District Court, order and transcript.

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<dcterms_description>This transcript was create using Optical Character Recognition (OCR) and may contain some errors. RECEIVED JUL J 8 2002 OFACE OF DESEGREGATION MONITORING IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT vs. 4:82CV00866-WR W PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al MRS. LORENE JOSHUA, et al KATHERINE.KNIGHT, et al ORDER FILED U S DISTRICT COURT EASTERN DISTRICT ARKANSAS PLAINTIFF DEFENDANTS INTER VEN ORS INTERVENORS Attached is a transcript of the hearing held Friday, last (July 12). Since time is short (the evidentiary hearing will commence next Monday, July 22), this transcript, rather than a detailed, separate order, is adopted as the order of the court (court solecisms and all). IT IS SO ORDERED this 16th day of July, 2002. THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE UNITED STATES DISTRICT JUDGE WIT~ f U/4 58 AND/OR~ ON /f7i"),,- BY~7,,...~...-~~ 1 2 3 4 5 6 7 1 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT, Plaintiff, V. PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al., Defendants. MRS. LORENE JOSHUA, et al., No. 4:82CV00866WRW Friday, July 12, 2002 Little Rock, Arkansas 8:30 a.rn. 8 Intervenors. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KATHERINE KNIGHT, et al., Intervenors. TRANSCRIPT OF HEARING BEFORE THE HONORABLE WILLIAM R. WILSON, JR., UNITED STATES DISTRICT JUDGE APPEARANCES: On Behalf of Little Rock School District: MR. CHRISTOPHER HELLER, Attorney at Law MR. JOHN C. FENDLEY, JR., Attorney at Law Friday, Eldredge &amp; Clark Regions Center, Suite 2000 400 West Capitol Avenue Little Rock, Arkansas 72201-3493 On Behalf of Pulaski County Special School District: MR. M. SAMUEL JONES, III, Attorney at Law Wright, Lindsey &amp; Jennings 2200 NationsBank Building 200 West Capitol Avenue Little Rock, Arkansas 72201 Christa R. Newburg, RMR, CRR, CCR United States Court Reporter [Continued) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES CONTINUED: On Behalf of North Little Rock School District: MR. STEPHEN W. JONES, Attorney at Law MR . GUY W. MURPHY, JR ., Attorney at Law Jack, Lyon &amp; Jones, P.A. 425 West Capitol Avenue, Suite 3400 Little Rock, Arkansas 72201-3472 On Behalf of the Joshua Intervenors : MR . JOHN W. WALKER, Attorney at Law John W. Walker, P.A . 1723 Broadway Little Rock, Arkansas 72206; and MR. ROBERT PRESSMAN, Attorney at Law 22 Locust Avenue Lexington , Massachusetts 02421 On Behalf of the Knight Intervenors: MR. RICHARD W. ROACHELL, Attorney at Law Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 RECEIVED JUL J 8 2002 OFFICEOF OESEGREGATION MONITORING Proceedings reported by machine stenography and displayed in realtime; transcript prepared utilizing computer -aided transcription. Christa R. Newburg , RMR , CRR , CCR United States Court Reporter 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Proceeding at 8:30 a .m. , as follows:) THE COURT : We ' re here this morning for a short hearing in the Little Rock School District against the Pulaski County Special School , et al . It's Case No . LR-C-82-866. I might first introduce counsel and the people present to Ms. Christy Conrad . Would you stand up, please , ma ' am? 3 She is my new lawyer on this case, commenced to work this morning. She will be the law clerk especially assigned to this case. That ' s Ms. Christy Conrad. We might start with Mr . Walker. I got my letter off late yesterday, and if you don't mind outlining for me briefly what your two rebuttal witnesses will say . Ms . Marshall -- go ahead . If you don ' t mind , come to the lectern . When we start the trial next week , week after next , we'll have mikes on the table , but I don ' t have them now . MR. WALKER: Your Honor , my I inquire whether you received my letter? Apparently our letters -- THE COURT : I did get a letter from you. I've got it right here, as a matter of fact. I don ' t believe it addressed that issue. If it did, I overlooked it . Like I say, my letter got out later than I thought. MR . WALKER : Your Honor, it does attempt to address it on page 2, paragr aph four , sub six . THE COURT : Paragraph four? MR. WALKER: Sub six, the bottom of the second page. Christa R. Newburg , RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 - 25 It begins, ttplaintiff suggests that if nottt -- THE COURT: All right. Let me read that. I do have this letter, and I've read it. That's another one of my lawyers. We're all working on this case, and she needs t o be able to hear us back in chambers, and she has just announced, Mr. Walker, she couldn't hear you . So both of us need to speak right into the mike. MR. WALKER: Yes, sir. THE COURT: I have read that. Can you be a little more specific with us? MR. WALKER: Dr. Lesley in her testimony indicated that the evaluation process was not flawed , in part because it was -- it involved the ODM, Mr. Gene Jones specifically, and Ms. Ann Marshall to some extent. And she submitted an exhibit that relates to or was attempting to relate to the participation of the ODM, in order to demonstrate that involvement. We wanted to establish what ODM's role was and also the fact that ODM at all times through Mr. Jones had expressed difficulty and problems with the evaluation approach that was being used by the district and the lack of evaluations. THE COURT: And Ms. Marshall and Gene Jones are both going to address that issue? MR. WALKER: There were two separate points where -which differ. Ms. Marshall can only relate to an exhibit that Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Dr. Lesley introduced where she made reference to, if I understand to be correct, where she made reference to the comments and the like that had been made about in criticism or critique of a document which she had prepared, and it would be our intention to show that that was misrepresentative of the involvement of ODM. THE COURT: All right . Thank you. MR. WALKER: And the other will be Mr. Gene Jones, and Mr. Jones was sometimes invited to some of the sessions 5 that dealt with the subject. And his -- the way his participation was presented, we would address, and also the comments and the like that he made or his observations from the perspective from which he sits we thought would be useful to the Court in explaining the overall evaluation. The ODM was supposed to have a special role in relationship to the whole process , and we would like to at least take that time to put that in. THE COURT: All right. I'll hear from Mr. Heller, see if he continues his objection in view of that. MR. HELLER: Good morning, your Honor. We do continue our objection. Mr. Walker didn't identify any of the exhibits he's talking about. Dr. Lesley's testimony , which, as we've said, could have been anticipated in its entirety because it didn't concern anything other than the compliance reports which were filed by the district, her testimony regarding ODM Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was minimal. As I recall, all she did was point out that an ODM monitoring report which is in the record did not require anything other than what Dr. Lesley was doing. That report is in the record. Mr. Walker had a chance to question Dr. Lesley about it, and there shouldn't be any issue about that. With regard to Mr. Jones , all that was said about him was that he was a participant in several meetings. I think that's 6 undisputed. Dr. Lesley didn't say that she thought Mr. Jones' position on a particular issue would be X or Y. The only thing in the record that I recall is that Mr . Jones participated in a meeting, and I think that's undisputed. With respect to Mr. Walker's comment about Mr. Jones' perspective would be helpful on the evaluation process, which really, as the Court is aware, was a requirement for assessments rather than evaluations, that's something that clearly could have been presented in Mr. Walker's case in chief , if he believed that someone from ODM had a perspective about the