District Court, memorandum opinion.

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<dcterms_description>This transcript was create using Optical Character Recognition (OCR) and may contain some errors. R;~l~f!~O EAsr~~lkf~s,s OFFICE OF ' ' . Sf p l ,a :zooz DESEGREGATION MONITORING . J~MES . By, IN THE UNITED. STATES DISTRICT EASTERN DISTRICT OF ARKANSAS LITTLE ROCK DNISION LITTLE ROCK SCHOOL DISTRICT V. No. 4:82CV00866 WRW/JTR PULASKJ COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KA THERINE KNIGHT, ET AL. MEMORANDUM OPINION ---- - ------------ PLAINTIFF DEFENDANTS INTERVENORS . __ ., INTERVENORS I. II. ill. N . A072A INDEX Page Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The Long History Of Desegregation Litigation .In Pulaski County .............. 11 A. 1956 Through 1973 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 B. 1973 Through 1982 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 C. Interdistrict Litigation And Interdistrict Relief . . . . . . . . . . . . . . . . . . . . . . . 16 D. The 1990 Settlement Agreement And Settlement Plans . . . . . . . . . . . .. . . . . 20 E. LRSD's Implementation Oflts Desegregation Obligations Between 1991 And F. G. H. I. J. K. 1995 .... ..... ......................... .... ........ . ..... . . .. 24 Joshua's Request For An Interim Award Of Attorney's Fees For Performing Monitoring Activities After The 1990 Settlement . . . . . . . . . . . . . . . . . . . . . . 33 LRSD's First Attempt To End Federal Court Jurisdiction . . . . . . . . . . . . . . 36 The Pexplexing Final Resolution Of Joshua's Request For Still More Attorneys' Fees From LRSD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Final Approval Of Revised Desegregation And Education Plan . . . . . . . . . . 45 LRSD's Implementation Oflts Obligations Under The Revised Plan . . . . . 46 LRSD Seeks Unitary Status Based Upon Its Substantial Compliance With The Revised Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Relevant Provisions Of Revised Plan ......................... . .... ... ... 52 A. LRSD's Obligation Of Good Faith ................. ... . ... .. . ..... 55 B. LRSD's Obligations Regarding Student Disciplip.e ............ : .. ... .. 55 C. LRSD's Obligations To hnprove And Remediate The Academic Achievement Of African-American Students . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 D. E. F. G. 11. I. LRSD's Obligations Regarding Extracurricular Activities, Advanced Placement Courses, And Guidance Counselors ................... ; . . . 56 LRSD's Obligations To Develop Remedies, Where Appropriate, For Racial Disparities In Programs And Activities ............ , , .... , . , . . . . . . . . . 57 Procedure For Raising Compliance Jssues ............... : . .. . . . . . . . . . 57 Duration Of Revised Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 rrocc:;uure ror ;::;eeKlllg Urutary ;::;rams ............................. . Effect OfLRSD's Failure To Meet "Specific Goals" In The Revised Plan 59 60 Controlling Principles Of Law .......................................... 60 A. The Evolving Concept of Unitary Status . . . . . . . . . . . . . . . .. . . . . . . . . . . . . 60 B. Applicable Standard For Determining IfLRSD Is Unitary ........ ... . .. 69 C. Burden Of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 D. Meaning Of"Substantial Compliance" ............................. 75 E. The Metaphysics Of Using The "Achievement Gap" As A Factor In Deciding Unitary Status ..... .. ... .. ..... ......................... ....... 77 -1- A072A V. Findings Of Fact .............. . ..... . .. _ ............. , .... . ........ . .. 85 A. Good Faith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 B. Student Discipline . . .. . .................. . ... . ................. 95 C. Extracurricular Activities . . . . .... . . . ............ ; . . . . . . . . . . . . . . . 114 D. Advanced Placement Courses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 Promote Participation and Remove Barriers . . . . . . . . . . . . . . . . . . . . . . . . 123 Identify and Encourage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 Assist . . .................. . ... . ............ . .. .. . ; . . . . . . . . . . 135 E. Guidance And Counseling ........... . ......... : . . . . . . . . . . . . . . . . 136 F, Academic Achievement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 G. Program Assessment/Program Evaluation ................. . ........ 150 VI. Conclusions Of Law ... . .. . ........ . .. . .......... . .. . .... ... . .. ; ..... . 160 A. Unitary Status .. . ....... . . . . .... . .......... . .............. .... 160 B. Burden Of Proof . . . . .... . .... . ............... . ...... . ...... . .. 160 C. Substantial Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160 D. Good Faith . .. .. . .. ...... . . .. . . ......... . ......... ... .. . . .. . . 161 E. Student Discipline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 F. Academic Achievement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 G. Partial Unitary Status . .... .. . .. .... . ... . .... ~ . . . . . . . . . . . . . . . . . . 165 H. Tune To Fly .... . . . . . ......... . .... . ...... . . .. . . . . . . . . . . . . . . . 168 VII. Compliance Remedy ......... .. .. .. ........ . ..................... . '. . 170 VIll. Conclusion . .. : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 -ii- IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS LITTLE ROCK DIVISION LITTLE ROCK SCHOOL DISTRICT V. No. 4:82CV00866 WRW/JTR. PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. MEMORANDUM OPINION1 I. Introduction2 PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS On December 12, 1990, the Eighth Circuit Court of Appeals approved the "Pulaski County School Desegregation Case Settlement Agreement," as revised September 28, 1989; separate Settlement Plans for the Little Rock School District ("LRSD"), the North Little Rock School District (''NLRSD"), and the Pulaski County Special School District ("PCSSD''), dated 11t was my good fortune to have The Honorable Joe Thomas Ray, U.S. Magistrate Judge, assigned to this case with me. I would be sorely remiss ifl did not acknowledge, here and now, the prodigious effort and talent he has brought to this project. As authors. are wont to say, "any errors, however, are mine alone." 2As a Bryan Garner disciple (beginners' class), I generally favor putting all substantive legal analysis in the text and citing the supporting cases in footnotes. However, so many issues in this case beg for digressions that I have been unable to resist the temptation to include substantive legal analysis in some of the footnotes. A07?A . . . . --~ - ---- -- -- .. ... - ........ . ... ... ~ ........ - - .. , . - - ------- --- - . -----------~- ... - - - ---- ~ - - - - . .... . . . . . --- - .. January 31, 1989; and a separate Interdistrict Settlement Plan.3 LRSD v. PCSSD, 921 F.2d 1371 (8th Cir. 1990). At that time, both the district court and the Eighth Circuit believed that this historic settlement created the "benchmark for the future path of this case," Appeal of LRSD, 949 F.2d 253,255 (8th Cir.1991), and "a sure guide for ending this dispute and getting the parties out of court." LRSDv. PCSSD, 769F. Supp. 1491, 1494 (E.D; Ark. 1991), order vacated, 949 F.2d 253 (8th Cir. 1991). In the years following the Eighth Circuit's approval of the parties' final settlement of this case, all three Pulaski County school districts implemented their respective Settlement Plans under the supervision of the district court and the Office of Desegregation Monitoring ("ODM"). 4 Subsequently, the district court and Eighth Circuit established guidelines for allowing the parties 3 Each of the Settlement Plans for the individual school districts contained their respective desegregation obligations. In addition, the Interdistrict Settlement Plan contained the interdistrict desegregation obligations for all three school districts. These Settlement Plans had been agreed to by the parties and approved by the Court, making them "consent decrees." In their pleadings, the parties sometimes refer to these Settlement Plans as "desegregation plans." The three individual Settlement Plans for LRSD, NLRSD, and PCSSD, and the Interdistrict Settlement Plan were submitted to the district court for approval during early 1989. However, becausethey were not approved by the Eighth Circuit until December 12, 1990, LRSD v. PCSSD, 921 F .2d 1371 (8th Cir. 1990),. the parties and the district court generally have referred to these settlement documents as the 1990 Settlement Agreement, the 1990 Settl.ement Plans, and the 1990 Intei-district Settlement Plan. In contrast, the Eighth Circuit has usually referred to these settlement documents as the 1989 settlement agreement and 1989 settlement plan or plans. Appeal of LRSD, 949 F .2d 253, 254 (8th Cir. 1991) ("We recognized, however, that the approved plans, which we shall call the 1989 plan or plans, would need some modification because of the passage of time"). Regardless of the terminology used, the parties, the qistrict court, and the Eighth Circuit are all referring to the same settlement documents. In the interest of consistency, I will refer to those documents in this opinion as the 1990 Settlement Agreement, the 1990 Settlement Plan or Plans, and the 1990 Interdistrict Settlement Plan. "The Eighth Circuit directed the district court to create and staff the ODM with the personnel it "shall deem appropriate" to help ensure compliance with all aspects of the 1990 Settlement Agreeinent and the four separate Settlement Plans. LRSD, 921 F .2d at 1388. -2- A072A to make agreed changes to the details of the Settlement Plans, as fong as they did not affect the "major substantive commitments to desegregation" embodied in those Plans. Appeal ofLRSD, 949 F.2d at256; see also LRSD, 769 F. Supp. 1491; LRSD v.. PCSSD, 769 F. Supp. 1483 (E.D. Ark. 1991), order vacated, 949 F.2d 253 (8th Cir. 1991). Between 1991 and 1996, LRSD worked toward implementing its desegregation obligations under the settlement documents. On May 1, 1992, the district court entered an Order ( docket no. 1587) approving certain changes to LRSD' s 1990 Settlement Plan and the Interdistrict Settlement Plan. A copy ofLRSD's modified settlement plan and interdistrict plan, referred to as "LRSD' s May 1992 Desegregation Plan" and the "May 1992 Interdistrict Desegregation Plan," were attached to the court's May 1, 1992 Order. By 1996, it had become apparent to the parties and the district court that some of the desegregation obligations imposed on LRSD by the settlement documents might never be successfully implemented, regardless ofLRSD's best efforts .. Accordingly, on September 25, 1996, Judge Wright entered a Memorandum Opinion ( docket no. 2821) in which she "invite[ d] the parties to modify the parts of the [ settlement] plan that are ineffective or unworkable." As a result, in late 1996 and 1997, LRSD and the Joshua Intervenors ("Joshua")5 entered into vu.1,11uu11,1.:1,17u"T,111111u1..