District Court records regarding motion for substitution of counsel, Joshua intervernor's response to Little Rock School District (LRSD) motion to declare unitary status, notices of filing ODM report and ADE project management tool

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<dcterms_description>District Court, five orders; District Court, motion for substitution of counsel; District Court, order; District Court, the Joshua intervenors' opposition to the Little Rock School District's (LRSD's) motion for an immediate declaration of unitary status; District Court, notice of filing, Office of Desegregation Management report, ''Disciplinary Sanctions in the Pulaski County Special School District (PCSSD)''; District Court, notice of filing, Arkansas Department of Education (ADE) project management tool This transcript was create using Optical Character Recognition (OCR) and may contain some errors. IN THE UNITED STATES DISTRICT COURT u.foilfm~cPuRT -"'EASTERN DISTRICT ARKANSAS EASTERN DISTRICT OF ARKANSAS WESTERN DMSION MAY 0 7 2002 LITTLE ROCK SCHOOL DISTRICT, Plaintiff;-- vs. * * * * PULASKI COUNTY SPECIAL SCHOOL * DISTRICT NO. 1, et al., Defendants, MRS. LORENE JOSHUA, et al., Intervenors, KATHERINE KNIGHT, et al., Intervenors. * * * * * * * * ORDER ~~M~~ No. 4:82CV00866 WRW RECEIVED MAY -8 2002 OFFICE OF DESEGREGATION MONITORING The Joshua lntervenors have moved for a second extension of time in which to respond to Little Rock School District's ("LRSD") Motion for an Immediate Declaration ofUnitary Status. For cause, Joshua Intervenors state that they are in settlement talks with LRSD on the issue ofLRSD's unitary status, and that "additional time is needed to continue these discussions." Although Joshua's counsel has asked to extend the response time until May 20, 2002, I take judicial notice of the fact that he is a candidate for the Arkansas Senate; and the primary election is on Tuesday, May 21 , 2002. Accordingly, I am granting Joshua Intervenors an extension until and including May 30, 2002. I do note that the chances of another extension are remote, at best. DATED this ( tff day of May, 2002. THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE w~/iULE ss ANotoR~7F9R CP ON ~(}y BY ~ ~ 1 7 595 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION FILED U.S. DISTRICT COURT EASTERN D1STRICT ARKANSAS LITTLE ROCK SCHOOL DISTRICT, Plaintiff, vs. PULASKI COUNTY SPECIAL SCHOOL * DISTRICT NO. l , et al., * Defendants, * MRS. LOREN JOSHUA, et al., lntervenors, KATHERINE KNIGHT, et al. , lntervenors, 4:82cv00866 RECEIVED MAY - 8 2002 OFACEOF DESEGREGATION MONITORJNG ORDER The parties are notified that Judge J. Thomas Ray is the U. S. Magistrate Judge assigned to this case. Dated this 6th day of May, 2002 . . /11:L ' ------ JY ry{, ~ . THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WITH RULE 58 AND/OR ~CP ON -0.-1 f?""r: BY , c.,,,,,. UNITED STATES DISTRICT JUDGE 596 A072A IN THE UNITED STATES DISTRJCT CO_B~J~Jk1 ~1?ouRT EASTERN DISTRICT OF ARKAN~ER~l DISTRICT ARKANSAS LITTLE ROCK DIVISION MAY 9 2082 LITTLE ROCKS,CHOOL DISTRICT JAMES VY. IVIT\L~n 1V1ALK., CLE.RK. B . \J y .:OT A ~ --- y. - - Ut:t''.Ct:tKK V. No. 4-:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRJCT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERJNE KNIGHT, ET AL. RECEIVED MAY 1 3 2002 OFACEOF DESEGREGATION MONITORING ORDER DEFENDANTS INTER VEN ORS INTER VEN ORS On January 3, 2002, I was assigned this twenty-year-old action, which over the years has come to be known in this District simply as "the school case" (docket entry #3570). Pleadings in the case now occupy hundreds of feet of files in the District Court Clerk's office, and the magnitude of the appeals in the case has led the Eighth Circuit to adopt a policy of rotating the case to a new appeal panel every five years. Thus, by necessity, the decisions I make will be built on the footings and foundations poured by other District Court and Appellate Court Judges--their decisions have shaped the current contours of the case. On March 15, 2001, approximately nine months before I inherited this case, the Little Rock School District ("LRSD") filed a pleading which could result in a watershed ruling--a Request for Scheduling Order and attached Compliance Report ( docket entry #3410) aimed at obtaining "an order finding LRSD unitary with regard to all aspects of school operations." Id. Subsequently, the Joshua Intervenors ("Joshua") filed an Opposition to the LRSD's Compliance Report (docket entry #3447) in which they challenge the LRSD's contention that it is entitled to A072A a judicial declaration that it has achieved overall unitary status. On January 25, 2002, I entered an Order (docket entry#357 l) referring the issue of unitary status to a mediator. In doing so, it was my understanding that the LRSD and Joshua both had requested mediation as a means of promptly, efficiently, and finally resolving that issue. Over ninety days have now elapsed, with no report that progress has been made through mediation. I was somewhat sanguine, but the lapse of time with no report of progress has dampened my optimism. 1 On March 15, 2002, one year to the day after filing its Compliance Report, the LRSD filed a Motion for an lrnmediate Declaration of Unitary Status ( docket entry #3580) and supporting Memorandum Brief (docket entry #3581). On May 6, 2002, I entered an Order (docket entry #3595) granting Joshua's request for an extension of time and allowing them until and including May 30, 2002, to file their Response. The recent actions of the parties, in placing the issue of unitary status back before me, appears to be a clear signal that mediation is not succeeding and that settlement negotiations have stalled. Therefore, the Court intends to decide, soon, the issue of unitary status raised in the LRSD's March 15 Motion. Inheriting the case at this point (I hope its shadow is falling far to the east) has required me to review an enormous amount of material just to try to determine where we are.2 Although 1On April 18, 2002, Joshua filed a Motion for Extension of Time (docket entry #3592) that alludes to the parties having engaged in "settlement discussions regarding LRSD's Motion for Unitary Status." I have heard nothing further from the parties regarding these settlement discussions. It is most unlikely that any future requests for extensions will be granted because of "settlement discussions." 2The fields of education and "school litigation" also have a jargon of their own which a neophyte must attempt to absorb. -2- A072A IRP.vR/~ it may be old hat to the parties, I believe it will be helpful for me to set out in some detail where I find we are and, just as importantly, where I intend to go. I. Where I Find We Are On January 21, 1998, the LRSD and Joshua filed a Joint Motion for Approval of the LRSD's January 16, 1998 Revised Desegregation and Education Plan (the "Revised Plan"). On April 10, 1998, the Court entered an Order ( docket entry #3144) approving the Revised Plan. Section 11 of the Revised Plan specifically describes the procedure the LRSD must follow to achieve unitary status: SECTION 11: Unitary Status At the conclusion of the 2000-0 I 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 above-described order shall be entered without further proceedings. On March 15, 200 l , the LRSD filed the required "Compliance Report" ( docket entry #3410),3 which describes section by section the LRSD's alleged "substantial compliance'"' with each provision of the Revised Plan. The Court entered an Order (docket entry #3414) establishing May 18, 2001, as the 3 Although not required by the Revised Plan, on March 15, 2000, the LRSD filed an Interim Compliance Report (docket entry #3356). 4 The Revised Plan does not define what "substantial compliance" means, but, as Professor McCormick teaches us, it takes "a skillful definer to make it plainer by multiplication of words the explanations themselves often need more explanation than the term explained . .. . " 2 J. Strong, McCormick on Evidence, 341, p. 430 (5th ed. 1999). -3- A07?A --- deadline for challenges to the LRSD's Compliance Report. Subsequently, Joshua moved three times for extensions of that deadline ( docket entries #3415, #3429, and #3443). Finally, the Court entered an Order (docket entry#3445) establishing June 25, 2001, as the final deadline for Joshua to file their Response to the LRSD's Compliance Report.5 On June 25, 2001, Joshua filed an Opposition to the LRSD 's Compliance Report ( docket entry #3447). In this Opposition, Joshua argues that the LRSD has failed to substantially comply with various specifically enumerated sections of the Compliance Report and describes the nature of the LRSD's noncompliance under each of those sections. Importantly, Section 11 of the Revised Plan explicitly provides that the "challenging party'' has the burden of proving that the LRSD has failed to substantially comply with its obligations under the Revised Plan. Counsel for Joshua has acknowledged on the record that the Court has "given us and by agreement we accept the burden of proof' ( docket entry #3464, transcript of July 9, 2001 scheduling conference, p. 26, lines 14-17).6 Almost immediately after Joshua filed their Opposition to the LRSD's Compliance Report, the Court began a series of telephone conferences with counsel (docket entries #3348 and #3349) to establish a schedule for conducting evidentiary hearings on Joshua's challenges to the Compliance Report. During the June 29, 2001 telephone conference, the Court set aside July 5 5During a telephone conference on June 29, 2001, the Court described in some detail the circumstances surrounding the three extensions of this filing deadline ( docket entry #3461, transcript of June 29, 2001 telephone conference, pp. 24-25). 61ndependent of this judicial admission, the Court specifically ruled that, under the plain language of Section 11 of the Revised Plan, it was agreed that any party, such as Joshua, who challenges the LRSD' s compliance will bear the burden of proof ( docket entry #3461, transcript of June 29, 2001 telephone conference, p. 26, lines 11 -21). -4- A072A (Rev.8/82) and 6 and August 1 and 2 to hear evidence from Joshua regarding its challenges to the LRSD's "substantial compliance" with the Revised Plan ( docket entry #3461 at p. 25, lines 22-25, and p. 26, lines 1-9). The Court also made it clear that counsel for Joshua should present his strongest arguments and evidence first, followed by subsidiary arguments and evidence ( docket entry #3461, pp. 54-55). Because Joshua has the burden of proof, the Court allowed them to put on their case first. On July 5 and 6, 2001 , Joshua called as witnesses Junious Babbs, the Associate Superintendent for Administrative Services (docket entry #3462, transcript of July 5, 2001 evidentiary hearing and docket entry #3463, transcript ofJuly 6, 2001 evidentiaryhearing at pp. 274-340) and Dr. Les Carnine, the former Superintendent of the LRSD (docket entry #3463, transcript of July 6, 2001 evidentiary hearing). During his cross-examination7 of these two witnesses, counsel for Joshua sought to elicit testimony proving that the LRSD had failed to substantially comply with three specific obligations under the Revised Plan: (1) "Good faith" implementation of the policies, programs, and procedures described in the Revised Plan (sections 2.1 and 2.1. l ); (2) implementation of programs, policies, and procedures designed to improve and remediate the academic achievement of African-American students (sections 2.7, 3.4, 5.1, 5.2, 5.2.l(a)-(l), 5.2.2(a)-(h), 5.2.3(a)-(f), 5.3-5.3.5, 5.4, 5.6.1, and 2.7.1); and (3) implementation of programs, policies, and procedures regarding various aspects of student discipline (sections 2.5 and 2.5.1- 2.5.4). After taking the first two days of testimony, the Court conducted a hearing on July 9, 7This technically was "direct examination," but since the witnesses were associated with an adverse party, it was, in effect, cross-examination. -5- AO 72A 200 I, to schedule the remaining days necessary to complete the evidentiary hearing on Joshua's opposition to the LRSD's Compliance Report (docket entry #3464, transcript of scheduling conference held on July 9, 2001). Counsel for Joshua, in response to questions from the Court, stated that he believed the LRSD 's three most serious areas of non-compliance under the Revised Plan were failing to remediate the academic achievement of African-American students; continuing a policy of disparate treatment of African-American students in disciplinary actions; and failing, in good faith, to properly implement the Revised Plan ( docket entry #3464 at pp. 26- 29). With the agreement of counsel, the Court set aside August 1 and 2 and November 19 and 20 to complete the evidentiary record on these three discrete issues ( docket entry #3464 at pp. 45- 46, 51-52, and 60-61 ). In formulating this schedule, the Court indicated that it would hear six hours of testimony on August 1, November 19, and November 20, and three hours of testimony on August 2. The Court ruled that these twenty-one hours of anticipated testimony would be divided equally between Joshua and the LRSD, so that each side would be allowed ten and onehalf hours to put on their respective cases on the issues of good faith, student achievement, and student discipline (docket entry #3464 at pp. 62-64). Finally, at the close of the July 9 scheduling conference, the Court engaged in the following colloquy with counsel, that makes it clear everyone knew and understood the three issues that would be tried to conclusion during the hearings on August 1-2 and November 19-20: MR. HELLER: But I just want to be sure we have heard Mr. Walker's case before we present ours. THE COURT: Yes, that's correct. That's correct. In other words, and these will be discrete issues, and I say they are discrete. Discipline and achievement, and I agree that there is some linkage there between the two. But those things, achievement particularly, is what is bothering me. -6- A072A (Acn,A / R'J\ And discipline, maybe Mr. Walker can make me think that discipline ought to be bothering me too, and I guess it is to an extent because of the way the District has presented it. But still, there is some improvement there. MR.WALKER: Here is the other thing. Throughout this whole thing, the concept of good faith is present, and I don't th.ink we are going to have separate sections where we present good faith evidence. Part of what would be presented, as we are presented with Dr. Carnine and Mr. Babbs, is evidence to show that they had no intention of doing what they said they were going to do, and they really did not do it. So, that will be addressing good faith. THE COURT: Well, of course, you are free to do that. I have personally observed that Little Rock, I think, has been much, much better in recent years than it was when I first got the case .... (Docket entry #3464, p. 65, lines 16-25, and p. 66, lines 1-23.) In the August 1, 2001 evidentiary hearing, counsel for Joshua called and examined Dr. Sadie Mitchell, Associate Superintendent of the LRSD, and Dr. Bonnie Lesley, the Associate Superintendent for Instruction ( docket entry #3493). At the beginning of the August 2 evidentiary hearing, counsel for Joshua re-examined Dr. Mitchell, and called and examined Dr. Linda Watson, the Assistant Superintendent responsible for handling discipline in alternative education settings, and James Washington, the ombudsperson for the LRSD ( docket entry #3494). During his examination of