Court Filings: District Court, memorandum of the Joshua intervenors opposing the Little Rock School District's (LRSD's) motion to end federal court jurisdiction

The transcript for this item was created using Optical Character Recognition (OCR) and may contain some errors. {.- I .., 0 1 'C06 \J - ' - .- IN THE UNITED STATES DISTRICT CO~t:~S 1,: '..:~CC F.HP..C!\. CLERK EASTERN DISTRICT OF ARKANSAS p 11. WESTERN DIVISION ~, ------;:c;,"E'':?:''orcTi:_'~;: :.:::..:7<: LITTLE ROCK SCHOOL DISTRICT, ET AL. V. NO. LR-~-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MRS. LORENE JOSHUA, ET AL. PLAINTIFFS DEFENDANTS INTERVENORS KATHERINE W. KNIGHT, ET AL. . I~ i YO f ;-,,., Olt1ce of Desegregation Monitoring INTERVENORS .... . ~ ---~---- ....~ ~"'l' .. - i -~.. . -. ~-~ .... ..,,~ ....... ~ Memorandum of the Joshua Intervenors Oppos.thg the LRSD's Motion to End Federal Court Jurisdiction A. Introduction The LRSD seeks an order "which withdraws federal court jurisdiction of this case and dismisses this case with prejudice." Motion, 5\17\96, at 2. This motion rests on a series of baseless assertions and otherwise unsound premises. It should, therefore, be denied. More specifically, LRSD first contends that the district agreed to implement the provisions of the settlements for only six years, absent a demonstration by the Joshua Intervenors of a failure of the system to comply with a term (or terms) of the settlement agreements. Motion, at 1; Memorandum, 5\17\96, at 1, 9, 16-17. Then, reasoning that "[t]he Tri-District Plan was essentially the (settlement] Plans modified to address the constitutional infirmities identified by (Judge Woods], and that 1 constitutional infirmities identified by (Judge Woods], and that - "LRSD implemented the Tri-District Plan during the 1990-91 school year," LRSD further contends that this six year period ended at the end of the 1995-96 school year. Motion, at 1; Mem., at 10-12. Lastly, LRSD argues that it has "substantially (complied]" with the settlement provisions. This assertion is based on what is termed an "exhaustive audit of LRSD's desegregation obligations" and a discussion of particular areas such as student enrollment and racial disparities in achievement. Motion, at 1; Mem., at 12- 13, 17-32. This memorandum addresses these and other premises of the LRSD submission. B. The Assertions About A Six-Year Plan The district asserts at page 9 of its memorandum that "(u]nder the terms of the Settlement Agreement, LRSD agreed to implement the plans for six years. 111 The problem with this assertion is shown by the fact that there is no citation to any provision of the Settlement Agreement. Nor is there a citation in the memorandum, at any point, to a provision of any of the settlement documents limiting implementation to six years (absent noncompliance) . 2 1 LRSD refers to the "Settlement Agreement" of March 1989, as revised on September 28, 1989. See Mem., at 9. 2 The Settlement Agreement includes payment schedules and related criteria, applicable to LRSD, and covering various periods of time with various termination dates. These are (i) 1989-90 through 1998-99 (to LRSD) (at 15); (ii) 1990-91 through 1995-96 (to LRSD) (at 16); (iii) December 31, 2000 (period through which LRSD may show that composite test scores of bl_ack 2 I J LRSD asserts that at the hearing on May 13, 1996, this court - "acknowledged that the Plans were to be implemented for a period of six years." Mem., at 14. This assertion, as shown by the transcript, is erroneous. Indeed, the court, after alluding to provisions referencing six years, welcomed motions to perfect the decree. 3 - To be sure, the "Interdistrict Desegregation Plan" contains the following provision: "There shall be a limited number of incentive schools, for a period of at least six years ... (at 3)." However, this language appears in a paragraph titled "III. Incentive Schools" -- one of 19 separately numbered paragraphs, in an "Overview," each paragraph having a separate title. Id., at 2-6. In brief, the six-year provision refers to the incentive schools; it is not set forth as a general limitation on the duration of the entire plan. Moreover, intervenors' argument is consistent with the treatment of the six-year period by the Court of Appeals in its 1990 opinion considering the overall settlement. With respect to the LRSD plan, the court alludes to what it terms "the initial six-year period" only with reference pupils are 90 percent or more of scores of white pupils) (at 17). 