- ~, _c:1 61 uu.l'u11\ 1 .. ~ -f\lller,.......u.puouc school children enrolled in the three Pulaski County school districts, filed a "Petition io Intervene" ( docket no. 452). The Petitioners sought intervenor status ''for themselves and the other Black public school children of Pulaski County through their parents and next of friends .... " Mrs. Lorene Joshua was the lead named parent and next of friend for her three minor school children. On May 24, 1984, the Eighth Circuit entered an Order (docket no. 565) that, in effect, granted the Petition to Intervene. Thereafter, the district court and the parties began referring to these intervenors simply as "Joshua" Because the intervenors represent the group of all AfricanAmerican school children in the Pulaski County public schools, I will sometimes use the plural pronoun ''they'' to refer to Joshua On occasion, the Eighth Circuit has elected to consider -3- . . , . .. -"'- - - ---..,-- ...... .. - --- - --- .. . protracted negotiations to modify various aspects ofLRSD 's Settlement Plan. These negotiations bore fruit in the January 16, 1998 Revised Desegregation and Education Plan (the "Revised Plan"); which LRSD and Joshua jointly submitted to the district court for approval on January 21, 1998 ( docket nos. 31 o7 and 3136), 6 On April 10, 1998, the district court entered an Order ( docket no. 3144) approving the Revised Plan,7 which it viewed as "an entirely new consent decree or settlement agreement between LRSD and Joshua."8 Unlike LRSD's 1990 Settlement Plan, as modified by the May 1992 Desegregation Plan, the Revised Plan included a section establishing a specific procedure "Joshua" to be only the first named intervenor, Mrs. Lorene Joshua, and properly used the singular pronoun "she" to refer to "Joshua" LRSD v. PCSSD, 56 F.3d 904, 914 (8th Cir. 1995). Either pronoun usage is correct, as long as the reader understands how the Court is defining "Joshua;" 6 According to the explicit language of the Revised Plan, it "shall supersede and extinguish all prior agreements and orders" in this case "and all consolidated cases related to the desegregation" of the LRSD with the following exceptions: a . The Pulaski County School Desegregation Case Settlement Agreement as revised on September 28, 1989 ("Settlement Agreement"); b. The Magnet School Stipulation dated February 27, 1987; c. Order dated September 3, 1986, pertaining to the Magnet Review Committee; d: The M-to-M Stipulation dated August 26, 1986; and, a eals int retin and enforcin sections a through d. above to the extent not inconsistent with this Revised Plan. 7buring the hearings on unitary status, the Revised Plan was introduced into evidence as ex 871. 8In its April 10 Order, the district court concluded, in the alternative, that, even if the Revised Plan was considered to be a "modification" ofLRSD's May 1992 Desegregation Plan, rather than "an entirely new consent decree," it still should be approved under the test for seeking modification of a consent decree established by the Court in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 393 (1992). See also LRSD v. PCSSD, 56 F.3d at 914; LRSD, 921 F.2d at 1387. -4- A072A and time schedule under which LR.SD might achieve unitary status: SECTION 11: Unitary Status. At the conclusion of the 2000'-01 school year, the district court shall eriter ail 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 farther proceedings. (Emphasis added.) Because none of the parties appealed the district court's April 10 Order approving the Revised Plan, it became a final consent decree, which now governs LRSD's desegregation obligations and establishes the path tha~ LRSD must follow to achieve unitary status and release from federal court supervision.9 On March 15, 2001, LR.SD filed a Request for Scheduling Order and Compliance Report 91n most school desegregation cases, a federal court's jurisdiction depends on the existence of constitutional violations by the school district Once the school district complies with all of its obligations under the Constitution, it achieves "unitary status," and the federal court's jurisdiction ends. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15-16 (1971). . 1 . In Green v. County School Bd. of New Kent County, 391 U.S. 430, 4~5-38 (1968), the Court identified the following areas of a school district's operations that must be carefully exannncu m oetemnnmg wnemer 1t.nas successtu.lly converteo .. to a unnary system m whlch racial discrimination [has been] eliminated root and branch": ( 1) student assignment; (2) faculty and staff assignment; (3) transportation; (4) extracurricular activities; and (5) facilities . . These so-called Green factors establish the floor for a school district's compliance with its constitutional obligations under the Fourteenth Amendment. Thus, in all school desegregation cases, a school district's compliance with the Green factors is a condition precedent to unitary status. Importantly, the Revised Plan required LRSD to comply with not only the Green factors, but also a host of other desegregation obligations that went well beyond the constitutional floor established by the Court in Green. Thus, in this case, the question of unitary status turns on whether LRSD has substantially complied with its desegregation obligations under the Revised Plan. -5- A072A ( docket no. 3410), 10 pursuant to Section 11 of the Revised Plan, seeking "an order finding LRSD unitary with regard to all aspects of school operations." On June 25, 2001, Joshua filed an Opposition to LRSD's Compliance Report (docket no. 3447), which vigorously challenged LRSD's contention that it was entitled to a declaration of unitary status and argued that LRSD was not in "substantial complian?e" with certain of its desegregation obligations under the Revised Plan. On July 5 and 6, August 1 and 2, and November 19 and 20, 2001, my colleague and predecessor in this case,United States CbiefDistrict Judge Susan Webber Wright, conducted five and one-half days of evidentiary hearings to develop the facts surrounding what Joshua believed were their three strongest grounds11 for challenging LRSD's request for unitary status: first, that LRSD had not acted in good faith in implementing its desegregation obligations( 2.1 of the Revised Plan); second, that LRSD was not in substantial compliance with its obligations regarding student discipline ( 2.5 through 2.5 .4 of the Revised Plan); and third, that LRSD was not in substantial compliance with its obligations to implement programs, policies, and procedures designed to improve the academic achievement of African-American students ( 2.7, 2.7.1, and 5.1-5.8 of the Revised Plan). In a scheduling conference on December 11, 2001, Judge Wright desi~ated the week of , . January 28, 2002, to hear no more than five additional days of testimony regarding the last three 10During the hearings on unitary status, the Final March 15, 200 l Compliance Report was introduced into evidence as CX 870. 111n a telephone conference with counsel on June 29, 2001; Judge Wright made it clear that counsel for Joshua should present his strongest arguments and evidence first, followed by subsidiary arguments and evidence (docket no. 3461 at 54-55). -6- areas of the Revised Plan in which Joshua claimed LRSD had :failed to substantially comply with its obligations: advanced placement courses ( 2.6 and 2.6.2 of the Revised Plan); extracurricular activities( 2.6 and 2.6.3 of the Revised Plan); ~d guidance counseling (.2.6.1 of the Revised Plan) ( docket no. 3597 at 31-37).12 Judge Wright made it clear tha~ after she had heard the testimony concerning these last three areas of LRSD's alleged noncompliance, she would decide the question of unitary status. Id. at 36-37. On January 3, 2002, after presiding over this case with great perseverance and distinction for eleven years, 13 Judge Wright determined that it was the "appropriate tiine to reassign this case to another judge with minimal disruption to the parties and to allow a smooth transition" ( docket no. 3569). That same day, the case was assigned to me by random selection ( docket no. 3570).14 On March 15, 2002, one year to the day after submitting its Request for Scheduling Order and Compliance Report, LRSD filed a Motion for an Immediate Declaration of Unitary Status 12Judge Wright also ruled that Joshua could present non-curi:mlative evidence regarding: (a) LRSD's lack of good faith in implementing its obligations regarding. advanced placement courses, extracurricular activities, and guidance counseling; and (b) the ways in which LRSD's failure to substantially comply with its obligations regarding advanced placement courses and guidance counseling adversely impacted the academic achievement of African-American students . . 13JnLRSD v. NLRSD, 148 F .3d 956,967 (8th Cir.1998), the Court recognized the expertise Judge Wright had gained during her many years of service in this case: In reaching this conclusion, we are mindful that Judge Wright has been responsible for administering and interpreting the settlement agreement for some time now, ever since 1990, when she took over this case. Our review of the District Court's interpretation of the settlement agreement is, as a formal matter, de novo. But we still think it appropriate to pay some heed to the reasoned determinations of the experienced District Judge, who faces decisions in this case every month, if not every week. 14Of course, the five days of evidentiary hearings that Judge Wright had scheduled for the week of January 28, 2002, were cancelled. -7- (docket no. 3580) and Supporting Memorandum Brief_(docket no. 3581). On May 9, 2002, I entered a fourteen-page Order ( docket no. 3598) explaining to the parties my understanding of the current status of the case. Because the passing of the baton is a key factor in any relay race, the May 9 Order noted: Judge Wright, my immediate predecessor in this case, has done an outstandingjob of narrowing the issues and establishing a schedule that should allow nie 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. 