these four witnesses, counsel for Joshua again sought to elicit testimony regarding the LRSD's failure to substantially comply with its obligations related to good faith implementation of the Revised Plan; to improve the academic achievement of African-American students; and to eliminate the disparate treatment of African-American students in disciplinary actions. At the conclusion of the August 2 hearing, the Court noted that counsel for Joshua had -7- AO 72A used eight of his allotted ten and one-half hours ohime. The Court made it clear that counsel for Joshua could elect to rest his case and use the remaining two and one-half hours to cross-examine witnesses called by the LRSD or he could forego cross-examination and continue to call witnesses. Joshua's counsel indicated that, after he called a few "brief' witnesses at the beginning of the November 19 hearing, he intended to rest his case and reserve his remaining time for cross-examination (docket entry #3494, pp. 950-954). At the beginning of the November 19 evidentiary hearing, the Court noted that counsel for Joshua had decided to rest his case on the issues of the LRSD's good faith compliance with implementation of the Revised Plan, the implementation of programs and policies designed to improve and remediate the academic achievement of African-American students, and student discipline (docket entry #3558 at pp. 14-15). After the Court denied its Motion for Directed Verdict on those issues, the LRSD proceeded to call three witnesses: James Washington, Dr. Linda Watson, and Dr. Bonnie Lesley. Counsel for the LRSD and Joshua completed their respective direct and crossexaminations of Mr. Washington and Dr. Watson on November 19. However, counsel for the LRSD was not able to complete his direct examination of Dr. Lesley (docket entry #3558). On November 20, counsel for the LRSD and Joshua completed their direct and crossexaminations of Dr. Lesley. After counsel for Joshua concluded his cross-examination of Dr. Lesley, he sought to call several "rebuttal witnesses" in what he estimated to be his remaining "25 or so minutes" of the original ten and one-half hours of time (docket entry #3559, p. 573). Counsel for the LRSD objected and suggested that "the time left for Mr. Walker is just about zero" (docket entry #3559, p. 573). -8- A072A The Court resolved this dispute by making the following unequivocal ruling: THE COURT: But I will tell you what I will do, I will give you [Mr. Walker] twenty-five more minutes. Now that's it. (Docket entry #3559 at p. 575, lines 21-23; emphasis added.) Although counsel for Joshua urged the Court to "keep an open mind on aJ~owing Joshua more time," the Court refused to reconsider its ruling. The Court also made it clear that, if counsel for Joshua intended to call members of the Office of Desegregation Monitoring ("ODM") as rebuttal witnesses, their testimony would count against his remaining twenty-five minutes of time (docket entry #3559 at p. 583, lines 9- 12). Thus, at the conclusion of the November20 evidentiary hearing, six days of testimony and hundreds of exhibits had been introduced in connection with what Joshua identified as their three strongest arguments against declaring the LRSD unitary: ( 1) the LRSD had failed to substantially comply with the "good faith" obligations contained in the Revised Plan; (2) the LRSD had failed to substantially comply with the obligations in the Revised Plan to implement programs, policies, and procedures designed to improve and remediate the academic achievement of AfricanAmerican students; and (3) the LRSD had failed to substantially comply with the obligations in the Revised Plan to implement programs, policies, and procedures designed to ensure that there is no racial discrimination with respect to student discipline. Furthermore, counsel for Joshua and the LRSD had both rested their cases on these three issues, and all that remained was for Joshua's counsel to use his remaining "twenty-five minutes" to call rebuttal witnesses.8 On December 11, 2001, the Court conducted a scheduling hearing to discuss issues and 8Counsel for Joshua indicated that these rebuttal witnesses might include the staff of ODM, Dr. Ross, and Dr. Roberts. -9- AO 7'?A witnesses that would be presented during a five-day evidentiary hearing scheduled to begin the week of January 28 (docket entry #3597). At the beginning of the hearing, the Court noted that Joshua had twenty-five minutes of"true rebuttal" testimony that remained to be heard on the three discrete issues which had been tried to conclusion during the six previous days of hearings (docket entry #3597 at p. 5). The Court requested that counsel for Joshua identify the issues and witnesses he intended to cover during the upcoming five-day evidentiary hearing. Counsel for Joshua identified the following areas of the Revised Plan which he intended to attack to prove the LRSD was not in substantial compliance: ( 1) extracurricular activities; (2) advanced placement courses; (3) guidance and counseling; (4) the student assignment plan; (5) no middle school evaluation; (6) the Cook School closing; (7) housing desegregation; (8) interdistrict schools and monitoring student recruitment; (9) staffing and funding incentive schools; (10) alternative education; (11) compliance standards; ( 12) desegregation plan modification; and ( 13) the academic achievement gap ( docket entry #3597 at pp. 6-19). Counsel for Joshua estimated it would take three full weeks to put on his case regarding these issues ( docket entry #3597 at p. 19). LRSD's counsel strenuously objected to Joshua expanding their attack on the LRSD's substantial compliance to include essentially every section of the Revised Plan. First, counsel noted that: (a) section 8.2 of the Revised Plan sets forth a detailed procedure for raising compliance issues; and (b) Joshua had failed to utilize that procedure to raise any of the foregoing compliance issues before filing their June 25, 2001 Opposition to the LRSD's March 15, 2001 Compliance Report. Similarly, counsel noted that Joshua had never raised any objection to the LRSD's Interim Compliance Report filed on March 15, 2000 (docket entry #3597 at pp. 21-23). -10- AO 72A /Rev.8/82\ Second, counsel noted that Joshua was now raising challenges to the LRSD's substantial compliance with sections 3.1, 3.8, 3.9, 4.0, 6.0, 7.0, and 8.3--provisions of the Revised Plan that were not challenged in Joshua's June 25, 2001 Opposition to the LRSD's Compliance Report (docket entry #3597 at p. 23). Finally, counsel stated his much different understanding of the purpose for the December 11 scheduling hearing: I thought the purpose of what we were going to do today was to narrow the issues; get this down to some very specific issues, talk about what specific evidence was going to be needed to litigate those issues, and then set some very limited time frames to get the case on a track where the Court and the parties can fulfill their responsibility to resolve these issues as quickly as possible. (Docket entry #3597 at p. 24). In resolving this contentious dispute between counsel regarding the scope of the issues that remained on the question of unitary status, the Court first noted that counsel for Joshua had already presented his strongest evidence on student achievement and student discipline, the "areas of [the LRSD's] compliance [with the Revised Plan] that he [counsel for Joshua] thought were weakest." Next, the Court identified four remaining issues related to unitary status that Joshua would be allowed to cover during the hearing scheduled to begin the week of January 28: (1) advanced placement courses; (2) guidance counseling; (3) extracurricular activities; and ( 4) the LRSD's overall obligation of good faith under the Revised Plan (docket entry #3598 at pp. 31- 32).9 The Court went on to explicitly describe how it intended to conduct the final five days of 9The Court concluded that advanced placement courses, guidance counseling, and extracurricular activities were issues closely related to the issue of improving the academic achievement of African-American students. Therefore, the Court indicated that Joshua would be allowed to present evidence on student achievement but only for the limited purpose of explaining how the LRSD's policies, programs, and procedures regarding advanced placement courses, -11- AO 72A ,n .... . . n ,n,..,\ evidentiary hearings: THE COURT: But this is what I would like to do. Instead of giving you three weeks, I would like to, which I don't have, by the way, what I would like to do is give careful attention to achievement, guidance and counseling, and related matters such as advanced placement and extracurricular the week ofJanuary 28th . Again, I think good faith is always an issue and you can always bring that up. But I would like to confine vour focus to those matters and then, I would like to make a ruling, I would like to have everything on those matters submitted to the Court, so that I can make a ruling with respect to them. And if necessary, give the Eighth Circuit an opportunity to give us further guidance. MR. WALKER: That's fine, Your Honor. THE COURT: I would just prefer that. And I think that that would be something the District would like. It might bring this matter to closure more quickly, one way or the other. (Docket entry #3597 at pp. 36-37; emphasis added). II. Where We Go From Here Judge Wright, my immediate predecessor in this case, has done an outstanding job of narrowing the issues and establishing a schedule that should allow me to conduct no more than five additional days of evidentiary hearings on the four remaining issues and then be in a position to decide the LRSD 's Motion for an Immediate Declaration of Unitary Status. 1 For that reason, the Court intends to pick up where Judge Wright left off, without disturbing the schedule that was established and agreed to by the parties and the Court during the December 11, 2001 hearing. This means I must now address only two issues still hanging fire. guidance counseling, and extracurricular activities had adversely affected the academic achievement of African-American students. 'From my review of the transcripts, I hardly see why it should take five days for the additional evidence (two days would seem to be time aplenty), but Judge Wright has dealt with this case for a long time, and I will defer to her call. -12- A072A /Oou 0 / Ct ? \ First, at the conclusion of the November 20, 2001 hearing, Judge Wright allowed Joshua twenty-five minutes to put on "true rebuttal" testimony relevant to three discrete issues: ( 1) the LRSD's good faith implementation of the Revised Plan; (2) the LRSD's implementation of policies, programs, and procedures designed to improve and remediate the academic achievement of African-American students; and (3) the LRSD's implementation of policies, programs, and procedures designed to insure that there is no racial discrimination with regard to student discipline. Having never been one to place too fine a point on time-keeping, I will allow Joshua thirty full minutes to present "true rebuttal" testimony directed at these three precise issues. After this brief rebuttal testimony has been received, the record will be closed on the issue of the LRSD's substantial compliance with those sections of the Revised Plan related to the academic achievement of African-American students (sections 2.7, 2.7.1, 3.4, 5.1 , 5.2, 5.2. 1, 5.2.l(a)-(l), 5.2.2, 5.2.2(a)-(h), 5.2.3, 5.2.3(a)-(f), 5.3, 5.3.1-5 .3.5, 5.4, and 5.6.1) and student discipline (sections 2.5, 2.5 .1-2.5.4). As early as practical in June, I intend to schedule a short evidentiary hearing to allow counsel for Joshua to present this "true rebuttal" testimony. I would also welcome a stipulation or other arrangement that would allow this extremely brief and limited rebuttal evidence to go into the record, without the need for a formal hearing. Second, I need to establish the basic ground rules for the final evidentiary hearing on the issue of whether the LRSD has achieved unitary status. Before beginning the six days of evidentiary hearings last year on Joshua's opposition to the LRSD's request for unitary status, Joshua's counsel agreed to arrange his evidence so that he presented his strongest arguments against unitary status first. Thus, I must conclude that the record now contains all of Joshua's strongest evidence ofLRSD's failure to substantially comply with its good faith obligations under -13- I I AO 72A /Rev.A/A?\ the Revised Plan (sections 2.1 and 2.1.1). Nevertheless, consistent with Judge Wright's ruling during the December 11,2001 hearing, the Court will allow Joshua to present additional evidence of the LRSD 's failure to substantially comply with its good faith obligations but only to the extent that: (a) it relates directlv to the issues of advanced placement courses, guidance counseling, extracurricular activities, and student achievement; and (b) it does not duplicate testimony already presented by Joshua on the issue of good faith. Similarly, in putting on evidence regarding the LRSD's failure to substantially comply with its obligations under the Revised Plan related to advanced placement courses, guidance counseling, and extracurricular activities, counsel for Joshua may present evidence regarding how those issues adversely affected the academic achievement of African-American students. However, the Court will not allow counsel for Joshua to introduce any new or cumulative evidence on the issue of academic achievement, a subject that has already been thoroughly and extensively covered by Joshua's presentation of their strongest evidence during last year's six days of evidentiary hearings. The Court will enter a Scheduling Order within ten days setting aside up to five days (probably in June and/or July) to conclude the evidentiary record on the remaining factual issues relevant to the question of whether the LRSD is entitled to a declaration ofunitary status. Prior to entering that Order, the Court will conduct a telephone conference with counsel for all parties to set the dates during which this evidentiary hearing will take place. &lt;)Tn DATED this~ day of May, 2002. THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE ,_, _"TH RULE 58 ANO/OR~ fR_;: () ~o/10/0 a-~ Gj1 ~ UNITEb ST ATES DISTRICT JUDGE -14- IN THE UNITED STA TES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT vs. 4:82CV00866-WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al RECEIVED MRS. LORENE JOSHUA, et al MAY 2 0 2002 KA THERINE KNIGHT, et al OFACE OF DESEGREGATION MONITORING ORDER u.frJJR1~PuRT EASTERN DISTRICT ARKANSAS PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS This is to confirm a telephone conference will be held today, Tuesday, May 14, 2002, at 2:30 p.m. Counsel are to carefully review the Court's Order of May 9, 2002 before the telephone conference. IT IS SO ORDERED this 14th day of May, 2002. .u J d,. ln\n ,-~:1~,-f-.( UNITED STA TES DISTRICT JUDGE ord.LRSD 599 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT, Plaintiff, vs. * * * * PULASKI COUNTY SPECIAL SCHOOL '' DISTRICT NO. 1, et al., * Defendants, * MRS. LOREN JOSHUA, et al., lntervenors, KATHERINE KNIGHT, et al., lntervenors, * * * * 4:82CV00866 ORDER FILED U S DISTRICT COURT c- 1\STER!