Court filings: District Court, Joshua intervenors' opposition to the Pulaski County Special School District (PCSSD) petition for release from federal court jurisdiction

The transcript for this item was created using Optical Character Recognition (OCR) and may contain some errors. FILE6 U.S. DISTRICT COURT EASTERN DISTRICT ARKANSAS IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT, ET AL. V. NO. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MRS. LORENE JOSHUA, ET AL. DEC 4 1gg7 [)gC O 2 1997 DEFENDANTS INT ERVEN ORS KATHERINE W. KNIGHT, ET AL. UJ:il~Of INTERVENORS ~ ION MONITORING The Joshua Intervenors' Opposition to the PCSSD Petition for Release From Federal court Jurisdiction A. Introduction The PCSSD has moved for a declaration of "unitary status" and the system's "release from further court supervision." Petit., October 14, 1997, at 1. Subsequent to the filing of the motion, _this court scheduled the matter for a hearing beginning on March 23, 1998. This memorandum discusses the standards applicable to the PCSSD motion and the showings made by the PCSSD regarding various elements of the system. In brief, the PCSSD errs with regard to the governing standards; moreover, if the district's presentation during the hearing mirrors the one made in the petition, the PCSSD will not be entitled to the relief sought. Indeed, the deficiencies of the Petition are such that it is appropriate to rescind the notice of a hearing and to deny the motion as was done in the case of a more detailed motion for termination of jurisdiction filed by the LRSD. See Mem. Opin. and 1 Order, Sept. 23, 1996, at 9-12. Consideration and resolution of the petition requires the parties and the court to address at least four areas: first, there is a need to designate the standards which identify both the areas of the system's operation to be evaluated and the criteria for the evaluations; second, there is a need to identify the extent (or degree) of compliance to be required in each area before jurisdiction is relinquished; third, there is a need to identify the party having the burden of proof to establish the requisite degree of compliance (or noncompliance); and fourth, there is a need to apply the foregoing principles. Intervenors' response addresses each area. A 14-page Attachment to this memorandum quotes many key elements of the desegregation plan of the PCSSD (April 1992) and the Interdistrict Plan {April 1992). These plans, we argue, rather than the so-called Green factors, as such, must be the focal point in the resolution of the PCSSD motion. To facilitate analysis of the issues presented by the petition, the Attachment clusters the provisions of the two plans by topic, rather than simply by page number. The Attachment is cited throughout this memorandum. The Joshua Intervenors argue below that the PCSSD has the burden of establishing a basis for the termination of supervision 2 in each area. However, ,intervenors do plan to undertake extensive discovery regarding compliance with the plans in the PCSSD. B. The Governing standards (1.) The Terms of the Plans Provide the Substantive standards for Evaluating the operation of the Pesso The PCCSD focuses upon the six areas mentioned by the supreme Court in Green v, county School Board, 391 u.s. 430, 435 (1968). See, for example, Petition at 4-5; 7-34. 1 In contrast, there is but a single, general reference to the Interdistrict Plan (Petit. at 7) and almost all of the small number of references to the 1992 PCSSD desegregation plan are in the form of terse assertions, without page citations. Ig. at 7, 9, 31, 33- 37; but see .ig. at 11 (single reference to page number in the plan). The citations to the significant provisions of the 1992 - PCSSD and Interdistrict Plans are obviously incomplete, as a reading of the Attachment shows. Moreover, the PCSSD approach is out of focus. Scores of rulings of the Court of Appeals for the Eighth Circuit and this court establish that the settlement plans, approved by this court by Order of May 1, 1992, must be the focal point in resolving the motion. 2 Intervenors next cite 1 In Green, the Supreme Court wrote in part: "Racial identification of the system's schools was complete, extending not just to the composition of student bodies at the two schools but to every facet of school operations -- faculty, staff, transportation, extracurricular activities and facilities" (at 435). 2 Indeed, the PCSSD recognizes this, in effect, by the very last part of its brief requesting this court to retain jurisdiction until "enforcement of the Settlement Agreement" is complete. Petit. at 44 n.5. See also LRSP y. PCSSD, 83 F.3d 1013, 1017, 1019 (8th Cir. 1996) (in appeal involving state payments 3 examples evidencing this aspect of "the law of the case." In the oft-cited December 1990 opinion, the Court of Appeals directed this court to approve the "settlement plans and settlement agreement as submitted by the parties." LRSP v. PCSSD, 921 F.2d 1371, 1376. The court stated that it was "important for the settlement plans to be scrupulously adhered to ... " (.i.g. at 1386) and alluded, similarly, to the parties' "scrupulously and diligently carry[ing] out the settlement plans and the settlement agreement .... 