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. May 9, 2002 Order at 12 (docket no. 3598) (footnote omitted). In a telephone conference with counsel on May 14, 2002, I rescheduled for July 22-26, 2002, the last five days of evidentiary hearings on the question of whether LRSD had substantially complied with its obligations under the Revised Plan . . In an Order (docket no. 3600) entered the next day, I set forth the schedule adopted during the May 14 telephone conference. On May 30, 2002, Joshua filed their Response in Opposition-to LRSD's Motion for an hnmediate Declaration ofUnitary Status ( docket no. 3604). On June 7, 2002, LRSD filed a Reply i Brief in Support of Motion for an Immediate Declaration of Unitary Status ( do.cket no. 3607). relevant to the determination of whether LRSD is entitled to a declaration of unitary status. Thus, the record is now complete, and the issue of unitary status is ready for decision. During the last eight months, I have spent many an hour trying to educate myself on the significant rulings and agreements that have shaped the current contours of this twenty-year-old -8- A072A case.15 I have also read a ground-slide load of cases to gain an understanding of the evolution of school desegregation litigation during the last five decades and to grasp the issues a court must resolve in deciding whether a . school district has achieved unitary status. I have learned that desegregation cases are invariably complex, involve difficult-to-understand jargon, and frequently generate book-length appellate decisions, with seemingly obligatory concurring and dissenting opinions. Of course, I have found none of these discoveries to be surprising. After all, the issue of desegregation goes to both the heart of the Fourteenth Amendment's promise of "equal protection" and the dark soul of what was, in many parts of the country in the I 950's, a de jure segregated public school system that only grudgingly gave ground to integration-after most school districts had exhausted all available means of delay. In 1954, the Supreme Court rendered its landmark decision in Brown v. Board of Education, 347 U.S. 483, 495 (I 954) ("Brown I"), holding that "in the field of public education the doctrine of 'separate but equal' has no place" and that segregation of public education is a denial of"equal protection of the laws."16 Three years later, Little Rock suddenly found itself at the epicenter of this country's first major school desegregation effort. In early August of 1957, LRSD school officials (including the school board) were prepared to implement a plan to admit a small number of African-American students to Central High School. Arkansas's Governor, Orval Faubus, ostensibly supported that plan, which, if 15This action was filed on November 30, 1982, as the last in a long line of desegregation cases, dating back to 1956. See infra, note 18. The pleadings in this case alone now occupy hundreds of feet of file space in the Clerk's office. 16The next year; the Court explicitly directed the lower federal courts to accomplish desegregation ''with all deliberate speed." Brown v. Board of Education, 349 U.S. 294, 301 (1955) ("Brown II"). -9- _ A072A ' . . .. .. ~ . implemented with the support of the State, may well have led to the peaceful integration of Central. As it turned out, however, just as school started, Faubus called out the Arkansas National Guard to prevent the "Little'Rock Nine" :froin entering Central. 17 Faubus, who was known as somewhat of a moderate up to that time, shamelessly fanned the flames of racism under the rubric of "state' s rights," "interposition," and the like. Thus, Little Rock became the first great legal .battleground in the long struggle to desegregate this country's public school system, a distinction that has left lasting wounds in this community. One can only wonder how the history of school desegregation might have been different if the first southern governor to squarely face the dictates of Brown I had done his plain, sworn constitutional duty. In view of the historical importance of this case, I believe I should review the long and winding path trod by LRSD in carrying out its constitutional duty, under Brown I and its progeny, to rid the Little Rock school system, to the extent practicable, of the vestiges of de jure segregation. Withoutatleast some understanding of that history, it is impossible to appreciate the deep passions this case still. stirs iii the litigants, lawyers, and judges who have been involved in almost five decades of continuous, unremitting school desegregation litigation in Pulaski County.18 17Faubus, of course, cited public safety concerns as bis reason for mobilizing the National Guard. He claimed "secret intelligence reports" indicated that dangerous outside agitators were at work in Little Rock, but these reports were never substantiated. In fact, the evidence now available suggests that the white mob which confronted the "Little Rock Nine" was mobilized by Faubus' own demagoguery, rather than by unidentified "outside agitators." And, of course, other demagogues of a like mind were quick to pitch in. R. Reed, Faubus: The Life And Times Of An American Prodigal (1997). 18Jn 1956, the plaintiffs inAaron v. Cooper, 143 F. Supp. 855 (E.D. Ark.1956), filed suit against LRSD to force it to desegregate pursuant to the Court's holding in Brown I. In 1964, the plaintiffs filed Clark v. Board of Educ. of LRSD as a continuation of the desegregation action -10- . . . _ ..... - .,: ' - - - - . - .. 1- .. ., ... ... ,_ .. . .. --. ... ; . ~ . . .... - .... - . .. ' A. II. The Long History Of Desegregation Litigation In Pulaski County 1956 Through 1973 mLRSDv. PCSSD, 584F. Supp. 328, 331-32 (E.D. Ark. 1984), the late and distinguished United States District Judge Henry Woods, the first judge to preside over this case, chronicled in great detail the history of desegregation in Pulaski County. m bis scholarly decision, Judge Woods descnbed: the operation of LRSD m 1930, when it was a dejure segregated school district operating under the "separate but equal" doctrine;19 the Court's decision in Brown I, which overturned Plessy v. Ferguson; the court-ordered implementation of a plan to admit a small number of African-American students to Little Rock Central High School in September of1957;20 Governor Faubus' use of Arkansas National Guard troops at Central to place it "off limits" to African-American students and the subsequent removal of those troops after the issuance of an injunction by United States District Judge Ronald Davies in Aaron v. Cooper, 156 F. Supp. 220 commenced against LRSD in Aaron v. Cooper. See Judge William Overton's July 9, 1982 Memorandum and Order in Clark, a copy of which, marked Exhibit 1, is attached to LRSD's Memorandum Brief in Support ofMotion for an Immediate Declaration ofUnitary Status (docket no. 3581 ). On Noveinber 30, 1982, LRSD initiated this action against the PCS SD, NLRSD, and thP ,\ -1 Roard nfPnnr&lt;itinn ., .... v;no the consolidation of all three school districts in Pulaski County as the appropriate interdistrict desegregation remedy. Thus, LRSD has been involved continually in federal desegregation litigation for forty-six years. 19Plessy v. Ferguson, 163 U.S. 537 (1896), overruled by Brown I, 347 U.S. 483 (1954). 20See Aaron v. Cooper, 143 F. Supp. 855 (E.D. Ark. 1956). As discussed supra at note 18, Aaron was filed in 1956 to force LRSD to desegregate pursuant to the Court's holding in Brown. United States District Judge John E. Miller entered a decree on August 27, 1956, approving LRSD's plan of gradual school integration beginning with senior high school classes in the fall term of 1957. The Eighth Circuit subsequently affirmed that decision. Aaron v. Cooper, 243 F .2d 361 (8th Cir. 1957). -11- AQ_7~_ (E.D. Ark. 1957);21 the nine courageous African-American students entering Central on September 23, 1957, in the face of a large, threatening mob of whites; and, finally, President Eisenhower dispatching troops to Central to ensure the safety of the African-American students and to enforce Judge Davies' desegregation order.22 Judge Woods also traced desegregation plans advanced by LRSD in "the decade of 1960 in a good faith effort to provide a solution to continuous litigation" and the failure of those plans m "the hysterical political atmosphere of that period." LRSD, 584 F. Supp. at 334. In 1966, the Eighth Circuit approved LRSD.'s "freedom of choice" desegregation pl~, which remained in effect through the 1968-69 school year. Clarkv. Board of Education ofLRSD, 369 F.2d 661 (8th Cir. 1966). Significantly, in its decision, the Court noted LRSD's good faith commitment to desegregation: Many of the problems encountered are not of the Board's making or choosing and, we believe, the Board has evidenced a genuine desire to follow the commands of the Brown case to ultimately place into effect a non-racially operated school system._ 21In 1957, the Eighth Circuit assignedJudge Davies, of Fargo, North Dakota, to preside over Aaron. On September 21, 1957, Judge Davies issued an injunction ordering Governor au us, e ~utant ener o e tate o ansas, an 1eutenant_ o one anon . Johnson of the Arkansas National Guard, and their officers, agents, and employees to cease and desist "obstructing or preventing, by means of the Arkansas National Guard, or otherwise, Negro students, eligible under said plan of school integration to attend the Little Ro~k Central High School, from attending said school .... " Aaron v. Cooper, 156 F. Supp. at 222. See also Cooper v. Aaron, 358 U.S. 1, 9-10 (1958). 22Scenes of angry mobs of white protesters confronting the nine African-American students as they entered Central and, later, troops of the 101 st Airborne Division rolling across the Broadway Bridge to restore order in Little Rock are still deeply etched in the minds of many Arkansans. -12- l A072A Id. at 666.23 In Green v. County School Board ofNe',11 Kerit County, 391 U.S. 430, 439-40 (1968), the . . Court held that school districts such as LRSD, which were the product ofde jure segregation, could not satisfy their constitutional obligations under "freedom of choice" plans. Therefore, LRSD formulated a new desegregation plan for the 1969-70 school year that was based on geographic attendance zones. However', because segregated housing patterns created a number of racially identifiable schools under the plan, the Eighth Circuit found it to be unconstitutional. Clarkv. Board of Education ofLRSD, 426 F.2d 1035, 1043 (8th Cir. 1970). In the 1971-72 school year, LRSD began crosstown busing to achieve racial balance in grades 6 through 12. Clarkv. Board of Directors ofLRSD, 328 F. Supp. 1205, 1209, 1214 (E.D. Ark. 1971, rev'd in part, 449 F.2d 493 (8th Cir. 1971). The following school year, crosstown busing was used to achieve racial balance in grades 4 and 5. Clark v. Board of Education of LRSD, 465 F.2d 1044, 1046 (8th Cir .. 1972). Finally, during the 1972-73 school year, all LRSD schools and all LRSD grade levels were racially balanced. B. Events Leading To Initiation Of This Action On July 9, 1982, United States District Judge WiUiam R. Overton entered a Memorandum and Order in Clark which contained many of the findings that underpinned LRSD's subsequent 23Likewise, in Cooper, 358 U.S. at 9, the Supreme Court acknowledged that LRSD was prepared to implement the plan, approved by Judge Miller in Aaron, 156 F. Supp. 220, to gradually integrate senior high school classes in the fall term of 1957. However, LRSD was prevented from following that plan by the flagrantly unlawful actions of Governor Faubus, which the Supreme Court noted "had not been requested by the school authorities, and [were] entirely unheralded." Cooper, 358 U.S. at 9. -13- A072A decision to file this action.24 In many respects, Judge Overton's decision was a ringing endorsement of LRSD for successfully implementing its school desegregation plan over the last nine years. For example, Judge Overton explicitly found: (1) "no evidence of vestiges of discrimination in the district policies or practices"; (2) ''the district has done an admirable job in the task of desegregation"; and (3) "the Little Rock School District has operated in compliance with court decrees for nine years as a completely unitary desegregated school system and isolated complaints of discrimination without persuasive specific evidence to the contrary do not detract from that record." July 9, 1982 Memorandum and Order at 16 (docket no. 3581) ( emphasis added). 