~\ CJiST9'CT ADV ~r--1c; Ac; ,M~Y 1 5 2002 RECEIVED MAY 1 7 2002 Off\CE Of DESEGREG~l\Ott MOttllORlltG Yesterday, on May 14, 2002, an on-the-record telephone conference was held with the lawyers for all the parties. During the telephone conference the following schedule was adopted: l. A final evidentiary hearing on the Little Rock School District's Motion for an Immediate Declaration of Unitary Status was set to commence on Monday, July 22, 2002 at 8:30 a.m.; and to conclude on Friday, July 26 at 5:30 p.m . The time will be divided as follows: a. At 8:30 a.m. on Monday, July 22 the Joshua intervenors will be given 30 minutes within which to present rebuttal evidence pertaining to the three issues tried virtually to conclusion during previous hearings before Judge Wright; b. -2- The remaining forty hours of trial time will be divided equally (twenty hours and twenty hours) between the Joshua intervenors and the Little Rock School District. The Joshua intervenors must notify the Court, on or before July 9, 2002 of the amount of time, out of their twenty hours, that they wish to reserve to present rebuttal evidence. 2. I expect to take testimony from 8:30 a.m. until 6:00 p.m. on Monday, July 22 (with an hour for lunch); and from 8:30 to 5:30 p.m. on each of the following four days (with an hour for lunch each day). 3. On or before June 21, 2002 the parties are directed to identify the name of each of their witnesses, the date and time each witness will be called, and the anticipated time it will take for direct examination of each witness. A detailed statement must be included, of each witness 's anticipated testimony on each issue the witness will address. 4. In addition to exchanging exhibit lists, each party must exchange pre-marked exhibits on or before June 21, 2002. Any exhibit that is not pre - marked and exchanged on or before June 21, 2002 will not be received into evidence during the July 22 hearing, absent highly unusual circumstances . S. U. S. Magistrate Judge J. Thomas Ray will conduct a hearing commencing at 8:30 a.m. on July 9, 2002. At that hearing, all exhibits will be presented, and pre-marked references will be two-blocked ; the witness lists and accompanying witness statements mentioned above will be submitted ; and evidentiary objections and motions in Ii mine will be submitted (it is likely that -3- 1 will later rule on most of the evidentiary objections and motions in limine, - although Judge Ray may issue some rulings during his hearing). 4. By 5 :00 p.m. on Monday, August 19, 2002 the parties must file their proposed findings of fact and conclusions of law with respect to the Little Rock School Districts Motion for a Declaration of Unitary Status. 5. It is re-emphasized that the parties will be required to present evidence within the limits set in my order of Thursday, May 9. 6. Counsel are instructed to interview and prepare witnesses for rifle - shot presentations. IT IS SO ORDERED. Dated this 12.~ay of May, 2002. THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WITI-J?.llj-E 58 AND/~~)~ FRCP ON 1/J"-/-Dr'sy_.~~--- RECEIVED MAY 2 2 2002 OFFICE OF DESEGREGATION MONITORING STATE OF ARKANSAS OFFICE OF THE ATTORNEY GENERAL Mark Pryor Attorney General M. SamuelJones,ill Wright, Lindsey &amp; Jennings 2000 NationsBank Bldg. 200 W. Capitol Little Rock, AR 72201 John W. Walker John Walker, P.A. 1 723 Broadway Little Rock, AR 72201 May 21, 2002 Christopher Heller Friday, Eldredge &amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201-3493 Stephen W. Jones Jack, Lyon &amp; Jones 3400 TCBY Tower 425 W. Capitol Little Rock, AR 72201 Ann Marshall Dennis Hansen Assistant Attorney General Direct dial: (501) 682-3643 E-mail: DennisH@ag.state.ar.us Richard Roachell P.O. Box 17388 Little Rock, AR 72222-7388 Office of Desegregation Monitoring 1 Union National Plaza 124 W. Capitol, suite 1895 Little Rock, AR 72201 Re: Little Rock School District v. Pulaski County Special School District, et al. USDC No. LR-C-82-866 Dear Counsel: Enclosed please find a copy a Motion for Substitution of Counsel in the above-styled case, which I am filing with the Court today. Very truly yours, 323 Center Street Suite 200 Little Rock, Arkansas 72201 (501) 682-2007 FAX (501) 682-2591 Internet Website http://www.ag.state.ar.us/ Page 2 Cover Letter May 21, 2002 DRH/dpn Enclosure cc: Ray Simon Scott Smith Q:\Civil\MarkH\Open Files\deseg\2002\ c orrespondence ~ ~ Ll~~~iJ R Hansen DAessnimstsa nt A ttome y General \ltr cover 5-2 I -02drh.doc IN THE UNITED ST A TES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT v. No. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. MOTION FOR SUBSTITUTION OF COUNSEL RECEIVED MAY 2 2 2002 OFFICE OF lltS6RE6AT!ON MOillTORING PLAINTIFF DEFENDANTS Comes now the Arkansas Department of Education (ADE), to state for its Motion for Substitution of Counsel the following: 1. Mark A. Hagemeier recently resigned from his position with the Office of the Attorney General. 2. Dennis R. Hansen, Deputy Attorney General will be representing the defendant, ADE in this matter. 3. All correspondence and filings should be forwarded to the attention of Dennis R. Hansen, Deputy Attorney General, 323 Center Street, Suite 200, Little Rock AR, 72201. Wherefore, the defense respectfully requests that Dennis R. Hansen be substituted as the attorney ofrecord for defendant ADE Respectfully submitted, MARK PRYOR, Attorney General By ~ L(-i44t. Dennis R. Hansen #97225 Deputy Attorney General 200 Catlett-Prien Tower 323 Center Street Little Rock, Arkansas 72201 (501) 682-1315 Attorneys for Defendant CERTIFICATE OF SERVICE I, Dennis R. Hansen, do hereby certify that I have served the foreg~ument by mailing a copy of same by US. Mail, postage prepaid, thisj}s+ day of , 2002, to the following: M. Samuel Jones, III Wright, Lindsey &amp; Jennings 2000 NationsBank Bldg. 200 W. Capitol Little Rock, AR 72201 John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72201 Richard Roachell P.O. Box 17388 Little Rock, AR 72222-7388 Christopher Heller Friday, Eldredge &amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201-3493 Stephen W. Jones Jack, Lyon &amp; Jones 3400 TCBY Tower 425 W. Capitol Little Rock, AR 72201 Ann Marshall One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Dennis R. Hansen AO 72A (Rev.8/82) FILED U.S. DISTRICT COURT IN THE UNITED STATES DISTRICT coUiPf"i D!Srn:c--T \CH' '~IC: l'I C: FOR THE EASTERN DISTRICT OF ARKANSAS M1\Y 2 8 2002 WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. l, ET AL. ORDER JAMES W. 8y: _________ _ DEP.CLERK PLAINTIFF DEFENDANTS Pending before the Court is Separate Defendant Arkansas Department of Education's Motion for Substitution of Counsel (docket entry #3602). In that Motion, Separate Defendant Arkansas Department of Education asks that Assistant Attorney General Dennis R. Hansen be substituted for Mark A. Hagemeier as its counsel of record in this matter because Mr. Hagemeier no longer works for the Attorney General 's Office. The Court finds good cause for granting the Motion. IT IS THEREFORE ORDERED THAT Separate Defendant Arkansas Department of Education's Motion for Substitution of Counsel (docket entry #3602) is hereby GRANTED. Accordingly, the Clerk is hereby directed to substituted Assistant Attorney General Dennis R. Hansen as the attorney of record for Separate Defendant Arkansas Department of Education. Dated this~ day of May, 2002. THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE .. :, c-1 ,~d e.!.: 53 t/:l.:,/OP~7~(~)i,:RCP 5'/17/01/ -- ---~ ---- UNITED STATES DISTRICT JUDGE 6 0 IN THE UNITED STATES DISTRICT COURT f&lt;,'.':' ? t 11- ? EASTERN DISTRICT OF ARKANS1~ t.LL,. WESTERN DIVISION By:MES W. McCORMACI(, CLER/( LITTLE ROCK SCHOOL DISTRICT v. PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. LR-C-82-866 RECEIVED MAY 3 O 2002 OFFICE OF DESEGREGATION MONITORING DE;-:, CLERK PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS The Joshua Intervenors' Opposition to the LRSD's Motion for an Immediate Declaration of Unitary Status This memorandum responds to the LRSD's "Motion for an Immediate Declaration of Unitary Status," filed on March 15, 2001. Introduction During the 1997-98 school year, representatives of the Joshua Intervenors and the LRSD completed the proposed " [ LRSD] Revised Desegregation and Education Plan." They then filed a joint motion seeking its approval by the court on January 21, 1998. On April 10, 1998, the court (Judge Susan Webber Wright) approved the revised plan. The plan provided for a three-year term assuming substantial and good faith compliance with its terms. [Sections 2.1, 9, and 11] 1 The plan further provided for "[t]he 1997-98 school year and the first semester of the 1998-99 school year [to] 1 .E....,__g_,_, Sturgis v. Skosos, 977 S.W.2d 217, 223 (Ark. 1998) (interpret contract not by emphasizing one clause to the exclusion of others, "but from the entire context of the agreement"). 1 be a transition period in preparation for implementation of [the] Revised plan." [Section 10] Section 11 of the revised plan provides, in part: "In anticipation of release, LRSD shall issue a report on March 15, 2001 indicating the state of LRSD's compliance with the Revised Plan" (emphasis added). 2 The LRSD submitted an Interim Compliance Report on March 15, 2000 (cited as March 2000 report at--) and a Compliance Report on March 15, 2001 (cited as March 2001 report at--). On June 25, 2001, the Joshua Intervenors filed an "[O]pposition to [the] Little Rock School District's Compliance Report." The court (Judge Wright) conducted 5 1-2 days of hearings concerning the LRSD's effort to secure release from court supervision [i.e., on July 5-6, 2001, August 1-2, 2001, and November 19-20, 2001). Thereafter, on March 15, 2002, the LRSD filed its motion for an immediate declaration of unitary status. This memorandum responds to the LRSD motion, with regard to the subjects addressed in the hearings conducted by Judge Wright: Revised Plan Sections 2 .1 ( general requirement of good faith compliance); achievement) ; 2.5-2.5.4 ( student discipline); 2.7.1 (program evaluation) ; 3 2.7 2.12.2 (academic (general 2 See Tr., 8-2-01, at 890, 3-9 (comment by Judge Wright on the limited information on student discipline set forth in the March 2001 report). 3 While Section 2.7.1 refers to program assessment, the terms assessment and evaluation are, at times, used interchangeably. [Tr., 11-19-01, at 242, 13-17 (Associate Superintendent Bonnie Lesley)] This memorandum shows, in detail, that LRSD acted on the premise that Section 2.7.1 addressed program evaluation, until, in 2 requirement of activities "for investigating the cause of racial disparities in programs and activities and developing remedies where appropriate .. ); 6.0 to 6.7 (generally applicable LRSD Compliance program). This memorandum also addresses the obligation of the LRSD to narrow the racial achievement gap, as required by the "Pulaski County School Desegregation Case Settlement Agreement as revised on September 28, 1989." See revised plan, Section l(a. ); Tr., 7-6-01, at 378, 21-24 (recognition of obligation by former Superintendent Les Carnine); Tr., 11-20-01, at 564, 1-4 (recognition of obligation by Associate Superintendent Leslie). It is necessary to consider in connection with the LRSD motion and this response that the Joshua Intervenors' have the opportunity to submit some additional evidence. See Order by Judge William R. Wilson, May 9, 2002 at 13 (30 minutes of rebuttal), at 14 (during additional hearings, Joshua Intervenors may offer certain evidence bearing upon "good faith obligations" and "the academic achievement of African-American students"). Subsequent to the filing of the LRSD motion, this court scheduled a hearing in July 2002 on several issues. Order, May 9, 2002, at 14. Intervenors, therefore, do not respond to LRSD' s argument that as to issues other than those addressed here, "the LRSD should be granted unitary status and released from court supervision without further evidentiary hearings." [ LRSD Mem. - the hearings, it faced the task of defending its performance in this sphere. See,~, Sturgis v. Skokos, supra, 977 S.W.2d at 223 ( "If there is an ambiguity, a court will accord considerable weight to the construction the parties themselves give to it, evidenced by subsequent statements, acts and conduct." [citation omitted]) 3 Brief, at 34] This memorandum begins with a summary of the evidence. The summary, in the form of proposed findings of fact, encompasses the issues addressed here by the Joshua Intervenors: Student Discipline (at 4-19), Improving and Remediating Academic Achievement of African-American Students (at 19-36), Racial Disparities in Achievement ( at 37-40), and Program Evaluation ( at 40-46) . An argument relying upon the factual summaries follows (at 47). The argument is not lengthy, the court's principal task seemingly being the examination of the facts in the light of a concept of "substantial compliance. 11 Intervenors' fact.ual presentation shows in each instance why substantial compliance is lacking, in the light of the concept of substantial compliance advanced. Results on the Arkansas Benchmark Examinations are set forth as an appendix.' Summary of the Evidence I. Student Discipline A. The Relevant Provisions of the Revised Plan (1.) The provisions of the revised plan relevant to the matter of student discipline are the following. 2.5. LRSD shall implement programs, policies and \ or procedures designed to ensure that there is no racial discrimination with regard to school discipline. 2.5.1. The LRSD shall strictly adhere to the policies set Intervenors dispute, in the argument, LRSD' s repetitive suggestion [....,Jl_,_, Mem.-Brief at 2, 34] that termination of jurisdiction would be appropriate if this court found substantial noncompliance, but somehow also was without doubt as to the system's intent to comply with the Constitution absent court supervision. Substantial compliance and future fealty to the Constitution are, in fact, separate components of the exit formula. 4 forth in the Student Rights and responsibilities Handbook to ensure that all students are disciplined in a fair and equitable manner. 2. 5. 2. LRSD shall purge students' discipline records after the fifth and eighth grades of all offenses, except weapons offenses, arson and robbery, unless LRSD finds that to do so would not be in the best interest of the student. 2.5.3. LRSD shall establish the position of "ombudsman" the job description for which shall include the following responsibilities: ensuring that students are aware of their rights pursuant to the Student rights and Responsibilities Handbook, acting as an advocate on behalf of students involved in discipline process, investigating parent and student complaints of race based mistreatment and attempting to achieve equitable solutions. 2.5.4 LRSD shall work with students and their parents to develop behavior modification plans for students who exhibit frequent misbehavior. * * * 2.12.2. LRSD shall implement policies and procedures for investigating the cause of racial disparities in programs and activities and developing remedies where appropriate. * * * SECTION 6: LRSD Compliance Program. LRSD shall implement a desegregation compliance program which shall include the following components: 6.1. Compliance standards and procedures reasonably capable of reducing the prospect of noncompliance; 6. 2. Oversight of compliance with such standards and procedures by the superintendent; 6. 3. Communication of compliance standards and procedures to employees; 6.4. Utilization of monitoring and auditing systems reasonably designed to detect noncompliance; .. 6.6. Enforcement of compliance standards and procedures through appropriata disciplinary mechanisms, including the discipline of indi victuals responsible for compliance and individuals responsible for any failure to report noncompliance; and 5 6. 