Court filings: Court of Appeals, brief of appellants

The transcript for this item was created using Optical Character Recognition (OCR) and may contain some errors. EDWARD L. WRIGHT ( 1903- 1977) ROBERTS. LINDSEY (1913-1991) ISAAC A . SCOTT. JR. JOHN G. LILE GORDON S. RATHER. JR. TERRY L. MATHEWS DAVIO M . POWELL ROGER A . GLASGOW C . DOUGLAS BUFORO. JR. PATRICK J . GOSS ALSTON JENNINGS. JR. JOHN R. TISDALE KATHLYN GRAVES M . SAMUEL JONES ru JOHN WILLIAM SPIVEY Ill LEE J. MULDROW N . M. NORTON EDGAR J . TYLER CHARLES C. PRICE CHARLES T. COLEMAN JAMES J . GLOVER EDWIN L. LOWTHER . .IR . CHARLES L. SCHLUMBERGER SAMMYE L. TAYLOR WALTER E. MAY ANNA HIRAI GIBSON GREGORY T. JONES H . KEITH MORRISON Ms. Ann Brown ODM WRIGHT, LINDSEY & JENNINGS ATTO RNEYS AT LAW 200 WEST CAPITOL AVENUE SUITE 2200 LITTLE ROCK. ARKANSAS 72201-3699 (501) 371-0808 FAX (501l 376-9442 OF COUNSEL ALSTON JENNINGS RONALD A. MAY BEVERLY BASSETT SCHAFFER M. TODD WOOD January 16, 1997 201 E. Little Markham, Suite 510 Rock, Arkansas 72201 Re: PACT'S Appeal of the Strike Ruling Dear Ann: BETTINA E. B ROWNSTEIN W ALTER MCSPADDEN ROGER 0 . ROWE NANCY BELLHOUSE MAY JOHN 0 . DAVIS JUDY SIMMONS HENRY KIM BERLY WOOD TUCKER RAY F. COX. JR. H ARRY S . HURST . .IR. TROY A . PRICE PATRICIA A . SIEVERS JAMES M . MOODY. JR. KATHRYN A . PRYOR J. MARK DAVIS CLAIRE SHOWS HANCOCK KEVIN W . K ENNEDY JERRY J. SALLINGS FRED M . PERKINS Ill WILLIAM STUART JACKSON MICHAEL 0 . BARNES STEPHEN R. LANCASTER JUDY M. ROBINSON BETSY MEACHAM AINSLEY H . LANG KYLE R. WILSON DONS. McKINNEY MICHELE L . SIMMONS KRISTI M. MOODY J. CHARLES DOUGHERTY M. SEAN HATCH CFFlGE OF DESEGREGATl01J MmllTORiNG I thought you might be interested in reviewing PACT's opening brief on the strike issues pending in the Eighth Circuit . The PCSSD response is due on or about February 7, 1997 . MSJ/jhs Enclosure Cordially yours, WRIGHT, LINDSEY & JENNINGS <\~:~. -- / M. Shmuel Jones, III ( / ------- I I I I I I I I I I I I I I I I I I I IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 96-3841 Katherine Knight, et .5!.L_, Appellants, RECEIVED JAN 1 7 1997 OFFICE OF DESEGREGATION MONITORING v. Pulaski County Special School District, Appellee. On Appeal From the United States District Court for the Eastern District of Arkansas BRIEF OF APPELLANTS ROBERT H. CHANIN VIRGINIA A. SEITZ JONATHAN D. HACKER Bredhoff & Kaiser, ?.L .L . C. 1000 Connec';:icut Ave., N.W . Suite 1300 Washington, D.C ; 2003 6 (202) 833-9340 RICHARD W. ROACHELL Roachell Law Firm 504 Lyon Building 401 West Capitol Avenue Little Rock, AR 72201 (501) 375-5550 Ark. Bar No. 78132 Counsel for Appellants I I I I I I I I I I I I I I I I I IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 96-3841 Katherine Knight, et .aL.., Appellants, v. Pulaski County Special School District, Appellee. On Appeal From the United States District Court for the Eastern District of Arkansas BRIEF OF APPELLANTS ROBERT H. CHANIN VIRGINIA A. SEITZ JONATHAN D. HACKER Bredhoff & Kaiser, P.L.L.C. 1000 Connecticut Ave., N.W. suite 1300 Washington, D.C. 20036 {202} 833-9340 RICHARD W. ROACHELL Roachell Law Firm 504 Lyon Building 401 West Capitol Avenue Little Rock, AR 72201 (501} 375-5550 Ark. Bar No. 78132 Counsel for Appellants I I I I I I I I I I I I I I I I I I I SUMMARY OF CASE AND REQUEST FOR ORAL ARGUMENT Pursuant to its jurisdiction to monitor implementation of a consent decree designed to desegregate schools in the appellee Pulaski county Special School District No. 1 ("PCSSD") and certain surrounding school districts, the district court entertained a request by PCSSD to enjoin a strike by its teachers that took place when collective bargaining between PCSSD and the teachers' exclusive representative, the Pulaski County Association of Classroom Teachers ("PACT") -- represented in this case by appellants Katherine Knight, rt g_L,_ -- broke down. The court below issued its preliminary injunction five days after an Arkansas state court, in a case brought by parents of several PCSSD students, had ruled that the strike could continue because the state law