25 Although Judge Overton found that LRSD was operating "as a completely unitary desegregated school system," he made a number of findings that raised serious questions about the future prospects for LRSD remaining an integrated school district. For' example, Judge Overton found that: ( 1) in the years after the desegregation ofLRSD elementary schools in 1973- 7 4, "there has been a steady trend ofincreasing black enrollment and decreasing white enrollment 24As indicated previously, a copy of Judge Overton's July 9, 1982 Memorandum and Order is attached as Exhibit 1 to LRSD's Memorandum Brief in Support of Motion for an Immediate Declaration of Unitary Status (docket no. 3581). 25Eleven years later, Judge Wright, in describing the operation of LRSD in the years before it filed this action, observed that many believed desegregation litigation in the LRSD "[had] been brought to a successful conclusion and the Little Rock school system seemed to have entered a period of relative tranquility and complete self-management." See Judge Wright's Statement to LRSD Board of Directors and Counsel on March 19, 1993, attached as Exhibit 1 to Joshua's August l, 1996 Memorandum in Opposition to LRSD's Motion to End Federal Court Jurisdiction ( docket no. 2730). -14- A072A ~-- in the elementary schools ... and [to a lesser extent] in the upper grades";26 (2) despite LRSD's efforts to modify student assignment plans to correct the growing disparity in the black-white student ratio in elementary schools,"[ a ]11 of the persuasive evidence indicates the school district will have enrollment which is essentially all black, particularly in the elementary grades, within the next few years"; and (3) by the fall of 1981, LRSD faced a host of problems surrounding the school attendance plan, including a "significant disparity in the black-white ratio at the various elementary schools," complaints ofblack parents "that their children were being bused across the city to attend all black classes," and the defeat of "the last two millage increase proposals ... by the electorate ... [ creating] severe financial problems and an eroding financial base." July 9, 1982 Memorandum and Order at 1-6, attached as Exhibit 1 to LRSD's Memorandum Brief in Support of Motion for an Immediate Declaration of Unitary Status (docket no. 3581). In an effort to retain and supplement the shrinking pool of white students, Judge Overton approved the Partial K-6 Plan,27 which created twelve K-6 neighborhood schools and retained fourteen paired schools with grades K-3 at one site and grades 4-6 at another. Eight of the twelve neighborhood schools were racially balanced, and four were virtually all black. Under the plan, 26In the fall of 1971, 42% of the students in LRSD were black. In each year from 1971 through 1981, the number of black students increased, while the number of white students decreased. In the fall of 1981, 76% of elementary students and 55% ofhigh school students were black. See LRSD, 584 F. Supp. at 335. In the December 16, 1981 Report prepared by the Desegregation Assistance Team from Stephen F. Austin University, the authors concluded that, if existing trends continued, 90% of the students entering the first grade in LRSD in the fall of 1989 would be black. See Stephen F. Austin Report at 19, attached as Exhibit 2 to LRSD's Memorandum Briefin Support ofMotion for an Immediate Declaration ofUnitary Status ( docket no. 3581). 27This was a shorthand reference for LRSD's desegregation plan for children attending kindergarten through the sixth grade. -15- A072A Booker Junior High School became an intermediate school; a magnet school was to be created west ofUniversity Avenue; and a committee was appointed to ensure that the four virtually all black schools would be treated equally. See July 9, 1982 Memorandum and Order at 6-11.28 Finally, Judge Overton noted that LRSD had taken a number of steps to address the problems that confronted it. First, LRSD had commissioned a study and report by a ' "Desegregation Assistance Team" at Stephen F. Austin University on its desegregation efforts and the challenges it faced in the future.29 Second, LRSD had begun investigating "the possibility of seeking an interdistrict remedy through legal proceedings against the adjacent County School District and [had] hired a law firm to pursue that remedy." See July 9, 1982 Memorandum and Order at 6. C. Interdistrict Litigation And Interdistrict Relief On November 30, 1982, LRSD filed this action-a new case30--against PCSSD, NLRSD, the State of Arkansas, and the Arkansas Department ofEducation ("ADE") seeking consolidation of the three Pulaski County School Districts as the most appropriate and effective desegregation remedy for all three school districts. In its Complaint ( docket no. 10), LRSD alleged that PCS SD 28Judge Overton's July 9 decision approved LRSD's Partial K-:6 plan as a "stop gap" student assignment plan for elementary grades. The Eighth Circuit later affirmed that decision in Clarkv. Board of Educ. of LRSD, 705 F.2d 265 (8th Cir. 1983). 29 As indicated, supra at note 26, this report, entitled "Building on a Generation of Accomplishment Maintaining and Strengthening Desegregation in Little Rock" (hereinafter referred to as the "Austin Report"), is attached as Exhibit 2 to LRSD's Memorandum Brief in Support of Motion for an Immediate Declaration of Unitary Status (docket no. 3581). 3Because this action involved claims for relief and remedies that were different from those involved in Clark, it was considered to be a new case and was randomly assigned to the Honorable Henry Woods. -16- A072A and NLRSD engaged in "a series of intradistrict constitutional violations with interdistrict effects" and that the State of Arkansas and Arkansas Department of Education (hereinafter referred to collectively as the "State/ADE"), through funding and other state action, "operated, maintained and/or condoned a racially segregated structure of public education under color of state law." After conducting a trial on the merits of the claims asserted in LRSD's Complaint, Judge Woods entered a Memorandum Opinion setting forth detailed findings of fact and conclusions oflaw to support his detennination that each of the three Defendants had violated the Constitution by creating "racial isolation between and among the districts" that had caused six specific "interdistrict effects." LRSD, 584 F. Supp. at 349-51.31 Judge Woods noted that, at a later date, he would conduct a hearing to take evidence regarding the precise nature of the remedy that should be fashioned to cure the interdistrict effects of "substantial interdistrict segregation." Id. at 352-53. During the subsequent remedial hearings, PCSSD advanced a plan that retained the three autonomous school districts and relied on the development of specialty or magnet schools to attract students from one district to another. LRSD v. PCSSD, 597 F. Supp. 1220, 1222-23 (E.D. Ark. 1984). NLRSD advanced a plan that retained the three autonomous school districts, transferred certain geographic areas from PCSSD to LRSD and from LRSD to PCSSD, and depended heavily on the use of majority to minority transfers ("M to M transfers") to achieve racial balance. Id. at 1223. Although not advancing a specific plan, Joshua used testimony from 31 Judge Woods made 105 specific findings of fact and drew 14 conclusions oflaw to support his determination of the issue of liability. On appeal, the Eighth Circuit affirmed all of those findings of fact and conclusions oflaw. LRSD v. PCSSD, 778 F.2d 404, 429-34 (8th Cir. 1985). -17- i! A072A ,c--o,a,,, two expert witnesses to suggest three options: (1) altering boundary lines in accordance with the NLRSD plan; (2) altering boundary lines to transfer other geographic areas among all three districts; or (3) transferring certain geographic areas to LRSD and having all of the remaining area of PCSSD consolidated with NLRSD. Id. at 1223-24. LRSD advanced a plan that involved the county-wide consolidation of all three school districts. Id. at 1224-25. After considering all of the evidence, Judge Woods concluded that "a countywide interdistrict remedy must be utilized to correct the countywide interdistrict violation found to exist and that this is the only manner of placing the victims of this discrimination in the position they would have occupied absent the discrimination." Id. at 1225. 32 Judge Woods also concluded that the State/ ADE: (a) failed to discharge its affirmative duty to encourage desegregation, which had an interdistrict effect on LRSD, PCS SD, and NLRSD; and (b) had "remedial responsibilities with respect to this case." Judge Woods noted that the "precise nature of [the State/ADE's] financial and oversight responsibilities must await further refinement of the consolidation plan and development of a budget for such consolidated district." Id. at 1228. PCSSD, NLRSD, and the State/ADE appealed Judge Woods' decisions inLRSD, 584 F. Supp. 328, and LRSD, 597 F. Supp. 1220. The Eighth Circuit, sitting en bane, affirmed Judge Woods' finding on liability for interdistrict constitutional violations by PCSSD,'NLRSD, and the State/ ADE, but reversed his remedy of consolidation33 on the ground that, while the interdistrict violations of the Constitution called for an interdistrict remedy, consolidation of the three school 32Tous, the cat had been belled--for the time being. 33Toe cat was not long belled. -18- A0 7 ?A districts was not required. LRSD v. PCSSD, 778 F.2d 404, 429-34 (8th Cir. 1985).34 Rather than remanding the case to the district court for further findings and a detailed remedial decree, the Court spelled out its own interdistrictremedy.35 Id. at 434-36. Although this interdistrict remedy allowed LRSD, NLRSD, and PCSSD to remain autonomous, it called for, among other things: changing boundaries between PCS SD and LRSD; revising attendance zones so that each school would reasonably reflect the racial composition of its district within a permitted variance of plus or minus 25% of the minority race; encouraging intradistrict and interdistrict M to M transfers; and creating a limited number of magnet or specialty schools. Id. at 435-36. The principles of the interdistrict remedy outlined in the majority opinion later became the basis for the desegregation plans that were implemented in each of the three Pulaski County school districts. LRSD proceeded to develop a "controlled choice" desegregation plan, which was approved by Judge Woods on February 27, 1987 (docket no. 739). Under this plan, LRSD was divided into two attendance zones of approximately equal racial balance. Students were assigned to schools so that each grade at each school reflected the racial balance within that attendance 34Judge Woods later wrote an article in the Arkansas Law Review critiquing the Eighth Circuit's decision. Judge Henry Woods and Beth Deere, Reflections on the Little Rock School Case, 44 Ark. L. Rev. 971 (1991). 