7. After noncompliance has been detected, implementation of all reasonable steps to correct past noncompliance and to prevent further noncompliance, including modification of the compliance program as necessary to prevent and detect further similar noncompliance. B. The LRSD Interim Compliance Report (March 15, 2000) ( 2.) The LRSD "Interim Compliance Report" (March 15, 2000) discusses the five sections of the revised plan, which focus on student discipline, at pages 13-17. (a) The text concerning Section 2.5 addresses: adoption of policies (a general policy on non-discriminatibn and policies on discipline records); revision of student handbooks; creation of "an online student discipline reporting system for each school building ... "; staff development; a decrease in suspensions and expulsions in the LRSD; the sampling of parent, student, community and teacher attitudes on safety and order in the schools; and expansion of the number of alternative learning sites. [at 13-15] (b) The text concerning Section 2.5.1 (on the Student Rights and Responsibilities Handbook) addresses: the adoption of general district standards on racial disparities in programs and activities and student rights and responsibilities; directing principals to comply with the handbook; informing students and parents of standards; and employing the ombudsman. [at 15] ( c) The text concerning Section 2. 5. 2 ( purging students' discipline records) addresses: adoption of standards; in-service training; and implementation by the Assistant Superintendent for School Discipline (Dr. Linda Watson). [at 15] (d) the text concerning Section 2.5.3 (the ombudsman) 6 addresses: the filling of the position in February 1999 (half-way through the first year of the plan); establishment of goals for the ombudsman's work, including "[i]nvestigat[ing] parent and student complaints of alleged race-based mistreatment and ... work[ing] to achieve equitable solutions"; increasing community awareness of the ombudsman and monthly reports on his work. [at 15-16] (e) the text concerning Section 2.5.4 (behavior modification plans for students) addresses: the general process for developing such- plans and an exit process for students eligible to return to a home school from the "Alternative Learning Center." [at 16-17] The totality of the text on behavior modification plans is as follows: Students who exhibit frequent misbehavior have their cases refereed to the schools' Pupil Services Team. The team is comprised of the building administration, the students' teacher, the counselor, the parents and any specialists deemed necessary. The team develops a behavior modification plan as warranted. [at 16] (3.) The March 2000 Interim Compliance Report omits coverage of Section 2.12.2 (investigating causes of racial disparities in programs and activities and developing remedies). [See report at 82-86] (4.) The portion of the March 2000 Interim Compliance Report concerning Plan Sections 6. 0 through 6. 7 ( general desegregation compliance program) does not discuss school discipline. [at 127-29] C. The LRSD "Compliance Report" (March 15, 2001) (5.) The LRSD "Compliance Report" (March 15, 2001) discusses the five sections of the revised plan, which focus on school discipline, at pages 24-26. 7 (a) The text concerning Section 2.5 addresses: decreases in the numbers of suspensions and expulsion system-wide and for black and white students; the decrease in the number of students committing offenses; the sampling of community and teacher attitudes on school issues (positive views on safety and pupils' feelings on "belonging at schools"). [at 24-25] The report also includes this text [at 24]: The number of African-American students suspended decreased 20 percent consistent with the overall reduction in disciplinary sanctions. The proportion of suspensions issued to AfricanAmerican students remained in the neighborhood of 85 percent. The Report describes no particular action directed at the continuing racial disparity. (b) The text concerning Section 2.5.1 (on the Student Rights and Responsibilities Handbook) addresses: school board approval of - general district standards on racial disparities in programs and activities and student rights and responsibilities. [at 25] ( c) The text concerning Section 2. 5. 2 ( purging students' discipline records) addresses: asserted compliance with this provision by school principals and the "Student Hearing Office." [at 25] (d) The text concerning Section 2.5.3 (the ombudsman) addresses [ at 25-26]: training received by the ombudsman; steps taken to increase public awareness of the ombudsman's services; and a description of the ombudsman's activities, which reads as follows: Efforts to raise public awareness of the ombudsman appear to have been successful. In the last year, the ombudsman has been contacted by over 250 parents or students and provided 8 services related to over 450 incidents. In addition, the ombudsman has implemented intervention activities at Badgett Elementary and McClellan High School designed to assist African-American males who demonstrate unacceptable behavior. Efforts are underway to expand these activities to include other schools. (e) The text concerning Section 2.5.4 (behavior modification plans for students) contains only a general description of the asserted process for developing such plans. Contrary to other instances, there is no reference to a school board policy or the numbers of students and schools involved. [at 26] (6.) The part of the March 2001 Compliance Report addressing Section 2 .12. 2 ( investigating causes of racial disparities in programs and activities and developing needed remedies) contains only six lines of text. This text cites the school board's adoption of the general policy on racial disparities in programs and activities and then provides in part: "In implementing its obligations under the revised plan, the District has addressed racial disparities in ... discipline (Section 2.5) ... 165] 5 " [at (7.) The March 2001 Compliance Report omits mention of Plan Sections 6.0 through 6.7 (general desegregation compliance program), which had been discussed in only a cursory fashion in the March 2000 report (see paragraph 4 above). [at i-iii] 5 Section 11 of the revised plan for the LRSD provided for release of court jurisdiction "provided that LRSD has substantially complied with its obligations set forth in [the] Revised plan." It added: "In anticipation of release, LRSD shall issue a report on March 15, 2001 indicating the state of LRSD's compliance with [the] Revised Plan" (emphasis added). 9 D. The Evidence Presented to the Court (8.) The LRSD March 2000 and March 2001 reports and Dr. Linda Watson's testimony stressed reduction in the overall number of suspensions and expulsions. [March 2000, at 13-14; March 2001, at 24; Tr., 11-19-01, at 48, 13-21; at 55, 22 to 56, 15; at 83, 14-21 (Dr. Watson)] 6 However, the data set forth in ex 743, introduced by LRSD, revealed that in 2000-2001, the third year of the plan, while white student suspensions\expulsions continued to drop (69 fewer, 11.2 percent lower than 1999-2000), black student suspensions\expulsions increased in that school year (496 more, 12.3 percent higher than 1999-2000). Suspension Index by Year")] [CX 743 ("Discipline ( 9.) While asserting that suspensions and expulsions decreased in number, the LRSD acknowledged that racial disparity continued. [March 2001 report, at 24); Watson testimony, 11-19-01, at 83, 14- 21; at 113, 14 to 114, 1; ex 743] 7 (10.) The LRSD reports in March of 2000 [at 13-15] and 2001 [ at 24-25] presented no data showing discipline by school. The 6 In LRSD's affirmative presentation, LRSD identified Dr. Linda Watson as responsible for implementation of Sections 2.5, 2.5.1, 2.5.2, 2.5.3, and 2.5.4 of the revised plan. [Tr., 11-19-01, 'at 25, 16-19] 7 On June 14, 2000, the Office of Desegregation Monitoring (ODM) issued a report titled Disciplinary Sanctions in the Little Rock School District. It sets forth data by school, by sex and race, on the number of students subjected to one or more suspensions. This allowed the LRSD to identify the extent of overrepresentation of black students in discipline in a meaningful manner, and to single out schools with atypical disparities. See Appendix at 5. The LRSD chose to ignore the ODM report. See para. 19, infra. 10 reports set forth no data by sex and race [id.], with the omission of data on disciplining of black males being particularly significant [Tr., 8-2-01, at 892, 5-9 (Associate Superintendent Sadie Mitchell); Tr., 11-19-01, at 124, 4-14; at 132, 12-24 (Dr. Watson); ex 583, at 125 (ODM report noting black males' being suspended "at significantly higher rates than any other subgroup"); see also Tr., 8-2-01, at 890, 23 to 891, 13 (Judge Wright)] (11.) The discipline process at the school level involves referrals of students by teachers and imposition of sanctions by administrators. [Tr., 11-19-01, at 151, 155] (12.) The March 2000 and 2001 LRSD reports show no evidence of the development of criteria to identify schools, teachers or administrators involved in atypical racial disparities in discipline [g__,__g_,_, departing from system averages, or in the case of a teacher or administrator in a particular school, departing from the pattern for colleagues in that school). [March 2000 report, at 13-15; March 2001 report, at 24-25] Assistant Superintendent Watson identified no such criteria in her testimony on November 19, 2001. (13.) The LRSD has the ability, by computer, to identify particular teachers, vice principals, and principals, . whose referrals or sanctions evidence atypical racial disparities. This has not been done systematically, if at all. [Tr., 11-19-01, at 123, 7-16; 128, 6-18; 149, 10 to 150, 25; 155, 7-12; 161, 4-13]] (14.) After acknowledging the absence of such disaggregation of data, Dr. Linda Watson testified as follows: Q Okay. So, it wouldn't be possible to correct it, if it was not disaggregated and in writing, would it? 11 A. I guess not sir. [Tr., 11-19-01, at 149, 23-25] (15.) Dr. Watson testified as follows: Q. All right. Is there a group within the District or made up of teachers, administrators, support staff, that are helping to identify and to be responsible for correcting the disparate impact, discipline in the District? A. Not to my knowledge. [Tr. 11-19-01, at 162, 18-23] ( 16. ) Dr. Watson agreed that she " [has] not prepared a monitoring report with respect to disparities in d~scipline." [Tr., 11-19-01, at 114, 4-7] Asked "[d]id you make a written analysis of discipline data to reveal any potentially systemic problems," Dr. Watson testified, "No sir." [Tr., 11-19-01, at 142, 8-10] Asked whether former Superintendent Les Carnine or Associate Superintendent Junious Babbs had "prepare[d] a causation analysis of discipline disparities," Dr. Watson testified, "Not to my - knowledge no, sir." [Tr., 11-19-01, at 130, 1-4] Faced with the question, "[s]o, there are no plans by which to reduce disparate impact of black students?," Dr. Watson, the person responsible for implementation of the discipline sections of the revised plan, testified: "Not, to my knowledge." [Tr., 11-19-01, 135, 6-8; see also id. at 112, 9-17] (17.) Dr. Watson testified as follows: Q. Have you made any recommendations regarding how to address the gross over representation of black boys, in the disciplinary process? A. No, I have not. Q. Have you not publicly stated that there needs to be some more attention devoted to dealing with this problem, because apparently there is a fear factor associated with black boys? A. Yes. [Tr., 11-19-01, at 132, 12-20] 12 (18.) The following testimony of Dr. Watson is particularly significant in view of LRSD's acknowledgement of continuing racial disparities in school discipline and her own recognition of the particular issue regarding black male students. Q. Other than what you have told me, what is the Little Rock School district doing to -- and what you told Mr. Walker, what is the Little Rock School District doing, in addition, to correct the disparity based upon race? A. I can't say that we are looking at it based on race. We are looking at the number of suspensions. We are trying to offer programs that African-American students, as well as other students, to participate in. [Tr., 11-19-01, at 163, 16-25; emphasis added] (19.) The Office of Desegregation Monitoring distributed on June 14, 2000 a report titled Disciplinary Sanctions in the Little Rock School District. [CX 583] This report set forth discipline statistics by race, by school, for the school years 1993-94 through 1998-99, including the numbers of student in each school receiving one or more sanctions. 8 The report also contained seven recommendations. [CX 583, at 127] Dr. Watson testified as follows regarding the ODM report. Q. Now, did you ever meet with the ODM after the ODM issued its report for the purpose of either better understanding their recommendations or for seeking ways to implement their recommendations? A. No, I did not, but I sure wanted to. Q. Why didn't you? 8 The data by student, by race, allows a comparison of the proportions of black and white students in a school receiving suspension or expulsion as a form of discipline. The comparisons in the individual schools can then be compared to those of other schools, allowing identification of schools with atypical disparities. 13 A. Because I took -- once the report came out. we discussed it in the cabinet. and it was the decision at that time that we would not respond or do anything. Q. That's right. Dr. Carnine told you not to meet with them, didn't he. A. At that time, yes he did. Q. I see. A. That was the decision that came from cabinet, we were not going to address the issues. [Tr., 11-19-01, at 177, 11-25; emphasis added] ( 20.) Dr. Watson testified as follows regarding behavior modification plans. Q. [Y]ou have indicated that you have responsibility under 2.5.4 for creating Behavior Modification Plans, is that correct? A. Yes, I did say that. Q. How many such plans did you develop each year? A. I couldn't say how many I developed. Q. You never had -- you do not have a report, which documents the number you have developed? A. No sir, I do not. Q. What is the evidence to show that it was actually done? A. In cases that I heard in student hearings, when we needed to do Behavior Modification Plans, there were times that we stopped and did the plans there in the office. Q. I see. A. There were times that I referred them back to the schools, Pupil Services Team, to do Behavior Modification Plans. Q. I see. Do you agree with this statement? The district does not have any document compiling the total number of Behavior Modification Plans or the race or gender of students for whom Behavior Modification Plans have been prepared? A. I agree. I do not have the numbers. 14 Q. All right. Do you agree with this statement? The District does not have nay document entitled, "Monitoring Report of Behavior Modification Plans." A. I would agree . [Tr., 11-19-01, at 135, 9 to 136, 12] ( 21.) The testimony revealed that Dr. Watson had a vast array of responsibilities, more than one person could reasonably be e xpected to accomplish . The evidence also reveals that Dr. Watson, an "assistant superintendent," sought additional personnel, that her plea did not bear fruit, and that additional personnel were needed to address racial disparity in discipline in individual schools. [Tr., 11-19-01, at 114 , 4 to 119, 8; see also id. at 142, 25 to 146, 23 (example of type of effort needed to work with one school)] . E. Findings Concerning Overall Compliance with the Plan ( 2 2 . ) Section 2. 