3 See Tr., 5\13\96, at 6-7 (" .... The reason for this hearing is that we are now in the sixth year, depending on how you count it, of the settlement of this case. And there are several places in the Consent Decree that mentions six years, although there is nothing in the decree that says that after six years the Court shall review the settlement and its effectiveness. But I have chosen to do this. [) I've invited the parties to ask the Court to modify the decree in areas in which . the parties believe it's not working or cannot work .... ") 3 I to the incentive schools. 4 Lastly, the court states with regard - to the case generally: "This does not mean that a court must automatically approve anything the parties set before it. In the present case, for example, any remedy will necessarily require some judicial supervision -- monitoring, at least -- for a long time" (emphasis added). Little Rock School District. supra, 921 F.2d at at 1383. LRSD's reliance on United States v. Overton, 834 F.2d 1171 (5th Cir. 1987) is unavailing. See Mem., at 14-15. There, as the opinion shows, the parties dealt explicitly with the duration of the overall decree, first by specifying a three-year period, absent objection, and then, in resolving objections, by specifying a set date, or, alternatively, the date of the completion of a construction project. Id., at 1173-74. Overton is thus distinguishable by reason of the differences in the terms of the settlement. The Court of Appeals' characterization in Overton of the alternative formulation as one which "left the decree open until certain other conditions were met, which were" (834 F.2d at 1174) is relevant here. This, we submit, parallels the situation in this case. The agreements deal with certain subject matter areas, such as student enrollment and disparitities in achievement; they set forth goals of the remedial process, such as targets for the racial make-up of various categories of schools and "the 4 Little Rock School District v. Pulaski county Special School District, 921 F.2d 1371, 1386 (8th Cir. 1990) (emphasis added). 4 elimination of educational achievement disparities between black - and white students"5 -- the "certain conditions" in Overton terms; and they describe manifold actions to be taken to achieve the goals. The focus here with regard to termination of jurisdiction is not on a particular date; it is on the adequate implementation of the agreed upon actions to attain the goals, including any revisions adopted by the court, 6 and the attainment of the goals (the "certain conditions") to the maximum extent practicable. 7 c. LRSD Has the Burden of Establishing Compliance with the Settlement Terms Turning to standards external to the settlements, LRSD contends that in the context of determining the duration of court 5 Interdistrict Desegregation Plan, at 4. 6 See Little Rock School District. supra, 921 F.2d at 1394 n. 8 and Order, July, 10, 1992 (adopting ODM recommendations). 7 The follow portion of the "Introduction" set forth in the Interdistrict Desegregation Plan (at 1) is relevant: "The goals of school desegregation planning must be clearly focused and well understood. It is insufficient to establish as a single goal the physical movement of bodies and the rearrangement of boundary lines. An educational environment which encourages and provides academic and human growth for all students based upon their individual needs and talents must also be a goal of any adequate desegregation paln. (] The parties hereto seek to ensure that the schools and learning experiences throughout the school system are organized so that school practices, policies and procedures prevent unfair treatment or denial of opportunity for any child because of his or her racial, economic status or cultural identification. (] Immediately following this introduction, the parties have included an overview which sets forth the basic tenets and bases of compromise they consider essential to an interdistrict desegregation plan .... "[The aforementioned "Overview" addressing 19 topics follows the Introduction.] 5 I jurisdiction, the Joshua Intervenors have the burden of - establishing noncompliance with the settlement agreements. Mem., at 16-17. The district's reliance on Hazen v. Reagan, 16 F.3d 921, 925 (8th cir.1994) is unavailing. That case, and the earlier Eighth Circuit case on which it relies, address a special situation;~, a party seeks an adjudication that its adversary's performance is so deficient that it constitutes civil contempt. A far more appropriate approach to fill the void left by a gap in the agreements, and one consistent with the overall approach of the LRSD submission, 8 is to rely upon the standards normally applicable when this particular issue regarding burden arises in school desegregation litigation. This approach also finds support in the fact that the Court of Appeals described this court's responsibilities and authority in monitoring the agreements in traditional, and even expansive, terms.