Court filings: Court of Appeals, brief of appellee Pulaski County Special School District (PCSSD)

The transcript for this item was created using Optical Character Recognition (OCR) and may contain some errors. 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 APPEAL FOR THE EIGHTH CIRCUIT NO. 97-1689EALR NO. 97-1700EALR MRS. LORENE JOSHUA, ET AL. vs. APPELLANTS LITTLE ROCK SCHOOL DISTRICT, ET AL. PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. Appeal from the United States District Court For the Eastern District of Arkansas Western Division Honorable Susan Webber Wright, District Judge BRIEF OF APPELLEE PULASKI COUNTY SPECIAL SCHOOL DISTRICT M. Samuel Jones III (76060) Claire Shows Hancock (95013) WRIGHT, LINDSEY & JENNINGS 200 West Capitol A venue Suite 2200 Little Rock, Arkansas 72201-3699 (501) 371-0808 APPELLEES APPELLEES I I I I I I I I I I I I I I I I I I I SUMMARY AND REQUEST FOR ORAL ARGUMENT The Joshua Intervenors complain on appeal of the district court's approval of the ODM budget in the face of their objections, and its refusal to appoint additional ODM monitors. But the bases for the Joshua Intervenors' objections to the budget were unsound. There is no evidence in this case that any perceived racial "achievement gap" or statistical racial disparity in disciplinary treatment is caused by current discrimination. Rather, the testimony in this case, and in others across the nation (and accepted by other federal courts), is that such disparities are the result of various socioeconomic factors. Accordingly, the district court did not abuse its discretion in approving the ODM budget. This appeal also arises, in part, from an unsuccessful attempt by the Joshua Intervenors to force the district court's intervention -- in the name of monitoring the Pulaski County school districts' Desegregation Plans -- into matters which are purely internal to the PCSSD and which are not, indeed should not be, affected or governed by the Desegregation Plans. The district court properly declined to grant the Joshua Intervenors' motion for ODM monitoring at the PCSSD's Robinson High School when the motion raised only individual personnel matters. Further, notwithstanding the Joshua lntervenors' motion, and in accordance with the district court's urging that the parties continue to work with the ODM, an ODM assessment of Robinson was carried out without necessity of court order and the personnel matter was resolved by proper utilization of the PCSSD's policies and procedures. The district court did not err in denying the Joshua Intervenors' motion which, in any event, is now moot. The PCSSD respectfully requests oral argument in this appeal. I I I I I I I I I I I I I I I I I I I TABLE OF CONTENTS SUMMARY AND REQUEST FOR ORAL ARGUMENT .. .. .......... . ... . TABLE OF AUTHORITIES .... . ........... . ...... . ........... . .. iii COUNTERSTATEMENT OF ISSUES ON APPEAL. . . . . . . . . . . . . . . . . . . . . . iv STATEMENT OF THE CASE SUMMARY OF ARGUMENT 1 9 ARGUMENT .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 I. THE DISTRICT COURT PROPERLY APPROVED THE ODM II. BUDGET NOTWITHSTANDING THE JOSHUA INTERVENORS' OBJECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 A. The Joshua Intervenors Complaints Regarding Racial Disparities in Discipline Rates . . . . . . . . . . . . . . . . . . 13 B. The Joshua Intervenors' Complaints Concerning the Achievement Gap . . . . . . . . . . . . . . . . . . . . 16 THE DISTRICT COURT PROPERLY DENIED THE "ROBINSON" MOTION .. . . . ... .. .... .... ... . . ..... ....... . ... 21 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 ii I I I I I I I I I I I I I I I I I I I TABLE OF AUTHORITIES CASES: Coalition to Save Our Children v. State Board of Education, 901 F. Supp. 784 (D. Del. 1995) . . . . . . . . . . . . . . . . . 14, 18, 20 Freeman v. Pitts, 503 U.S. 467 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Keyes v. School Dist. No. 1, 609 F. Supp. 1491, 1515 and 1498 (D. Colo. 1985) .......................... 12-14, 19 Little Rock School District v. Pulaski County Special School District No. 1, 921 F.2d 1371 (8th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 LRSD vs. PCSSD, 971 F.2d 160 (8th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . 21 People Who Care v. Rockford Board of Education, 111 F.3d 528, 1997 U.S. App. LEXIS 7143 ............... 13, 15, 19, 20 Tasby v. Woolery, 869 F. Supp. 454 (N.D. Tex. 1994) . . . . . . . . . . . . . . . . . . . . 