Court filings: District Court, memorandum brief in support of motion for an immediate declaration of unitary status; District Court, exhibits one through three from memorandum brief

This transcript was create 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 DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF v. LR-C-82-866 RECEIVED PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MAR 1 5 2002 OFACEOF DESEGREGATION MONITORING DEFENDANTS INTERVENORS INTERVENORS MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL MEMORANDUM BRIEF IN SUPPORT OF MOTION FOR AN IMMEDIATE DECLARATION OF UNITARY STATUS I. Introduction. On April 10, 1998, this Court granted the joint motion of the Little Rock School District ("LRSD") and the Joshua Intervenors ("Joshua") and approved the LRSD's Revised Desegregation and Education Plan ("Revised Plan"). See Docket Nos. 3107, 3136 and 3144. The Revised Plan expired by its own terms on May 31, 2001, the last day of classes for the 2000- 01 school year. See Revised Plan 9. The LRSD moves for an immediate declaration of unitary status and an end to court supervision based on its substantial compliance with the Revised Plan in accordance with Revised Plan 11. Section 11 of the Revised Plan provided: At the conclusion of the 2000-01 school year, the district court shall enter an order releasing LRSD from court supervision and finding LRSD unitary with regard to all aspects of school operations provided that LRSD has substantially complied with its obligations set forth in this Revised Plan. In anticipation of release, LRSD shall issue a report on March 15, 2001 indicating the state ofLRSD's compliance with the Revised Plan. Any party challenging LRSD's compliance bears the burden of proof. Ifno party challenges LRSD's compliance, the abovedescribed order shall be entered without further proceedings. The LRSD reported on March 15, 2001, that it had substantially complied with the Revised Plan. See Docket No. 3410. Joshua challenged the LRSD's compliance with a limited number of Revised Plan sections. See Docket No. 3447. Joshua bears the burden of proving that the LRSD I I I I I I I I I I I I I i I I I I I I failed to substantially comply with those Revised Plan sections. See Revised Plan 11. Unitary status should be granted if the Court finds either that the LRSD complied with those Revised Plan sections challenged by Joshua or that the LRSD's noncompliance does not cast doubt on the District's intent to comply with the Constitution absent court supervision. See Cody v. Hillard, 139 F.3d 1197, 1199 (8th Cir. 1998). In proceedings before the Honorable Susan Webber Wright, the Court heard five and onehalf days of testimony and received 201 exhibits on the Revised Plan sections covering academic achievement( 2.7), program assessment( 2.7.1) and student discipline( 2.5 - 2.5.4). The LRSD should be granted unitary status with regard to these Revised Plan sections based on the record of those proceedings. Joshua failed to come forward with any evidence that the LRSD failed to comply with those sections or that would cast doubt on the LRSD's intent to comply with the Constitution absent court supervision. Additionally, the LRSD should be granted summary judgment as to all remaining Revised Plan sections with respect to which Joshua challenged the LRSD's compliance. The discovery process revealed that Joshua has no evidence that would cast doubt on the LRSD's intent to comply with the Constitution in the future absent court supervision. As a result, there are no material factual disputes, and additional hearings are unnecessary. Cody. 139 F.3d at 1200 ("They do not cite any cases stating that a hearing is a necessary prerequisite to terminating supervision of a decree . . . . At any rate, the necessity of a hearing depends on whether there are disputed factual issues."). Finally, the LRSD should be granted unitary status with regard to those Revised Plan sections to which no party filed a timely challenge to the LRSD's compliance. See Revised Plan 11. 2 I I I I I I I I I I I I I I I I I I I II. Discussion. A. Background. 1. 