prerequisites for preliminary injunctive relief had not been met. Because of the complex history of this case -- and the important federal and state law issues raised by this appeal plaintiffs believe that oral argument will be of assistance to this Court. Plaintiffs ask that they be allowed 30 minutes for oral argument. ii I I I I I I I I I I I I I I I I I I I TABLE OF CONTENTS SUMMARY OF CASE AND REQUEST FOR ORAL ARGUMENT .. PRELIMINARY STATEMENT. STATEMENT OF ISSUE STATEMENT OF CASE AND STATEMENT OF FACTS A. B. c. The Underlying Constitutional Violation .. The 1992 Consent Decree .. The 1996 Teachers' Strike. 1. 2. The state court Proceeding The District Court Proceeding SUMMARY OF ARGUMENT. ARGUMENT A. B. CONCLUSION The District Court Erred in Issuing the Injunction Because It Was Not Designed (1) To Enforce the Terms of the 1992 Consent Decree, or (2) To Effect a Valid Modification of the 1992 Consent Decree 1. Enforcing the Terms of the 1992 Consent Decree ..... . 2. Modifying the 1992 Consent Decree Dataphase Systems. Inc. v. C.L. systems. Inc. Does Not Provide the Proper Framework for Ruling on PCSSD's Request for an Injunction; Even Assuming, Arguendo, That It Does, the District Court's Injunction Does Not Meet the Dataphase Criteria ..... 1. Application of Dataphase 2. The Dataphase Criteria iii ii 1 2 2 3 5 8 9 10 18 20 20 20 29 37 37 38 46 I I I I I I I I I I I I I I I I I I I TABLE OF AUTHORITIES CASES Alexander v. Britt, 89 F.3d 194 (4th Cir. 1996) American Trucking Ass'ns. Inc. v. Gray. 657 S.W.2d 207 (Ark. 1983) . . . . . . . . . . . . . . . . Appeal of Little Rock Sch. Dist., 949 F.2d 253 (8th Cir. 1991) ........... . Berger v. Heckler, 771 F~2d 1556 (2d Cir. 1985) Boatmen's First Nat'l Bank v. Kansas Pub. Employees' Ret. Sys., 57 F.3d 638 (8th Cir. 1995) ..... Dataphase Sys . Inc. v. C.L. Sys . Inc., 640 F.2d 109 (8th Cir. 1981) .............. . EEOC v. Local 40. Int'l Ass'n of Bridge Workers, 76 F.3d 76 (2d Cir. 1996) .... Finney v. Arkansas Bd. of Corrections, 505 F.2d 194 ( 8th Cir. 197 4) . . . . Firefighters Local 1784 v. Stotts, 467 U.S. 561 (1984) Harley-Davidson. Inc. v. Morris, 19 F.3d 142 (3d Cir. 1994) ............ . Harris v. City of Philadelphia, 47 F.3d 1342 (3d Cir. 1995) ..... Hughes v. United States, 342 U.S. 353 (1952) Johnson v. Robinson, 987 F.2d 1043 (4th cir. 1993} Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 114 s . ct . 16 7 3 ( 19 9 4 ) . . . . Little Rock Sch. Dist. v. Knight, 725 F.2d 690 (8th Cir. 1983) . . . . . ... Little Rock Sch. Dist. v. Martin, No. 87-4537 (Ark. Ch. Ct. Sept. 28, 1987) .... Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist., 584 F. Supp. 328 (E.D. Ark. 1984) iv 30 9 14, 17 23 38,39 42 passim 22 38 19 23 23 22 19,22 33 1 3 25 3,11 I I I I I I I I I I I I I I I I I I I Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist., 738 F.2d 82 (8th Cir. 1984) ... Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist., 83 F.3d 1013 (8th Cir. 1996) Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 597 F. Supp. 1220 (E.D. Ark. 1984) Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 778 F.2d 404 (8th Cir. 1985) Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 921 F.2d 1371 (8th Cir. 1990) .... Little Rock Sch. Dist v. Pulaski County Special Sch. Dist. No. 1, 839 F.2d 1296 (8th Cir.), cert. denied, 488 U.S. 869 (1988) .... Mahers v. Hedgepeth, 32 F.3d 1273 (8th Cir. 1994) Oliver v. Kalamazoo Bd. of Educ., 706 F.2d 757 (6th Cir. 1983) .... Paccar Fin. Corp. v. Hummell, 606 S.W.2d 384 (Ark. Ct. App. 1980) ..... People Who Care v. Rockford Bd. of Educ. Sch. Dist. No. 205, 961 F.2d 1335 (7th Cir. 1992) Picon v. Morris, 933 F.2d 660 (8th Cir. 1991) Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992) ......... , Smith v. American Trucking Ass'n, Inc., 781 S.W.2d 3 (Ark. 1989) .... United States v. Armour & Co., 402 U.S. 673 (1971) United States v. Atlantic Ref. Co., 360 U.S. 19 (1959) United States v. City of Chicago, 978 F.2d 325 (7th Cir. 1992) ................. . United States v. International Bhd. of Teamsters, 998 F.2d 1001 (2d Cir. 