18 iii I I I I I I I I I I I I I I I I I I I COUNTERSTATEMENT OF ISSUES ON APPEAL I. Appellants' Issue No. 1 relates solely to the LRSD's incentive schools, and is not addressed by the PCS SD. II. WHETlIER THE DISTRICT COURT'S HANDLING OF THE JOSHUA INTERVENORS' REQUEST THAT THE ODM STAFF BE EXPANDED TO ALLOW INCREASED MONITORING WAS CONSISTENT WITH THE EARLIER MANDATES OF THIS COURT? LRSD v. PCSSD, 921 F.2d 1371 (8th Cir. 1990) LRSD v. PCSSD, 971 F.2d 160 (8th Cir. 1992) III. WHETHER THE DISTRICT COURT'S DENIAL OF THE JOSHUA INTERVENORS REQUEST THAT THE ODM STAFF BE EXPANDED SHOULD BE SET ASIDE AS AN ABUSE OF DISCRETION? Keyes v. School Dist. No. 1, 902 F. Supp. 1274 (D. Colo. 1995) Coalition to Save Our Children v. State Board of Education, (D. Del. 1995) Tasby v. Woolery. 869 F. Supp. 454 (N.D. Tex. 1994) 901 F. Supp. 784, IV. WHETHER THE DISTRICT COURT'S DENIAL OF THE JOSHUA INTERVENORS' MOTION SEEKING ODM MONITORING AT ROBINSON HIGH SCHOOL SHOULD BE AFFIRMED? LRSD v. PCSSD, 921 F.2d 1371 (8th Cir. 1990) lV I I I I I I I I I I I I I I I I I I I 1. STATEMENT OF THE CASE The ODM Budget On December 13, 1996, the Josh,1a Intervenors filed their objections to the ODM budget and requested additional ODM monitors based, primarily, upon a perceived need due to a racial "achievement gap" and purported racial disparity in discipline throughout the districts. J. App. 252. The district court, however, approved the ODM budget as submitted. J. Add. 17. This appeal followed notwithstanding testimony by court appointed experts, Dr. David Armor and Dr. Herbert Walberg, that the achievement gap is the result of socioeconomic factors rather than current discrimination, and that these same socioeconomic factors play a deciding role in disciplinary actions across the nation. LRSD App. 264, 451-52, 543-45. 1 2. The Robinson High School Motion Prior to the filing of the budget objections, the Joshua Intervenors, on November 1, 1996, filed their motion to request ODM monitoring of Robinson High School or, in the alternative, for PCSSD to show cause. J.App. 225. Paragraph 2 of the motion states: "Most of the complaints relate to the administration of the principal, Ralph Hoffman, and the apparent support he has been given by the Superintendent of Schools, Bobby Lester, and the Board of Education of the Pulaski County Special School District." J.App. 225. Mr. 1 PCSSD's appendix, submitted herewith, is cited as "PC App. 11 Some of the materials included therein were filed with the district court on July 2, 1997. See PC App. 107-09. The Joshua Intervenors' appendix is cited as "J.App. 11 , and the Little Rock School District's appendix as 11LRSD App. 11 I I Hoffman had previously been a principal in the Little Rock School District before becoming I principal at Robinson. Id. I I I I I I I I I I I I I I I I The PCSSD responded on November 26, 1996 stating that th~ Joshua lntervenors' motion was improper because: "It is, at bottom, primarily a complaint about one employee and therefore a personnel matter. By bringing its motion, Joshua has compromised the traditional steps to be taken in investigating and evaluating complaints concerning a single employee and they have effectively compromised the PCSSD's ability to appropriately and fairly respond to the allegations." J.App. 241-242. The PCSSD response continued at paragraph 8. Id. at 242. Indeed, it is Joshua who has compromised a personnel matter and which has precipitously and prematurely aired allegations which have not been fully investigated and for which it apparently has no documentary support, all as indicated in paragraph 11 of its motion. Thereafter, the District Court denied the Joshua Intervenors' motion (J. Add. 5-6) and stated in part that: "The Court considers the allegations against the principal at Robinson High School an individual personnel matter which should be dealt with by the PCSSD according to its own processes. However, the Court encourages the parties to continue using the resources of the ODM to assist in resolving this issue ." J.Add. 6. This appeal followed. During the pendency of the appeal, the ODM interceded at Robinson and ultimately issued its own report. PC App. 1-8. The PCSSD conducted its own investigation and followed its own written personnel policies. Mr. Hoffman resigned effective June 6, 1997 and is no longer employed by the PCSSD. PC App. 9. On June 10, 2 I I I I I I I I I I I I I I I I I I I 1997, the PCSSD appointed Mr. Herb Brooks, an African-American and long time principal at Fuller Junior High School, as the new Robinson principal. 