assessment process that was important, because Mr . Walker knew that's exactly what Dr. Lesley was going to testify about. THE COURT: Let me say this before you leave the lectern, if you will, because I may ask you another question: I generally take a pretty dim view of rebuttal evidence because I've found that most of it -- I've found in practice over the years that most of it is not true rebuttal . And I point that Christa R. Newburg, RMR, CRR , CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7 out in some of my letters or orders, and, as a matter of fact, in my standard scheduling order or letter with that scheduling order, one or the other, I point out that rebuttal witnesses must be identified if known. Well, that's almost by definition that if they're known, they're not rebuttal witnesses. So I've always had a hard time with that. But this case was tried by Judge Wright, the first roughly half of evidentiary hearing on the issues before the Court now. She did reserve 30 minutes' rebuttal time. Truthfully, I'm inclined to agree that this doesn't sound like rebuttal, but out of an abundance of caution, since it's only 30 minutes, I'm going to allow these witnesses to be called, with these requirements: Number one, I'm going to require Mr. Walker to identify the documents -- are you prepared to do that now, Mr. Walker, exhibits, or would you rather do this by a pleading in the next -- by, say, Monday afternoon? MR. WALKER: A letter , your Honor. THE COURT: All right. Then by 4 p.m. Monday. MR. WALKER: Your Honor, before you finish, could you -- THE COURT: Let me finish, and then I'm going to let you have the floor again, Mr. Walker. MR . WALKER: All right. Thank you. THE COURT: By 4 p.m. Monday, identify the exhibits that you plan to address with Jones or Marshall. Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8 Number two , Mr. Heller , if you want to -- you can interview these people, I assume. If you can't interview them, I'll allow you to take a telephone deposition of them next week to prepare you to meet this rebuttal testimony. If you want to do that, notify Mr . Walker and me by 11 a.m. Monday , if you want to take their depositions as opposed to interviewing them. All right. If you don't have any other comments , Mr. Heller, Mr. Walker looks like he's going to swell up and burst if he doesn't get to say something else on this. MR. HELLER : There is just one thing , your Honor. think it's at least implicit in all of the orders, but we'll certainly have an opportunity for cross-examination. I' m not sure how that counts against our time in the overall process, but -- THE COURT: I'm going to be somewhere between Judge Woods and Judge Eisele on timing. I MR . HELLER: I think we'll have plenty left from our 20 hours, even if the cross-examination counts against us. THE COURT : All right. MR. WALKER : Well, your Honor, I have no objection to them interviewing these people, but Ms. Brown has always -- and the ODM , for the Court's benefit, has always taken the position that it's available to speak with either or both of the parties about any matter that they are related to. THE COURT : It looks to me like, Mr. Walker, you've Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9 just won. Are you piling on now? MR. WALKER: No, sir. No, sir. All I'm saying no, sir. All I'm saying is that it's not an order that's necessary. I mean, they have that as a standing -- that's been longstanding in the district, as long as the ODM has been in the process. THE COURT: I 'm going to enter the order even if it ' s pure surplusage. MR. WALKER: All right. Now, with respect to the testimony, we will provide that. THE COURT : You mean the exhibits? MR. WALKER: The exhibits. THE COURT: Right. MR. WALKER: Your Honor, by way of background THE COURT : Let me - - I want to change that. If you want to depose them, I don't think you would, Mr . Heller, but if you do, let me know by -- let Mr. Walker and me know by 9 or 9:30, by 9:30 Tuesday morning, because you may not know until you see the exhibits. Go ahead, Mr. Walker. MR. WALKER: Your Honor, I hate to say this. The Court -- you indicated you were going to follow much of Judge Wright's process that she followed. She steadfastly refused to allow us to depose the ODM , which was part of her staff, as she said it, because that would, in effect, in a way be like Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 deposing an arm of the Court. And I would ask that the Court not enter an order requiring depositions but allowing instead for them to just have the interviews. Once you start doing that, then -- THE COURT: You know, that's a pretty good point. Let me hear from Mr. Heller on that. MR. WALKER: Okay. 10 MR. HELLER: Your Honor, as I'm sure the Court is aware, we raised an issue with Judge Wright concerning the role of the monitors in this case. THE COURT: Let me say something on that, and I'll try not to interrupt you too much, but I probably won't do a very good job since I have -- I'm a type A. When I assumed the case, I met with Ms. -- or was assigned the case, I met with Ms. Marshall, and we exchanged pleasantries right after I was appointed. We did not talk about the substance of the case in any way. After that, after thinking about it and after reviewing the file some and seeing what had been discussed, I asked a member of my staff to contact Ms. Marshall and advise her that all of our communications would be in writing. And I have had no further conversations with her, do not intend to. Everything will be in writing. And I can't imagine that I wouldn't share the whatever writings I send to her or she sends to me with counsel. So there will be no just out of an abundance of caution -- and I see the ODM as a fact- Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 gathering institution, and I'm going to use ODM in a different way than Judge Wright used the ODM, although I'm not criticizing or passing judgment on the way she used it. But if that helps you , that's -- I hope it does. But at any rate, that will be the relationship. MR. HELLER: And I think, your Honor, that addresses Mr. Walker's argument, because our position with Judge Wright is, the monitor's office is either more like a law clerk and cannot be deposed but can't testify either, or more of a fact gatherer and not so closely related to the Court that testimony would be prohibited. And Judge Wright allowed us to take Ann Marshall's deposition. We've done it once in anticipation of her testimony. So your ruling is entirely consistent with what Judge Wright had previously ordered . And in any event, I can say right now that if interviews can be arranged, I won't be asking for a deposition. I will be perfectly satisfied with an interview. But only in the event that we couldn't reach an agreement about arranging an interview THE COURT: Let me ask you this, Mr. Heller: Assuming you wanted to discuss conversations, you or Mr. Walker, either one, that Ms. Marshall had had with Judge Wright, I don't see how that would be relevant now that I'm the trier of fact. So that's something that I want to avoid being delved into if a deposition is allowed. MR . HELLER: I agree that would not be relevant. Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 - 13 14 15 16 17 18 19 20 21 22 23 24 25 12 THE COURT: All right. Well, I'm going to flip-flop again. Y'all are going to give me a nervous breakdown. MR. WALKER: Don't do it yet. THE COURT : All right. I'll give Mr . Walker one last shot. MR. WALKER: This is not a subject that I asked that should be dealt with perhaps today. I think that the Court of Appeals was very clear about what it wanted monitoring to do. There was a special concurrence from Judge Wollman in the THE COURT: I'm familiar with that concurrence. MR. WALKER: -- that anticipated that monitoring would be conducted in a certain manner, and the manner t hat it was being conducted has, in effect, been approved by the Court of Appeals. Now , if it's to be changed, then I would certainly think that the Court ought to at least invite the positions of the parties in writing and a brief on the subject so that we -- THE COURT: On what subject? MR. WALKER: On the subject of the way the monitors should react or act with the Court. Recall in this situation, your Honor , there is a situation where once when Little Rock came to court and demonstrated that it was not aware of all the employees they had, even the total number and what t hey were doing and things like that, Judge Wright then gave the monitor's office a function that was to do an investigation a nd to do things, and then she had hearings on those things . The Christa R. Newburg , RMR, CRR , CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 role of the monitor is distinctly different from that of a party where orders are given and things -- so what we'd like to do is at least preserve that . In the field of desegregation law, monitors THE COURT : I'm not understanding what you're asking me to do. MR. WALKER: I'm asking that you do nothing to change the way that that office operates. Because if you say that you're going to -- THE COURT: I'm not changing the way, as far as I know. MR. WALKER: Even if you communicate with them and communicate with them each time in writing, I think that that's not something that should be necessarily -- THE COURT: Your objection is noted . Your exception is saved. You can file a motion for reconsideration if you want to, but I've made my mind up on that at this point, and you can file a motion and -- but don't do it with a great deal of optimism. But feel free to do it. MR. WALKER: Here's the reason I raise the issue -- THE COURT: I've decided on that issue, Mr. Walker. Put whatever objection you have in your motion for reconsideration. We need to move on to some other issues. MR. WALKER: Half a minute, please? THE COURT: Yes. Christa R. Newburg , RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 MR. WALKER: We have the matter of -- the ruling here necessarily has to apply to the other districts as well. THE COURT: Absolutely. MR. WALKER: We have the matters of Pulaski County that are still pending. There is no motion before the Court. The role of the monitor there would seem to be being limited by the Court's ruling now because THE COURT: Put that in your motion. MR. WALKER: All right, your Honor. All right. THE COURT: Thank you. All right. I want to remind the parties, I've said it several times in writing, and Judge Wright said it, but I want to remind you at the outset of that, we have three discrete issues left, and one of them is advanced placement courses, another is extracurricular activities, the third is guidance and counseling. And then, of course, we have good faith, but only as good faith applies to those one, two, three things that I just mentioned. And we have academic achievement on the table, but only as it relates to those three -- one, two, three issues. As Mr. Walker just noted, this applies to both sides with equal force. Now, as I have read the transcript, the issues tried to conclusion, and I emphasize the phrase "to conclusion," by Judge Wright were lack of good faith under Section 2.1; two, improving African-American achievement, lack of good faith by the Little Rock School District; and, three, student Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 discipline. Now, those issues are closed. They've been tried to conclusion, save and except the 30 minutes for rebuttal which we will start the hearing a week from Monday with. All right. Now, I want to turn to Mr. Fendley's letter which was in response to the letter I got out about one o'clock yesterday. Let me find Mr. Fendley's letter. 11. It's dated July Now, on the first page, there's a reference to Joshua's witness list and a reference to Ms. Sharon Brooks. It appears to me that Mr. Walker's testimony would go to student discipline there. If that's true, I think it would be appropriate to object at the trial , but I don't know that I need to deal with it now. If anybody thinks I do, I'll hear from you. But if it does go to student discipline, I'm likely to exclude it at the trial. MR. WALKER: Your Honor, may I be heard? THE COURT: You may. MR. WALKER: Some of these matters overlap. A matter that may be related to student discipline may also relate to counseling. And I would say in this situation , the discipline part of this THE COURT: Related to guidance and counseling? MR. WALKER: Yes, sir. And the first part of it, where students collectively are punished for ringing an alarm by putting them in a room with an aide for two months where Christa R. Newburg, RMR, CRR, CCR United States Court Reporter -- --- - - - - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 there's no record of the discipline appears to be disciplinary. But at the same time, it certainly goes to the educational experience and the need for there to have been at least some counseling with respect to what those -- the educational needs of those children were and how they were being addressed. So we say that it has two purposes. The first, on discipline, though, has to relate -- you remember, you've seen the records. They have disciplinary records showing students who are suspended for this, this, and this. Normal discipline relations, those kinds of things. But putting kids in a room where they -- where there's no record of it clearly is discipline, but it is also something else. THE COURT: I'm going to think about that issue. I'm inclined to think that relates directly to discipline, but I'll think about it and we'll take it up at the trial. I'll let Mr. Heller address it right now, briefly, if he wishes to. MR. HELLER: Thank you, your Honor. I would just like to point out that at the last hearing, Mr. Walker argued that this was a discipline issue, and he presented evidence about it and argued about it and argued precisely what he just told the Court, that this is -- this situation, he alleges, was a way to avoid the recorded discipline statistics but was nonetheless discipline. I think it's going to be easy for him to say anytime something happened to any student at any time in the district, whether it relates to academic achievement or Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 some issue that's already been litigated, oh, by the way, they missed some counseling or could have been counseled otherwise. But I don't think that draws it into the scope of any legitimate objection he might have about guidance and counseling. THE COURT: Mr. Walker, you're on the downside of this issue. If you want to submit a trial brief to me to try to get me in a right frame of mind, in your view, by trial day, do a - - and this applies to either side. If you want to do another trial brief, get it to me by noon Wednesday of next week. By noon Wednesday. And I will guarantee you I will if it's not too long, I will have read your brief and your citations of authorities, if you will avoid string cites. string cites, I read only the first one and sometimes the second one. On Now we come to exhibits not directly related. And I think some of them have been withdrawn and so forth, but -- all right. Let's go to No. 746. MR. HELLER: Your Honor, there was one other witness mentioned in Mr. Fendley's letter, and that's Ethel Dunbar. THE COURT: Yes . Yes. I don't believe that -- it's my opinion, and, again , you can put this in the trial brief, Mr. Walker, if you think I am wrong-headed on this issue, that what -- it looks like what Ethel Dunbar would testify to goes to the gifted and talented issue, as far as I'm concerned. Christa R. Newburg , RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18 That's not on the table. If you want to persuade me otherwise, you can put it in the trial brief. Let's go to the exhibits now. 746. I'm having a hard time reading my -- what is 746, Mr. Walker? Why don't you just hand me a copy of it so I can look at it? MR. WALKER: Your Honor -- THE COURT: Does the school district have a copy you can hand me? MR. HELLER: Yes, your Honor. THE COURT: If you've