5 of the revised plan is devoid of any statement that the requisite "programs, policies and\or procedures" to be "implement [ ed]" pursuant to this section are limited to those set forth in Sections 2.5.1, 2.5.2, 2.5.3, and 2.5.4. of the plan. Ms. Linda Watson's affirmative testimony presented by LRSD was not limited to the subject matter of these four sections. [.E....,__g__._, Tr., 11-19-01, at 27-30] The text of Sections 2.12.2, 6 . 1, 6.2, 6. 3 , 6.4, 6.6, and 6.7 of the revised plan show that these sections are relevant to the subject of racial disparities in school discipline . Moreover, the text of these sections contains no indication that their content as to the discipline sphere can be satisfied merely by the fulfillment of the requirements of Sections 2.5.1, 2.5.2, 2. 5. 3, and 2.5.4. of the plan (assuming t hat LRSD substantially 15 complied with each of these sections). (23.) There is no predicate for the court to find a lack of substantial compliance with Sections 2.5.1, 2.5.2, and 2.5.3 of the revised plan. However, the record does establish a lack of substantial compliance with Sections 2.5 and 2.5.4. (24.) The record establishes a lack of substantial compliance with Section 2.5 for the following reasons. (a) The LRSD report of March 2000 [ at 13, 15] and the testimony of Dr . Linda Watson [Tr., 11-91-01, at 27-28] identified LRSD Policies AC, ACB, JB and JBA as steps implementing Section 2.5 of the revised plan. [ CX 719 (cited standards)] However, these standards merely restate the LRSD's existing obligation to comply with the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000dd( 4)(a) (barring racial discrimination in programs receiving federal financial assistance) . . Moreover, these standards do not even mention disciplining of students. [CX 719] 9 (b) Dr. Watson's outlines for training of principals omitted the matter of disparate discipline generally and discipline of black males [ ex 672-76; Tr., 11-19-01 at 122, 14 to 123, 6], despite awareness of these issues. See paras. 9, 10. (c) The LRSD was aware of continuing racial disparities in the imposition of school discipline generally and in particular with 9 LRSD regulation JBA-R implements policy JBA. It is noteworthy that this regulation addresses explicitly each school's obligations to insure nondiscrimination in "programs and activities," with three required strategies, but does not mention discipline. [CX 719] 16 regard to black male students. See paras. 9, 10. The system had the capability by computer of identifying schools with atypical racial disparities in discipline; the system also had the capability of identifying teachers whose referrals and administrators whose discipline actions were marked by atypical racial disparity. See paras. 9 &amp; n. 6 , 13 . The LRSD did not implement any programs , policies and\or procedures geared specifically to such schools or personnel. See paras. 12-18. (25.) The LRSD's discussions of "behavior modification plans for students who exhibit frequent misbehavior" [ Section 2. 5. 4 J , and other evidence on this topic, show mere lip service to the concept, rather than "work[ing] with students and their parents to develop" such plans. See paras. 2(e), 5(e), 20; compare paras. 5(d) and 5(e) (in the March 2001 report, discussion of the ombudsman contains statistics on parent contacts and matters worked on, while coverage of behavior modification plans is limited to general description of process for developing plans). (26.) LRSD's failure to comply with Section 2.12.2 as applied to discipline is obvious. The system was aware of racial disparity and had the capability of isolating schools and staff with atypical problems. The system did not investigate the matter; and, therefore, could not develop remedies. The system did not commit sufficient personnel to the issue. See paras. 9, 10, 12-18. Indeed, Dr. Linda Watson, the official responsible for compliance with the discipline sections of the plan [Tr., 11-19-01, at 25, 16-19], and the system's major witness on the topic, testified: "I can't say 17 that we are looking at it [discipline issue] based on race." [Tr., 11-19-01 at 163, 21-25] (27.) Similarly, LRSD's failure to comply with Part 6 of the revised plan ("LRSO Compliance Program"), as applied to discipline, is obvious. Again, LRSD was aware of the general pattern of discipline disparity, and the particular issue about black male students. The system did not adopt standards to identify schools and staff with atypical discipline patterns. It did not analyze available data based upon such standards. It did not inform staff of such standards and procedures. It did not enforce such standards, or require remedial actions to address problems identified. Neither the superintendent, nor his designees oversaw compliance with any such standards and procedures. See Sections 6.1, 6.2, 6.3, 6.4, 6.6, and 6.7 and paras. 9, 10, 12-18, 21. (28.) Finally, LRSD's performance with respect to student discipline does not evidence substantial compliance with its agreement to "in good faith exercise its best efforts to ensure that no person is discriminated against on the basis of race, color or ethnicity in the operation of the LRSD. " [Section 2.1] The evidence supporting this conclusion includes the following. [i] The district did not commit adequate personnel to the issue of discipline. See para. 21. [ii] Despite knowledge of the continuing racial disparity in discipline, the system, did not study the causes, or identify and follow-up on schools and personnel with atypical disparate patterns. See paras. 9, 10, 12- 18. [iii] Or. Watson testified, as noted, that "I can't say that we 18 are looking at it [discipline issue] based on race." See para. 18. [iv] Upon receipt of the Office of Desegregation Monitoring report on school discipline in June 2000, the decision of the superintendent and his cabinet was "at that time ... we would not respond or do anything"; " issues." See para. 19. . we were not going to address the II. Improving and Remediating Academic Achievement of AfricanAmerican Students A. The Relevant Provisions of the Revised Plan ( 29.) The provisions of the revised plan relevant to the subject of improving and remediating the academic achievement of African-American students are the following. 2.7. 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. 2. 7 .1. LRSD shall assess the academic programs implemented pursuant to section 2.7 after each year in order to determine the effectiveness of the academic programs in improving African-American achievement. If this assessment reveals that a program has not and likely will not improve African-American achievement, LRSD shall take appropriate action in the form of either modifying how the program is implemented or replacing the program. * * * 2.12.2. LRSD shall implement policies and procedures for investigating the cause of racial disparities in programs and activities and developing remedies where appropriate. * * * SECTION 6: LRSD Compliance Program. LRSD shall implement a desegregation compliance program which shall include the following components: 19 6.1. Compliance standards and procedures reasonably capable of reducing the prospect of noncompliance; 6. 2. Oversight of compliance with such standards and procedures by the superintendent; 6. 3. Communication of compliance standards and procedures to employees; 6. 4. Utilization of moni taring and auditing systems reasonably designed to detect noncompliance; ... 6.6. Enforcement of compliance standards and procedures through appropriate disciplinary mechanisms, including the discipline of individuals responsible for compliance and individuals responsible for any failure to report noncompliance; and 6.7. After noncompliance has been detected, implementation of all reasonable steps to correct past noncompliance and to prevent further noncompliance, including modification of the compliance program as necessary to prevent and detect further similar noncompliance. B. The Shortcomings in the Educations Afforded Black Students and the Standards Adopted to Address the Problem ( 3 o. ) Two aspects of Section 2. 7 of the revised plan are particularly noteworthy. First. The LRSD obligation is not limited to "design [ ing]" programs and other initiatives; rather, the initiatives must also be "implement[ed." [See Tr., 8-1-01, at 686- 87 (Leslie)] Second. The programs and other initiatives "[include] but [are] not limited to [those in] Section 5 of [the] revised plan." (31.) Dr. Leslie Carnine became Superintendent of the LRSD effective with the 1997-98 school year. [Tr., 11-19-01, at 341-42] During testimony on November 19, 2001, when he had served for four years, Dr. Carnine provided the following overview. Mr. Walker, when we put the new plan together, if you will remember, and in fact -- if I can find the document, and I think we might be able to present it, but I said at the time 20 that it was my statement to you that I firmly believed that if we remediated the education of black students and made a real effort. where I felt that it had been missing, that by that very remediation effort of increasing their achievement, we would help to, in fact minimize the disparity between black and white achievement. Now, that statement is the one that I have made continuously over the past four years, I have said nothing different, not that I am not -- I am certainly concerned about that disparity issue. It has been my life's work. But my point is the only way you can do it is not worry about the disparity, but let's just teach kids. And I didn't feel that we were doing that good a job. I think we are doing a better job now. Are we where we need to be? Not absolutely. but we are getting there .... [At 450- 51; emphasis added] (32.) During the 1998-99 school year, year one of the new plan, LRSD staff under the direction of Associate Superintendent Bonnie Lesley, who joined the staff at the end of June 1998 [Tr. 8- 1-01, at 670, 18-19], undertook a comprehensive review of the educational program, including students' test scores. This review yielded, ultimately, the view that the curriculum for grades K-12 in language arts (including literacy), mathematics, science and social studies needed to be replaced. [March 2000 report, at 45; Tr., 11-20-01, at 550, 10-14] ( 33.) The review of programs during 1998-99 examined the development of early literacy skills in the light of results for 'LRSD students on the Arkansas Grade 4 Benchmark Examination (Spring 1998 and Spring 1999) 1 0 and the Stanford Achievement Test (SAT 9) 10 Arkansas has adopted curriculum frameworks for language arts, mathematics and other subjects. For each framework, there are benchmarks, identifying, in grade level bands, knowledge and skills which it is hoped students will master. The State requires local districts to give benchmark examinations in literacy and mathematics in grades four and eight. These instruments are 21 (Grade 3, Fall 1998) .ii On the state-mandated examination, 42 percent of LRSD students performed at the lowest level ( "Below Basic") and only 30 percent of students at the levels deemed acceptable. Significantly, "[f]ifty-three percent of AfricanAmerican grade 4 students performed at the 'Below Basic' level, compared to 20 percent of white students." The results for grade 3 on the nationally normed SAT 9 reading test were consistent. "In both cases only approximately 30 percent of LRSD students performed at the 'Proficient' or 'Advanced' levels ... , again indicating that far too few students are becoming good readers by grade 3." [CX 703, Doc. 1 at 12-13]= ( 34.) The federal educational program known as "Title I" originated in the Elementary and Secondary Education Act of 1965. It provides financial assistance to local school districts to support help for low achieving students. The March 2000 report noted LRSD's receipt of $4.2 million in Title I funds, annually. designed to show a student's level of mastery of benchmarks appropriate to the students' grade level. The results are reported in terms of four levels (below basic, basic, proficient, and advanced). The State's goal is that all students reach at least the level of proficient. [March 2001 report, at 56; Tr., 8-1-01, at 692, 18 to 694, 9; "[LRSD] Memorandum Brief in Support of Motion for an Immediate Declaration of Unitary Status," March 15, 2002, 'Tab 5, at 9 J ii For a description of the SAT 9, see the March 2001 report, at 56. i 2 The exhibit did not discuss SAT 9 scores by race. The record contains SAT 9 reading scores by race for grade 5 for 1998-99 (but not grade 3 scores). On "total reading" the average percentile score for black LRSD fifth grade students was 27 and that for LRSD white students 69. [CX 741] 22 Almost all LRSD schools received some Title I funds in recent years. "The goal of Title I is to provide supports so that all children can achieve the rigorous curriculum content standards established by the State and the [local] District." [March 2000 report at 47, 68; see 20 u.s.c. Sec. 2701] ( 35.) The review of instructional programs during 1998-99 encompassed Title I programs. The March 2000 interim report described some of the findings as follows: An analysis of performance data found that most Title I schools had not been meeting their improvement goals. The staff found that part of the problem was the absence of or lack of consistent delivery of District-established literacy and math curriculum. These problems were corrected through the new Pre-K Literacy Plan and the new NSF mathematics curriculum. Another part of the problem was the lack of alignment between the Title I programs and the reaular curricula in literacy and mathematics. [At 68; emphasis added] Dr. Leslie provided consistent testimony about the findings of the review. [Tr., 81-01-01, at 700-02 (noting use of "pull out programs" which "even result in the child missing the instruction on the things that are going to be tested")] (36.) Testimony by Dr. Lesley revealed the consequences for Title I participants, disproportionately black youth [Tr., 8-1-01, at 702], of the lack of alignment of the content of the Title I program "and the regular curricula in literacy and mathematics." . Alignment is absolutely critical, particularly in an urban school district, because alignment means that you are going to test kids over, that you have given them a chance to learn that, that you have got that included in the curriculum. And so without alignment, poor kids in particular suffer the most, because there may not be an opportunity for them to get that knowledge and skill anywhere else .... [Tr., 11-19-01, at 199-200] (37.) The perverse and ironic impact of the content of the 23 Title I program on LRSD's black students has been substantial. The program is longstanding (i.e., originated in 1965) and in the relevant time frame has supported activities in almost all Little Rock schools. The low scores of LRSD's black middle school and high school students on the state benchmark and the SAT 9 tests are no doubt due, in part, to their isolation from important parts of the curriculum by Title I programs (which were supposed to help them attain the knowledge and skills which LRSD identified as important for all students). (38.) Dr. Lesley also identified general problems in the math curriculum, prior to its revision. "The old curriculum really