1993) United States v. Knote, 29 F.3d 1297 (8th Cir. 1994) V 4 29 4 4,5 19,31 passim 2,11 35 2, 22- 31 9 31 19 2,30 9 2,22 29 22 32 23 26 I I I I I I I I I I I I I I I I I I I United states v. O'Rourke, 943 F.2d 180 (2d Cir. 1991) United states v. Western Elec. Co., 8~4 F.2d 430 (D.C. Cir. 1990) .............. . Williams v. Vukovich, 720 F.2d 909 (6th Cir. 1983) STATUTES AND RULES 28 u.s.c. 1292 (a) (1) 28 u.s.c. 1331 Fed. R. Civ. P. 52 (a) Fed. R. civ. P. 60(b) Fed. R. Civ. P. 65(d) . Ark. Code Ann. 6-17-1001 (Michie 1995) vi 23 19,23 33,34 22 1 1 38 30 38 8 I I I I I I I I I I I I I I I I I I I IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 96-3841 Katherine Knight, et al., Appellants, v. Pulaski County Special School District, Appel lee. BRIEF OF APPELLANTS PRELIMINARY STATEMENT The United States District Court for the Eastern District of Arkansas (Susan Webber Wright, D.J.) had jurisdiction over the underlying school desegregation case pursuant to 28 u.s.c. 1331, and it had jurisdiction over the instant proceeding pursuant to its continuing authority to monitor implementation of the consent decree entered in said case. See Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 921 F.2d 1371, 1376, 1384 (8th Cir. 1990). See also Kokkonen v . Guardian Life Ins. Co., 511 U.S. 375, , 114 s. ct. 1673, 1677 (1994). This Court has jurisdiction over this appeal from the district court's order granting PCSSD's motion to enjoin the teachers' strike pursuant to 28 u.s.c. S 1292(a) (1). The District Court's order was formally entered on october 2, 1996, I I I I I I I I I I I I I I I I I I I 2 and appellants Katherine Knight, et al., filed a timely notice of appeal on October 27, 1996. STATEMENT OF ISSUE Whether the district court erred in abrogating appellants' state-law right to continue the teachers' strike, inasmuch as the court's injunction was not designed (1) to enforce the terms of the consent decree, or (2) to effect a valid modification of the consent decree. The four cases most apposite to this issue are: United states v. Armour & Co., 402 U.S. 673 (1971) Mahers v. Hedgepeth, 32 F.3d 1273, 1275 (8th Cir. 1994) Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 393 (1992) Little Rock Sch. Dist v. Pulaski County Soecial Sch. Dist. No. 1, 839 F.2d 1296 (8th Cir.), cert. denied, 488 U.S. 869 (1988) STATEMENT OF CASE AND STATEMENT OF FACTS Although only a few recent developments are directly relevant to this appeal, the appeal inevitably is bound up with the complex and continuing 14-year effort to desegregate PCSSD and certain surrounding school districts. Accordingly, in order to provide a context for analysis, it is necessary to review -albeit briefly -- the history of this case. I I I I I I I I I I I I I I I I I I I 3 A. The Underlying Constitutional Violation This case began in 1982, when the predominantly black Little Rock School District ("LRSD") filed a complaint in the United states District Court for the Eastern District of Arkansas. Alleging interdistrict constitutional violations, LRSD contended that meaningful school desegregation could be achieved only by consolidating LRSD and the two predominantly white surrounding school districts -- i.e., PCSSD and the North Little Rock School District ("NLRSD") -- into a single county-wide school district. Shortly after the case was filed, a group of black students and their parents, on behalf of all black students in the three school districts, intervened as plaintiffs -- i.e., the Joshua intervenors. Several teachers in the three affected school districts, PACT, and the counterpart teacher associations in LRSD and NLRSD moved to intervene in order to protect the teachers' state-law contractual and statutory rights - i.e., the Knight intervenors. The district court denied their motion, and this Court affirmed, noting that the district court intended to bifurcate the litigation into a liability and a remedy stage, and "[t]he interests that appellants seek to protect relate to the remedy stage." 