~, 921 F.2d at 1386, 1394 paras. 4, 8 ("and otherwise to proceed as the law and the facts require"), 9. The general rule is that a school district has the burden of establishing the predicate for the termination of court jurisdiction in one or more areas of the case. Freeman v. Pitts, 118 L.Ed.2d 108, 137 (1992);9 see also United States v. Fordice, 8 See Mem., at 17-32 (citing many federal court decisions addressing the duration of decrees in desegregation cases). 9 "The school district bears the burden of showing that any current imbalance is not traceable, in a proximate way, to the prior violation." 6 I ,i ... 120 L.Ed.2d 575, 599 (1992) (higher education) . 10 More generally, - assignment of this burden to LRSD is consistent with the standards for allocation of the burden of proof set forth by the Supreme Court in Keyes v. School District No. 1, 413 U.S. 189, 208-10 (1973). In Keyes, a school desegregation case in which segregation had not been required or permitted by state law, the Court identified instances in which Denver school authorities had the burden of proof. For example, proof of intentionally segregative actions in a substantial part of the system was held to establish a prima facie case that actions having a segregative effect in other parts of the system were also motivated by race. See 413 U.S. at 208-09. 11 The Court explained the basis for this rule as follows: "This burden-shifting principle is not new or novel. There are no hard-and-fast standards governing the allocation of the burden of proof in every situation. The issue, rather, 'is merely a question of policy and fairness based on experience in the different situations.' 9 J. Wigmore, Evidence S 2486, at 275 (3d Ed 1940)." See 413 U.S. at 209. The court then cited a variety of situations in which considerations of "policy and 10 "Brown and its progeny, however, established that the burden of proof falls on the State, and not the aggrieved plaintiffs, to establish that it has dismantled its prior de jure segregated system. Brown II, 349 U.S. at 300 .... " 11 "In that circumstance, it is both fair and reasonable to require that the school authorities bear the burden of showing that their actions as to other segregated schools within the system were not also motivated by segregative intent." See 413 U.S. at 209. 7 I ' J fairness" had been held to support a requirement that school - authorities explain actions or conditions. See 413 U.S. at 209- 10. Two considerations of "policy and fairness" warrant allocating to LRSD the burden of showing the requisite compliance with the terms of the settlement before the termination of the court's jurisdiction in one or more areas. First, the school district obviously has superior access to data and greater resources in terms of personnel. Second, both this court and ODM, the monitoring body which the Court of Appeals directed the court to establish, have repeatedly documented poor compliance by LRSD with the terms of the court-approved settlement. The court summarized its view in its Memorandum and Order of March 11, 1996. 12 See also Joshua's Enclosure One to this memorandum (containing the court's statement of March 1993, as well as other statements by the court regarding LRSD's poor compliance). ODM's documentation of ongoing poor compliance regarding the incentive schools -- where the Court of Appeals stressed the need for scrupulous compliance (921 F.2d at 1386) -- was recently summarized in the "Motion of the Joshua Intervenors for Relief 12 "The LRSD has frequently exhibited indifference or outright recalcitrance towards its commitments and has been slow to implement many aspects of its agreement (although some improvements have been made). Therefore, the Court finds that an order of dismissal should be deferred in order to ensure compliance with the plans and the agreement. Even had the LRSD acted in good faith throughout the years, the logistics and complexity of this case are such that this Court's monitoring function would be impaired by entering an order of dismissal at this time." At 8-9. 8 / Concerning the Incentive Schools" (May 31, 1996), at paras. 2- 4 13 In conclusion, LRSD should be required to demonstrate, in a meaningful manner, compliance with the court-approved settlement terms. D. LRSD Has Not Established that It Implemented the Settlement in 1990-91 LRSD's contention, tied to its "six years argument," that it should be credited with implementing the settlement in 1990-91, should be rejected. 