got any of your inked annotations on there, I don't want to see them. MR. HELLER: I've got a circle and an underline. THE COURT: I promise not to accept your emphasis. MR. WALKER: Your Honor, we have given you our copy, a copy of it. THE COURT: I just don't have it out here with me, and I just -- I need to look at something. MR. WALKER: This one has been MR. FENDLEY: Here you go. MR. HELLER: We'll give you Mr. Fendley's copy, which is merely highlighted. sure. MR. WALKER: Is this the new number given by your -THE COURT: I think this is the old number. I'm not MR. HELLER: That's correct, your Honor. Our Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 objections use the old numbers. THE COURT: 746. All right. I'm working my way over. Mr. Walker, if you'll approach the lectern. Are you telling me you don't have a copy either, Mr. Walker? MR. WALKER: No, no. We have a copy, but we have taken the old exhibits -- after your courtroom deputy told us the new numbers, we changed them. 19 THE COURT: Okay. I'll give you time to get your sea legs. MR. WALKER: What is now 747 was 746. I don't understand the objection. THE COURT: All right. I'll have him state his objection then. Mr. Heller -- why don't you stand aside, Mr. Walker, and let him state his objection. MR. WALKER: All right. MR. HELLER: Your Honor, our objection is that Exhibit 746, using the old number, relates to ALT testing and not to any of the issues before the Court for next week. MR. WALKER: Your Honor, if you look at that exhibit, we're looking at the way the district has referred to the numbers that are related -- I don't see anything in 746 in the middle of the page which happens to be -- and I stand to be corrected, the e-mail from Babbs to Kathy Lease. THE COURT: You're going to have to I'm computer illiterate, Mr. Walker. You're going to have to quote the Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20 language. I can't tell on e-mails from who to what unless it's written on there. MR. WALKER: Mr. Babbs, your Honor, is the person responsible for monitoring desegregation compliance. THE COURT: And he sent something to Kathy Lease. MR. WALKER: It apparently comes from Babbs to Lease. THE COURT: Right. MR. WALKER: And the third paragraph says, "It would be appropriate to list current data that is available. Be reminded that when writing materials for our report submission, we will include district-wide numbers. We may not be there yet , but this will help serve as an indicator of established baseline information from which we will jump off." Now, this relates to, your Honor, the data that relates to pre-AP and AP courses, along with some other data, but it will be related to testimony regarding advanced placement. It also will be related to extracurricular activities. So you' 11 understand the concept, when you've got two black schools, McClellan and Fair, for all practical purposes, when you lump the extracurricular participation from those schools with the other schools, it gives a picture of real inclusivity. If you take it out, it may not. When you lump the -- when you do a lumping process, we're saying that it gives a false picture. There was an intent here, and this goes -- this is an intent, it goes to good faith, an intent to make a presentation Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21 of a reality that did not exist. THE COURT: All right . Mr. Heller? MR. HELLER: Your Honor, Mr. Walker's explanation shows why this exhibit should be excluded. When we objected to it, their response was that it was related to extracurricular activities. Now the first thing that he said was that it's related to advanced placement and pre-advanced placement. It's not related to any of those things. It's related to testing and the compilation of documents. It doesn't have anything specifically to do with any of the issues before the Court. Mr. Walker has now given the Court two different explanations of how it relates, none of which can be shown from the face of the exhibit. THE COURT: All right. I don't believe I need briefs on this one . I will do a letter order ruling on that forthwith. Mark No. 746 down and remind me so I don't -- with the other issues involved so I get right on it. I think it's already been noted, but I want to re-note it. It's now 747 under the new numbering system. All right. 754. Mr. Walker, will you comment on 754? MR. WALKER: Yes, sir. THE COURT: Which now is what? MR. WALKER: It should be 755, if I'm not mistaken. MR. PRESSMAN: Sarne number. Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT : Ms. Johnson? THE COURTROOM DEPUTY: 754 is an e-mail dated April 18, '01. Is that the one you're 22 MR. WALKER: Yes . That's at the bottom of the page, your Honor, on that document. THE COURTROOM DEPUTY: It is still 754. That number did not change. THE COURT: All right . 754 is the same. All right. What's your explanation as to why this is admissible? MR. WALKER: This relates to AP and other subjects, and the last paragraph of it says, and this is from Kathy Lease to Bonnie Lesley: "High school preliminary results have been returned to Parkview and Fair." THE COURT: Wait just a minute. I'm not with you. Where are you reading from? MR. WALKER: Bottom paragraph. THE COURT: Bottom paragraph. All right. Now I'm with you. MR. WALKER: "McClellan's results are here and are being scored. Central and Hall have not turned in their answer sheets yet. All makeups were to have been completed by this past Monday. Retests for high schools are due back on Friday. The first page of the parent report can be printed, but we can't print the longitudinal report for parents unless all high schools are in." Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And this relates to AP courses. This, your Honor, is relevant in part because the date is noted, April 18. The report that was submitted that is before the Court is dated March 15 of the next -- of the same year. So this was less than 30 days, and they don't have the data in that related to AP courses on the longitudinal basis. THE COURT: On what basis? MR. WALKER: Longitudinal. THE COURT: You know, I've seen longitudinal basis throughout this thing. What does that mean? MR. WALKER: Over time. Looking at things in a broader perspective rather than in a single snapshot year. THE COURT: I'm pleased to be informed. Mr. Heller? 23 MR. HELLER: Your Honor, in the same way, anything that has to do with discipline can be said to relate to counseling; anything that has to do with any testing in the district can be said to relate to advanced placement because some of the students tested, obviously, will be advanced placement students. But the exhibit doesn't say anything about how the district implemented its obligations under the revised plan concerning advanced placement . to do with that at all. It doesn't have anything THE COURT: later than Monday. I'll rule by letter perhaps today, no Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 All right. Let's go to 771. MR. WALKER: Your Honor THE COURT: That is the letter to Mr . James Washington from Ms. Springer, is it not? MR. WALKER: Yes. Your Honor, this is from Ms. Springer to Mr. James yes. This is now Exhibit 769. THE COURT: Let me check that. 771? Not that I doubt your veracity, but you could make a mistake on numbers, so I want to check it with Ms. Johnson. 