1954 Through 1972. On May 20, 1954, three days after the Supreme Court's landmark decision in Brown v. Board of Education, 347 U.S. 483 (1954), the LRSD released a public statement declaring its intent to comply with the Constitution and to integrate the LRSD. See Aaron v. Cooper, 156 F. Supp. 220, 222-23 (E.D. Ark. 1957). The first LRSD desegregation plan was adopted in 1956 and was approved by the Eighth Circuit in 1957. See Cooper v. Aaron, 243 F.2d 361 (8th Cir. 1957). That plan called for gradual desegregation based on geographic attendance zones and was to be fully implemented by 1963. Id. Governor Orval Faubus' attempt to block implementation of this plan resulted in the infamous "crisis" at Central High School in 1957. However, as noted by the Supreme Court in Cooper v. Aaron, 358 U.S. 1, 9 (1958), "the Governor's action had not been requested by the school authorities, and was entirely unheralded." In 1966, the Eighth Circuit approved, with two minor modifications, a "freedom of choice" desegregation plan for the LRSD. See Clark v. Little Rock School District, 369 F.2d 661 (8th Cir. 1966). The Eighth Circuit noted the LRSD's good faith commitment to desegregation: Many of the problems encountered are not of the Board's making or choosing and, we believe, the Board has evidenced a genuine desire to follow the commands of the Brown case to ultimately place into effect a non-racially operated school system. Id., at 666. The freedom of choice plan was in effect through the 1968-69 school year. In 1968, the Supreme Court held that "freedom of choice" plans, standing alone, failed to satisfy the constitutional obligation of school districts formerly segregated by law. See Green v. County Sch. Bd. ofNew Kent County. 391 U.S. 430, 439-440 (1968). Accordingly, the LRSD developed a new desegregation plan based on geographic attendance zones for the 1969-70 school year. See Clark v. Little Rock School District, 426 F.2d 1035 (8th Cir. 1970). Due to segregated housing patterns which existed in Little Rock at that time, however, a number 3 I I I I I I I I I I I I I I I I I I I of racially identifiable schools remained under this plan, and the Eighth Circuit found this plan to be "constitutionally infirm." Clark, 426 F.2d at 1044. The LRSD began massive crosstown busing of students to achieve racial balance in grades 6 through 12 in the 1971-72 school year. See Clark v. Little Rock School District, 328 F. Supp. 1205, 1209 and 1214 (E.D. Ark. 1971). Racial balance was achieved in grades 4 and 5 by means of crosstown busing in the 1972-73 school year. See Clark v. Little Rock School District, 465 F.2d. 1044, 1046 (8th Cir. 1972). By the 1973-74 school year, all LRSD schools and all LRSD grade levels were racially balanced. See Exhibit 1 attached, Memorandum and Order filed July 9, 1982, p. 16. 2. 1973 Through 1982. The LRSD maintained almost perfect racial balance in its schools from 1973 through 1982 with voluntary periodic adjustment of attendance zones. The district court in Clark noted that "the Little Rock School District has operated in compliance with court decrees for nine years as a completely unitary desegregated school system . . . . " See Exhibit 1, p. 16. Despite nine years of successful desegregation, however, the LRSD was on its way to becoming a one race school district. In the fall of 1971, the LRSD was 42% black. In each year from 1971 through 1981, the number of black students increased while the number of white students decreased. See Exhibit 2 attached, Austin Study, p. 17. In the fall of 1981, 76% of elementary students were black and 55% of high school students were black. See Little Rock School District v. Pulaski County Special School District, 584 F. Supp. 328,335 (E.D. Ark. 1984)("LRSD v. PCSSD"). If existing trends continued, it was expected that 90% of the students entering the first grade in the LRSD in the fall of 1989 would be black. See Exhibit 2, p. 19; see also LRSD v. PCSSD, 584 F. Supp. 328, 351 (E.D. Ark. 1984)("The Little Rock School District in spite of its good faith efforts to comply with orders of this court and to establish a unitary school system will become a segregated all-black district in a few years if present trends continue, which appears highly likely."). 4 I I I I I I I I I I I I I I I I I I I In early 1981, the LRSD commissioned a study of desegregation in the LRSD by the Desegregation Assistance Team from Stephen F. Austin University (the "Austin Study"). The Austin Study concluded that the demographic trends which accounted for the decrease in white enrollment in the LRSD were "long-term" and "deeply rooted," and as a result, "[t]hey are not likely to be fundamentally altered by any change in the desegregation plan within the city .... The changes are rooted in migration patterns, housing segregation practices, changing birth rates, factors that determine the location of new private market housing, and decisions on the location of new subsidized housing." Exhibit 2, p. 28. The "fundamental" problem, according to the study, "has been the school board's inability to expand its boundaries in pace with a very rapidly expanding urban area." Exhibit 2, p. 28. Thus, the Austin