11 .Ig. at 1394. Lastly, the court "instructed" this court "to monitor closely the compliance of the parties with the settlement plans and the settlement agreement, [and] to take whatever action is appropriate, in its discretion, to ensure compliance with the plans and the agreement .... " .Ig. at 1394, para. 8; emphasis added. The appellate court in 1991 set forth standards governing modifications to the settlement documents. It stated that "[t]he 1989 settlement ... should indeed be a benchmark for the future path of this case." Appeal of Little Rock school District, 949 F.2d 253, 255; emphasis added. The court wrote that "[t]he desegregation obligations undertaken in the 1989 plan are solemn and binding commitments. The essence and core of that plan should not be disturbed." I.g. at 256. Lastly, the court identified "crucial" "elements of the 1989 plan" "with respect to which no retreat should be approved." .Ig. These include "the agreed effort for workers' compensation claims and other matters, .court twice notes that PCSSD and LRSD .base their arguments on the terms of the Settlement Agreement). 4 to eliminate achievemel'}t disparity between the races" and "appropriate involvement of parents." .Ig. 3 Other pertinent guidance appears in the Court of Appeals' opinion concerning the PCSSD teacher strike issue. There, the court wrote that "[t]he job of [this court] is to enforce the settlement agreement." Knight v. PCSSD, 112 F.3d 953, 954. The court added: "Because this case has been settled, the settlement agreement becomes, in a sense, a particularization of federal law applicable to these parties." .Ig. at 955. Two examples from this court's many rulings support the Joshua Intervenors' contention that the court-approved settlement documents provide, with regard to substantive terms, the "benchmark [at this stage] of this case." As previously noted, this court in a lengthy May, 1992 order, containing no reference to Green, approved the various desegregation plans, as modified.' The court's understanding of the significance of the plan provisions emerges from the following excerpt from that ruling. Special Education (PCSSD) .... While the Court approves the addition of new language regarding the relationship between social 3 It is noteworthy that the seven elements as set forth by the court are a combination of activities designed to attain an objective (or goal) and objectives\goals. 'This action rendered the defendants subject to the possibility of a contempt sanction for the violation of a plan provision containing specific obligations. See Transcript of hearing of July 6, 1995, at 176-77 (court refers to then pending hearing on intervenors' motion to hold officials of the LRSD in contempt for plan violations). 5 deprivation and disproportionality in special education, the original language regarding long-range goals must remain in order for the Court to monitor progress toward the goal of reducing achievement disparity between the races and reducing over representation of black students in special education classes. [Order, 5-1-92 at 7-8] This court's decision of September 23, 1996, denying a similar motion of the LRSD "to end federal court jurisdiction," is also noteworthy. The court first addressed an LRSD contention that its commitment to implement "the desegregation plan" was limited to a six year period, assuming adequate implementation. The court rejected this contention, noting that "[t]he LRSD ... cites no provision that its duty to comply with the settlement plans ends after six years, and the Court cannot find such a provision in the settlement plans. 11 At 11.; emphasis added. This court then quoted the portion of the decision in Appeal of Little Rock School District setting forth the "crucial" elements of the settlements, 949 F.2d at 256, and described the predicate for any termination of federal court jurisdiction, as follows. The LRSD asserts in its pleadings that it has substantially complied with its desegregation goals. In order to end federal court jurisdiction, the LRSD must provide evidence that it has substantially complied with the aforementioned elements insofar as they obligate the LRSD. Reports of ODM and other evidence received in hearings in this matter reflect that the LRSD has fallen short of its goals with respect to many aspects of the plan. Instead of presenting substantial evidence of its compliance with its goals as set forth in the plan, the LRSD submits arguments that it has achieved unitary status because data from the LRSD compares favorably with data from other districts which have been declared unitary. The Court would be inclined to .agree with the LRSD with respect to many of these arguments if the LRSD were not contractually bound by the plan which it voluntarily adopted. 