focused on two strands of the [State] standards, and now we have a curriculum that encompasses all six strands, which include such things like statistics and problem solving and geometry and algebra, even for young children. So, that has been a big change for teachers." [Tr., 11-19-01, at 272, 6-11] ( 39.) The information gleaned about the content of the educational program and student outcomes on standardized tests led the LRSD leadership to conclude that a complete overhaul of the educational program was necessary. [CX 703, Doc.1 at 12-13] This overhaul involved many areas. For example, the March 2000 report described the changes needed to implement the PreK-3 literacy plan, alone, as follows: "The plan required restructured schools and school days, alignment of special programs with general education, new standards-based curriculum, appropriate pedagogy (instruction), materials, and assessments, high-quality and intensive professional 24 development, effective interventions, and parent involvement." [At 97] The restructuring also involved mathematics, science and social studies curricula. See para. 32; see also Dr. Leslie's testimony regarding the magnitude of the attempt to completely overhaul the educational program. [Tr., 11-19-01, at 198, 23 to 207,12] (40.) In the March 2000 and March 2001 reports, the LRSD identified many policies, practices and procedures, some general and some specific, as designed to fulfill the obligation which it assumed in Section 2.7 of the revised plan. Sub-paragraphs (a)-(e) describe central elements of the LRSD commitments. (a) "The District developed in 1997-98 and 1998-99 comprehensive curriculum content standards, plus grade-level and course benchmarks in K-12 English language arts, mathematics, science, and social studies. In addition, curriculum maps were constructed for each area to ensure that the LRSD standards were aligned with the state's curriculum frameworks and assessments." [March 2000 report, at 45; Tr., 11-20-01, at 513, 17-21] (b) Staff members developed durihg 1998-99 and the Board of directors approved in June 1999 a PreK-3 literacy plan. The March 2000 report stated that "PreK-3 literacy is a major, if not the major priority of LRSD . " "The plan required restructured schools and school days, alignment of special programs with general education, new standard-based curriculum, appropriate pedagogy (instruction), materials, and assessments, high-quality and intensive professional development. effective interventions, and parent involvement. [March 2000 report, at 96-99; see also id. at 25 90 [assessment to "[identify] [students] for early interventions"] (c) The March 2001 report states: Implementation of standards-based, inquiry-based instruction in mathematics and science, intensive and sustained professional development for teachers, and multiple assessment measures have been put in place to ensure improvement. New standards-based curricula in mathematics in grades K-8 and in science for grades 1-9 have been adopted. The curricula for other grade levels are being adapted locally to reflect a standards-based, inquiry-centered approach. The number of K-12 mathematics teachers who received training and materials to fully implement the new mathematics program increased from 215 teachers in the 1999-2000 school year to 515 teachers during the 2000-2001 school year. The number of K-12 science teachers who received training and materials to fully implement the new science program increased from 50 teachers in the 1999-2000 school year to 243 teachers during the 2000-2001 school year. Another 108 mathematics teachers and 4 5 3 science teachers began implementing part of the standards-based program during 2000-2001. All teachers in mathematics and science are scheduled to fully implement the standards-based program during the 2001-02 school year. [At 115] (d) Dr. Leslie testified that "interventions" for students whose achievement is not at the standards deemed desirable is a vitally important part of the new literacy program. [Tr., 8-1-01, at 679,14 to 681, 15] Interventions (and remediation) are a point of emphasis in the LRSD reports of March 2000 and 200113 and in policies adopted by the LRSD Board of Directors to which they refer (summarized in next paragraph). This emphasis is in keeping with Section 2. 7 of the revised plan which requires designing and implementing actions "to improve and remediate the academic achievement of African-American students ... " (emphasis added). (e) The LRSD adopted the following relevant standards. 13 See March 2000 report at 43, 44, 4 7, 48, 49; March 2001 report at 51-52, 62, 64, 125-26. 26 ( i) The Board of Education adopted Policy IHBDA ( "Remedial Instruction") on July 22, 1999, after year one of the plan. It requires "the district and each school" to make "comprehensive and aggressive early intervention efforts, especially in PreK-3 reading and mathematics, with continuing support through complementary remediation efforts on an as-needed basis to promote and sustain the standard levels of achievement." "Intervention\remediation efforts of the Little Rock School District will be comprised of a broad range of alternatives 11 [CX 719, Policy IHBA] (ii) The Board approved Regulation IHBDA-R "Intervention\remediation") on October 21, 1999, after the start of year two of the plan. It provides, in part: Assistance will be provided for any student who is performing below the standard levels of achievement in the areas of mathematics and reading\language arts. Intervention\remedial programs include re-teaching, tutoring, extended-day programs, Saturday programs, summer school, and special courses offered within the school day in addition to the core instruction. Program designs may differ from school to school, depending upon funding sources, needs of students, and decisions made by the Campus Leadership Team. [CX 719, Reg. IHBDA-R] (iii) The School Board approved Regulation IHBDA-R2 ("Student Academic Improvement Plan" (SAIP)) on August 24, 2000, after year two of the plan, in compliance with Act 999 of 1999. It requires teachers "of English language arts and mathematics" at each level to prepare individual SAIPs for "each student who [ i] is not performing on grade level (K-4); [ii] is not 'proficient' on any part of the state's benchmark examinations - primary (grade 4), intermediate (grade 6), middle school (grade 8); and [iii] is not scoring 'proficient' on End-of-Course examinations in literacy, 27 geometry, and\or algebra." "School and individual teachers are encouraged to develop plans for additional students who, in their judgment, require remediation or intervention. 11 The regulation further provides: The Student Academic Improvement Plan (SAIP) will document a student's achievement through District-adopted assessment tools, consideration of personalized education services (special education, English-as a- Second language, Title I, gifted programs, etc.) identification of areas of need, specific skills to improve, strategies that will be implemented (see IHBDA-R), and progress. [CX 719, Reg. IHBDA-R] C. Deficiencies in Implementation Establishing a Lack of Substantial Compliance with Secs. 2.7.1. 2.12.2 &amp; Part 6.0 (41.) The content of paragraphs (42) through (57) supra shows that the deficiencies in implementation of the Section 2.7 activities identified by the LRSD are such that a finding of substantial compliance with Section 2. 7 is not warranted. The LRSD's failure to substantially comply with Section 2.12.2 and Part 6 of the revised plan, as to the area of academic achievement, is also apparent. (42.) The LRSD Board of Directors approved the PreK-3 Literacy plan in June 1999, after year one of the revised plan. [March 2000 report, at 99] ( 4 3. ) Teachers did not receive "their copies of the new curriculum documents" until "August 1999 11 the start of the school year (and the start of the second year of the revised plan). [March 2000 report at 45] "All teachers did not begin the [1999- 2000] year with the training to implement the new curriculum, teaching strategies, and materials. Training occurred throughout 28 the year, and some teachers were not trained at all in 1999-2000." [March 2001 report, at 91 ] (44 . ) LRSD has emphasized that the training and retaining of teachers is a vitally important component of the new educational programs. (a) Dr. Leslie testified as follows: It [professional development] is probably the most important thing that we have done, and we've spent all of our treasury on that. A great deal of time, a great deal of energy, a great deal of money, trying to be sure that every teacher has at least a minimum level of training in several areas, because one of the things that was overwhelming about the plan and its implementation is that -- particularly for elementary teachers, is that they had to learn new curriculum, they had to learn new materials, they had to learn new instructional strategies, and many of them had to change some belief systems, in order to make it work. And so, it takes more than a one workshop approach to get all that done. It has to be followed up over and over and over. And so, that is one reason we have emphasized it so much. The Board has allocated every dime they could to that effort over the last three years. [Tr., 11-19-01, at 207, 13 to 208, 8] (b) The importance of teacher training was described as follows in the "Year 2 Evaluation: The Effectiveness of the Pre-K-2 Literacy Program in the Little Rock School District 1999-2000 and 2000-2001" (October 2001) by Dr. Lesley and other LRSD staff. 1 The most expensive - and the most important - piece of the cost of any program implementation designed to improve student achievement is always the cost of professional develop-ment . . 'In study after study, it is the quality of the teacher not variation in curriculum materials that is identified as the critical factor in effective instruction. That is not to say that materials are wholly unimportant, but that investing in teacher development has a better result than 14 This document appears at Tab 4 of the " [ LRSD] Memorandum Brief in Support of Motion for an Immediate Declaration of Unitary Status." 29 investing in curriculum materials.' ... [At 96] (45.) Nevertheless, the "Year 2 Evaluation" above identified serious shortcomings in the teacher training needed to implement the Pre-K-3 literacy program. The report states that 12 days of "Ella training"have been offered to K-2 teachers during the last two years. [At 97] It then sets forth a table, by school, showing the amounts of training for K-2 teachers. The average number of days per school is 4.65 across all levels. Moreover, in 15 of the 35 schools listed, the average number of days is 2.4 or fewer days. [At 98] The report states: From the table above, one can infer that implementation is, in general still at a low level since the number of days of ELLA training experienced by teachers is 4.65 of the 12 possible days available. Kindergarten teachers have the highest level of participation, then grade 1 and then grade 2. Kindergarten, probably not coincidentally, is the highest performing grade level. [At 98] (46.) The LRSD employed lead teachers in the areas of math and science to promote the change from the traditional math and science curriculum to the new curriculum. Among other things, the lead teachers used an observation form to assess "the implementation level and quality of implementation of the teachers\schools in their cluster." LRSD reported the survey results for 1999-2000 in the March 2001 report. The report explains implementation codes as follows: "3 - fully implementing standards-based; 2 - partially implementing standards-based; 1 - minimally implementing standards based; O - not implementing standards based." The average score for 33 sites was 2.2. However, there were 10 scores of 1.8 or lower. The report explains scores for quality of implementation as 30 follows: "4 - excellent; 3 - good; 2 - fair; 1 - poor." The average score for quality of implementation was 2.6 for 32 sites. The report characterizes the results as follows: The District's average implementation score was 2.2, which represents a beginning shift from partial implementation to full implementation of a standards-based curriculum. The District's average quality score was 2.6, which represents a trend toward quality instruction in math and science. Based on the data provided, the District is in an active transition from the traditional curriculum to standards-based curriculum in both quality of implementation and the quality of implementation. See March 15, 2001 report at 122-24 (reports for elementary schools and middle schools only). (47.) The LRSD has also reported on the implementation of the new math and science curricula for the 2000-01 school year. Based upon reports by lead teachers, the average implementation score was 2. 4 ( on a scale of 0 to 3) and the average quality of implementation score 2.7 (on a scale of 1 to 4). Unlike 1999-2000, in 2000-01 LRSD reported only district averages and not scores by school. [See "Little Rock Comprehensive Partnerships for Mathematics and Science Achievement - Annual Progress Report for 2000-2001," Tab 5 to LRSD memorandum brief previously cited] ( 48.) The LRSD did not implement the new social studies curriculum until 2001-02, after year three of the plan. [Tr., 11-20-01, at 427, 2-3; compare para. 40(a) above] Indeed, Dr. Leslie seemingly testified at one point that the entire new curriculum was implemented for the first time in the "Fall of 2000 11 [Tr., 11-20-01, at 518, 22-25], rather than in the Fall of 1999. Compare para. 43. 31 (49.) The October 2001 report on the Pre-K-3 literacy program after year two, previously cited, states that the study "does not include . . an examination of the different forms of inter-ventions. II [Tab 4, at 83] Paralleling this admission, Associate Superintendent for Instruction Lesley, and Ms. Sadie Mitchell, Associate Superintendent for School Services, could not provide concrete information on the implementation of SAIPs, or other interventions for students requiring additional assistance to satisfy learning standards (see para. 40(e)). [Tr., 8-1-01, at 609, 18 to 611, 23 (Mitchell); at 679, 18 to 684, 4 and 736, 17 to 739, 18 (Dr. Lesley)] It is obvious from test results that black students are more likely to need interventions. See para. 33. (50.) As part of the new Pre-K-3 literacy curriculum, LRSD teachers have administered in the Fall and the Spring in grades K-2 the "Developmental Reading Assessment." The results have varied sharply from school to school and even within the same school from year to year. Dr. Leslie attributed these variations to "the degree to which teachers had implemented the new curriculum." [Tr., 8-1-01, at 731, 21 to 732, 2] (51.) LRSD staff have recognized that there has been insufficient monitoring of classrooms to evaluate whether the new PreK-3 literacy curriculum is actually being implemented. Lack of a monitoring plan through classroom observations to document the level of implementation is a problem. This weakness not only resulted in a late identification of poor implementation in some cases, but it was also a weakness in evaluating the consistency of program implementation. See Mem. Brief in Support of Motion for an Immediate Declaration of 32 Unitary Status (March 15, 2002), Tab 4, at 105. (52.) As noted, the LRSD is required to administer, each year in April, State Benchmark Examinations in literacy and mathematics to fourth and eighth graders. The State's goal is that all students reach the levels of proficient or advanced on each examination, which measure mastery of knowledge and skills, identified as important for each student to master. Results by race for the school years 1998-1999, 1999-2000, and 2000-2001 appear in the appendix, infra; see also note 10, para. 33, supra (description of Benchmark Examinations). (53.) On August 1, 2001, Dr. Lesley testified, in part, about the 1998-99 benchmark results in math and literacy for black fourth graders (administered in April 1999). Only 8 percent of these black youth attained the levels of proficient\advanced in math and only 20 percent in literacy. Dr. Lesley's testimony included the following content. Q. Now, in terms of the 1998-'99 results for Little Rock black students in the fourth grade on math, eight percent were proficient or advanced, is that right? A. Let me look, check for sure. In '98-99, yes, AfricanAmerican students were eight proficient. Q. Eight percent, okay, proficient. A. At or above proficient. Q. Correct. So that's basically one out of 12 of the students who have been tested, is that right, roughly? A. Eight percent, uh-huh. Q. Now, you regarded that as a serious problem, correct? A. Certainly. 