Study concluded that the LRSD had done all it could do within its borders to desegregate its schools and that, if the LRSD's accomplishments were not to be undone by the "vast forces of demographic change," the LRSD would have to seek an interdistrict remedy. See Exhibit 2, p. 28. As an initial step to stem the tide of white flight, the LRSD adopted the Partial K-6 Plan on April 26, 1982. Under this plan, the LRSD created twelve K-6 neighborhood schools and retained fourteen paired schools with grades K-3 at one site and grades 4-6 at another. Eight of the 12 neighborhood schools were racially balanced and four were virtually all black. The plan converted Booker from a junior high school to an intermediate school. Finally, the Partial K-6 Plan provided for the creation of a magnet school west of University Avenue and required that a committee be appointed to ensure that the four virtually all black schools would be treated equally. See Clark v. Little Rock School District, 705 F.2d 265 (8th Cir. 1983). The Partial K-6 Plan was approved by the Eighth Circuit in 1983. Clark, 705 F.2d at 272. 3. Interdistrict Relief. In late 1982, the LRSD filed the present case against the Pulaski County Special School District ("PCSSD"), the North Little Rock School District ("NLRSD") and the State of Arkansas seeking consolidation of the three school districts into one metropolitan school district and state 5 I I I I I I I I I I I I I I I I I I I funding to assist in eliminating any remaining vestiges of segregation in the three school districts. On April 13, 1984, the Honorable Henry Woods found the PCSSD, the NLRSD and the State of Arkansas liable for interdistrict constitutional violations. LRSD v. PCSSD, 584 F. Supp. at 328. Judge Woods ordered consolidation of the three districts in a memorandum opinion dated November 19, 1984. LRSD v. PCSSD, 597 F. Supp. 1220 (E.D. Ark. 1984). The Eighth Circuit reversed Judge Woods' consolidation order a year later, finding consolidation too drastic a remedy. LRSD v. PCSSD, 778 F.2d 404 (8th Cir. 1985). In reversing, the Eighth Circuit ordered as part of a comprehensive interdistrict remedy that each district "revise its attendance zones so that each school will reasonably reflect the racial composition of its district" and permitted a variance of plus or minus 25% of the minority race. Id., 778 F.2d at 435. See LRSD v. PCSSD, 839 F.2d 1296, 1305 (8th Cir. 1988). The Eighth Circuit also ordered the adjustment of district boundaries, making the LRSD coterminous with the City of Little Rock. LRSD v. PCSSD, 778 F.2d at 435. Recognizing the need for the LRSD to grow with the City of Little Rock, Judge Woods interpreted the Eighth Circuit's order to require the automatic expansion of the LRSD upon expansion of the City of Little Rock. Unfortunately, the Eighth Circuit disagreed with Judge Woods' interpretation and effectively eliminated further boundary changes as a means to desegregating the LRSD. See LRSD v. PCSSD, 805 F.2d 815, 816 (8th Cir. 1986). The LRSD's "controlled choice" desegregation plan was approved by Judge Woods on February 27, 1987. Docket No. 739. Under this plan, the LRSD was divided into two attendance zones of approximately equal racial balance. Students were assigned to schools so that each grade at each school reflected the racial balance within that attendance zone. After a student was assigned to a particular school, the student's parents could request reassignment to another school within their attendance zone. That request would be granted so long as each school would remain within a range of plus or minus one-eighth of the black student population at the school. Additionally, the plan provided for eight magnet schools (four elementary, two 6 I I I I I I I I I I I I I I I I I I I junior high and two high schools) with seats reserved for students of each of the three Pulaski County school districts. The target racial composition of the magnet schools was 50%-50%. A Magnet Review Committee was established with representatives of each of the three districts. Joshua and the Knight Intervenors were each granted a non-voting member on the committee. This plan was implemented beginning with the 1987-88 school year. See Docket No. 670. The controlled choice plan resulted in many central and east Little Rock schools having fewer than fifty white students. The LRSD submitted a new desegregation plan for the 1988-89 year which was approved by Judge Woods. The 1988-89 school year was to be a "stabilizing year" to allow the LRSD to carefully plan for the 1989-90 school year and beyond. See LRSD v. PCSSD, 716 F. Supp. 1162, 1188 (E.D. Ark. 1989). Negotiations related to the development of a long-term desegregation plan for the LRSD culminated in a settlement agreement in March of 1989 (the "Settlement Agreement").1 The Settlement Agreement also included desegregation plans for the PCSSD and the NLRSD, as well as an interdistrict desegregation plan. 4. 