6 The Court has encouraged the parties to consider modifying those parts of the plan that are ineffective or unworkable. The court has provided the parties with the testimony of experts to assist in the modification process. Instead, the LRSD has used the testimony of these experts to ask the court to end court jurisdiction without first proceeding with plan modifications. The Court cannot so easily relieve the district of its contractual obligations, [At 11-12; emphasis added] These comments establish in this very context the centrality of the plan provisions to which the PCSSD voluntarily agreed. Three other arguments made by the PCSSD warrant responses. The PCSSD seems to argue that at this advanced stage of the remedial phase of the case, the parties and the court can return to the PCSSD's view of the scope of the liability findings as set forth by the Court of Appeals prior to the parties voluntarily agreements. Petit. at 2-3, 6-7. As intervenors have shown, this approach involves a head on collision with much law of the case at this and the appellate level. This court, we respectfully suggest, can not set aside the many rulings of the court of Appeals for the Eighth Circuit, necessary to adopt this approach. The PCSSD seems to argue that the fact that the Delaware case involved eight particular "ancillary factors" means that those factors are properly a focal point in this case. Petit. at 34. This approach is unsound. Relief regarding those factors was identified as necessary, and ordered, to support the desegregation remedy in the particular circumstances of that case. coalition to save our Children Y, Board of Education, 90 F.3d 752, 757, 769 (3rd cir. 1996). This case has its own 7 ,. decrees, entered largely by consent. The decisions of the court of appeals and this court establish, in accord with the general rule, that these decrees, in this case, provide the "benchmark" for measuring compliance by the officers and agents of the PCSSD. Finally, intervenors note other efforts to elevate substantive standards employed in other cases above the specific remedial steps and goals agreed to by the PCSSD in this litigation. Petit. at 1, 25, 31, 35-36, 38-41. However, none of these other cases involved a consent decree, much less one with the terms extant in this litigation. 2. The Degree of Compliance to Be Required in Each Area Prior to the court's Relinquishing Jurisdiction a. The Appropriate source of Legal Principles The parties, as has been noted, agreed in the PCSSD and - Interdistrict Plans to terms governing the operation of many aspects of the educational program afforded in the PCSSD. the parties' agreement also allowed "[this court] to retain jurisdiction to oversee ... [the] implementation (of the agreements]." LRSD, supra, 921 F.2d at 1390. The parties' agreements did not, however, address the standards and procedures for the termination of court jurisdiction in any particular area, including the standards delineating the degree or extent of compliance to be required in an area prior to the termination of jurisdiction. As to these matters not addressed in the agreements, it is the position of the Joshua Intervenors that the standards normally govern~ng the termination of jurisdiction in a particular area, described below, are applicable. 8 In the first place, there is no reason to believe that the plans provided for endless court jurisdiction. The system, as shown by the current motion, would not desire such jurisdiction. More significantly, by 1989 the courts had decided that perpetual jurisdiction would be inappropriate. For example, in Freeman v . Pitts, 118 L.Ed.2d 108, 132-33 (1992), the court described the 1976 decision in Pasadena city Board of Educ. v. Spangler, 427 U.S. 424. It noted the rationale of Spangler that a federal court in a school desegregation case has the discretion to order an incremental or partial withdrawal of its supervision and control. In resolving the teacher strike issue, the Court of Appeals identified the sources of law applicable in this case. Knight. supra, 112 F.3d at 954. The court referred to the settlement agreement, "reasonable implication therefrom," and "other applicable law." ,lg. Each of the latter sources of law supports the approach taken by intervenors. As the parties agreed to continued jurisdiction of the district court in traditional terms, 5 it is reasonable, absent explicit terms, to imply traditional terms to govern the court's exercise of that jurisdiction, when addressing the matter of termination of jurisdiction. With the parties silent on the matter, it seems eminently reasonable to draw upon the body of law normally utilized by courts considering the termination of jurisdiction, 5 compare Brown y. Board of Education, 349 u.s. 294, 299-301 (1955) with LRSD. supra, 921 F.2d at 1390. 9 namely, "other applicable law."6 Two other factors buttress this approach. First, when the parties addressed the end of court supervision in some areas, they cited the principles set forth in Freeman y, Pitts. supra, a decision focusing on the termination of jurisdiction. See "Stipulation for Order," Feb. 9, 1996. Second, when dealing with matters outside the substantive terms of t he agreements, the Court of Appeals has described this court's authority in traditional terms. LRSD y, PCSSD. supra, 921 F.2d at 1394, paras. 8., 9.; Appeal of LRSD. supra, 949 F.2d at 257 (nature of continuing jurisdiction), .ig. at 258 (standard for considering modifications). 