3. The PCSSD Desegregation Plan Most of the issues alleged in the Joshua Intervenors' motion concern complaints about discipline and discipline related issues. (See generally, Joshua Motion beginning at J.App. 225.) The Joshua Appendix includes portions of the PCSSD Desegregation Plan. The Plan includes provisions, among others, that dictate the resolution of issues such as discipline. For instance, with regard to the Assistant Superintendent for Desegregation, the Court approved plan states: J.App. 322. J.App. 323. J.App. 325. The Assistant will work with all departments to establish procedural guidelines which provide that desegregation issues will be raised and resolved as appropriate both in system-wide planning and in each school building. With advice from legal counsel, and working through the Office of Desegregation, the Assistant Superintendent for Desegregation provides for the District's compliance with civil rights laws and court orders, and will see that the Office of Desegregation recommends corrective action as needed. The Office of Desegregation has worked, and will continue work, directly with principals to insure equity at the building level. It is further a function of the District's Office of Desegregation to include: Receiving, processing and preparing responses to civil rights inquiries, regardless of source, and preparing internal evaluations of operations or activities where discriminatory practices are alleged, which includes 3 I I I I I I I I I I I I I I I I I I I J.App. 325 reporting the results of the investigations to the supervisor of the operation or activity involved and to the Superintendent of Schools. The PCSSD Desegregation Plan further provides that: J.App. 380 Id. at 380. Disciplinary records are kept on each student concerning suspensions and expulsions that note the reasons for punishment, the teacher or staff member involved, and the school, race, and sex of the student disciplined. Collection and assessment of this information allows the school principal, parents, and others to analyze the reasons for suspension by race and sex, and to determine if particular teachers or staff members are experiencing problems that require attention. The Assistant Superintendent for Pupil Personnel Services shall submit a discipline report to the Superintendent, School Board and the Office of Desegregation at the end of each semester along with specific recommendations or suggestions for reducing the disproportionality. 4. The PCSSD Discipline Management System Among the goals set forth in the PCSSD Plan are the development of a "district-wide school-based discipline management system" . Id. at 312. This school based management system was to be developed with input from teachers, parents, and administrators. Id. On January 24, 1995, counsel for the District submitted to counsel for all of the other parties copies of the "Pulaski County Special School District Discipline Management System Manual" . PCSSD App. 10. Thereafter, the court having received no objections or comments, the Discipline Management Manual was filed with the District Court on February 15, 1995 pursuant to the Desegregation Plan. PC App. 11. 4 I I I I I I I I I I I I I I I I I I I Page one of the Discipline Management System sets forth information concerning the procedure that students and parents should utilize for the filing of grievances, which information could be obtained either from the principal or from the pupil personnel office. PC App. 13. Included in the introduction to the Discipline Management System are the following comments: PC App. 16. Few would argue that maintaining good discipline is a necessary precondition to establishing a school or classroom climate that is conducive to learning. That is a given. The real question is how to establish that discipline in such a way as to support learning and encourage growth in all the students. This presents no challenge to the teacher for 90 % of the students. The remaining ten percent of the students require more, not because they are bad or unteachable, but because they are growing up in a society that is more challenging than the socialization they receive. Also, they appear not to have the usual supports available to them (i.e., parental concern or support). As the society for which the children are being prepared becomes more complex, the percentage of children coming to school less than prepared for learning is bound to increase. It is a challenge that must be addressed. The major role of the school principal has changed from that of providing a place for teachers to teach to that of providing a climate for learning and an enthusiasm for the learning process. This includes creative attention to issues of discipline and a safe and orderly environment in the school and classroom. The manual goes on to state that: Despite all efforts at prevention, discipline problems inevitably