725 F.2d 690 (8th Cir. 1983) (per curiam), quoted in 738 F.2d 82, 83 (8th Cir. 1984). After the district court entered a judgment of liability against PCSSD and NLRSD, see 584 F. Supp. 328 (E.D. Ark. 1984), the Knight intervenors renewed their motion, but the district I I I I I I I I I I I I I I I I I I I 4 court again denied intervention. On appeal, however, this Court reversed, holding that the Knight intervenors had shown that "the disposition of the action 'may as a practical matter' impair their interests," and it directed the lower court to grant the motion to intervene. 738 F.2d at 84 (emphasis omitted) (quoting Fed. R. Civ. P. 24(a) (2)) . 1 The district court then turned to the question of remedy, and, after additional hearings, ordered consolidation of the three school districts into a single county-wide school district. See 597 F. Supp. 1220 (E.D. Ark. 1984). Defendants appealed from both the liability and remedy judgments. This Court, sitting en bane, affirmed the lower court's judgment of liability, but ruled that the interdistrict remedy "exceed(ed) the scope of the violations." 778 F.2d 404, The "interests" in question derived primarily from the collective bargaining agreements between the teacher associations and the school districts. Recognizing that consolidation of the three school districts was a possible remedy for the unconstitutional segregation, this Court commented as follows: Those who have a contract with existing entities have an interest in the continued existence of those entities. It may be true that the successor school district (assuming consolidation is ultimately ordered) will choose to bargain collectively with the (teachers), but there can be no assurance of that fact. In addition, even if a successor district does agree to bargain collectively with appellants, there is no assurance that whatever contract will then be agreed on will be as favorable to appellants' members as the present agreements are. 738 F.2d at 84. I I I I I I I I I I I I I I I I I I I 5 434 (8th Cir. 1985). Opining that the district court's remedy violated principles of federal court respect for local autonomy in the educational process, see .i_g_._, this Court remanded for entry of remedial orders consistent with a set of guidelines set forth in its opinion. See id. at 434-36. B. The 1992 Consent Decree During 1987, the district court issued a series of remedial orders that abrogated state-law rights of the Knight intervenors, including, inter alia, orders that altered negotiated teacher assignment systems. The Knight intervenors appealed, contending that the district court exceeded the scope of its remedial authority because the remedial orders were not properly connected to the underlying constitutional violation. This Court agreed: The remedial authority of the District Court empowers it to alter or, in the extreme case, abrogate a collective bargaining agreement which perpetuates segregation or impedes a desegregation plan. The agreements between a school district and a teachers organization, however, must be permitted to stand if they do not adversely impinge on these constitutionally mandated remedies. Any modification or abrogation can only be made after an evidentiary hearing and upon a finding that the change is essential to the desegregation remedy. 839 F.2d 1296, 1314-15 (8th Cir. 1988) (citations omitted) (emphasis added). This Court added that "the authority of a federal court to alter or modify collective bargaining contracts in school desegregation cases must be based on a finding that the alteration or modification is necessary to further the effort to integrate the schools in question." lg_._ at 1316 (emphasis added). I I I I I I I I I I I I I I I I I I I 6 Finally, after further piecemeal implementation and appeals of various court-ordered remedies, the parties entered into intense negotiations in an effort to develop an agreed-upon plan to remedy the unconstitutional segregation. In 1990, "in a sharp departure from the adversary bitterness that had marked this controversy," all of the parties voluntarily agreed to a "comprehensive and complicated" series of plans. 