33 o. And a major part of your explanation for that result is that those students. in terms of the curriculum they had received. had not been exposed to what you call many of the strands of the benchmarks for math. right? A. Yes. Q. For students to show mastery on a test like that, they need to be exposed to the material, right? A. Absolutely. Q. Now, in terms of black fourth graders in the literacy, 20 percent were proficient or advanced, is that right? A. I want to check and make sure I don't misrepresent. In '98- '99, yes, 20 percent. Q. Did you see that as a serious problem? A. Of course. o. And do you think that. again. that part of the reason for that was that the curriculum those students had had not covered many of the strands in the state benchmarks for literacy? A. Yes. [Tr., 9-1-01, at 694, 8 to 695, 21; emphasis added] (54.) As noted, state benchmark exam results are also available for 1999-00 and 2000-01 (year three of the new plan). The results for 1999-2000 show some improvement. However, in 2000-01 (April 2001 test), the proportions of LRSD black youth attaining the levels of proficient\advanced were -- 4th grade literacy 19%; 4th grade math 14%; 8th grade literacy 18%; and 8th grade math only 49.c I 0. See tables infra in appendix. These results are on a par with the results for 1998-99, which evidenced to Dr. Lesley that black youth had not been exposed to curricula covering all of the gradeappropriate strands in the state curriculum frameworks. To be fair to the LRSD, no child will have had five years of exposure to the 34 new curricula (if it is implemented) until those children tested in 2003-04 (April 2004) . 1 5 (55 . ) The results on the April 2001 State Benchmark Examinations and the other evidence reveal that LRSD had not implemented for the black students tested: (a) a curriculum marked by alignment with the state benchmarks; (b) teaching by teachers with the training which LRSD identified as an essential part of its program pursuant to Section 2. 7; or ( c) the interventions for students experiencing difficulties, also identified by LRSD as an essential facet of its program for compliance with Section 2.7. (56.) Scores on State Benchmark Examinations as of April 1999 for African-American students evidenced a situation where they had not been exposed to the content of the curriculum. See para. 53. The longstanding, massive Title I program was organized in a manner detracting from, rather than, as required by federal law, contributing to low-achieving students (disproportionately black) mastery of system instructional goals for all pupils. See paras . 34-37. The LRSD identified the need for a complete overhaul of the K-12 educational program in core courses, with implementation not commencing until year two of the plan. See paras. 32, 39, 40(a). The overhaul required change in many aspects of system operation. There were shortcomings in teacher in-service training, a pivotal area, as well as in implementation of the new math and science curricula. See paras. 43-47. There was admittedly no systematic 1 5 A student in kindergarten in 1999-2000, who makes normal progress, will reach the fourth grade and take the grade four benchmark examinations in April of the 2003-04 school year. 35 review of actual implementation of interventions for those students not doing well, another area of high importance, particularly for African-American youth given their achievement levels. See para. 49. Results of State Benchmark Examinations administered in April 2001 again established the lack of deli very of curriculum to African-American students. See para. 54. Finally, the SAT 9 tests for 2001 evidenced some backsliding in terms of addressing racial disparities in achievement. See para. 61(b), infra (SAT 9 results). ( 57.) In light of the condition of education for black students in the LRSD at the outset of the revised plan, the program changes which the LRSD identified as necessary, and the lack of implementation of key facets of those changes (as shown by evidence about those initiatives and test results), the court finds that the LRSD did not substantially comply with the obligation which it assumed in Section 2.7 of the revised plan to implement certain programs, policies and\or procedures. (58.) There was also a lack of substantial compliance in this area with Sections 2.12.2 and Sections 6.1 - 6.7, generally applicable elements of the revised plan. The LRSD did not adopt, and therefore could not follow-up on, "compliance standards" [Section 6.1]. [Tr., 8-1-01, at 671, 21 to 675, 6 (Dr. Lesley)] The LRSD was of the view that it need not address the racial gap in achievement, as such; the staff therefore did not seek to devise a remedy directed to decreasing this "racial [disparity]" as such, violating Section 2.12.2 of the revised plan. See Part III of this memorandum, infra. 36 III. Racial Disparities in Achievement (59.) The Revised Desegregation and Education Plan provides for the continuation in force of "The Pulaski County School Desegregation Case Settlement Agreement as revised on September 28, 1989." [Section l(a.)] Testifying after being superintendent of schools for four years, Dr. Les Carnine agreed that he understood that the agreement with the State required the LRSD to narrow the achievement gap between black and white students. [Tr., 7-6-01, at 378, 21-24] See also at 378, 2-7 ["Mr. Walker: Well, Your Honor, let me say this. We have the State agreement - The Court (Judge Wright) That's a settlement agreement, that's correct, about the achievement disparities, about reducing that, that's true."]; Tr., 11-20-01, at 564, 1-4 (Dr. Leslie) . i 6 (60.) The LRSD did not "[develop] any particular program by which to remediate achievement disparity between African-American students and other students. . "during Dr. Carnine's tenure as superintendent. [Tr., 7-6-01, at 374, 25 to 375, 1-4 (Dr. Carnine); Tr., 8-1-01, at 622, 18 to 623, 9 (Associate Superintendent Mitchell); see also Tr. 7-6-01, at 375, 14 Carnine)] to 3 7 9 , 18 (Dr. (61.) The results of the State Benchmark Examinations and the Stanford Achievement Test show, at best, continuing massive disparities in achievement between black and white students and, at "See also ex 594, at 11 ["The achievement gap between African American and other students is always an issue of concern in the Little Rock School District. A major emphasis in the PreK-3 Literacy Plan is the significant narrowing and eventual elimination of that gap."] 37 worst, increasing disparities during the term of the revised plan. (a) On the Benchmark Examinations: [ i J the proportion of fourth grade white students attaining the proficient or advanced levels in literacy has exceeded the like proportions for black students by 3.1 times (1998-99), 2.2 times (1999-2000), and 3.3 times (2000-01); [ii] the proportion of fourth grade white students attaining the proficient or advanced levels in mathematics has exceeded the like proportions for black students by 6. 6 times ( 1998-99), 4 .1 times ( 1999-2000), and 3. 7 times ( 2000-01); [ iii J the proportion of eighth grade white students attaining the proficient or advanced levels in literacy exceeded the like proportion for black students by 4.1 times (2000-01); and [iv] the proportion of eighth grade white students attaining the proficient or advanced levels in mathematics exceeded the like proportion for black students by 10.3 times (2000-01). See appendix infra. (b) Results on the nationally normed SAT 9 test for LRSD students for the period 1996-97 through 2001-02 seemingly reflect an increase in the achievement gap. Twenty-one comparisons are possible in the data which covers grades 5, 7, and 10. The following comparisons are for the first (1996-97) and last {2001- 02) years of the six year period. [i] The gap between the average percentile scores of black and white youth increased in 20 of 21 instances; [ii] over the six years, the average percentile scores for black students increased in 6 instances, remained the same in 6 instances, and declined in 9 instances; [iii] over the six years, the average percentile scores for white students increased in 17 38 instances, remained the same in 2 instances, and declined in 2 instances. [CX 741, at 1] ( 62.) The LRSD has administered the Developmental Reading Assessment (ORA) in the Fall and Spring in grades K-2 beginning in 1999-2000. The LRSD maintains that the results show a narrowing of the achievement gap in reading.[lhg_._, Tr., 11-20-01, at 409, 21 to 410, 4] However, test results on the ORA depend on a classroom teacher's judgments on his\her students' abilities to read and to comprehend a series of progressively more difficult reading selections. In the spring, the teacher is in part judging her\his own performance. The LRSD has recognized this issue: "One caution, therefore, interpreting the data is that the teacher has scored his\her own students' performance, and bias may be possible." [Year Two Report on the PreK-3 reading program, Tab 4 at 21] There is yet to be like progress, if any progress, on either the State Benchmark Examination or the SAT 9. See also Tr., 8-1-01, at 721, 12 to 726, 12 (lack of a predicate for LRSD to use ORA to evaluate achievement gap by race)] (63.) The LRSD has acknowledged problems prior to the effort to completely overhaul the K-12 program, which would harm black students disproportionately and exacerbate the achievement gap. The LRSD curriculum did not cover various strands of the State benchmarks. The Title I program emphasized "pull out programs" which isolated participants, disproportionately black, from the mainstream curriculum. See paragraphs 31, 34-38, 53-54. (64.) The LRSD has not substantially complied with its 39 obligation under Section 2.7 of the revised plan to implement the activities which it identified "to improve and remediate the academic achievement of African-American students , " See paragraphs 41-55. ( 65.) The LRSD has not provided a predicate to end court jurisdiction with regard to its voluntary undertaking "to narrow" the achievement gap between black and white students. IV. Program Evaluation (66.) Three aspects of Section 2.7.1 (quoted above at page 19) are noteworthy. First. In the first sentence and the second sentence, the words "assess" and "assessment" refer to programs (rather than to assessment of students). Second. The assessment obligation is not limited to the programs described in Part 5 of the revised plan, but instead pertains to those "implemented pursuant to Section 2.7 11 which as noted is not confined to the programs in Part 5 of the plan. Third. The assessment obligation is annual in nature. ( 67.) Asked during the hearing on November 19, 2001, "to discuss the difference between an assessment and an evaluation," Associate Superintendent Bonnie Lesley began by testifying "[w] ell, I think part of the confusion has been that we have sometimes used those terms interchangeably " [Tr., at 242, 13-17] The evidence shows that prior to the hearings on whether or not LRSD had attained unitary status, the LRSD had indicated repeatedly, by its actions, that compliance with Section 2. 7 .1 required the carrying out of program evaluations. Indeed, Dr. Lesley agreed with 40 this proposition, when called as a witness by the Joshua Intervenors. The relevant evidence is summarized in sub-paragraphs (a) to ( e) . (a) LRSD issued a "Compliance Plan for the LRSD Revised Desegregation and Education Plan" on June 10, 1999. The text concerning Section 2.7.1. identified relevant "Board Policies" to include those on "Testing Programs" and "Program Evaluation." The text on "Procedures (Regulations, Administrative Directives, Handbooks, etc.") relevant to Section 2.7.1 provided as follows: 1. Program Evaluation Agenda - in progress 2. Title I Restructuring Plan provides for Title I evaluation 3. National Science Foundation Project provides for program evaluation 4. Application for waiver from State or District rules includes an evaluation design 5. In progress: second-year evaluation of Success for All Thus, as seen, every sub-paragraph referred to "evaluation." [See ex 544, at 11-12] (b) In a June 1999 position paper on the PreK-3 literacy program LRSD staff wrote: PreK-3 Literacy Program evaluation. In keeping with the obligations in the Revised Desegregation and Education Plan, the District shall employ with Title I funding a program evaluator, who shall annually report on the level of effectiveness of the innovations in this PreK-3 Literacy Plan. (CX 703, Doc. 1, at 44; emphasis added] See also Tr., 11-19-01, at 278, 19-21 (Dr. Leslie). (c) The material in the March 2000 interim compliance report addressing Section 2.7.1 refers to "[i]mprovements in the assessment of academic programs." [At 51] It also cites, inter 41 alia, the "Program Evaluation Plan" [ at 51], a draft policy on "Curriculum Evaluation" [ at 52], and " [ t ]he 1999-2000 program evaluation agenda August 1999." [At 53] approved by the Board of Education in (d) The material in the March 2001 compliance report addressing Section 2.7.1 is headed "Program Evaluation" -- a title which is repeated at a later point in the discussion. The text (page 148 of the report) includes at least nine other references to "evaluation." (e) During her testimony on August 1, 2001, Dr. Leslie agreed that the District had interpreted 2.7.1, which does not use the word evaluation, as nevertheless raising the topic of program evaluation. [Tr., 8-1-01, at 705, 24 to 707, 12; see also Tr., 8-2-01, at 843, 7-15 (Judge Wright noting that LRSD "voluntarily undertook .. obligation to have program evaluations of the programs that are designed to enhance African-American achievement"] (68.) The LRSD took a different tact in seeking to defend its implementation of Section 2.7.1, at the hearing on November 19, 2001. Dr. Lesley cited testing of students and other "assessment" activities as satisfying Section 2.7.1. [Tr., 11-19-01, at 242, 18- 22; 243, 6 to 249, 14; see also at 253, 22 to 254, 6 (colloquy between Judge Wright and LRSD counsel) ] 17 The content of paragraphs 1 7 Dr. Lesley distinguished such assessment from a "program evaluation." [Tr., 11-19-01, at 242, 23 to 243, 5] She described a program evaluation as "more long term" [at 242, 23] -- a feature congruent with the reference in Section 2.7.1 to an activity "after each year. "In contrast, her discussion of "assessment'' as 42 (a) through (h) supra provide the likely explanation for the LRSD's seeking to defend its performance by discussion of assessment rather than evaluation. The deficiencies in evaluation activities have been such that a finding of substantial compliance with Section 2.7.1 is not warranted. (a) The LRSD Board of Directors did not "[adopt"] its Policy IL on "Evaluation of Instructional Programs" until March 22, 2001 near the end of year three of plan implementation. [CX 575] As noted, Section 2.7.1 refers to assessments (evaluations) "after each year." The LRSD "voluntarily undertook obligation." [this] (b) The LRSD Planning, Research and Evaluation unit (PRE) presented evaluation documents covering four areas to the Board of Education in August 2000. The documents concerned the PreK-3 literacy program, the implementation of middle schools (including the effectiveness of new curriculum in English language arts and science), the effectiveness of the ESL program, and the national Science Foundation project components. The Board of Education tabled the consideration of these documents because they were incomplete and there were no recommendations. [Tr. , 7-6-01, at 362, 24 to 365, 23; at 389, 18 to 392, 18; at 400, 16 to 401, 22 (Superintendent Carnine)] During the three year period of the plan, the LRSD recognized that it did not have the capability, inter-encompassing teachers "us[ing] the data that they have available on a daily basis to decide what to do next for one chid, for a group of children or for the whole class" [at 245, 12-20] was incongruent with the provision in 2.7.1. 