1989 Settlement Agreement. The LRSD's 1989 desegregation plan reflected the fact that the LRSD was, and had been for some time, unitary with regard to student assignments, faculty and staff. See Exhibit 1, p. 18. While these areas had been the focus of past desegregation plans, the 227-page 1989 plan contained only a six-page section on student assignments and no separate section specifically dedicated to the hiring and assignment of faculty and staff. The 1989 desegregation plan focused instead on secondary desegregation issues, such as improving African-American academic achievement. The Settlement Agreement was initially rejected by Judge Woods who ordered implementation of a more comprehensive plan known as the Tri-District Plan. The parties appealed, and the Settlement Agreement as originally written was approved by the Eighth Circuit 1 A revised Settlement Agreement was agreed to by the parties on September 28, 1989. None of the revisions are relevant to this motion. "Settlement Agreement" as used hereinafter shall refer to the agreement as revised September 28, 1989. 7 I I in December of 1990. LRSD v. PCSSD, 921 F.2d 1374 (8th Cir. 1990). In approving the Settlement Agreement, the Eighth Circuit recognized that, "It may be necessary, in order to make I I I I I I I I I I I I I I I I I a smooth transition, for the details of the settlement plans to be adjusted to produce an appropriate fit between their future application and existing circumstances." Id., at 1394. Judge Woods recused following the Eighth Circuit's December 1990 decision, and the case was reassigned to the Honorable Susan Webber Wright. See LRSD v. PCSSD, 740 F.Supp. 632 (E.D. Ark. 1990). The parties agreed to modifications to the desegregation plans and submitted them to Judge Wright for approval. On June 21, 1991, Judge Wright rejected the modifications, finding that they exceeded the authority granted by the Eighth Circuit. LRSD v. PCSSD, 769 F. Supp. 1483 (E.D. Ark. 1991). The parties appealed, and on November 14, 1991, the Eighth Circuit vacated Judge Wright's opinion and remanded for consideration of the proposed modifications based on the analysis set forth in its opinion. Appeal ofLRSD, 949 F.2d 253 (8th Cir. 1991). On May 1, 1992, Judge Wright issued an order approving in part and rejecting in part the revised desegregation plans. No appeal was taken. 5. Implementation of the 1989 Plan. The Settlement Agreement required the LRSD to implement its 1989 desegregation plan for six years.2 The parties agreed, in effect, that implementation of the plan would eliminate to the extent practicable any remaining vestiges of discrimination resulting from the interdistrict constitutional violations by the defendants. See Settlement Agreement, p. 1. Because the Tri-District Plan was substantially similar to, but more comprehensive than, the LRSD's 1989 desegregation plan, the LRSD considered implementation of the Tri-District Plan during the 2The six-year term of the plan was one of the primary reasons that the Settlement Agreement was rejected by Judge Woods. See LRSD v. PCSSD, 716 F. Supp. at 1167 ("LRSD admits that the double funding is guaranteed for only six years, but contends that it 'retains its commitment to provide compensatory and enhancement funding to any school which might remain racially identifiable.' That commitment does not appear in the plan."). The LRSD argued to Judge Woods that its six-year plan could be successful: "We think a six-year plan can succeed where a one-year plan has failed. There are several components in place to help us assure the Court that a six-year plan can succeed." Tr. May 30, 1989, p. 13. 8 I I I I I I I I I I I I I I I I I I I 1990-91 school year as the first year of implementation of its six-year desegregation plan. During the 1995-96 school year, the LRSD conducted an audit of its desegregation obligations and found that it had substantially and in good faith complied with 96% of its desegregation obligations. See Exhibit 3 attached, p. 1. Accordingly, on May 17, 1996, the LRSD moved for a declaration of unitary status and an end to federal court supervision. See Docket Nos. 2665 and 2666. Without a hearing, Judge Wright denied the LRSD's Motion to End Federal Court Supervision, finding "nothing in the settlement plans which would release the LRSD from the Court's jurisdiction after