2/28? THE COURTROOM DEPUTY: Yes. 769 is a letter dated MR. WALKER: Yes. THE COURTROOM DEPUTY: Yes. 769. THE COURT: Thank you . MR. WALKER: Your Honor, this deals with extracurricular activities, and it's pretty clear, and the issue here relates to the district -- whether Little Rock has any responsibility THE COURT: In other words, you're offering this in rebuttal only? 24 MR. WALKER: No, this goes to extracurricular activities and good faith, because here we have a child who is in the Little Rock School District but who under M to M goes to Oak Grove. The child was not allowed to participate, we contend, in the activities at that school for racial reasons or Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 for retaliatory reasons. And I think the letter sort of speaks for itself . THE COURT: Well, why would -- on what ground would it be admissible? Is Ms . Springer going to be a witness? MR. WALKER: Well, your Honor, it shows, first of all , Mr. Washington, Mr. Washington is an agent of the district. THE COURT : I think that's a fair assessment , but he didn ' t write the letter. MR . WALKER: Well, there will be a person who will testify regarding that, who is Mr. Junious Babbs. Mr. Babbs was Mr. Washington's supervisor. The letter went to Mr . Babbs as well, so Mr. Babbs will be in a position to address the issue. THE COURT: What will he say? MR. WALKER : He will say what the district did in response to this , which was basically to do nothing. Just a moment . Let me make sure. Yes. He will basically say that the district did nothing . And remember, your Honor , the M to Ms from Little Rock going out are black. The ones coming in from the county are mostly white . THE COURT: All right. Mr. Heller? MR. HELLER : We have two points about 769, your Honor . The first is that it clearly involves, quote, Christa R. Newburg, RMR, CRR , CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 retaliatory treatment by Pulaski County School District officials, not Little Rock officials, and, secondly, that it's among the exhibits Joshua listed as being offered, although hearsay, as notice to the Little Rock School District. I think it might fall within the Court's ruling when we deal with the notice argument. But if you look at Joshua's response, I think this exhibit is among those that they say is being offered solely to show notice to somebody . Of course, we're going to argue when the time comes that that's not relevant. THE COURT: All right . Mr. Walker, what about the fact that this is not the LRSD? MR. WALKER: That it's not what? THE COURT: Concerning the -- he just said -- MR . WALKER: Well, it is concerning the LRSD. This is a student from the Little Rock School District. They don't lose responsibility for their students merely because they go to the county. THE COURT: Wait a minute. Wait a minute . The student was in the Pulaski County -- Oak Grove High School is in the Pulaski County Special School District. MR . WALKER: Your Honor, there is or was an agreement between the county and the city district as to how the desegregation plan would be operated . And the M to M provisions also have special rules . We would not have written this letter to Mr. Washington without a purpose. Christa R. Newburg, RMR, CRR, CCR United States Court Reporter It may not be 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 independent, but when we talked to Mr . Babbs about the way Little Rock students are treated in terms of extracurricular activities in general, we think that it is appropriate for us to be able to make reference to this in refreshi ng his recollection about the manner in which they have done . I acknowledge to you that it is not direct proof . I mean, a letter from Ms. Springer, who is not a witness, who is not THE COURT: I'm dubious, Mr. Walker, but I'll study it . MR. WALKER: All right. MR. HELLER: May I say one more thing? THE COURT: Surely . MR . HELLER : I ' d like to address Mr. Walker's 27 argument about the majority to minority transfer provisions. This student was a Little Rock student in the Pulaski County School District on an M to M transfer. The M to M stipulation clearly states that when a student transfers, he becomes a student of the receiving district for all purposes. So I don't want the Court to be left with an impression that there ' s some lingering responsibility or that the M to M stipulation is not clear about that . THE COURT : Thank you . All right . Let's go to 77 -what was 773 . Ms. Johnson, tell us what 773 is now . THE COURTROOM DEPUTY: 773 is a letter dated 10/10/2000 to Les Carnine from Joy Springer. Christa R. Newburg , RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT : No, 773 under the old numbering system was an August 28, 2000, letter from Ms. Springer to Mr. Ray Gillespie. THE COURTROOM DEPUTY: All right. Then that is 771 now. THE COURT: It's now 771. All right. Mr. Walker, tell me about this one . 28 MR. WALKER: This one regards a child who was choked by a teacher, by a coach. This relates to extracurricular activity. It also, in our opinion, relates to -- when we present Mr. Gillespie, it will also relate to the district's good faith in the manner in which they address the issue. THE COURT: Mr. Heller? MR. HELLER: Your Honor, one of the things that's always been excluded from this case is any individual issue concerning a personnel matter or a student matter. THE with that in MR. MR. Overton? THE MR. THE MR. COURT: I believe Judge Overton kind his decision several years ago. HELLER: Yes, your Honor. WALKER: Just a moment, your Honor. COURT: Yes . WALKER: In this case? COURT: No, I believe - - WALKER: Judge Overton hasn't been Christa R. Newburg, RMR, CRR , CCR United States Court Reporter in of dealt Judge this case. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 29 THE COURT: Beg your pardon? No, Judge Woods and Judge Wright. Judge Overton dealt with the issue of isolated instances of misconduct. Go ahead. MR. HELLER: Your Honor, here it's just clearly not related to the district's implementation of the extracurricular requirements. If it were a teacher, it would obviously be totally outside the scope of this hearing, and just the fact that someone who happens to be a coach was involved in this incident doesn't bring it within the scope, since it's simply an isolated incident concerning an individual complaint. THE COURT: I'm inclined to agree. I agree it's bad, but I'll decide later and put it in my letter. MR. WALKER: Just a minute. Just a minute. We've only highlighted a few things, and we intend to show through either Mrs . Lacey or Mr. Babbs that there were numbers of these cases that suggested it's simply not an isolated incidence. This is extracurricular activity, and we're seeking to show how black kids are treated, and this is simply there to remind Mrs. Lacey or others of what has taken place. Now, in terms of -- as I understand desegregation law, you're not likely to have the same situation repeated with respect to children, but when you put together a number or at least a sufficient number of similar situations, then the -- at least the response of the district to those similar situations Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 30 is instructive as to whether the district is in compliance and in good faith. THE COURT: It may boil down to how many you have. If you had 10,000 of them -- and I realize that's extreme, but it may boil down to how many you have. And I'll rule by letter. MR. WALKER: All right. Thank you. THE COURT: Thank you. And, incidentally, if I exclude any of these, I want the record to reflect here and now that you have a continuing objection to excluding them. They'll be made a part of the record, and your objection will be noted and your exception saved. All right. Let's go to 775 under the old system. What is it now? THE COURTROOM DEPUTY: It is now 773. A letter dated 10/10/2000 to Les Carnine from Joy Springer? THE COURT: Yes. Mr. Walker, don't we have the same thing here? MR. WALKER: Well, it's different, your Honor. Here the history of the school district has been that if a child was in the ninth grade, even though in junior high school, he or she could participate in the varsity athletic programs at the senior high school . So if a child happened to be enrolled at Forest Heights in the ninth grade, that child was eligible to participate in, say, the football program at Hall or wherever Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 31 he would be attending. When the school district converted to a middle school program, the school district decided not to let ninth graders continue to participate in sports programs in the same way it had in the past, and this had a discriminatory impact because most of the children who participated in football and basketball were black. Now, those children could -- those children could still participate in other activities, but some of the other academic-type activities were differently constituted. So this letter, if you look at the middle of it, you'll see Ms. Springer's comment to Dr. Carnine. Mr. Gillespie reported to Mr. Winston and me that there existed documentation which communicated to all parents the district's position regarding ninth grade participation on varsity teams for the 2000-2001 school year. Now, this is again not direct evidence -- and I think that much of this comes from experience, not direct evidence, but we have a witness, your Honor, that we have identified that will be discussing the issue. THE COURT: Who is that? MR. WALKER: That would be Mr. Gillespie. It could also be Mrs. Lacey, Dr . Lacey, or Mr. Babbs, because each of them had responsibility for extracurricular activity. THE COURT: All right. Mr. Heller? Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 32 MR. HELLER: Your Honor, the Little Rock School District is a majority black school district, and everything we do is going to affect more African-American kids than other kids. This situation, according to Mr. Walker's argument, is something that affected all students . It wasn't something that targeted black students or targeted this particular student. But, again , it looks like an individual complaint, but the complaint is about something that had general application and doesn't have anything to do with whether or not the Little Rock School District is ensuring there aren't any barriers to participation by qualified African-American students in extracurricular activities. THE COURT: You know, I was just thinking, I wish the rules of ninth graders participating in senior high athletics had applied in 1954 when I was in the ninth grade. We finished the junior high year and they moved three or four of us up to the senior high team, and we had some young teenagers competing against grown men, to our physical detriment. prohibited it back in those days. I wish they had MR. HELLER: That brings up another point. It's really the Arkansas Activities Association that determines who is eligible to participate in this, rather than the school district. THE COURT: What I would prefer for my bones I don't think would have a bearing on the constitutional issues here. Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 - 25 I will rule on this one , too. MR. additional on WALKER: that. Your Honor, let me say something The plan before you -- 33 THE COURT: You're still referring to what ' s old 775? MR. WALKER : Yes, sir. THE COURT : All right. MR. WALKER: The plan before you commits the school district to encouraging participation by African-American students . THE COURT: It does. MR. WALKER: All right . THE COURT : All right. 780 . Old 780 . Ms . Johnson , what is that under our new system? THE COURTROOM DEPUTY: 775. An e-mail dated 5/25/01 from Bonnie Lesley to Debbie Barry, page 258? THE COURT: A letter from Ms . Springer to Mr. Washington? No. Hang on just a minute. I've got the wrong -- what did you say it is, Ms. Johnson? THE COURTROOM DEPUTY : The old 780? THE COURT : Yes . THE COURTROOM DEPUTY: Is now 775 , an e-mail dated 05/25/01 from Bonnie Lesley to Debbie Barry. THE COURT: Hum. From who? THE COURTROOM DEPUTY: From Bonnie Lesley. THE COURT: To whom? Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 34 THE COURTROOM DEPUTY: Debbie Barry. THE COURT: Okay. All right. Mr. Walker? MR. WALKER: All right. Just a moment. Now, this is May 25, 2001, after the report of March 15. This is submitted -- it relates to something beyond middle school evaluation. All right. Well, let me explain. We may have misspoken about this one. I think that Mr. Jodie Carter will be talking about the Plato labs. It would be our position that the Plato labs were working to try to at least help students at McClellan, where they needed the most. So the first part of this exhibit, your Honor, and we may have misspoken there, relates to the Plato labs. Now, it's not presented here as an exhibit that we plan to introduce . It is one that we will make use of when Dr. Lesley testifies, and also when Mr. Jodie Carter testifies. THE COURT: Tell me how, for example, when Lesley testifies, how you will make use of it. MR. WALKER: Well, I may not even use it. If she talks about the Plato labs and gives the Court some idea of what the Plato labs were intended to accomplish and whether they were stopped, and if the testimony does not reflect a need to use this, then we won't. This is basically to refresh one's recollection more than anything else, but if I understood the Court's directive, if we plan to make almost any kind of use of any of these things, we should at least let the other side know Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 about it in advance . These are not -- hopefully not putting things in to be admitted because not everything that we put here will necessarily be admitted, your Honor. We may make some reference to them. THE COURT: Well, I'm not going to require you to offer evidence, Mr. Walker. I'm going to absent unusual 35 circumstances, if you offer evidence, I'll rule on it if there's an objection . But I'm not requiring you, just because you list something as an exhibit or a witness, I'm not requiring you to call a witness or to put an exhibit in. I'll see if Mr. Heller wants to respond t o that. Mr . Heller, do you have any response to that? So MR. HELLER: Your Honor, Mr. Walker listed this as something for -- related to guidance and counseling. He said he may have misspoken. Maybe that's what he was referring to. But his explanation didn't say anything about guidance and counseling. In the Plato labs, Dr. Lesley's testimony will be about advanced placement courses and THE COURT: You're talking faster than I'm hearing. MR. HELLER: I'm sorry. Dr. Lesley's testimony will be about advanced placement, and the Plato labs don't have anything to do with that. That's a self-paced program that was being used to help students do some makeup work. Mr. Walker said Jodie Carter will testify about what happened at McClellan. This exhibit has to do with Dr. Lesley's knowledge Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 - 25 36 of the existence of a Plato lab at Central. So it doesn't even tie in with that. THE COURT: Well, you know, I've only got so many rulings in me, so I think I'll wait and see if this comes up before I rule. Mr. Walker has indicated that it may not be tendered. I don't want to waste a ruling. MR. WALKER: Your Honor, part of what we have here is Dr. Lesley's testimony that they're trying to get all these kids into pre-AP and AP courses, and the Plato lab is one of those things where -- which they put into place to get these kids who are way behind into a status where they may be able to succeed in AP courses, once placed there. That's why we wanted to address it. But I think, your Honor, if you could just defer on this, it would probably serve, as many of them, your Honor. THE COURT: All right. Let's go, I believe, 786, the old 786. What is that now, Ms. Johnson? THE COURTROOM DEPUTY: 778, a memo dated 2/24/99 to Gayle Bradford from James Washington. THE COURT: All right. Mr. Walker, I'll hear from you on that. MR. HELLER: Your Honor, if I may be heard first, we'd like to withdraw our objection to that exhibit. what? THE COURT: All right. Let's go to 802, which is now Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 37 THE COURTROOM DEPUTY: 794-A, deposition of school board member Sue Strickland. THE COURT: All right. Here is what I'm -- 794-A, I'm going to require designations, Mr. Walker, on what portions of those depositions you intend to use, and I'm going to require counterdesignations by the -- in response to those by LRSD. How long do you need to get the designations in? MR. WALKER: Just a moment, your Honor. Your Honor, we have listed Ms. Strickland as a witness as well. We've submitted her deposition in part so that if it becomes necessary, it can be used to refresh her recollection on a matter that she addressed regarding the three subjects that she is related to. It may not be necessary to put it in. Now, I expect, among other things, for her to say that she did not find the superintendent of schools, Dr. Carnine, to be a credible person. And also I intend to show either a knowledge or lack of knowledge regarding the plan as it relates to those sections, especially AP courses and things like that. THE COURT: In other words, you're not going to use the deposition as evidence by getting up and saying, I'm going to read now from the deposition of someone? MR. WALKER: No, sir . THE COURT: You're not? MR. WALKER: That's not my intent. The depositions that we have identified are depositions of persons that we have Christa R. Newburg , RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 also identified as witnesses. THE COURT: All right. MR. WALKER: We took more depositions and did not identify all those persons. 