14 In the first place, the Court of Appeals did not direct approval of the settlement "[i]n general" and "also make certain other directions for the future of the case" (921 F.2d at 1376) until December 12, 1990, several months into the 1990-91 school year. Joshua Intervenors should be held to be - entitled to a period of implementation during which all of the officials and agents of the LRSD were aware that the settlements had been approved by the courts. More significantly, LRSD relies basically on simply asserting that it implemented the Tri-District Plan in 1990-91. Mem., at 11-12. LRSD does note that the earlier plan included "six Incentive -Schools" (Mem. at 11), and suggests, implicitly, that its "implementation" of the Plan included this feature. 13 The motion also relied on the Joshua Intervenors' own monitoring reports which were provided, upon their completion, to LRSD officials. 14 Given our contention that the "six years argument" is baseless, this section of our memorandum sets forth an alternative position. 9 I . ... However, Judge Henry Woods noted in an order of December 11, 1989 that LRSD's noncompliance regarding "virtually every educational component" which would justify the existence of all-black schools touched the "approved portions of (its] own plan for the proposed 'incentive Schools.' ... " (at 16, footnote omitted); and, as we have shown, ODM and the Joshua intervenors thereafter documented ongoing deficient compliance regarding the incentive schools. Surely such a skimpy showing would not support loping a year from the six year period -- even if this period had the significance asserted by LRSD. E. LRSD Has Not Established the Requisite Implementation of the Court-Approved Settlement LRSD contends that its internal audit and the analysis which it sets forth in its memorandum regarding particular areas of its operation demonstrate that it has substantially and in good faith complied with its desegregation obligations. These assertions are groundless. Preliminarily, Joshua Intervenors reiterate their reliance upon the statements by the court rearding the case generally, and ODM and Joshua findings regarding the incentive schools, one pivotal element of the approved settlement. Moreover, Joshua intervenor's "Motion ... for the Implementation of recommendations of the Office of Desegregation Monitoring" (July 2, 1996) (at para. 7) identified scores of ODM recommendations predicated upon findings of LRSD's inadequate compliance in many areas. 10 / .I . ... (1.) The LRSD Audit The LRSD audit15 is unpersuasive for many reasons. First. The audit relies heavily on "Primary Leaders" identifying the status of the implementation of obligations within their respective domains. At 6. It is only common sense that too many negative answers would jeopardize a leader's tenure in his\her position. Second. The audit relies on making a dot with a pencil on an "obligations scan sheet" (at 6) -- a technique not suitable for addressing more complex obligations, or obligations affecting multiple schools. Third. The description of the asserted steps to move beyond the "scan sheets" (at 11) is far too sketchy to permit an assessment of its reliability. Were the "committees" composed of "primary leaders" called upon to scratch each others' backs -- so to speak? There are no more detailed descriptions of how this process worked regarding some significant obligations, showing how much time was taken, by whom, what evidence was reviewed, etc. Fourth. The audit does not deal in depth with significant areas of the case by advancing evaluations conducted in a professionally sound manner, or affidavits. These areas could have been identified by reference to Court of Appeals' 15 See "Little Rock School District Position Paper on Desegregation Obligations," May a, 1996, Exhibit 4 to the memorandum. 11 I J opinions, 16 ODM reports pointing out compliance problems in - particular areas, or the court's statement about poor compliance in March 1993. How can the audit be viewed as significant, if it does not reflect the LRSD's coming to grips with the many findings of noncompliance by the court's monitoring body, and attempting to document a basis for favoring LRSD's conclusions. Fifth. The audit does not discuss comprehensively the "Not Begun" category (at 14), to explain, for example, how its existence is consistent with the request that the court's jurisdiction be terminated in its entirety. Motion, at 2. In the end it must be said that the audit provides little to help decide in a reliable manner whether LRSD representatives "scrupulously and dilgently carry out the settlement plans and the settlement agreement (as relevant to LRSD) .... 