35In a separate opinion, Judge Richard S. Arnold made the following observation about the remedy fashioned by the majority: The District Court (though we are today disagreeing with some ofits conclusions) is presided over by a scholarly and distinguished judge. That court, not this one, is in the best position to write a decree. Instead, a decree today springs full-grown from the brow of this Court, a decree that will, I dare say, startle all the parties to this case, including even those (if there are any) who like what they see. LRSD, 778 F.2d at 437 (Arnold, J., concurring in part and dissenting in part). -19- l\07?A zone. After a student was assigned to a school, the student's parents could request reassignment to another school within their attendance zone. That request would be granted so long as each school would remain within a range of plus or minus 12.5% of the black student population at the school. The plan also provided for eight magnet schools (four elementary, two junior high, and two high schools), with seats reserved for students of each of the three Pulaski County school districts. The target racial composition of the magnet schools was 50%-50%. Finally, the plan established a Magnet Review Committee, with representatives of each of the three districts, along with a non-voting member representing Joshua and the Knight Intervenors.36 The controlled choice plan was implemented beginning with the 1987-88 school year (docket no. 670). While the controlled choice plan was intended to create racial balance, it resulted in many central and east Little Rock schools having fewer than fifty white students. For that reason and others, Judge Woods later found the plan to be "ill-conceived." LRSD v. PCSSD, 716 F. Supp. 1162, 1188 (E.D. Ark. 1989), rev'd., 921 F.2d 1371 (1990). LRSD submitted a new desegregation plan for the 1988-89 school year, which all parties agreed would be a "stabilizing year'' to allow LRSD to carefully plan for the 1989-90 school year and beyond. Id. With that understanding, Judge Woods approved LRSD's proposed desegregation plan for the 1988-89 school year. Id. D. The 1990 Settlement Agreement And Settlement Plans After long and difficult negotiations that began in 1988, LRSD, PCSSD, NLRSD, Joshua, and the State/ADE agreed to a global settlement of all aspects of this case. In the spring of 1989, 36The Knight Intervenors are members of the LRSD Classroom Teachers Association. -20- ii A072A the parties submitted the following final settlement documents37 to Judge Woods: (a) The Pulaski County School Desegregation Case Settlement Agreement,38 which, among other things, fixed the State/ADE's total financial liability to the three school districts to be an amount "not to exceed $129, 750,000";39 and (b) separate comprehensive "Settlement Plans" for LRSD, NLRSD, and PCSSD and a comprehensive "lnterdistrict Settlement Plan.'"'0 Judge Woods rejected each of the four separate Settlement Plans41 and the 1990 Settlement Agreement,42 as submitted; 31See footnote 3, supra, for an explanation of the terminology I will use in referring to these settlement documents. 38A copy of the 1990 Settlement Agreement is attached to LRSD's and Joshua's "Joint Motion" seeking approval of that agreement (docket no. 1174). 39The 1990 Settlement Agreement contained detailed prov1s1ons governing the State/ADE's role in funding and implementing the separate LRSD, NLRSD, PCSSD, and Interdistrict Settlement Plans. Among other things, the State agreed to pay the three school districts a total of not more than $129,750,000. All of the parties agreed to release all claims against each other and to dismiss this case, with prejudice, as to each party. 40 As indicated previously, these four Settlement Plans contained the detailed desegregation obligations that LRSD, PCS SD, and NLRSD contractually agreed to implement under the district court's supervision. See footnote 3, supra. 41 Judge Woods refused to approve the Settlement Plans because he believed they were "facially unconstitutional" and outside the mandate of the Eighth Circuit: In LRSD 's proposed plan almost one-fourth of the elementary schools are contemplated to be all black. The entire mandatory busing burden at the elementary level for desegregation purposes falls on black children. . . . All of the historically "black" schools lie east ofUniversity A venue, and all are proposed to be all-black incentive schools. Double funding is promised for the all-black schools. Yet it is impossible to determine from the submissions how the funds will be spent. LRSD, 716 F. Supp. at 1169. 42Judge Woods refused to approve the 1990 Settlement Agreement because it was "contingent upon legislative approval and a legislative appropriation to fund it. I cannot in good conscience accept this bill as having passed." LRSD, 716 F. Supp. at 1 164. -21- ~-0 72A ordered the parties to implement a more comprehensive plan known as the Tri-District Plan; appointed Eugene Reville to the position of Metropolitan Supervisor; and conferred upon Mr. Reville a wide array of powers over all three school districts that, in many respects, closely resembled consolidation--the remedy the Eighth Circuit had previously rejected. LRSD, 716 F. Supp. at 1164-69. Shortly after Judge Woods entered his decision, the Arkansas Legislature passed a bill funding the over $100,000,000 that the State/ADE was obligated to pay to the three school districts under the 1990 Settlement Agreement. Based on this new development, the parties resubmitted the Settlement Agreement to Judge Woods for approval. On December 11, 1989, Judge Woods entered an Order which added certain new conditions to the Settlement Agreement; approved it, as modified; and directed the parties to carry out its terms. LRSD v. PCSSD, 726 F. Supp. 1544, 1549-51 (E.D. Ark. 1989). Judge Woods' December 11 Order also specifically disapproved that portion of the Settlement Agreement which called for LRSD to pay $2,000,000 of the $3,150,000 in attorneys' fees that the parties had agreed to pay to Joshua's counsel. Id. at 1554-56.43 Each of the school districts and Joshua appealed the district court's decisions to the Eighth Circuit, which reversed and remanded the case with instructions to approve the 1990 Settlement Agreement and the four Settlement Plans, as submitted by the parties. LRSD, 921 F.2d 1371. In reaching that decision, the Court made a number of important rulings that have had a profound 43Under the terms of the 1990 Settlement Agreement, Joshua's counsel was to be paid attorneys' fees of $3,150,000, which the parties agreed should be allocated as follows: LRSD: $2,000,000; the State/ADE: $750,000; PCSSD: $300,000; and NLRSD: $100,000. LRSD, 921 F.2d at 1390. -22- influence on future developments in the case. First, the Court noted that the appeal arose from settlements agreed to by all the parties (a "most important fact") and that "[t]he law strongly favors settlements" which should be "hospitably'' received: This may be especially true in the present context--a protracted, highly divisive, even bitter litigation, any lasting solution to which necessarily depends on the good faith and cooperation of all the parties, especially the defendants. Id. at 1383. As further support for that conclusion, the Court made the following observation: This is, after all, no ordinary litigation. The NAACP Legal Defense and Educational Fund, its lawyers and its predecessors, have vigorously prosecuted this case and its ancestors for more than 30 years. Absent an extremely good reason--and we have been given none--we are reluctant to disregard their judgment as to what is best for their own clients. Id. at 1386. Second, the Court explicitly recognized theimportantroleof futuremonitoringin the case and the need for it to continue "for a long time": "In the present case, for example, any remedy will necessarily require some judicial supervision--monitoring, at least--for a long time." Id. at 13 83 ( emphasis added). The Court also emphasized the importance of the district court ensuring that "the settlement plans [are] scrupulously adhered to," that monitoring is done effectively, and that appropriate action is taken if the parties do not live up to their commitments." Id. at 1386. Third, the Court recognized that "a necessary condition of our holding that the plans are not facially unconstitutional is that the parties' compliance with them will be carefully monitored." Id. at 1388. Therefore, the Court directed the creation of the ODM ''to be headed by a Monitor appointed by the District Court, with such additional personnel as the District Court shall deem appropriate." Id. -23- A07.2A_ Finally, the Court reversed Judge Woods' decision on attorneys ' fees and awarded counsel for Joshua $3,150,000, the full amount of attorneys' fees provided for under the Settlement Agreement. These attorneys' fees were allocated and payable among the parties as follows: LRSD ($2,000,000);44 State/ ADE ($750,000); PCS SD ($300,000); and NLRSD ($100,000). Id. at 1390. In an Order entered July 6, 1990, Judge Woods concluded that, because he was "unable to successfully implement a plan to bring equity to the children of this county under the restrictions imposed by the Court of Appeals," the time had come "for another judge to assume the burden of this litigation since it is my unalterable decision to recuse." LRSD v. PCSSD, 740 F. Supp. 632, 636 (E.D. Ark. 1990). Later that day, the case was reassigned, by random selection, to the Honorable Susan Webber Wright (docket no. 1373). E. LRSD's Implementation Oflts Desegregation Obligations Between 1991 And 1995 Section IV of the Settlement Agreement explicitly provided that the State/ADE "conditions this settlement upon its dismissal from this Litigation with prejudice in accordance with the terms of Attachment A." Attachment A was a "Release of All Claims Against the State," pursuant to which all parties to this litigation released all claims they might have against the State/ ADE relating "to racial discrimination or segregation in public education in the three school districts in Pulaski County, Arkansas or to the violation of constitutional or other rights of school children based on race or color in the three school districts in Pulaski County, Arkansas." Attachments B, C, and D were identical releases that ran in favor of LRSD, PCSSD, and ""The State/ADE agreed to advance LRSD's share of these attorneys' fees, which were to be deducted from payments the State/ADE owed LRSD under Section VI of the Settlement Agreement. LRSD, 921 F.2d at 1390. -24- A072A /gp-'L8Ja2}__ NLRSD. Finally, Attachments A, B, C, and D each contained the same language providing that this action (LR-C-82-866) "is to be dismissed with prejudice" as to the State/ ADE, LRSD, PCSSD, and NLRSD. Thus, the Settlement Agreement expressly provided for the dismissal of this case, with prejudice, "except that the Court may retain jurisdiction to address issues regarding implementation of the Plans. " Attachments A, B, C, and D to the Settlement Agreement (docket no. 1174) (emphasis added). On the date the Eighth Circuit entered its decision approving the 1990 Settlement Agreement and Settlement Plans, only the State/ ADE had moved to be dismissed, with prejudice, as a party to this action.45 