38 THE COURT: Let me say this: I would likely exclude the reading from a deposition if there haven't been designations done, if you do it without -- I realize for impeachment or refreshing memory, I don't see anything wrong with that, but just to get up cold and read them, as you normally can do if a party or principal of a party is -- you have a deposition of one of those people under the Federal Rules of Civil Procedure, as well as the Rules of Evidence, but I think I understand you to say that these depositions that are referenced in 802, which is now 794-A, you're not going to offer them outright, but you're going to use them for impeachment or refreshing recollection, if necessary. a fair statement? Is that MR. WALKER: If necessary, or will designate at some time in sufficient time for the district to be on notice the portions THE COURT : Designate by 5 p.m. on Monday. MR. WALKER: Let us have until Wednesday, your Honor. You ' re giving us different dates. If you give us until Wednesday on everything, I think that would -- THE COURT: They've got to counterdesignate, I think Christa R. Newburg, RMR , CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 39 is the problem. MR. WALKER: Well, in terms of that, it's not -- it's only 15 or -- this deposition in substance is only 30 pages. THE COURT: I'll compromise with you. 5 p.m. on Tuesday. MR. WALKER: Maybe we can get everything in by Tuesday on our side, and then the district would have a day or two. THE COURT: I'll have them do it by Thursday. Anything you plan to read, have your designations in by 5 p.m. Tuesday. MR. WALKER: That's fine, your Honor. THE COURT: And counterdesignations by LRSD should be in by 5 p.m. Thursday of next week. All right. Let's take about a ten- or 15-minute recess. I'm going to borrow these exhibits, if you don't mind, during the recess. I'm going to take another look at them. We're in recess. Be at ease . (Recess at 9:26 a.m. , until 9:50 a.m.) THE COURT: I appreciate y'all's patience, if you had any. You're dealing with a slow learner, so it may take a little longer for me to studify. Put a "sic" after the "studify" so the Eighth Circuit won't think I didn't know any better. Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 40 All right. Let's -- by the way, there's been several references to ALP testing. Mr. Walker, can you explain that to me? Come to the lectern here. MR. WALKER: Your Honor, it's ALT. THE COURT : ALT . Okay. MR. WALKER: Alternative learning tests. THE COURT: Okay. Thank you. MR. WALKER: Wait a minute. Achievement learning -- level test. Okay. I'm sorry. Achievement level test. I'm sorry. THE COURT: Thank you. I can't resist telling a story. When my law students would finish class over at the law school here, I'd give them a certificate certifying they were a WTP, a Wilson-trained person. And I had one of my former students on the stand one time before Judge Eisele, and I asked, "Is it true you are a certified WTP?" And Judge Eisele immediately said, "What's that? 11 Well, I had one before another judge whose name I won't mention, and I said, "Are you a certified WTP?" And that person said, "I certainly am," and that judge never asked a question, just went on. I was kind of that way about ALT. I was kind of embarrassed because it had been referred to, but I now know and I'm glad. Let's talk about No. 791. Mr. Walker? MR. WALKER: Yes, sir. Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 41 THE COURT: What is that number now , Ms . Johnson? THE COURTROOM DEPUTY : The old 791 is now 783, a memo dated 5/3/99 regarding visit -- THE COURT: No, I'm looking at an agenda dated May 4, 1998. Is that what -- MR. HELLER: Your Honor, that ' s the second page of the exhibit, as I've got it. THE COURT: Oh , that's right. Okay. So 791 is now what? 783? THE COURTROOM DEPUTY: Yes, yes. THE COURT: Mr. Walker, I assume you read my letter of yesterday. MR. WALKER: Yes. THE COURT : In which I , in effect, said I was impressed with what you said, but uninformed . So you need to tell me what you meant there . Do you want to authenticate pages 2 and 3? MR. WALKER: Let's see. The first page is the agenda of a meeting that took place on May 4 , 1998, and the second page are the notes of Ms . Springer regarding the meeting with Mrs. Elston before that meeting . THE COURT : If you will, keep your voice up a little. I'm a little hard of hearing . MR . WALKER: I'm sorry, your Honor. THE COURT : I don't -- my second page is entitled -- Christa R. Newburg , RMR , CRR , CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 also entitled "agenda ," got "secondary counselors' workshop," and I don't see any notes here by anybody. MR. WALKER: Just a moment. Let me visit with Mr. Heller a moment. THE COURT: Surely. 42 MR. WALKER: All right. Your Honor, I understand we may have them out of order . We have the same pages. The first page will be -- THE COURT: You'll need to get to the lectern here so my secret agents can hear you. MR. WALKER: The first page would be the May 3, 1999, visit to Little Rock School District's Administration and Pupil Services Building by Ms. Springer. THE COURT: All right. MR. WALKER: And the second would be the agenda. THE COURT: All right. MR. WALKER: And the third would be -- it would have time lines and pre-college counseling. THE COURT: All right. MR. WALKER: And conclusions and recommendations. And these exhibits will go to the counseling subject that Mrs. Elston will be testifying about. THE COURT: Mr. Heller, let me hear from you. MR. HELLER: Your Honor, our objection goes to the first page, which is dated May 3, 1999, Ms. Springer's notes. Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 43 They're hearsay. And she is now listed as a witness to testify in this proceeding. THE COURT: What's your replication to that, Mr. Walker? MR. WALKER: This is not an evidentiary exhibit. only becomes one in the event that Mrs. Elston testifies a It particular way. But I think that what we're using, what we're showing here, your Honor, is that there are certain things that we were informed of with respect to the counseling program. The counseling -- and that preceded the meeting regarding counseling by one day. And then there is another exhibit that relates to it. So when we examine Mrs. Elston or when anyone examines Mrs. Elston, we'll be able to demonstrate that at least some of these things that she said were in place to enhance counseling services were at least discussed at some point or another. She should have good information or at least she ought to be able to give competent information regarding these subjects because she will acknowledge, we believe, that she did have this meeting with Ms. Springer. THE COURT: I'll rule on that if it becomes relevant during the trial. MR. WALKER: Thank you. THE COURT: Let's look -- well, as a matter of fact, let me say this about the documents: I had indicated I was Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 44 going to rule by a