921 F.2d 1371, 1376, 1384 (8th Cir. 1990). This series included a separate desegregation plan for each of the three school districts involved in the litigation, and a financial agreement with .the state, pursuant to which the state was obligated to provide funding for certain desegregation programs. The parties submitted the agreed-upon plans to the district court for approval, but the court rejected the plans, and "purported to modify them and to order the unwilling parties to put them into effect as modified." .I.9...._ at 1376. This Court reversed, explaining that the district court had failed to credit sufficiently the voluntary, negotiated nature, of the agreed-upon plans: The law strongly favors settlements. Courts should hospitably receive them. This may be especially true in the present context -- a protracted, highly divisive, even bitter litigation, any lasting solution to which necessarily depends on the good faith and cooperation of all the parties, especially the defendants. As a practical matter, a remedy that everyone agrees to is a lot more likely to succeed than one to which the defendants must be dragged kicking and screaming. Id. at 1383. In rejecting the district court's proposed "modifications" of the agreed-upon plans, this Court stressed the I I I I I I I I I I I I I I I I I I I 7 need for courts to defer to the expressed will of the parties as reflected in a settlement: "Because settlement of a class action, like settlement of any litigation, is basically a bargained exchange between the litigants, the judiciary's role is properly limited to the minimum necessary to protect the interests of the class and the public. Judges should not substitute their own judgment as to optimal settlement terms for the judgment of the litigants and their counsel." In addition, courts are generally without authority to require parties to comply with a "settlement" different from their own agreement. Id. at 1388 (quoting Armstrong v. Board of Sch. Directors, 616 F.2d 305, 315 (7th Cir. 1980)). Accordingly, this Court directed the district court to approve the four separate settlement plans that had been agreed to by the parties. Id. at 1394. On remand, these plans were incorporated into a consent decree that was finalized on April 29, 1992 ( 11 1992 consent decree") (JA 34). 2 Among the programs established for PCSSD by the 1992 consent decree is a system of student assignment designed to achieve at least 20% black enrollment in all PCSSD schools. 1992 consent decree at 84 (JA 119). This system depends on a number of variables, including initial student assignments and voluntary transfers of students among PCSSD schools. Id. at 81-84 (JA 116- 19). The system also calls for voluntary transfers of black students from LRSD to PCSSD, and voluntary transfers of white students from PCSSD to LRSD. Id. at 83 (JA 118). The 1992 2 Although only the PCSSD plan is directly relevant for purposes of this appeal, and only that plan is included in the Joint Appendix, see JA 34, references in this brief are to the 1992 consent decree. I I I I I I I I I I I I I I I I I I I 8 consent decree indicates that Pesso has had little difficulty attracting black students from LRSO, and that the principal focus should be to encourage white students to transfer from Pesso to LRSO. Id. ("Pesso will continue to encourage its students to exercise interdistrict M-to-M [.L.Jh, majority-to-minority) transfers to LRSO. Efforts directed toward M-to-M transfers from LRSO have already been successful." (emphasis added)). In addition to the provisions designed to remedy segregation in Pesso, the Knight intervenors received a specific assurance that the recognized collective bargaining process for Pesso teachers would not be displaced. Thus, the 1992 consent decree provides for an Office of Assistant Superintendent for Personnel, who, inter alia, must "negotiate as representative for the (School] Board a master agreement with certified personnel." Id. at 21 (JA 56). The decree does not include any limitations on the capacity