43 nally, to prepare the required evaluations. [Tr., 7-6-01, at 400, 2-19 (Dr. Carnine); Tr., 8-2-01, at 710, 3 to 713, 21 (Dr. Lesley); at 829, 20 to 831, 6; Tr., 11-20-01, at 334, 5-14 ; at 495, 16 to 496, 3 (Dr. Lesley)] (c) The versions of the evaluation of the implementation of the PreK-3 Literacy Program prepared during the three-year period were drafts. [CX 577, at 1; Tr., 7-6-01, at 418, 17-23 (Dr. Carnine); Tr., 8-1-01, at 709, 3 to 710, 8 (Dr. Lesley); Tr., 11- 20-0l, at 321, 21 to 322, 22; at 472, 25 to 473, 8 (Dr. Lesley)] (d) The versions of the evaluation of the implementation of the new mathematics and science curricula prepared during the three-year period were drafts. [CX 577, at 1; Tr., 7-6-01, at 398, 1 to 399, 9; at 418, 17-23 (Dr. Carnine); Tr., 8-2-01, at 829, 20 to 831, 6; Tr., 11-20-01, at 473, 25 to 476, 14 (Dr. Lesley)] (e) The version of the evaluation of the implementation of the new middle school program prepared during the three-year period was a draft. [CX 577, at 1] (f) The LRSD did not conduct during the three-year period an evaluation of the implementation of the several policies requiring interventions\remediation for students performing below par. See para. 49. (g) The LRSD identified the summer school program as an important component of its effort "to improve and remediate the academic achievement of African-American students" [Section 2.7]. [March 2000 report, at 47; March 2001 report, at 62, 125-26] In its March 2001 report, LRSD asserted that "PRE has evaluated" the 44 "Summer School [Program]." [At 148] However, the evaluation of the summer school program for "Summer School 2000 11 was only in draft form as of April 5, 2001 and July 17, 2001. [CX 721; Tr., 8-1-01, at 645, 12 to 652, 12 (Assoc. Superintendent Mitchell); Tr., 11-20-01, at 357, 1 to 358, 8] (h) In the March 15, 2001 report the LRSD asserted that "PRE has evaluated ... [11] programs .... 11 [At 148] This assertion is misleading. [aa] The "Extended Years Report" existed in draft form as of July 13, 2001; there is a version of the report dated September 28, 2001. [CX 720] [bb] The LRSD presented only drafts of the "Summer School" report. [CX 721] [cc] There is an evaluation of the "Hippy Program" dated July 1999. [CX 722] [ dd J The report on the "Charter School" is dated June 25, 2001; it was written by an external consultant. [CX 723] [ee] The report on "Campus Leadership Teams" contains survey data dated May 11, 2001 and lists of participants, without further discussion. [CX 724] [ff] There is an evaluation of the ESL program dated October 30, 2000. [CX 725] [gg] There is a draft evaluation on the "Lyceum Scholars Program at Philander Smith College" dated September 22, 2000. [CX 726] 45 [hh] With regard to the "Southwest Middle School's SEDL Program," there is a request for data from an external source and some data, not an evaluation. [CX 727; Tr., 11-20-01, at 361, 17 to 362, 5] [ii] With regard to "Onward to Excellence (Watson Elementary)," there is a collection of information provided by the "Site Facilitator" on November 1, 2001, not an evaluation. [CX 728; Tr., 11-20-01, at 362, 7-17] [ j j] With regard to "Collaborative Action Team (CAT)," there is a collection of survey data and some comments, of anonymous authorship, dated November 6, 2001. [CX 729; Tr., 11-20-01, at 363, 10-24] [kk] Regarding "Vital Link," there is a brief, undated evaluation of anonymous authorship. [CX 730] (67.) The LRSD did not substantially comply with the program evaluation obligation which it voluntarily assumed by virtue of Section 2. 7 .1. The LRSD did not evaluate the academic programs which it implemented pursuant to Section 2.7 after each year to determine their effectiveness in improving African-American achievement and to use the results to make program changes. Indeed, it has not fulfilled this agreement after three years. In fact, the LRSD tacitly acknowledged its failure by seeking to recast the nature of its obligation during the hearings. 46 Argument A. Introduction and the Standard for Substantial Compliance In this matter, the court is called upon to "[apply] the terms of a contract between [ two of] the parties ... "[LRSD v. PCSSD, li, 83 F.3d 1013, 1017 (8th Cir. 1996)] -- the LRSD and the Joshua Intervenors. "Because this case has been settled, the settlement agreement becomes, in a sense, a particularization of federal law applicable to these parties." Knight v. Pulaski County Special School District, 112 F.3d 953, 955 (8th Cir. 1997). Put another way, "the terms of the settlement agreement became the law of the case." Little Rock School District v. Pulaskui County Special School District, No. 96-2047, Slip Opinion, Dec. 15, 1997, at 6. In sum, this court is called upon to apply the parties ' agreement in the form of the revised plan, which left in place among other things "The Pulaski County School Desegregation Case Settlement Agreement as revised on September 28, 1989." [Section l(a.)J The revised plan identifies the standards which this court is to apply to determine, for example, whether the LRSD fulfilled its obligations regarding student discipline and program evaluation, and whether it is entitled to a "release from court supervision." That other systems face less onerous criteriaa is irrelevant. LRSD is held to the obligations which it "voluntarily undertook" [see Tr., 8-2-01, at 843, 7-15 (Judge Wright referring to "obligation to have program evaluations"); they form "the law of [this] case." 1 8 See LRSD Me.-Brief, at 18-19, 28. 47 Construed as an entirety [seen. 1 at 1, supra], the terms of the agreement support the construction that the court's jurisdiction continues as to an area in which a party meets its burden of proof of showing "that LRSD has [not] substantially complied with its obligations set forth in [the] Revised Plan." [Section 11] In this light, a principal task for this court is to define the term "[substantial compliance]." The opinion in Cody v. Hillard, 139 F.3d 1197 (8th Cir. 1998) provides guidance on this topic. 19 There, the district court had dissolved a consent decree, merely asserting in a conclusory manner that "the defendants have conscientiously and in good faith complied substantially with its terms." [At 1199] In explaining the inadequacy of the district court's terse ruling, the appellate court wrote, in part: The record indicates that there have been failures in the past to comply with the decree and supplemental orders, and that there are still 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. [At 1199; emphasis added] The Cody court focuses on two related matter. These are, first, whether any violations are "inconsequential" in the light of 19 Cody is, however, largely distinguishable; "[t]he consent decree did not state the time of its duration." See 139 F.3d at 1198. 48 the parties' overall performance and, second, whether the particular violations, "serious" matters. given their subject matter, involve The Court of Appeals for the First Circuit twice addressed the meaning of "substantial compliance" in the context of appeals from judgments of civil contempt. See Fortin v. Com'r of Mass. Dept. of Public Welfare, 692 F.2d 790 (1982) and Morales-Feliciano v. Parole Bd. of Commonwealth of Puerto Rico, 887 F.2d 1 (1989) (Judge Breyer). These decisions are also helpful. In Fortin, the court wrote [692 F.2d at 795]: Finally, no particular percentage of compliance can be a safe-harbor figure, transferable .from one context to another. Like 'reasonableness,' ... 'substantiality' must depend on the circumstances of each case, including the nature of the interest at stake and the degree to which non-compliance affects that interest. In the present case, the interest at stake - entitlement to subsistence-level benefits - is great . , making the consequences of failure to comply quite serious. The district court properly weighed the seriousness of the harm . in considering the substantiality of the Department's compliance .... [citations omitted] The court also considered the duration of noncompliance. Id. at 796. The Morales-Feliciano court followed the Fortin standard. See 887 F.2d at 4-5. Intervenors next apply these standards to the facts. The argument shows that all of the shortcomings cited in the Intervenors' factual presentation involve substantial noncompliance. Because all areas of noncompliance impinge on and harm the education of youth, an interest of great importance [see Fortin and Morales-Feliciano, supra J, Intervenors address that matter once at the conclusion of the argument. 49 B. Student Discipline In this case involving racial discrimination in public education, the person responsible for compliance with the discipline sections of the plan testified: "I can't say that we are looking at it based on race." See para. 18. Dr. Watson's description of inaction concerning discipline was entirely consistent with her admission. See paras. 12-17. The violation of Section 2.5 was "serious." Cody, supra. The system argues that the revised plan "did not require the LRSD to reduce the discipline disparity." [At 28] However, it did require actions "designed to ensure that there is no racial discrimination with regard to student discipline . . " [Sec. 2.5; emphasis added] Compliance would necessarily require scrutiny of disparity to determine whether it originated in discrimination in any schools. In any event, the LRSD plainly assumed this obligation in Section 2.12.2. See para. 26. Lastly, there are also obvious and serious violations of Section 2.1 (good faith efforts) and Part 6 (compliance program). See paras. 27-28. The LRSD merely accepted disparate discipline as a fact of life. That tact may be open to other school systems. See LRSD Mem. -Brief, at 28. However, the LRSD pledged to implement the revised plan in good faith. The plan became, therefore, "the law of this case." The (behavior failure to implement the modification plans) provisions can not of be Section 2. 5. 4 dismissed as "inconsequential." The March 2001 report listed 4,274 suspensions 50 of black pupils in 1999-2000. [At 24] There was a need for such plans; the LRSD merely gave "lip service" to the concept. Para. 25. C. Improving and Remediating the Achievement of Black Students The LRSD pledged not only to design, but also to implement actions "to improve and remediate the academic achievement of African-American students." [Section 2.7] "[T]he circumstances of [this] case ... "[Fortin.supra] highlight the centrality of this pledge. The evidence shows that at the time that the parties drafted the revised plan and its implementation began, LRSD polices and practices isolated black students, disproportionately, from the curriculum content LRSD identified as important for all students. This practice included the operation of the Title I program -- a mode of operation diametrically opposed to the requirements of federal law. See paras. 31-38, 53. The LRSD determined, essentially, that it needed to replace its curriculum and that this step would fulfil its Section 2.7 obligation to the plaintiff class. Intervenors factual presentation shows that implementation fell short in areas deemed significant by LRSD (training of teachers for the new literacy curriculum, implementation of the new math-science and social studies curricula, provision of interventions to students [mostly black youth J not performing well, and moni taring of classrooms. See paras. 32, 43-51. Indeed, State Benchmark Examination results in April 2001 revealed that the vast majority of black pupils in grades 4 and 8 continued to show signs of isolation from the curriculum content deemed essential by the State and the LRSD in 51 math and language arts. See paras. 52-55. These shortcomings in compliance obviously involved "serious" and not "inconsequential" matters. Cody, supra. D. Racial Disparities in Achievement Former Superintendent Carnine, Associate Superintendent Lesley, and Judge Wright recognized the continuing requirement of an effort to narrow the achievement gap between black and white students. See paragraph 59. LRSD did not argue during the hearing that it could not narrow the achievement gap. It argued that its Section 2.7 activities would do so -- and that it was doing so in the area of early grade literacy. See Tr., 7-6-01, at 375, 14 to 379, 18 (Dr. Carnine); see para. 62. The LRSD did not develop any particular program designed to remedy achievement disparity between black and white pupils [see para. 60]; there have been, as noted, serious shortcomings in its implementation of the strategies to overhaul the educational program, K-12, which were to improve black achievement. The results of State benchmark and SAT 9 testing provide evidence that the educations of countless African-American students in the system have been tainted by isolation from the mainstream curriculum. See paras. 53-54, 61. The LRSD had promised in the prior plan to deal with achievement disparity. [At 1. para. BJ Manifestly, a curriculum isolating black students from core content was not the way to make progress in this sphere. The failures to address the achievement gap, as such, and to implement major parts of the reforms encompassed in Section 2.7 are 52 "serious" shortcomings. E. Program Evaluation The LRSD elected voluntarily to make a major commitment which it understood to involve program evaluation until such time as it determined that it could not show substantial compliance with Section 2.7.1, as so construed. Para. 67. The commitment encompasses not only evaluating the programs designed to benefit black students' achievement "after each year," but also making changes if programs prove to be ineffective. Se This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. Mellon Foundation and Council on Library and Information Resources.</dcterms_description>

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