occur. When a discipline problem does occur, the teacher needs to address the problem as quickly as possible. The first step is to implement the consequence associated with the rule violation as agreed to in the social contract. Being careful of nonverbal 5 I I I I I I I I I I I I I I I I I I I PC App. 21 . gestures and indicators, the consequence should be implemented quickly and without a great deal of fuss. When violations occur with great regularity, the class ought to be asked to assess the rule and see if something could be adjusted to reduce the number of occurrences. The manual is direct regarding the issue of suspension and expulsions: PC App. 22. Teachers are asked to explore and develop consequences that minimize the loss of school time for the student. Suspensions and expulsions should be considered only when every other avenue of correction has been exhausted, in keeping with the regulations established in the student handbook. This concept is reinforced elsewhere in the manual. PC App. 23. The campus administrators are asked to utilize the various levels of referrals to keep the student in school or to minimize the out-of-school time of the student short of expulsion. 5. PCSSD School-Based Discipline Management Program While the manual is a broad conceptual consensus outline developed by a biracial committee, the development of a discipline management program is individual for each campus: Each individual campus is encouraged to express its individual character in the development of the DMP. This manual expresses how the DMP should be organized. This version is offered as a model that seems to meet most of the goals set out for a discipline management plan. Under the leadership of the principal, each school community is expected to devise a plan that is uniquely theirs and that they can implement. It is expected to have a consensus of those involved in the planning process. It is also expected to address the mission of that school in regard to the discipline 6 I I I I I I I I I I I I I I I I I I I PC App. 27. management and how that school intends to carry out that mission with fairness and justice for all the students in its care. * * * The expectation of the campus DMP is that each year will bring about a decrease in the disparity between the white and black student populations in terms of disciplinary actions in that school. The data from school year 1994-1995 will be used as the benchmark in the evaluation of the impact of each campus DMP. Discipline-related data from the 1992-1993 school year is included in appendix 2. This data was used by the Discipline Management Committee to develop this document. The manual contains a procedure for assisting individual campuses whose progress lags behind those of other District campuses: PC App. 28. At the discretion of the Assistant Superintendent for Pupil Personnel Services and the Division of Instruction, a special team will be recruited from the staff of another school with similar problems which is making good progress. This team, under the supervision of the Assistant Superintendent for Pupil Personnel Services, will assist that staff in identifying the causes for the lack of progress and the ways these causes can be addressed. Toward the end of the manual, it is observed that: PC App. 32. The diversity of the school populations that the schools now serve requires the schools to rethink the issue of appropriate school behavior and to create a climate in which academic achievement can become a reality for all students. School appropriate behavior must be examined in light of the various cultural and racial groups comprising the school. Equity is an issue that must be considered in the conceptualization of alternative strategies. 7 I I I I I I I I I I I I I I I I I I I 6. The PCSSD Handbook for Student Conduct and Discipline The Joshua Intervenors, by their Robinson motion as well as their motion objecting to the ODM budget (and requesting additional OCM monitors), bypassed the procedures for challenging disciplinary action set forth in the PCSSD Handbook for Student Conduct and Discipline (the "Handbook"). PC App. 67-74. The Handbook, the reading of which must be acknowledged in writing by each student and his or her parent or guardian, (PC App. 68), provides two distinct grievance procedures: (1) those related to a student or parent filing a grievance under the desegregation policy set forth in the Handbook (PC App. 71); and (2) a complaint procedure for students or parents when a student is involved in a disciplinary ruling. PC App. 72. The Joshua Intervenors, however, did not utilize these procedures and filed their motion directly with the district court requesting relief. Joshua never employed the PCSSD's policy and procedures as set forth in the Handbook. 