of PACT or the Pesso teachers to exercise their rights under state law to resolve disputes arising during the collective bargaining process. c. The 1996 Teachers' strike The instant dispute has its genesis in negotiations between PACT and PCSSO for a successor to the collective bargaining agreement that was scheduled to expire on June 20, 1996. Among other proposals, PACT sought a salary increase for the teachers that it contended was necessary to comply with a recently-enacted state minimum teacher salary law. Ark. Code Ann. S 6-17-1001 (Michie 1995) ("Act 917"). PCSSD rejected the proposal, I I I I I I I I I I I I I I I I I I I 9 asserting that it was not obligated to comply with Act 917, because this might require PCSSD to divert money from desegregation programs, thereby breaching its obligations under the 1992 consent decree. Negotiations on this and other matters proved unsuccessful, and the teachers -- under PACT's direction -- went on strike on August 19, 1996. 1. The state Court Proceeding on August 22, 1996, Mike Wilson and several other parents of PCSSD students ("Wilson") filed suit in Pulaski County Chancery court seeking a temporary restraining order -- on state-law grounds -- directing PACT to terminate the strike. The state court held a hearing on August 23, and issued its ruling the same day. Wilson v. Pulaski Ass'n of Classroom Teachers, No. IJ96- 5788, slip op. (Ark. Ch. Ct. Aug. 23, 1996) (JA 430). The chancery court denied Wilson's request for a temporary restraining order, finding that plaintiffs had not satisfied the state-law prerequisites for the granting of such relief: specifically, they had failed to demonstrate that the strike was "clearly illegal" under Arkansas law, see id. at 4 (JA 434), and that the students or PCSSD were suffering "irreparable harm" at the time of the hearing, id. at 8 (JA 438) . 3 With regard to the 3 Under Arkansas law, plaintiffs seeking preliminary injunctive relief must prove both that they are likely to succeed on the merits, and that they will suffer irreparable harm in the absence of such relief. See Smith v. American Trucking Ass'n, Inc., 781 S.W.2d 3, 4 (Ark. 1989); American Trucking Ass'ns. Inc. v. Gray, 657 S.W.2d 207, 208 (Ark. 1983); Paccar Fin. Corp. v. Hummell, 606 S.W.2d 384, 385 (Ark. ct. App. 1980). I I I I I I I I I I I I I I I I I I I 10 latter point, the court noted that lost school days could still easily be made up, and that all other concerns expressed by plaintiffs were, at that early date, totally speculative. Id. at 6-8 (JA 436-38). The court indicated that it would revisit the question of irreparable harm if the strike did not end shortly, by "setting a hearing on September 19th[, 1996] at 8:30." Id. at 9 (JA 439) . 4 Although several of the plaintiffs in Wilson, as well as their attorneys, were in contact with PCSSD representatives before and during the state court proceeding, Transcript of August 29, 1996 Hearing ("Tr.") at 220-21 (JA 360-61), PCSSD was not a party to the case. PACT attempted to join PCSSD as a necessary party (JA 444), but both the plaintiffs (JA 448) and PCSSD opposed the motion, Tr. at 196 (JA 336), and it was denied. 2. The District Court Proceeding On August 24, 1996, the day after the chancery court denied Wilson's request for injunctive relief, PCSSD filed a motion in the district court -- based upon the court's continuing jurisdiction over the implementation of the 1992 consent decree 4 Wilson has appealed to the Arkansas Supreme Court, and this appeal is now pending. The only point on appeal, however, is the chancery court's ruling on the likelihood of success on the merits; no appeal was taken from its determination that the strike was not causing irreparable harm. As Wilson put it in the brief that was filed with the state supreme court, "[i]t is from the chancery court's denial of the injunction requested based on the illegality of the strike from which Wilson appeals. Wilson is not appealing the court's decision with respect to irreparable harm." Exhibit D to PCSSD Motion to Stay the Appeal at 3. I I I