q. That's fine
now you can still answer. A. I don't recall a particular date. WALKER: All right, I don't have any more questions of you Mr. Berkley for right now
thank you. Berkley. BERKLEY: Okay. FENDLEY: I don't have any questions of Mr. WALKER: Okay, you can go
good to see you. Cobb Court Reporting P . o. Box 14 Sweet Home , AR 72164- 0004 Phone , (501) 490 - 0066 (501) 490 - 0926 - Fax 1 2 2001.] 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPY 39 [The deposition ended at 11:17 a.m., October 5, * * * * * Cobb Court Reporting P , o. Box f4 sweet Horne, AR 72164- 0004 Phone : ( 501) 490 - 0066 (501) 490 - 0926 - Fax (- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 (- 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 CERTIFIED COPY 40 ERRATA SHEET (Upon completion, please sign and date this sheet below.) Page ..!::L Line -1fL_ Page -:2.. ~ Line Zr::, Page ~s Line b Page ~3 Line '7 _ Page3"3 Line _!X_ Page ss Line~ Page Line Page Line Page Li ne Page Line Page Line Page Line Change: 9o To: Reason: Change: To: Reason: Change: To: Reason: Change: To: Reason: Change: To: Reason: Change: -\:14~1JlM+'b\ cc.Q P 1 '2 dl \ ~Ci-PV':f S.: To: Reason: Change: To: Reason: Change: To: Reason: Change: To: Reason: Change: To: Reason: Change: To: Reason: Change: To: Reason: fo -<-4-0 / Page Date Cobb Court Reporting P. o. Box t4 sweet Home , AR 72164-0004 Phone: (501) 490-0066 (501) 490-0926 - Fax of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 CERTIFIED COPY 41 SIGNATURE PAGE I, LARRY BERKLEY, hereby certify that the above and foregoing deposition is a full, true, correct and complete transcript of the proceeding [mark the appropriate box]: ( ) had at the time of the taking of my deposition. (OR) (vr--subject to the notations on the attached Errata Sheet made by me or at my direction. /o- 2-le-<::> I Date ~~BERKLEY STATE OF ARKANSAS COUNTY OF PULASKI ss. SUBSCRIBED AND SWORN TO before me, a and for the aforesaid county and state on this of ~ Notary ttlic in J-&- day Notary Public MY COMMISSION EXPIRES: (SEAL) Cobb Court Reporting P . o. Box J .4 sweet Home, AR 72164-0004 Phone : (501) 490-0066 (501) 490-0926 - Fax 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 ERTIFIED COPY 42 REPORTER'S CERTIFICATE STATE OF ARKANSAS ss. 429-84-1622 COUNTY OF PULASKI I, Gloria Y. Cobb, A Certified Court Reporter and Notary Public in and for the aforesaid County and state, do hereby certify that the witness, LARRY BERKLEY, was duly sworn by me prior to the taking of testimony as to the truth of the matters attested to and contained therein
that the testimony of said witness was taken by me in stenomask and was thereafter reduced to typewritten form by me or under my direction and supervision
that the foregoing transcript is a true and accurate record of the testimony given to the best of my understanding and ability. I FURTHER CERTIFY that I am neither counsel for, related to, nor employed by any of the parties to the action in which this proceeding was taken
and, further, that I am not a relative or employee of any attorney or counsel employed by the parties hereto, nor financially interested, or otherwise, in the outcome of this action
and that I have no contact with the parties, attorneys, or persons with an interest in the action that affects or has a substantial tendency to affect impartiality, that requires me to relinquish control of an original deposition transcript or copies of the transcript before it is certified and delivered to the custodial attorney, or that requires me to provide any service not available to all parties to the act. My Commission Expires: Notary Cobb Court Reporting P. o. Box #4 sweet Home, AR 72164-0004 Phone: (501) 490-0066 (501) 490-0926 - Fax
This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. Mellon Foundation and Council on Library and Information Resources.

<dcterms_creator>Bushman Court Reporting</dcterms_creator>