Thus, one of Judge Wright's first rulings in this case was a January 18, 1991 Order that: (1) dismissed the State/ADE as a party to this action "pursuant to the terms of the parties' settlement agreement"; and (2) converted the Office of Metropolitan Supervisor to the ODM, which she "vested with the authority to monitor the school districts' compliance with the settlement plans and settlement agreement, including any future modification of, or addition to, such plans and agreements" ( docket no. 1418). Ann Marshall, Anna Hart, Polly Ramer, and Linda Bryant, all of whom previously worked for Mr. Reville in the Office of Metropolitan Supervisor, were allowed to "continue in their present positions subject to the later approval of 45ln its December 12, 1990 decision approving the 1990 Settlement Agreement and four separate Settlement Plans, the Eighth Circuit directed the district court to "enter a fresh order dismissing the State as a party pursuant to the terms of the parties' settlement agreement." LRSD, 921 F .2d at 1394. Under the explicit language of the Settlement Agreement, LRSD, PCSSD, and NLRSD were each entitled to the entry of a similar order dismissing them, with prejudice, as parties to this action. Forreasons that are not apparent from a review of the record, LRSD waited until November 30, 1995, to move for an order dismissing this case with prejudice (docket no. 2573). See discussion infra at pp. 31-32. On January 26, 1998, Judge Wright entered an Order ( docket no. 3109) pursuant to which LRSD was dismissed, with prejudice, as a party to this action and the case was administratively terminated ( docket no. 3110). -25- An"'"" the court-appointed monitor." In a Memorandum Opinion entered February 28, 1991 ( docket no. 1442), the district court made it clear that, even though the State had now been dismissed as a party, it remained obligated to comply with its settlement obligations, which "when understood in conjunction with the language in both the Eighth Circuit's order of December 12, 1990, and this Court's order of January 18, 1991, also obligate the State to continue funding the ODM" by making the annual contribution of $200,000 required in Judge Woods' June 27, 1989 Order.46 Likewise, LRSD, NLRSD, and PCSSD were required to continue their annual funding of the ODM on a per pupil pro-rated basis. On April 5, 1991, Judge Wright entered a Memorandum and Order(docket no. 1459) that appointed Ms. Ann Marshall Desegregation Monitor, at an annual salary of$98,000.47 46In an Order entered August 18, 1993 ( docket no. 194 7), Judge Wright emphasized that, while the State/ ADE was no longer a formal party in this action, "it is the law of the case that the Court retains jurisdiction to ensure that the parties, including the State, comply with the terms of the settlement agreement as well as the settlement plans." In an Order entered December 10, I 993 ( docket no. 2045), Judge Wright held that the State agreed not only to the obligations contained in the 1990 Settlement Agreement, but also to the obligations contained in.the May 31, 1989 letter from its counsel, H. William Allen, which is referred to in Secti0n III of the 1990 Settlement Agreement as the "Arkansas Department of Education monitoring plan." In their pleadings, the parties often refer to this latter document as "the Allen letter." 47The first budget Judge Woods approved for the Office of Metropolitan Supervisor was for fiscal year July 1, 1989, to June 30, 1990. That budget totaled $353,710.24 and included Mr. Reville's salary of $98,500, plus the salary and overhead for four other employees (docket no. 1246). Over the next ten years, the budget for the ODM more than doubled to reach $784,188 for fiscal year 2000-01. The staffing of the ODM also more than doubled to reach ten employees. As indicated previously, under the 1990 Settlement Agreement, the State/ADE was required to pay $200,000, annually, as its share of the cost of the ODM. The balance of the ODM budget was paid by LRSD, PCSSD, and NLRSD on a pro-rata basis that was calculated based upon the percentage of students in Pulaski County who attended each of the three school districts. For example, the ODM's 2000-01 fiscal year budget of$784,188 was allocated among the parties as follows: -26- A072A During the first few months of 1991 , LRSD, PCSSD, NLRSD, and Joshua entered into negotiations that resulted in numerous modifications to the 1990 Settlement Plans. It was the parties' position that they were authorized to make those changes based upon language in the Eighth Circuit's December 12, 1990 decision providing that the parties were "free, by agreement, to modify the settlement plans .. . subject, of course, to the approval of the District Court." LRSD, 921 F.2dat 1393 n. 15. Subsequently, the parties submitted the modified Settlement Plans to the district court for approval. On June 21, 1991 , Judge Wright entered a Memorandum and Order rejecting all of the $784,188 - 200,000 (State/ADE payment) $584,188 LRSD's share (47.64% of total Pulaski County enrollment) PCSSD's share (35 .36% of total Pulaski County enrollment) NLRSD's share (I 7.00% of total Pulaski County enrollment) $278,307.16 206,568.88 99,311.96 $584, I 88.00 On September 28, 2001 , Judge Wright entered an Order ( docket no. 3 522) approving the ODM's budget for the current fiscal year, which is $707,071, This budget included a 5% pay raise for all employees, which totaled $21,042. Ms. Marshall's salary increased from $111,131 to $116,688 (docket no. 3509). Since the creation of the ODM, the district court has approved the following budgets: I. 1989-90 $353,710.24 (docket no. 1246) 2. 1990-91 $293,833.74 (docket nos. 1391 &amp; 1405) 3. 1991-92 $591,557.52 (docket no. 1497) 4. 1992-93 $578,060.81 (docket nos. 1822 &amp; 1836) 5. 1993-94 $646,617.00 (docket nos. 2055 &amp; 2155) 6. 1994-95 $661 ,768.00 (docket nos. 2359 &amp; 2380) 7. 1995-96 $631 ,273.00 (docket nos. 2567 &amp; 2599) 8. 1996-97 $730,756.00 (docket nos. 2852 &amp; 3001) 9. 1997-98 $730,716.00 (docket nos. 3158 &amp; 3167) 10. 1998-99 $751 ,639.00 (docket nos. 3158 &amp; 3167) 11. 1999-00 $764,872.00 (docket nos. 3361 &amp; 3364) 12. 2000-01 $784,188.00 (docket nos. 3361 &amp; 3364) 13. 2001-02 $707,071.00 (docket nos. 3509 &amp; 3522) Thus, in the twelve years since its creation, the ODM has requested that LRSD, PCS SD, NLRSD, and the State/ADE pay for budgets totaling $7,932,228.57. As the largest of the three school districts, LRSD has been required to pay approximately 35% of the total cost of the ODM. -27- "legion of proposed modifications" to the Settlement Plans on the ground that they fell "outside the narrow realm of modifications and adjustments deemed permissible by the Eighth Circuit [in its December 12, 1990 decision]." LRSD, 769 F. Supp. at 1483, 1489.48 On July 15, 1991, the district court entered a lengthy Memorandum and Order denying the parties' motion to reconsider its rejection of their proposed modifications to the 1990 Settlement Plans. LRSD, 769 F. Supp. 1491. In doing so, Judge Wright made it clear that: (a) she disagreed with the parties' position that the Settlement Plans are "fluid, open to continual and considerable revision as long as the parties agree and the changes are not facially unconstitutional"; and (b) she viewed the Eighth Circuit's approval of the Settlement Plans as being "akin to establishing a benchmark ... a sure guide for ending this dispute and getting the parties out of court." Id. at 1494. LRSD, NLRSD, PCSSD, and Joshua appealed on the ground that the district court's decisions "confined them within limits that are too narrow, and that all of their proposed changes, being constitutional, workable, and fair, should have been approved." 48 Among the changes the parties sought to make in the four 1990 settlement plans were the following: (1) deleting from PCSSD's settlement plan major portions of the section on special education, especially concerning handicapped children; (2) eliminating provisions in PCSSD's settlement plan addressing issues related to black students being disciplined disproportionately; (3) removing several programs from PCSSD's settlement plan aimed at improving student achievement; (4) deleting from PCSSD's settlement plan the parties' agreement to abide by fourteen "guiding principles" which apply to the "process of permanent plan development"; (5) eliminating from LRSD's settlement plan science and social studies as core areas emphasized in remediation programs at the secondary level; (6) changing LRSD's settlement plan to limit the four-year-old program originally scheduled for all schools by 1993-94 to only eleven schools, with a promise that a "long-range implementation plan will be developed for additional four-year-old classes"; (7) changing LRSD's settlement plan to delay the development of parent home study guides and computer managed instructional technology for tracking student progress; (8) changing LRSD' s settlement plan by eliminating staff positions for program specialist and specialist for alternative classrooms; and (9) changing the interdistrict plan to reduce from six to four the number of interdistrict schools planned for the future. LRSD, 7 69 F. Supp. at 1484-87. -28- I A072A / C-uo/oo.\.. Appeal ofLRSD, 949 F.2d at 255. In affirming in part and reversing in part, the Eighth Circuit noted that "[t]here is much in the District Court's opinions with which we agree," including the observation that the 1989 settlement "should indeed be a benchmark for the future path of this case." Id. However, the Court went on to hold that the district court was "too strict with itself' in not allowing the parties to modify details of those settlement plans that did not affect the three school districts' "major substantive commitments to desegregation": The desegregation obligations undertaken in the 1989 plan are solemn and binding commitments. The essence and core of that plan should not be disturbed . . . . If a question is truly one only of detail, not affecting the major substantive commitments to desegregation, the District Court has the authority to consider it. Id. at 256.49 Finally, to provide guidance to the district court, the Eighth Circuit set forth seven elements that form the "essence and core" of the Settlement Plans and from which there can be "no retreaf': It may be helpful for us to state those elements of the 1989 plan that we consider crucial, and with respect to which no retreat should be approved. They are as follows: (1) double funding for students attending the incentive (virtually all-black) schools; (2) operation of the agreed number of magnet schools according to the agreed timetable; (3) operation of the agreed nlJffiber of interdistrict schools according to the agreed timetable; (4) intradistrict desegregation of PCS SD according to the agreed timetable; (5) the agreed effort to eliminate achievement disparity between the races; ( 6) the agreed elements of early-childhood education, at least in the incentive schools; and (7) appropriate involvement of parents. 