7. The "Suspension Index" for Assessing Discipline Outcomes A general "suspension index" has been developed by Dr. Charles Achilles, who served as an expert witness in the Wilmington, Delaware case and whose methodology was endorsed by Dr. Walberg in this case. (LRSD App. 373-375, 381-384). The index allows comparison of one district's suspension rate for minorities to other districts and to the national average. The PCSSD's index and Robinson's are both lower than the nationwide index of 2.0. The suspension indices for the past five years for the PCSSD system-wide have decreased from 1. 77 to 1.45 and for Robinson alone, have ranged from 1.88 to 1.35 for 8 I I I I I I I I I I I I I I I I I I I the same years.2 These indices are lower than those of school districts which have achieved unitary status. SUMMARY OF ARGUMENT The Joshua Intervenors have appealed a number of rulings of the district court, to wit, the court's approval of the ODM budget and denial of their motion relating to Robinson High School. The Joshua Intervenors complain that their objections to the ODM budget were not properly considered, and that their request for additional ODM monitors should have been granted. The purported bases for their objections and requests are the "achievement gap" between white and minority students, and the alleged racial disparity in disciplinary treatment of minority students. Neither bases, however, withstands scrutiny. The testimony of experts appointed by the court in this case, and similar testimony in other cases where school districts have achieved unitary status, show that socioeconomic factors rather than current discrimination are the real reason why school children achieve at different rates and why some children are disciplined. In accepting this testimony, federal courts have found that, notwithstanding racial disparities, a school district may be in good faith compliance with its desegregation plan. Accordingly, the district court did not abuse its discretion in approving the ODM budget over the objections of the Joshua Intervenors. The Joshua Intervenors also challenge the district court's denial of their motion for ODM monitoring of Robinson High School. The court's denial, however, was soundly based 2 See nn. 6 & 9, infra. 9 I I I I I I I I I I I I I I I I I I I upon a finding that Joshua was complaining about an individual personnel matter which should be left to the district to deal with according to its policies and procedures. The principal al:lout whom the Joshua Intervenors complained, in fact, resigned after the PCSSD was allowed to carry out its own business. Additionally, ODM did monitor Robinson High School and made recommendations to the administration and the school community. In essence, the Joshua lntervenors' motion and appeal are moot but, in any event, the district court did not err in denying their motion. ARGUMENT The focus of a District Court charged with monitoring implementation of a comprehensive remedial desegregation decree must be, as explained more fully infra, on the proper system-wide implementation of the components of the decree. Particularly when the decree, or in this instance the agreed Plans, contain discrete due process provisions for resolution of individual complaints or concerns, the District Court should have no reason to involve itself in individual student or patron complaints, or individual personnel matters, when the institutional process already exists to deal with those. Indeed, in any large institutional setting, there will always be some concern or outcome disagreement even if a remedial device, such as the Desegregation Plans agreed upon here, are implemented not only in good faith but even with near precision. For these and other reasons set forth below, the District Court's orders were correct and should be sustained. By their appeal, the Joshua lntervenors take issue with a number of the district court's orders, including (i) treatment of their requests for additional ODM monitors and objections 10 I I I I I I I I I I I I I I I I I I I to the ODM Budget and (ii) denial of the Robinson motion. In support of their argument that the orders should be reversed, tbey point this Court to a number of "facts" which the district court either allegedly ignorrc or misinterpreted.3 Included are allegations of discriminatory treatment of black students in certain areas, primarily discipline, both systemwide and at PCSSD's Robinson High School, allegations which Joshua lays predominantly at