7 6 These approaches reach the same result in different ways. In the first instance, intervenors suggest that the traditional concepts be viewed, by implication, as part of the agreement. In the second approach, intervenors argue, in effect, that the agreements are supreme as far as they go, with this court, which retains jurisdiction, supplementing the agreements, in areas not addressed, by reference to the traditional principles. See Restatement of contracts. second. sec. 204 ("Supplying an omitted Essential Term") ("When the parties to a bargain sufficiently defined to be a contract have not agreed with respect to a term which is essential to a determination of their rights and duties, a term which is reasonable in the circumstances is supplied by the court.") 7 See also LRSP y, PCSSP, 56 F.3d 904, 914 (8th Cir. 1995) (traditional standard employed in considering modification of LRSD plan); LRSP Y, Arkansas, Slip Opin., Oct. 14, 1997, at 3-5 (propriety of reliance on a federal statute, 42 u.s.c. Sec. 1988, as to the availability of 'a fee award, an area like this one, not addressed in the agreements between the PCSSD and other parties). 10 b. The standard for Evaluating the Degree of compliance The Supreme Court set forth the standard for evaluating the extent of compliance in a school district seeking release from court jurisdiction in Freeman v, Pitts. supra, 118 L.Ed.2d at 134-35. The Court wrote, in part (emphasis added): .... Among the factors which must inform the sound discretion of the court in ordering partial withdrawal are the following: whether there has been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn; .. [J 'The District court should address itself to whether the Board [hasJ complied in good faith with the desegregation decree since it was entered. and whether the vestiges of past discrimination [have] been eliminated to the extent practicable.' Board of Educ, of Oklahoma city v. Dowell, 498 U.S. ----(1991). see also Jenkins v, Missouri, 122 F.3d 588, 595-96 (8th cir. 1997) (quoting the foregoing portion of the Freeman decision); ,id. at 599 ("As to the facilities factor, the district court found that certain court-ordered renovations remain to be completed. 959 F.Supp. at 1168. The district court did not err in requiring the terms of the court's decree to be completely fulfilled before relinquishing the ability to enforce compliance with the decree."); Pasadena city Board of Education y. Spangler. supra, 4271J.S. at 436, emphasis added (alluding to "dispute as to the [district's] compliance with those portions of the plan specifying procedures for hiring and promoting teachers and administrators"). The Joshua Intervenors relate these standards to the motion as follows. on the issue of degree of compliance, scrutiny must be given to two matters in each area addressed by the plans. 11 These are whether the ~CSSD has fully implemented, absent impossibility or the like, the various activities which it pledged to carry out to achieve objectives in that area .a.rul whether the configuration or make-up of students or staff, or the other target of the remedies, in that area, evidences achievement of the goals or objectives of the plans to the extent practicable. 3. The Burden of Proof Regarding Each Area In the Plans The matter of which party has the burden of proof regarding the areas of the system as to which the termination of court supervision is sought is another area not addressed by the parties' agreements. Based upon the same analysis, intervenors contend that the normal standards governing burden of proof in this phase of a school desegregation case apply. Under these standards, we submit, the PCSSD has the burden of proof to establish full compliance with the various steps set forth in the plans and to show that the plan goals have been fulfilled to the extent practicable. 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 Wedo not suggest that these areas be viewed in isolation. The status of the activities is most important where the configuration of students or staff, as relevant, continues to reflect a racial pattern. '"The school district bears the burden of showing that any current imbalance is not traceable, in a proximate way, to the prior violation." 12 United States Y, Fordice, 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 2486, at 275 (3d Ed 1940)." See 413 U.S. at 209. -The court then cited several situations in which considerations of "policy and fairness" had 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. 13 been held to support a requirement that school authorities explain actions or conditions. See 413 U.S. at 209-10. Considerations of "policy and fairness" warrant allocating to PCSSD the burden of showing compliance with the terms of the settlement before the termination of the court's jurisdiction. The school district obviously has superior access to personnel and data, as well as greater resources, in. terms of personnel, to compile materials. The district's counsel, through its highest administrators, can request the lead personnel in each area to compile data and materials, if any there be, designed to show that the specified remedial steps have been undertaken and that goals have been attained to the extent practicable. This court seemingly adopted this approach when ruling on the earlier LRSD motion. It referred to the LRSD "provid[ing] evidence that it has substantially complied and Order, May 1, 1992, at 11. 