six years of implementation of the plans." See Docket No. 2821, p. 10. Although Judge Wright recognized that the LRSD compared favorably to other urban school districts already declared unitary, Judge Wright focused on the ambitious "goals" of the 1989 plan. See Docket No. 2821 , p. 12. Judge Wright stated, "Reports of the Office of Desegregation Monitoring 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." Id. In conclusion, Judge Wright invited the parties to niodify those parts of the LRSD desegregation plan which had proved "ineffective and unworkable." Id. 6. The Revised Plan. Rather than appeal Judge Wright's denial of unitary status, the LRSD decided to work with Joshua to reach an agreement for ending more than 40 years of federal court control of the LRSD. On January 21, 1998, the LRSD and Joshua filed a joint motion seeking approval of the LRSD's Revised Desegregation and Education Plan. See Docket No. 3107. The Revised Plan addressed numerous deficiencies in the 1989 desegregation plan. First, to prevent the plan's express or implied goals from being construed as obligations, the Revised Plan included a footnote which stated: The identification of specific goals in this Revised Plan is not intended to create an obligation that LRSD shall have fully met the goal by the end of the plan's term. LRSD's failure to obtain any of the goals of this Revised Plan will not be considered a failure to comply with the plan ifLRSD followed the strategies 9 I I I I I I I I I I I I I I I I I I I described in the plan and the policies, practices and procedures developed in accordance with the plan. Revised Plan, p. 14 n.2. Second, the 277-page 1989 plan included too much detail and provided too little flexibility. The Revised Plan simply obligated the LRSD to implement "programs, policies and/or procedures" in 13 different areas. See Revised Plan 2. With some exceptions, the LRSD had discretion to determine the "programs, policies and/or procedures" to be implemented. The Revised Plan included a process by which Joshua or any other party could raise compliance issues, including a failure by the LRSD to adopt or implement the required programs, policies and/or procedures. See Revised Plan 8.2 and 8.3. The LRSD also agreed in advance to pay Joshua to monitor the LRSD's compliance with the Revised Plan, and Joshua billed the LRSD for monitoring the LRSD's Compliance. See Exhibits 7 and 8 attached. Even so, Joshua raised no objection to the programs, policies or procedures implemented by the LRSD during the term of the Revised Plan. Finally, the Revised Plan included a definite term and a process for terminating federal court supervision at the conclusion of that term. The term of the Revised Plan was "three (3) years beginning the 1998-99 school year and ending the last day of classes of the 2000-01 school year." See Revised Plan, 9. The last day of classes for the 2000-01 school year was May 31, 2001. Section 11 of the Revised Plan provided: At the conclusion of the 2000-01 school year, the district court shall enter an order releasing LRSD from court supervision and finding LRSD unitary with regard to all aspects of school operations provided that LRSD has substantially complied with its obligations set forth in this Revised Plan. In anticipation of release, LRSD shall issue a report on March 15, 2001 indicating the state of LRSD's compliance with the Revised Plan. Any party challenging LRSD's compliance bears the burden of proof. If no party challenges LRSD's compliance, the abovedescribed order shall be entered without further proceedings. See Revised Plan, 11. 7. Status of Current Proceedings. I I I I I I I I I I I I I I I I I I I The LRSD provided the Court and the parties with an Interim Compliance Report on March 15, 2000 ("Interim Report") "to help the District assess its progress toward full compliance and to reassure the court, the parties, and the community of the District's good faith efforts to be in total compliance with the Revised Plan." See Docket No. 3344, Interim Report, p. 1. The Interim Report expressly requested that the parties and other interested persons submit comments on the content or format of the report. Id. No party commented on the Interim Report or otherwise challenged the District's "progress toward full compliance." See Docket No. 3410, Final Report, p. iv. One year later, on March 15, 2001, the LRSD reported that it had substantially complied with all provisions of the Revised Plan ("Final Report"). See Docket No. 3410. On June 25, 2001, and after being granted two extensions of time, Joshua filed a pleading challenging the LRSD's compliance with some, but