11 Little Rock School District. supra, 921 F.2d at 1394. (2.) The Particular Areas of the System's Operation The district elects to discusss for many pages "how LRSD compares to school districts [which) have already achieved unitary status or to the nation as a whole." Mem., at 17. There are at least two problems with this approach. LRSD is silent about the extent to which any of these systems were by court order or voluntary agreement subject to the full panoply of provisions to which the LRSD is subject. Secondly, LRSD cites a sentence from Freeman v. Pitts. supra, 118 L.Ed.2d at 124, 16 See Little Rock School District, 921 F.2d at 1386 (programs in the incentive schools); Appeal of Little Rock School District. 949 F.2d 253, 256 (8th Cir. 1991} (seven areas). 12 I j . .... regarding "a critical beginning point .... " Mem., at 17. However, - LRSD should also have cited the preceding sentence, which reads as follows: "Proper resolution of any desegregation case turns on a careful assessment of ITS facts. Green. supra, 391 U.S. at 439 .... " Freeman, supra, 118 L.Ed.2d at 124 (emphasis added). The point is that in assessing whether a system has "eliminated [the vestiges of past discrimination) to the extent practicable", 17 the focus is on what is practicable in view of the facts in that school district. Under the standards which Little Rock cites, the system is not entitled to be excused on the issue of student enrollment because fewer of its schools are outside the applicable guidelines for measuring compliance than was the case in Savannah, Georgia if it is feasible in Little Rock to achieve compliance as to all (or additional) schools, or meaningful implementation of plan provisions designed to achieve compliance has not been attempted. (a.) Student Assignments LRSD devotes seven pages to this topic without identifying the schools in the district which are outside the applicable guidelines, or discussing other opportunities to enhance desegregation. Mem., at 17-24. It does not identify any plan provisions applicable to such schools or discusss the degree of their implementation. In short, LRSD does not show that it has achieved as much as can practicably be achieved. 17 Freeman v. Pitts, supra, 118 L.E.2d at 139, quoting Board of Education of Oklahoma City v.Dowell, 498 u.s. 237, 249-50 (1991). I j I 13 LRSD notes that it "has successfully recruited white - students and desegregated Rockefeller Incentive School." Mem., at 24. It ignores, however, the fact that the exhibit cited with reference to Rockefeller (Exhibit 5), shows that the other four incentive schools had the following proportions of black students in 1995-96: Franklin (93%), Garland (92%), Mitchell (97%), Rightsell (96%). Our motion of May 31, 1996 concerning the incentive schools supported, by reference to deficiencies in implementation documented by ODM, the view that this segregation was "an entirely predictable result given the overall deficient implementation of the plan and the nature of the deficiencies " See Joshua motion, at paras. (3.), (4.) (a.) through (f.), (o.). The district does not discuss whether efforts have been made to promote desegregative transfers from the area elementary schools with the highest proportions of black students to the area schools with the highest proportions of white pupils. Given the current state of implementation of provisions regarding the incentive schools, an area where the Court of Appeals noted expressly the need for strict compliance with the agreements, LRSD is not entitled to entry of the order sought regarding student enrollment, whatever the number of indices it cites. (b.) Faculty and Staff As with other areas, the district's presentation does not confront ODM's findings regarding racial make-up and other staffing issues in LRSD. This is not consistent with the model 14 I .I for monitoring identified by the Court of Appeals in 1990. In its report of September 15, 1995 addressing the issue of the composition of teaching staffs at the elementarylevel in the three systems , ODM's recommendations included the following provision (at 11): 4. The districts should examine the distribution of black and white teachers in each grade level category in order to improve student access to classroom teachers of both races. As we have noted in this report, staff racial balance is not simply a matter of the total number of black certified employees in a building. The idea of racial balance must also encompass the distribution of those individuals within that building. The staffing of classrooms at each grade level category should reflect a conscious effort to furnish students with the greatest possible probability