11 Mem. Opin. The PCCSD acknowledges having the burden of proof on the so-called Green factors. Petit. at 37. However, based upon its reading of the decision in the Delaware case, coalition to Saye Our Children. supra, the PCSSD argues that the burden of proof rests with the Joshua Intervenors as to any other areas where the relinquishment of jurisdiction is opposed. Petit. at 37-38. This argument is based upon an erroneous interpretation of the Delaware decision and again ignores the content of the courtapproved agreements in this case. The opinion in the coalition case discusses three areas of 14 district operations. These are the areas covered by the so-called Green factors (90 F.3d at 761-69, 776); eight so-called "ancillary factors, as to which a "1978 order of [the] court required the implementation of eight specific programs ancillary to the 9-3 pupil assignment plan" (at 769-76); and "certain performance disparities" in the areas of achievement, special education and dropout rates, neither among the Green factors, nor covered "in the ancillary relief order ... ".Ig. at 776. With regard to burden of proof as to termination of court supervision, the appellate court wrote: "We emphasize that here we are not discussing the burden of proving compliance with the Green factors or the 1978 Order, as to which the school districts acknowledge bearing the evidentiary burden. Our discussion here, and our allocation of the burden of proof to [the Coalition] is limited to the issue of proving that the identified performance disparities are vestiges of de jure segregation." Ig. Thus, in the Coalition case, the court allocated the burden of proof to the plaintiffs only in areas not covered by a court order. Here, in contrast, the Joshua Intervenors' concerns, in their entirety, including as to achievement and special education, involve activities addressed in detail in the agreements, which the district has been ordered to implement, by reason of this court's approval of the plans. In sum, the Coalition decision is supportive of the intervenors' approach regarding burden of proof. 15 1 ' I i :1 c. Application of the Governing Standards to the Areas Addressed by the Plans, Including but Not Limited to Those Addressed in the Pesso Petition The Joshua Intervenors next discuss the various areas of the operation of the PCSSD which are addressed in the Petition. In keeping with the controlling legal standards, intervenors focus upon the specific activities which the PCSSD promised to undertake in the agreements, as well as th.e stated goals (objectives). Comments are made about the statistics presented (or not presented) in some instances. 12 Lastly, as appropriate, intervenors note distinguishing factors regarding the decisions cited by the PCSSD. 1. The Assignment of students. Including within Schools The PCSSD submits data on student enrollment, by school, - which is impressive, when considered in isolation. However, the system's showing in this area is incomplete for several reasons. 13 First. The petition is silent as to the plans of the PCSSD regarding student assignment, if supervision in this area is ended. One basis for jurisdiction to continue in an area is when this "is necessary or practicable to achieve compliance with the 12 The PCSSD approach regarding statistical data varies. There is at times data by school; at times aggregated data, not showing the pattern by school; and at times no data. 13 Intervenors note ODM's conclusion, based upon its interpretation of the agreement, that in 1996-97, eight elementary schools and two secondary schools in the PCSSD "[fell] outside the target for racial balance." see 1996-97 Erollment and Racial Balance in the LRSD and the PCSSD, ODM, Dec. 18, 1996, at 13, 14. 16 decree in other facets of the school system; -" Freeman v. Pitts. supra, 118 L.Ed.2d at 135. Based upon the content of the plans, intervenors raise concerns infra about access to programs and the quality of school facilities available to class members. Intervenors and the court need to be informed about PCSSD's future plans for student assignment to know how they interact with these, and possibly other areas. 