not all, sections of the Revised Plan. Joshua's challenge included little more than general allegations of noncompliance. Hearings were held on July 5-6, August 1-2 and November 19-20, 2001, on the issues of academic achievement( 2.7), program assessment( 2.7.1) and discipline( 2.5 - 2.5.4).3 B. Substantial Compliance. The Revised Plan does not define "substantial compliance." In Cody v. Hillard, supra, the Eighth Circuit discussed the meaning of the term "substantial" as it related to compliance with and termination of a consent decree. The consent decree in that case arose out of prison reform litigation in the State of South Dakota. Prison officials moved to terminate the consent decree after operating under the decree for nearly 11 years. The plaintiffs opposed the motion 3Judge Wright stated at the conclusion of the November 20, 2001, hearing that Joshua could have 25 minutes to present true rebuttal evidence, even though Joshua had used all of their allotted time. Tr. Nov. 20, 2001, 399 and 575. Judge Wright defined rebuttal evidence as evidence necessary to respond to evidence presented by the other side which could not have been anticipated. Tr. Nov. 20, 2001, 399. The LRSD submits that it presented no evidence which could not have been anticipated by Joshua, rendering Joshua's request for rebuttal time moot. The Court could resolve this matter by requiring Joshua to proffer their purported rebuttal evidence as a part of their response to this Motion. 11 I I I I I I I I I I I I I I I I I I I and requested a hearing. The district court refused to order a hearing, but ordered the plaintiffs to submit evidence supporting their allegations of noncompliance. Id. at 1198. The plaintiffs filed a report from their expert, Robert Powitz, which stated that he inspected the prison and found "a number of conditions that pose serious health or safety risks," but he failed to specify how those conditions violated the consent decree. The plaintiffs then filed a supplemental brief linking those conditions to provisions of the consent decree. Without a hearing, the district court entered a two-paragraph order terminating the consent decree but making no findings of fact with regard to the conditions identified by Powitz. Id. at 1199. stating: The plaintiffs appealed, and the Eighth Circuit remanded the case for factual findings We cannot determine the basis for the district court's decision from this brief order. The record indicates that there have been failures in the past to comply with the decree and supplemental orders, and that there are at least some violations of the decree. The district judge's order does not give us enough information to determine whether he ignored the evidence of past and present violations or whether he considered any violations inconsequential in the context of substantial compliance. If the conditions Powitz complained of constitute violations of the consent decree, the district court must exercise its discretion in determining whether those violations were serious enough to constitute substantial noncompliance and to cast doubt on defendants' future compliance with the Constitution. See McDonald [v. Carnahan]. 109 F.3d [1319,] 1322-23 [(8th Cir. 1997)]. Moreover, the ultimate question of whether the defendants are likely to comply with the Constitution in the absence of court supervision is a question of fact, see [Board of Educ. v.] Dowell, 498 U.S. [237,] 247, 111 S.Ct. [630,] 636-37 [(1991)], for which the district court made no finding. Id. at 1199-1200 (emphasis supplied). Therefore, a party to a consent decree substantially complies with the decree so long as the party's noncompliance does not "cast doubt on [the party's] future compliance with the Constitution." Id. See Manning v. The School Bd. of Hillsborough County. 244 F.3d 927, 946 (11 th Cir. 2001)("[I]n determining whether a school board has acted in good faith, a court should not dwell on isolated discrepancies, but rather should 'consider whether the school board's policies form a consistent pattern of lawful conduct directed at eliminating earlier violations,"' quoting Lockett v. Bd. of Educ. of Muscogee County. 111 F.3d 839, 843 (11 th Cir. 1997)). 