of experiencing teachers of both races throughout their school years. This recommendation rested, in turn, on ODM findings that there were (at 10): few black teachers at the early childhood level in all three districts. The distribution of black teachers across grade levels at some individual schools caused concern. Some schools lacked a significant number of black teachers to provide most students opportunities to have them as classroom teachers. While other schools had a larger number of black teachers, most were usually concentrated at the intermediate level. This pattern of racial representation can preclude large numbers of students from access to a black classroom teacher for a number of years. Regarding LRSD, ODM noted that the teaching corps included the following proportions of black faculty by level in 1994-95: early childhood (27%), primary (33%), and intermediate (44%). At 31. ODM also raised issues regarding particular Little Rock 15 I schools. 18 The ODM report of May 10, 1996 detailed serious problems of staff turnover, both faculty and principals, at the incentive schools, a focal point of both the remedies and the courts. See ODM report, at 6-10. For example, of the 87 classroom teachers at the schools in 1995-96, 27 (31%) were new to these schools, although only five new classes had been added. At 6. ODM also questioned the assigning of five first-time principals to the incentive schools since 1990-91. At 9-10. ODM noted that the level of instability identified can not be squared with the governing standards. At 6. 19 Again, LRSD is silent on these issues raised by ODM. Also, 18 For example: Badgett (sharp disparity in the make-up of the staff at the different levels); Baseline (sharp disparity in the make-up of the staff at the primary and intermediate levels); Carver (same); Chicot (no black teacher at early childhood level for three years); Forest Park (same); Franklin (early childhood and primary levels are heavily white, and intermediate level identifiably black; "staff remains predominantly white"); Jefferson (no black teacher at early childhood level for three years); McDermott ("staff remained predominantly white"); Meadowcliff (no black teacher at the early childhood level for three years; black teachers concentrated at the intermediate level; "staff remains predominantly white"); Pulaski Heights (no black teacher at early childhood level for three years; sharp disparity in composition of teachers at the three levels); Rightsell ("the staff has remained predominantly black"); Rockefeller (decreasing number of black teachers over three year period; only 3 of 27 teachers were black persons in 1994-95); Terry ("staff remained predominantly white"); and Watson (no black teacher at early childhood level for three years; "staff has remained predominantly white"). 19 See also Morgan v. Kerrigan, 509 F.2d 580, 598 (1st Cir. 1974), cert den., 421 U.S. 963 (1975) (noting "a rate of faculty turnover at predominantly black schools far higher than than that at white schools" contributing to a denial of equal educational opportunity). 16 I while LRSD touts its inclusion of black persons in the governance of the system, It does not address the fact that seven of the eight elementary schools west of University Avenue have white principals. 20 We respectfully submit that it is these matters, and not the situation in Dallas, etc., which LRSD must address in this context. (c.) Racial Differences in Student Achievement The LRSD made an unambiguous commitment -- in 1989 and at later times, not 1954 (compare Mem., at 27) -- to eliminate the "achievement disparity between black and white students on normreferenced and criterion-referenced tests. 1121 The superficial presentation made by LRSD on this "crucial" aspect of the settlement22 does not approach the showing required to warrant the termination of the court's jurisdiction. See Mem., at 27- - 29. 23 20 These schools are Fulbright, Jefferson, McDermott, otter Creek, Romine, Terry, and Williams. Brady does have an African American principal. Addressing such patterns is an important part of the task of eliminating forever the notion of a "disfavored race." Freeman. supra, 118 L.Ed.2d at 131. 21 See LRSD Desegregation Plan, April 29, 1992, at 1., para. B.; Interdistrict Desegregation Plan, April 29, 1992, at 4 (Part XII). 22 See Appeal of Little Rock School District, supra, 949 F.2d at 256 (Court of Appeals identifies "the agreed effort to eliminate achievement disparity between the races" as one of the "crucial" elements of the settlement as to which "no retreat should be approved").; Order, May 1, 1992, at 6 ("However, certain modifications the Court finds substantive and unsupported in light of two of the primary goals of the case, i.e., racial integration and student achievement.") 