I I I I I I I I I I I I I I I I 11 seeking to enjoin the teachers' strike (JA 410). In support of the requested injunction, PCSSD argued that the 1992 consent decree could not be implemented if "the schools are not open." PCSSD Brief In Support of Its Motion Seeking Equitable Relief ("PCSSD Trial Br.") at 7 (JA 419). Although the primary beneficiaries of the 1992 consent decree are the black students in PCSSD, 5 PCSSD did not consult with the Joshua intervenors before filing their motion in the court below. Tr. at 211 (JA 351). And, in fact, the Joshua intervenors opposed PCSSD's motion. Tr. at 16 (JA 156). On August 29, 1996, the district court held a hearing on PCSSD's motion. Four witnesses testified: Deen Minton, President of PACT; Linda Pondexter, President of the Little Rock/ School District Board of Directors and former President of PACT;j Sandra Roy, Executive Director of PACT; and Bobby Lester, PCSSD Superintendent of Schools. There was no dispute about the fact that all of the schools in PCSSD were in operation, notwithstanding the strike. Minton, Pondexter and Roy all asserted that a nonnegotiated end to the strike, such as by an injunction, would have a significant negative impact on teacher morale, which in turn would adversely affect implementation of the 1992 consent decree. Tr. at 132-34 (JA 272-74); Tr. at 231- 5 See 839 F.2d at 1303 ("The right most prominently involved [in this litigation) is the right to a public education free of racial discrimination."); 584 F. Supp. 328, 347 (E.D. Ark. 1984) (finding constitutional violation in part because ''there is no indication that [black students] will be treated fairly or with openness and inclusiveness" in PCSSD). I I I I I I I I I I I I I I I I I I I 12 32 (JA 371-72); Tr. at 252-53 (JA 392-93). Lester, the only witness supporting the PCSSD motion, did not dispute this assertion. Tr. at 161, 164 (JA 301, 303-04). Lester testified that, in his opinion, the students who transferred from LRSD to PCSSD might be less likely to stay at PCSSD because of the strike, but he was unable to produce any PCSSD attendance records or other evidence to support this opinion. Tr. at 216-17 (JA 356-57). Before specifically ruling on PCSSD's request for an injunction, the court below issued several orders designed to improve PACT/PCSSD labor relations. First, the court stated that PACT's bargaining demand for a teacher salary increase did not fully account for PCSSD's financial obligations under the 1992 consent decree: [I)t was apparent to me, listening to the testimony of PACT members that they are focused on their rights under Arkansas law, instead of the District's multiple obligations under federal law, as well as under state law. And keep in mind, I'm not doing this tonight, I'm not saying this as -- I'm not ruling this way right now, but keep in mind at times this Court has superseded state law. I have that authority as a federal judge, to require that a party actually not follow state law. Order at 6 (attached as Addendum to Appellants' Brief). The court then observed that: Mistrust between the parties in this case is evident. There is certainly a lot of bad feelings, which is not good for the future of either this District or the success of the overall settlement decree. Complications to the funding formula have added to this feeling of ill-will and uncertainty. And I hope in a year or two all of these uncertainties with respect to the funding formula will be I I I I I I I I I I I I I I I I I I I 13 resolved. But still, there has been a lot of damage done between the parties, and this is not a time of good feeling. Id. at 7. For these reasons, the district court directed PACT and PCSSD to establish a "Labor Relations Committee, with representatives from each side, [which) will make recommendations to the Union and to the Board, and if necessary to this Court, with respect to their relations with each other. In other words, how to talk to each other and how to build back an era of trust." Id. at 7-8. The court also ordered "the Labor Relations Committee to