12 I I I I I I I I I I I I I I I I I I I Both the past and recent conduct of the LRSD Board of Directors confirms the District's commitment to complying with the Constitution. Three days after the Supreme Court's 1954 decision in Brown, the LRSD released a public statement declaring its intent to comply with the Constitution and integrate the LRSD. In 1982, the district court in Clark stated that "the Little Rock School District has operated in compliance with court decrees for nine years as a completely unitary desegregated school system . . . . " See Exhibit 1, p. 16. Having done all that it could do on its own, the LRSD filed the present case that same year, seeking and obtaining interdistrict relief. During the term of the Revised Plan, the LRSD Board of Directors ("Board") conducted a comprehensive review of all District policies. See CX 719. Fifteen of the 21 policies making up the District's "Foundation and Basic Commitments" express the District's commitment to fighting discrimination of all types. See CX 719, Section A. Among those were regulations setting forth the District's commitment to comply with the Revised Plan and to establish procedures for employees and patrons to raise compliance issues. See CX 719, Policy ACG-Rl, R2 and R3. The Board institutionalized numerous provisions of the Revised Plan by making them official Board policy. See CX 719.4 Finally, in anticipation of being released from court supervision, the Board adopted the "Covenant for the Future" ("Covenant") on January 11, 2001. In the Covenant, the Board promised to continue to exercise its best efforts to: (1) improve the academic achievement of all students, (2) comply with the Constitution and ensure that no person is discriminated against on the basis or race, color or ethnicity in the operation of the District, and (3) provide equitable educational resources, programs and opportunity in a nondiscriminatory environment for all students attending LRSD schools. See Final Report, p. 1, CX 739, and CX 719, Policy AB. 4The following Board policies and regulations come directly from the Revised Plan: ACBB, ACBE, ACG, ACG-Rl, ACG-R2, ACG-R3, GCE, GCE-R, IHBH, JB, IBA, JBA-R, JC, JCA, n, JJ, JJ-R, JllA, JnB, JnB-Rl, JnB-R2, JLD, JMA, JMA-R, JRAA, and JRAA-R. See ex 719. 13 I I I I I I I I I I I I I I I I I I I To be sure, the LRSD is not a perfect school system, but the Constitution does not require perfection. See Belle v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 335 (4th Cir. 2001) (Traxler, J.)("This is not to say that CMS is a perfect school system- it is not."). The ultimate question is whether the Board can be trusted to comply with the Constitution absent court supervision. In the five and one-half days of hearings held to date, Joshua presented no evidence indicating that it could not. C. Revised Plan Sections Already Litigated. 1. Revised Plan 2.7: Academic Achievement. LRSD shall implement programs, policies and/or procedures designed to improve and remediate the academic achievement of African-American students, including but not limited to Section 5 of this Revised Plan. The LRSD identified and described the programs, policies and procedures implemented pursuant to Revised Plan 2.7 in the Interim Report (pp. 41-69 and 93-127) and the Final Report (pp. 51-148). Although Joshua monitored the LRSD's compliance with the Revised Plan and received fees for doing so, Joshua did not raise any objection during the term of the Revised Plan to the programs, policies and procedures pertaining to academic achievement which were outlined in the Interim Report and the Final Report. Tr. Nov. 19, 2001, pp. 370-71. Joshua's belated challenge to the LRSD's compliance with 2.7 is based on the long-standing achievement gap between African-American and non-African-American students on standardized tests (hereinafter "achievement gap"). See Docket No. 3447, pp. 28-30. Joshua's challenge fails because the Revised Plan contained no requirement that the LRSD eliminate or reduce the achievement gap. The Revised Plan simply required the LRSD to implement programs, policies and/or procedures designed to improve African-American achievement. See Revised Plan, 2. 7. To that end, the LRSD began in the Spring of 1998 what has been perhaps the most comprehensive curriculum reform in the history of the District. As a part of the reform effort, the District adopted research-based teaching strategies that have been proven to be effective in improving 14 I I I I I I I I I I I I I I I I I I I African-American achievement. Tr. Nov. 19, 2001, pp. 195-210. The District provided its teachers with comprehensive, in-depth professional development. See Final Report, pp. 32-33 (Gifted and Talented), 60-61 (K-12 Social Studies), 67-68 (middle schools), 73 (PreK), 81-90 (early childhood and primary grade literacy), 96-102 (intermediate grade literacy), 109-111 (secondary literacy), 117-123 (math and science) and 138-143 (technology). New instructional materials, including technological applications, were adopted in all curriculum areas. See Interim Report, pp. 41-51 (generally), 96