the feet of the now resigned principal, Mr. Hoffman. J. App. 225. I. THE DISTRICT COURT PROPERLY APPROVED THE ODM BUDGET NOTWITHSTANDING THE JOSHUA INTERVENORS' OBJECTIONS This Court, in approving the Desegregation Plan in 1990, noted that it was the "duty of the court, when fashioning a comprehensive remedy, to prescribe a level of relief . . . that will achieve integration to the maximum practicable extent. " Little Rock School District v. Pulaski County Special School District No. 1, 921 F.2d 1371, 1384 (8th Cir. 1990). That is what has been done here, and the PCSSD has implemented the remedy, the Desegregation Plan, as well as the Discipline Management System required by the Desegregation Plan. The problem, however, is that the Joshua Intervenors do not look to whether the plan has been implemented, achieving integration to the maximum practicable extent; rather, they focus not on implementation but outcomes which are not legally required. The Joshua lntervenors must recognize, as have courts in other jurisdictions when faced with 3 Some of these "facts" bear little or no relationship to the Joshua Intervenors' requests or objections. For present purposes, and given the nature of the record submitted by Joshua with this appeal, it is impossible for the PCSSD to refute the discrete individual allegations made concerning individual students. However, as we explain infra, under the law it is unnecessary for the PCSSD to do this. 11 I I I I I I I I I I I I I I I I I I I unreasonable expectations, that a desegregation plan cannot cure all of societies' ills, nor is it designed to do so: [T]here is nothing in the law which does or couk require equality in the results of educational services. . . . No school policy and no court order can assure any particular level of success in public schools any more than in any other aspect of life. Individual students will flunk, become disciplinary problems, drop out or otherwise fail to meet expectations for reasons wholly unrelated to race, ethnicity, and environment. Keyes v. School Dist. No. 1, 609 F. Supp. 1491, 1515 and 1498 (D. Colo. 1985)("Keyes XIV")4. Thus, the Joshua Intervenors' objections to the ODM budget and the concomitant request for additional ODM monitors -- based upon their complaints concerning achievement gaps and allegedly racially disparate disciplinary actions -- were properly considered; the district court, however, did not err in approving the budget over the objections. As discussed below, a number of school districts nationwide have been granted unitary status in the face of less achievement under a desegregation plan than that exhibited by the PCSSD. Indeed, they were granted unitary status where there was an adjudication of liability, but where any disparities were found to be, not the vestiges of dual systems but, rather, of outside factors. Here, the PCSSD was released in 1989, pursuant to the PCSSD Settlement Agreement, from all liability for issues which had been raised, or which could have been raised. The Joshua Intervenors specifically agreed that there would be no further litigation other than proceedings to enforce the terms of the settlement agreement or of the Desegregation Plans. PC App. 75-79. Thus, the PCSSD's obligations were only forward 4 For a complete procedural history of the Keyes litigation, see Keyes v. School Dist. No. 1, 902 F. Supp. 1274, n.1 (D. Colo. 1995). 12 I I I I I I I I I I I I I I I I I I I looking, and it has fully complied with its obligations to the Joshua Intervenors and to the children it educates -- both minority and white -- to desegregate its school district according to Plan. A. The Joshua Intervenors Complaints Regarding Racial Disparities in Discipline Rates While there may, indeed, be statistical racial disparities in discipline rates, such disparities do not mean that the PCSSD has not properly implemented the Desegregation Plan. Indeed, other school districts across the country have achieved unitary status in the face of greater statistical disparities. 