letter. I'm going to remind y'all of that judge that we all hear about that had a seven-year-old son that he hadn't named yet because he couldn't make up his mind. I will try not to be that way, but I'm going to flip-flop. I'm not going to rule pretrial on the exhibits we've covered. I'm going to wait until we get to the trial. There may be some nuances in the testimony that might cause me to go a different direction, so I'm going to all those exhibits we covered earlier, I'm going to wait until the trial to rule on them when they're offered, and I'll allow you at the trial to make rifle-shot arguments for or against the admission, depending on which side you're on. Let's move now I need to find Mr. Walker's letter here. Refer, if you will, to paragraph seven of Mr. Walker's letter. By the way, if you send letters to me, please also send the original to the clerk, all of you. The clerk has a rule that they don't like filing copies. I don't understand that rule, but who am I to argue with the clerk? All right. Paragraph seven, Mr. Walker, you don't need to address that because I'm on your side. You don't want to turn me around. Mr. Heller, as I recall, Judge Wright said that anything post March 15 wouldn't be admissible. As a matter of fact, I think she gave you an A and B option, and you didn't like either one of them, objected to both of them, but said if you Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 45 had to choose between the devil and the deep blue sea, that you'd take B. So I'm not going to exclude these witnesses, but I caution you that I'm going to stand by Judge Wright's ruling that unless there's some powerful reason not to do so, that March 15 is the cutoff. Because that's when you said, we're unitary. MR. HELLER: Your Honor, that's an issue I'd like to address briefly. Judge Wright's ruling, and I've got the October 2 transcript where she made the ruling, which was followed by an order the following day, was based on Judge Wright's decision that the issue in the case was only whether or not our March 15 compliance report was accurate. And for that reason, she said we' ve got to show her -- since we said we complied as of March 15, that we've got to show her whether or not that ' s true and that that's the issue. But I think there's a somewhat broader issue in the case, and that's whether or not we substantially complied with the plan, the term of which ran through the end of that school year, beyond March 15. And there could also certainly be evidence that substantial compliance was had even if some aspects of it came even after the school year, let alone after March 15. So we had understood and hoped, your Honor, that the issues in the proceeding would be actually the Little Rock School District's substantial compliance with its desegregation plan and not limited to whether or not the March 15 compliance Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 46 report was accurate . I would like to tell the Court one thing about that compliance report. We could have and perhaps THE COURT: I don't see the issue as being whether that report is accurate in the sense of whether you've got a typo in it or not; it's whether or not you were in compliance as of that date. MR. HELLER: Well, but, your Honor, the plan requires substantial compliance , and the term of the plan ran through at least June. THE COURT : Three years. MR. HELLER: Right. So, you know, we could end up in a situation -- if we don't consider the entire term of the plan, we could end up in a situation where we could determine compliance as of March 15 and then come back and have to have another proceeding about whether we came into compliance by June or July. THE COURT: That's a distinct possibility, and I'll run that risk. I'm going to put what you've said just now under the heading of going down hard, but I'm going to stick with the March 15 deadline. Your objection to my ruling is noted and your exception is saved. Anything else we need to take up? I appreciate y'all's time. Apparently there is. MR. HELLER: I'm sorry, your Honor. With respect to your ruling that you would decide the exhibits at trial, did Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 47 that include the exhibits that are listed as rebuttal exhibits? Because we're still -- we've still got an argument that none of those relate to the rebuttal testimony. THE COURT: It does include those. I realize you object to them and say they're not rebuttal. It does not apply to the deposition designation, though. That's 80 -- whatever it is. I want designations and counterdesignations on the depositions. All right. Mr. Jones? You're familiar with the old adage that the quacking duck gets shot, aren't you? MR. SAM JONES: Absolutely, your Honor, so I'll try to bob and weave. I just wondered if the Court had a sense or a preference, having listened to the Court narrow down the issues, as to whether or not the Court desires my presence during Little Rock's unitary hearings, Mr. Steve Jones or anyone else, perhaps even including Mr. Roachell, who certainly can speak for himself. THE COURT: Well, you know, I'm highly reluctant to give an advisory opinion on that because what if some witness gets up and just volunteers something that's highly damaging to your client and you're not here? I mean, I'm a little bit at a loss to -- I would like to excuse you and tell you to go about your way because that will narrow the number of lawyers as well as the issues. But I'm a little chary of doing that. Let me hear from the other lawyers whether they think they Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 need to be here, and then I'll hear from Mr. Heller and ; Mr. Walker, whether they want you here or not, and then I'll answer your question. How is that for a deal? MR. SAM JONES: That's a deal, your Honor. THE COURT: All right. MR. STEVE JONES: Well, your Honor, I don't know about need, but I do plan on being here. My experience has been that your concern is sometimes warranted, that issues arise that affect the other school districts when the basic issue before the Court at that point in time has not -- THE COURT: You're going to be here. That's fine. MR. STEVE JONES: So I plan on being here. 48 MR. ROACHELL: Your Honor, quack. I will also be here. The testimony -- I just need to keep up with the case, and the testimony occasionally presents an opportunity to cross-examine within the scope of my intervention. Thank you. THE COURT: Thank you. All right. Mr. Walker or Mr. Heller, do y'all have a position? If you don't, you're not required to speak. I take it by your failing to rise that you do not. All right. What says -- MR. SAM JONES: If the Court could give me the latitude, your Honor, to kind of feel my way along, be here at the beginning, and if the Court wouldn't be offended if I sense that my time could be best served elsewhere for particular Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 parts of the proceeding, I guess if I could go in and out and not offend the Court, that would be my preference. THE COURT: I won't make a commitment to you that I won't get offended , but I won't get offended by that. I will make that commitment. MR. SAM JONES: All right. 49 THE COURT: All right. I appreciate y'all being here on short notice. This is an important case. Y'all obviously realize that. We'll get the trial started. You've got deadlines for next week, and we'll get the trial started a week from Monday and conclude it that week, providence being willing, and then we'll have the findings of facts and conclusions of law. Sometime in August has been set for that. And I plan on ruling in the case well before the first killing frost. We're in recess. (Proceedings adjourned at 10:08 a.m.) C E R T I F I C A T E foregoing is a correct transcript from he above-entitled matter. Date: July 16, 2002 rista Newburg, United States Court Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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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