23 Assuming arguendo that there is room for lower courts to take a different view on the impact of desegregation than Brown, 17 I J Consider a hypothetical school district seeking the - termination of court jurisdiction over the issue of student enrollment despite the fact that it has not achieved the goals of its plan, and in the face of monitoring reports showing that it has neither complied with provisions of its plan, nor exhausted the posibility of modifications to better attain its objectives. It is obvious that this district's actions would not warrant a holding either that it had achieved maximum practicable desegregation, 24 or substantially complied with governing standards. LRSD's position on this issue is no better. The following are among the many factors\reasons further showing that LRSD's effort to end jurisdiction on this point must fail. First. The district's presentation is entirely devoid of a proposition which we doubt, particularly in this case, this record does not support the broad contentions advanced by LRSD. First. Doctors Walberg and Armor acknowledged that 52 social scientists had joined a statement filed with the Supreme Court, taking a more positive position, than the one taken by them, on the impact of degregation on achievement. See Tr. , , May 13, May 15, 1996. Second. Dr. Walberg agreed that he has~times expressed his view of the impact of desegregation on achievement as follows: sometimes it helps, and sometimes it hurts, and sometimes it doesn't do anything. Tr. , May 13, 1996. He has not studied whether these differences are due to differences in the quality of the implementation in the different instances. Id. Third. Dr. Orfield testified that Dr. Walberg has done no original research on the impact of desegregation, and that Dr. Armor has done little such research. Tr. , May 30, 1996. Dr. Orfield also testified about scholars who take a positive position regarding the impact of desegregation, including with regard to its role in providing a path into the mainstream of society. Id. 24 See Swann v. Charlotte Meklenburg Board of Educ., 402 u.s. 1, 26 (1971); Davis v. Board of School commissioners of Mobile County. 402 U.S. 33, 37 (1971). 18 I J facts, except for Exhibit 12, which is not cited in the - memorandum, and undermines one of the system's principal arguments. See discussion, infra. There is, for example, no data on racial disparities in achievement in 1990-91 and 1995-96, allowing some conclusion as to the relative size of the gap "then and now." There is no indication of any effort to determine whether some schools show greater progress in addressing the gap; or whether any such schools have been studied in depth to identify positive elements of their programs which could be replicated in other schools. There is no discussion of any effort to determine the impact of participation in early childhood programs. There is no evidence of any study to identify the specific areas of knowledge and skills which lead to the gap and the causes of these differences. There is no evidence of any effort to organize regular classroom instruction; extended day, week and year programs; or tutoring efforts to address the specifics of the achievement gap. There is no indication of any effort to comply with the promise regarding criterion referenced assessment. 25 25 Such an effort could include: identification of a body of knowlege and skills which this district desires that all students master, an effort to insure that all students are exposed to instruction allowing them the opportunity to master this material, and assessment, of various forms, determining students' mastery of this material. This differs from norm-referenced testing where a student's score is compared to the scores of the sample of students from throughout the country who were tested during the process of standardizing a test used throughout the nation. See also the testimony of Dr. Gary Orfield, Tr. , May 30, 1996 (need for broader forms of assessment; need for-longitudinal data following students over a period of years)~ 19 I Second. In its Order of May 1, 1992 addressing the parties' - proposed amendments to the initial versions of the settlement, this court repeatedly considered the potential impact of actions with regard to improvement in the relative performances of black youth and reduction in the achievement gap. Order, at 10, 15, 16, 21-22, 23, 24, 30. The district ignores entirely this obvious starting point. Third. In Freeman. supra, cited by LRSD, the Supreme Court noted the f