5 For example, in Keyes v. School Dist. No. 1, 902 F. Supp. 1274 (D. Colo. 1995), the court granted the Denver school district's motion to terminate jurisdiction in a longstanding desegregation case. It did so notwithstanding statistical racial disparities in discipline rates, noting that these differences -- among others -- are longstanding and seemingly intractable, but the mere existence of such differences does not identify them as 5 As noted by Judge Posner in People Who Care v. Rockford Board of Education, 111 F.3d 528, _, 1997 U.S. App. LEXIS 7143 at *18 (7th Cir. 1996), "[a]ffirmative decrees are a formula for protraction." Recent Supreme Court decisions, however, have provided new guidance for the district courts in bringing school desegregation cases to a close. See, ~. Freeman v. Pitts, 503 U.S. 467 (1992)(the district court's duties in the final phases of a desegregation case are to determine whether there has been compliance with the desegregation decree since it was entered and whether the vestiges of past discrimination were eliminated to the extent practicable). The constitutional authority of the federal courts does not include the power to posit any particular affirmative achievements. While the PCSSD relies upon the consistent outcomes of other significant desegregation cases across the nation, this Court should not interpret such reliance as any lack of resolve or commitment of the PCSSD to continue implementation of its Plan and to realize the best desegregation outcomes attainable, whether or not legally required. 13 I I I I I I I I I I I I I I I I I I I vestiges of the prior dual system. "There are too many variables, including societal and socio-economic facts, to infer causation from prior unconstitutional conduct." Id. at 1300. Similarly, in Coaliti.on to Save Our Children v. State Board of Education, 901 F. Supp. 784, 817 and n.38 (D. Del. 1995), the Delaware district court, granting unitary status to the Wilmington, Delaware school districts, found that the disciplinary codes were not applied in a discriminatory manner and expressly rejected as "skewed" any statistics "which do not account for the fact that a small core of students account for a large percentage of the disciplinary instances, i.e., the fact that black students may account for a greater proportion of suspensions than their proportion in the general student population is essentially meaningless if only a handful of black students is responsible for multiple suspensions." In Coalition, Dr. Charles Achilles, an expert, employed "suspension indices" accepted by the district court to test whether discipline was disproportionately applied to black students. He compared those numbers with the suspension data from the 1993 Office for Civil Rights data, and determined that the national suspension index for black students is 2.0, whereas the Wilmington black suspension index was 1.81.6 901 F. Supp. at 817. Applying Dr. Achilles' methodology, and using the 1995-96 suspension data for the PCSSD, the PCSSD has a suspension index of 1.45, well below either the Wilmington schools or the 6 The "suspension index" for black students is derived by dividing the percentage of black students suspended by the percentage of black enrollment. Dr. Achilles also looked at external data sets (i.e., the behavior of black students outside the districts, independent of the school districts). He also checked "consistency" to determine if the behaviors and the suspensions seemed to be consistent and, finally, he tested the "discretion of the person in charge of the discipline" to see whether discretion influenced the suspension indices. 901 F. Supp. at 817. 14 I I I I I I I I I I I I I I I I I I I national norm. Indeed, its index has been well below the national norm for the past five years. 7 Most recently, the Seventh Circuit, in ruling !U response to nine consolidated appeals, found racial disciplinary quotas to violate equity "in its root sense." Commenting in the quota context, but fully applicable to the statistical complaints of the Joshua Intervenors here, the court stated: They entail either systematically overpunishing the innocent or systematically underpunishing the guilty. They place race at war with justice. People Who Care v. Rockford Board of Education, 111 F.3d 528, _, 1997 U.S. App. LEXIS 7143 at *33. The incidents touted by the Joshua Intervenors are selective with respect to certain schools and certain individual students, and do not reflect the PCSSD's systemwide good faith compliance with the disciplinary provision of the Desegregation Plan. Indeed, the Pupil Personnel Annual Report Summaries indicate that for the past few years, disciplinary actions 7 Using Dr. Achille's formula of dividing the percentage of minority suspensions by the percentage of minority enrollment, the PCSSD has calculated the following system-wide suspension indices: 1995-96: 1994-95: 1993-94: 1992-93: 1991-92: 48 % minority suspensions + 33 % minority enrollment = 1.45 48% minority suspensions + 31 % minority enrollment = 1.55 51 % minority suspensions + 30 % minority enrollment = 1. 70 49 % minority suspensions + 29 % minority enrollment = 1. 69 48 % minority suspensions + 27 % minority enrollment = 1. 77 Utilizing PC App. 80-99. 15 I I I I