14 Second. The total failure of the petition to discuss the topic of the assignment of class members within schools is a major shortcoming. This issue is not the subject of either text, or statistics. In its 1990 decision, the Court of Appeals alluded to comments made by the intervenors' lead counsel, as follows: "As one of the counsel for the Joshua Intervenors wisely remarked - during the oral argument, it is important which schools students attend, but it is also important what kind of education they receive after they get there. LRSD. supra, 921 F.2d at 1385. The PCSSD desegregation plan contains considerable content regarding assignment within schools. It addresses "classroom racial balance"; "ability grouping," including its possible elimination; talented and gifted programs, including at the 14 In the Interdistrict Plan, the PCSSD agreed to cooperative efforts with the LRSD with regard to interdistrict schools (in both districts) and magnet schools (in the LRSD). Attach. at 11. The case file shows that the LRSD is not seeking the termination of jurisdiction at this time. The court and the intervenors need to know the PCSSD's future plans regarding the magnet and interdistrict schools, in particular, to assess the impact on the LRSD plan. The fact that three school districts joined in agreements may ~ead to the need to craft some special rules at the time when the limiting of the court's jurisdiction is proposed. 17 secondary level; "honors and advanced placement courses"; and "advanced core curriculum courses." Attach. at 11-14. The plans provide for the gathering of data, the identification of any problems, and the crafting of solutions, if need be. Attach. at 6 I 12 We do not suggest that the PCSSD must provide a novel-length explanation of its implementation of the plan and the current configuration in each of these areas. However, to meet its burden, the PCSSD should be able to provide some statistical data, by school and race, as well as evidence of its carrying out of the specified activities. Citations to documents generated over time would often allow verification of the assertions made, if verification is possible. Failing such an approach in this and other areas, there is no guarantee that the plan provisions have been more than simply verbiage. 2. Transportation The resolution of this area must await resolution of the student assignment area. In the absence of information about future plans as to assignment to schools and data about access to enriched programs, one must speculate to address this area. 3. Personnel. Including Qualifications The Petition sets forth data regarding three areas. These are "certified secondary staffing" (by school but without a breakdown by category), "principals and assistant principals" (aggregate data), and "central office." At 17-30. While the results cited are clear1y positive in nature, they do not in view 18 . - of the full sweep of the commitments undertaken (Attachment at 9-10) warrant the relinquishment of jurisdiction. The existence of these commitments also distinguishes this case from others to which the PCSSD alludes. Petit. at 25. The PCSSD pledged that "[a]enrollment levels of the organization will reflect a desegregated staff .... 11 Attach. at 9. The shortcomings in the PCSSD presentation are as follows: First. Data for certified staff should be provided by category, by school, so that it is possible to determine the extent to which black and white pupils are exposed to black faculty members, the staff members with whom students spend the majority of the school day. Second. The plan provides that the PCSSD "shall staff each school with at least one minority administrator 11 Attach. at 10. The petition identifies, for 1996-97, 33 black principals and assistant principals and 37 schools. At 11-13, 27. Therefore, there is a need for a chart showing the number of administrators by school and by race to allow evaluation of the fulfillment of this objective. Third. The plan pledged efforts to desegregate several categories of staff, for which no data is now provided. These are "support staff"; the "Special Education Department"; "facilitator" in the Talented and Gifted Program; and "coaches and band directors." Attach. at 9-10. Inclusion is important in each of these areas. For example, the support staff are often the first staff members to greet parents. Their make-up, therefore, 19 . - seems related to the central goal of promoting parental involvement. Data for these areas should allow a determination of whether there has been any progress over time. Fourth. The PCSSD made promises regarding staff qualifications, generally, and, in schools offering the compensatory program. The latter pledges were more specific. Attach. at 10. This area, an important one_ in a plan emphasizing educational quality and the narrowing of the achievement gap, is ignored. 4. co-curricular and Extracurricular Activities The PCSSD voluntarily agreed to more than three pages of provisions concerning these areas. Plan at 68-69, 76-77; ID Plan at 6; see also Attach. at 4-5. Under the law of the case, - citation to decisions dealing with systems without such commitments does not suffice to establish a basis for termination of the court's role. Intervenors note the following specific shortcomings in the presentation on this topic: First. The PCSSD has yet to submit the promised supplementation in the "co-curricular" realm. Petit. at 33. As the plan provides for a goal for each school (Attach. at 4), the data should be school-based. The providing of data for more than one year, as was done in the case of certified staff, will be necessary to permit a determination of whether any progress has been made over time. Should the data show "minority underrepresentation" in the past, the PCSSD should provide 20 ,. evidence that the affirmative steps promised by the plan (Attac