develop some sort of education program for PACT members, so that they can understand the District's [budget) predicament." Id. at 8. Finally, asserting the authority to interpret and enforce the collective bargaining agreement, the court ordered the parties to mediate their differences in accordance with the impasse procedure contained in the agreement. Id. at 9-10. The district court then turned to PCSSD's request for an injunction. Notwithstanding PCSSD's argument that the strike should be enjoined simply to facilitate implementation of the 1992 consent decree, the court applied the criteria for a preliminary injunction set forth by this Court in Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981): (1) the threat of irreparable harm to the moving party; (2) the balance of that harm against the interests of the other parties; I I I I I I I I I I I I I I I I I I I 14 The court below based its discussion of irreparable harm on the testimony of PCSSD Superintendent Lester: [T]he testimony of Bobby Lester indicates that the District will suffer from having to make up school days, from the sparse attendance of regular teachers, from the absence of students, and from the threat of losing students, including interdistrict students. The interdistrict part of the plan is a crucial element of this plan. The Eighth Circuit has so ruled, and that is not the District Court's ruling, that is the Eighth Circuit's. Id. at 11-12. The court therefore found that there is a threat of irreparable harm to the District, and further [found] there is a threat of irreparable harm to the overall success of the settlement decree. Judge Arnold, once again, of the Eighth Circuit, has said "Stability is important to the success of this decree." And there are very few things more destabilizing than a teacher's strike. I've witnessed all the interest in this case today, the emotions, the news coverage, which I cannot take judicial notice of, but there has certainly been -- we cannot say that the situation has been stable. Id. at 12-13. 6 6 Judge Arnold has never written, in any published opinion of which we are aware, the words ascribed to him by the district court. The closest he has come was in an opinion issued on November 14, 1991, in which this Court directed the lower court to permit certain modifications to an earlier version of the 1992 consent decree. See 949 F.2d 253, 257 (8th Cir. 1991). In permitting these changes, this Court, through Judge Arnold, noted that the district court must proceed cautiously, because the public deserved stability in the terms of the decree: The 1989 settlement is a benchmark. Although changes can be made, the District Court and we must take into account the potential for confusion, even chaos, that constant change creates. The parties and the public deserve a period of stability. Changes in details, or at the margin, will not seriously interfere with this goal. Changes of greater significance, however, may well do so, and that fact must be taken fully into account when such changes are proposed and considered. Id. at 257. I I I I I I I I I I I I I I I I I I I 15 The district court turned next to PCSSD's likelihood of success on the merits. Although PCSSD's claim was that the strike was prohibited by the 1992 consent decree, the court did not address the likelihood of PCSSD's success as to that claim. Instead, the court dealt with this criterion on the basis of two state-law questions. The first question involved PACT's contention during collective bargaining that PCSSD was obligated to increase teachers' salaries in accordance with Act 917, the new state minimum salary law. PCSSD, on the other hand, had taken the position that it was not required to comply with Act 917, because to do so might make it difficult for PCSSD to meet certain obligations under the 1992 consent decree. 7 The district court treated the merits aspect of the request for a federal injnction as turning on the eventual outcome of the dispute over Act 917: it ruled that "the District has carried its burden of showing that more likely