49 As indicated supra at footnote 3, the district court and the parties generally have referred to the 1989 settlement documents as the 1990 Settlement Agreement and the 1990 Settlement Plans because the Eighth Circuit did not approve those settlement documents until December 12, 1990. Regardless of the year used to reference these documents, the Eighth Circuit and the district court are referring to the same Settlement Agreement and Settlement Plans. -29- AOZ2A Id. ( emphasis added). On May 1, 1992, Judge Wright entered an Order approving most of the proposed modifications to LRSD's 1990 Settlement Plan and the Interdistrict Settlement Plan, which the parties referred to as "LRSD's May 1992 Desegregation Plan" and the "May 1992 Interdistrict Desegregation Plan." Judge Wright attached copies of both of these Plans to her May 1, 1992 Order (docket no. 1587). LRSD's implementation of its obligations under the 1992 Plans did not always go smoothly. For example, on March 19, 1993, Judge Wright delivered a strong statement to LRSD's School Board and attorneys explaining the importance ofLRSD fully and completely implementing its desegregation obligations under the Settlement Plans: Since the time of victory by the Little Rock School District in this case, when the Court of Appeals granted almost every facet of relief requested by Little Rock, the Little Rock School District has shown a tendency to drag its feet and act as if it had lost, rather than won, the litigation which it instituted. The Little Rock School District and the other school districts are in court because the Little Rock School District won its case and won the relief it requested. Yet the major complainer, the chief whiner, the number one barrier to a legitimate declaration of a unitary desegregated school system is the victorious complaining party, the Little Rock School District. The biblical reference, in a different context, is to the effect that if you ask, you will receive. Well, you asked, you got it, and it is the basic job of this Court to see that you receive it in full measure. * * * I have never seen, heard or read of a case in which the victors conducted themselves like the vanquished -- until now. If we have to have two full hearings a month, in which Board members are required to be present, then we will do so. We will do everything that is required to see that you take the medicine to achieve the cure that you asked the Federal Courts to give you. Judge Wright's Statement to LRSD Board members and Counsel at 2-3 and 6, attached as -30- A072A Exhibit I to docket no. 2730.50 Between 1991 and 1996, almost all of the district court's Orders involving LRSD related to the following issues: the approval ofLRSD's annual budgets (docket nos. 1759, 1897, 1958, 2216, 2280, 2319, and 2709); LRSD's closing of certain elementary schools (docket nos. 1926 and 2351); and LRSD's designation and construction of the interdistrict and magnet schools called for under the Settlement Plans ( docket nos. 1550, 1832, 1848, 1895, 2225, and 2329). During this period of time, the Eighth Circuit also entered several important decisions that: ( 1) extended school district millages under the 1990 Settlement Agreement, LRSD v. PCSSD, 971 F .2d 160 (8th Cir. 1992); (2) upheld the new zoning plan for electing school board members for LRSD and PCSSD, LRSD v. PCSSD, 56 F.3d 904 (8th Cir. 1995); and (3) clarified language in the 1990 Settlement Agreement regarding the State's funding obligations to LRSD, PCS SD, and NLRSD, LRSD v. PCSSD, 83 F.3d 1013 (8th Cir. 1996). On November 30, 1995, LRSD filed a Motion for Order of Dismissal ( docket no. 2573), requesting the district court to dismiss this case, with prejudice, pursuant to Attachment B to the 1990 Settlement Agreement.51 Attachment B stated, in pertinent part: It is further understood and agreed that the litigation now pending in United States District Court for the Eastern District of Arkansas, :Western Division, entitled Little Rock School District v. Pulaski County Special School 50In People Who Care v. Rockford Board of Education, 246 F.3d I 073, 1078 (7th Cir. 2001 ), Judge Posner observed that "state and local officials are under no duty to love the chains that federal judges, however justifiably, fasten upon them." In this case, it is more than a little ironic that LRSD has forged each link in the chains that have bound it for the last thirteen years. 51 As indicated previously, Attachment Bis a fully executed Release pursuant to which all parties agreed to release any and all claims they had against LRSD arising from or relating to this litigation. -31- A072A ~ ._a _JOftL.___.. District No. I, et al., No. LR-C-82-866 and cases consolidated therein and their predecessors (including, but not limited to, Cooper v. Aaron, Norwood v. Tucker, and Clark v. Board of Education of Little Rock School District (the "Litigation") is to be dismissed with prejudice as to the LRSD and the former and current members of its board named in the Litigation. This dismissal is final for all purposes except that the Court may retain jurisdiction to address issues regarding the implementation of the Plans. Attachment B to the 1990 Settlement Agreement ( docket no. 1174). In seeking that relief, LRSD acknowledged that the dismissal would not affect the district court's jurisdiction to address issues regarding the implementation of its . desegregation obligations or to conduct proceedings to enforce the terms of the Settlement Agreement or the terms of the Settlement Plans. On March 11 , 1996, the district court entered a Memorandum and Order ( docket no. 2640) denying LRSD's Motion for Order of Dismissal on the ground that: The LRSD has frequently exhibited indifference or outright recalcitrance towards its commitments and has been slow to implement many aspects ofits agreements (although some improvements have been made). Therefore, the Court finds that an order of dismissal should be deferred in order to ensure compliance with the plans and the agreement. Even had the LRSD acted in good faith throughout the years, the logistics and complexity of this case are such that this Court's monitoring function would be impaired by entering an order of dismissal at this time. LRSD appealed that decision to the Eighth Circuit. I On December 15, 1997, the Court reversed and retiianded the case to the district court with instructions to enter an order dismissing the case with prejudice, as provided for under the terms of the 1990 Settlement Agreement. LRSD v. PCSSD, 131 F.3d 1255 (8th Cir. 1997). In reaching this decision, the Court stated the following: Although we can well understand the frustration the district court has experienced over the years in carrying out our instructions, we conclude that the District's motion should have been granted. As we held in our 1992 decision, the terms of the settlement agreement became the law of the case. See Little Rock -32- I I : I A072A School District, 971 F.2d at 165. As the agreement specifically provides, the district court is permitted (and indeed must, in order to comply with our instructions), to retain jurisdiction to address issues regarding the implementation of the desegregation plans. Moreover, the desegregation plaintiffs may bring proceedings to enforce the terms of the settlement agreement and the terms of the desegregation plans. In short, the entry of such an order would do nothing to relieve the three districts of their continuing obligation to honor their commitments as set forth in the settlement agreement and the plans. Id. at 1257-58 (footnote omitted). On January 26, 1998, the district court entered an Order ( docket no. 3109) that dismissed this case and "cases consolidated herein, including, but not limited to, Cooper v. Aaron, Norwood v. Tucker, and Clarkv. Board of Education ofLRSD," with prejudice, as to LRSD and "its current and former board members named in this litigation." The district court also entered a Memo to the File ( docket no. 3110) stating that, because the Plaintiff in this case was dismissed with prejudice, "the Clerk is instructed to administratively terminate this case," but to "keep the case files open and in their current location in the Clerk's office" so that the Court can continue to perform its ongoing duties regarding the supervision and implementation of the desegregation plans. F. Joshua's Request For An Interim Award Of Attorneys' Fees For Performing Monitoring Activities After The 1990 Settlement On November 22, 1995, counsel for Joshua moved for an interim award ofattomeys' fees and costs in the amount of $805,611.81 for monitoring work performed after the Eighth Circuit approved the settlement of this case on December 12, 1990 ( docket no. 2565). Counsel for Joshua later reduced the amount of this request to $795,301.81 ( docket no. 2791) and argued that it should be apportioned among the three Pulaski County school districts as follows: LRSD: 75% to 80%; NLRSD: 5% to 10%; and PCS SD: 15% to 20%--with the final percentages totaling -33- ~-072A 100% (docket no. 2792). LRSD filed a Response and Supporting Memorandum of Law (docket nos. 2636 and 2637) challenging Joshua's right to be awarded any attorneys' fees or costs for post-settlement monitoring activities. LRSD argued that, as a part of the consideration for LRSD paying Joshua's counsel $2,000,000 in attorneys' fees in connection with the 1990 settlement, Joshua's counsel had specifically agreed, on the record, that they would not seek future fees from LRSD for monitoring activities during the life of the settlement plans. In support of its position, LRSD relied upon the following colloquy between counsel and the Eighth Circuit appellate panel during oral argument in LRSD, 921 F.2d 1371 : NORMAN CHACHKIN, ATTORNEY FOR JOSHUA INTERVENORS: I just want to make one other observation and Mr. Heller can confirm this. Although it is not written into the settlement agreement we are happy to confirm it here and to be bound by it. The agreement between Little Rock and Joshua was that the fee payment from the Little Rock School District would also cover out of the court monitoring activities by the attorneys for Joshua during the life of the settlement plans so long as it wasn't necessary to go back to court. If the settlement plans go forward as Mr. Walker suggested, the parties are committed to a monitoring system and committed to working together to ease any implementation problems and avoid any difficulties. That 's going to take attorney time. We have committed to Little Rock that we will not seek any fees from them for those activities unless it is necessary to go back to court for enforcement purposes and in that instance we '11 simply be free to make an application if we think we 're entitled to it. JUDGE RICHARD S. ARNOLD: Alright, thank you. Now, Mr. Heller, you are recognized. -34- ~ _ AO_Z2A_ CHRIS HELLER, A TIORNEY FOR LRSD: * * * I'd like to confirm what Mr. Chachkin said about the agreement. Because of the responsibilities assigned to the Joshua Intervenors in our settlement plans, there is significant work for them to do over the next six or seven years, and our agreement on the fees did contemplate that there would [be] no further payment for that work. (Emphasis added.) In a Memorandum Opinion and Order (docket no. 2821) filed on September 23, 1996, Judge Wright concluded that LRSD and Joshua contractually agreed that the $2,000,000 in attorneys' fees paid by LRSD in connection with the 1990 settlement also covered all monitoring activities performed by Joshua's counsel during the life of the Settlement Plans. Therefore, Judge Wright ruled that Joshua's counsel was not entitled to recover any attorneys' fees from LRSD for performing monitoring activities. On October 3, 1996, Joshua's counsel filed a Motion for Reconsideration of Fee Petition (docket no. 2833) and supporting Memorandum of Law (docket no. 2834), in which he urged the district court to award attorneys' fees under the "bad faith" exception to .the general rule that, absent a statute or enforceable contract, litigants must pay their own attomeys'.fees. On March 24, 1997, Judge Wright entered an Order (docket no. 2959) denying Joshua's Motion for Reconsideration. On April 22, 1997, counsel for Joshua filed a Notice of Appeal (docket no. 2966) of the district court's March 24, 1997 Order denying his request for interim attorneys' fees. I will return to discuss the final resolution of this issue later in this decision. -35- A072A G. LRSD's First Attempt To End Federal Court Jurisdiction On May 17, 1996, LRSD filed a Motion to End Federal Court Jurisdiction (docket no. 2665) and supporting Brief (docket no. 2666). In these pleadings, LRSD argued that: (1) it was only required to implement its desegregation obligations under its Settlement Plan and the Interdistrict Settlement Plan for six years; (2) it had implemented the Settlement Plan, beginning with the 1990-91 school year, and "the six year term of the Plans will expire at the end of the 1995-96 school year''; and (3) "LRSD has implemented in good faith many desegregation plans for more than three decades. LRSD was a substantially unitary school district in 1982, but it nevertheless filed this interdistrict litigation in a good faith effort to maintain a biracial public school system in Little Rock. A recent and exhaustive audit ofLRSD's desegregation obligations shows that LRSD is in substantial compliance with the Plans." Docket no. 2665. On August I, 1996, Joshua filed a Memorandum Opposing LRSD's Motion to End Federal Court Jurisdiction (docket no. 2730) in which they challenged LRSD's contention that the 1990 Settlement Plans called for a six-year implementation period. In support of their position, Joshua pointed out that no provision in any of the settlement documents limited LRSD's implementation of its desegregation obligations to six years. Joshua also argued that LRSD had failed to discharge its burden of establishing "the requisite implementation of the court-approved settlement." On September 23, 1996, Judge Wright entered a Memorandum and Order (docket no. 2821) denying LRSD's Motion to End Federal Court Jurisdiction on the grounds that: (1) the 1990 Settlement Agreement and Settlement Plans do not contain any provision that allowed LRSD to terminate "its duty to comply with the settlement plans after ... six years;" and (2) -36- LRSD failed to provide sufficient evidence that it had "substantially complied" with its obligations under the Settlement Plans. The district court went on to urge LRSD and Joshua to modify ''the parts of the plan that are ineffective or unworkable" so that LRSD could better position itself to argue that it is entitled to unitary status and relief from court supervision: Instead of presenting substantial evidence of its compliance with its goals as set forth in the plan, the LRSD submits arguments that it has achieved unitary status because data from the LRSD compares favorably with data from districts which have been declared unitary. The Court would be inclined to agree with the LRSD with respect to many of these arguments if the LRSD were not contractually bound by the plan which it voluntarily adopted. The Court has encouraged the parties to consider modifying those parts of the plan that are ineffective or unworkable. The Court has provided the parties with the testimony of experts to assist in the modification process. Instead, the LRSD has used the testimony of these experts to ask the Court to end Court jurisdiction without first proceeding with plan modifications. The Court cannot so easily relieve the district of its contractual obligations. Once again the Court invites the parties to follow procedures to modify the parts of the plan that are ineffective or unworkable. Docket no. 2821 at 12 (emphasis in original). On December 6, 1996, LRSD filed a Motion for Approval of Plan Development Period ( docket no. 2878) that requested Judge Wright: (I) to allow a six to nine month period for LRSD to concentrate its efforts to develop plan modifications to improve education and desegregation within the district; (2) to allow LRSD to use the ODM as a consultant to participate in the development of plan modifications in areas such as budget development, staff development, student assignments, and resolution of discipline issues; and (3) to withhold any further monitoring of the LRSD desegregation plan during this six to nine month period. In support of its Motion, LRSD noted that the Knight lntervenors, PCSSD, and NLRSD supported its request. -37- A072A ~ - LB,,_v_ On December 18, 1996, Joshua filed a Response ( docket no. 2891) that did not oppose LRSD's request for an interval of time to develop a new desegregation plan, but expressed reservations about ODM, "as an ann of the court," participating in the negotiations between the parties. Joshua also urged Judge Wright to appoint additional monitors to work on a matter of particular concern to them--the alleged "ill-treatment of class members." On December 27, 1996, Judge Wright entered an Order (docket no. 2901) granting LRSD's Motion. In this Order, Judge Wright held that: (1) LRSD "will benefit from a temporary hiatus from monitoring and from the expertise of the ODM, in order to develop proposed modifications to the LRSD desegregation plan"; and (2) ODM can advise LRSD and other parties during the negotiations for plan modifications and ODM can "participate in negotiations as a facilitator," but "ODM cannot be a negotiator for any party." Judge Wright also denied Joshua's request to hire "additional monitors to handle complaints about mistreatment of class members." December 27, 1996 Order at 3 (docket no. 2901). H. The Perplexing Final Resolution Of Joshua's Request For Still More Attorneys' Fees FromLRSD On September 26, 1997, LRSD filed a Motion for Approval of Revised Desegregation and Education Plan ( docket no. 3049) and a supporting Memorandum Brief ( docket 1.10. 3050). After Joshua objected to a number of provisions in the proposed revised plan, LRSD and Joshua engaged in extensive negotiations to develop a revised plan which both parties could support. As part of these negotiations, LRSD and Joshua took up the still unresolved issue of Joshua's request for $795,301 in attorneys' fees for performing post-settlement monitoring -38- : I ' ' A072A activities, which was pending on appeal to the Eighth Circuit. 52 On January 21, 1998, LRSD and Joshua filed a Joint Motion for Approval ofLRSD's Revised Desegregation and Education Plan ( docket no. 3107) in which they admitted that ongoing negotiations were taking place on the attorneys' fees issue: "Joshua has agreed that they will request that the Court of Appeals for the Eighth Circuit hold their two pending appeals in abeyance, and LRSD and Joshua have further agreed that they will attempt to resolve Joshua's past, present, and future claims for attorneys' fees and costs by mediation." January 21, 1998 Joint Motion at 2 ( docket no. 3107). See also Renewed Joint Motion for Approval ofLRSD's Revised Desegregation and Education Plan filed on March 23, 1998 (docket no. 3136). On February 27, 1998, the Eighth Circuit entered a Mandate (docket no. 3125) which granted "the stipulation of the parties for dismissal of the appeal" of Judge Wright's March 24, 1997 Order denying Joshua's request for interim attorneys' fees. The entry of this voluntary Judgment dismissing Joshua's appeal of the attorneys' fees issue strongly suggests that, sometime prior to February 27, 1998, LRSD and Joshua arrived at a settlement of that issue. In a letter agreement dated June I 0, 1998, 53 LRSD and Joshua formally documented their 52 As indicated previously, on April 22, 1997, Joshua appealed Judge .Wright's Order denying their requested interim attorneys' fees ( docket no. 2966). At the time the parties entered into these negotiations, that appeal was still pending before the Eighth Circuit. 53The first time this letter agreement became part of the record in this case was on March 15, 2002, when LRSD attached it as Exhibit 7 to its Memorandum Brief in Support of Motion for an Immediate Declaration of Unitary Status (docket no. 3581). Thus, before her decision to step down in this case, Judge Wright was never made aware of the facts surrounding the agreement that LRSD would pay Joshua's counsel $700,000 in attorneys' fees for past monitoring work, plus $48,333.33 per year for three years of future monitoring work. Furthermore, absent LRSD 's decision to make the June 10, 1998 letter part of the record, I would have very likely missed the troubling implications associated with the confluence of agreements on both the Revised Plan and the issue of Joshua's past and future attorneys' fees. Therefore, my -39- A072A settlement of all past and future claims for attorneys ' fees and costs as follows: LRSD will make the following payments [to counsel for Joshua] for past fees and costs: $100,000.00 on or before June 30, 1998; $100,000.00 on or before August 31, 1998; and $500,000.00 on or before October 31 , 1998. For fees and costs incurred for implementing and monitoring the Revised Desegregation and Education Plan, LRSD will reimburse your firm up to $48,333.33 per year for three years beginning July 1, 1998. The payments described in this letter will constitute full and complete payment in satisfaction of all past or future claims for attorney's fees and costs except as specifically set forth in the Revised Desegregation and Education Plan. June 10, 1998 letter agreement, attached as Exhibit 7 to LRSD's Memorandum Briefin Support of Motion for an hnmediate Declaration of Unitary Status ( docket no. 3581) ( emphasis added). 54 Although not directly relevant to the issue of unitary status, I can think of no good explanation for LRSD's decision to voluntarily pay Joshua's counsel an additional $700,000 in attorneys' fees for performing monitoring work for which Judge Wright had ruled he was not entitled to be paid anything from LRSD. On top of this, one of Joshua's own attorneys, Mr. Chachkin, previously had admitted during oral argument before the Eighth Circuit that the attorneys' fees paid under the 1990 Settlement Agreement included future attorneys' time raising this issue now, based upon facts that were not known to Judge Wright w!Jile she presided over this case, should in no way be construed as a criticism of Judge Wright for not raising this issue earlier. As I have emphasized, it was LRSD's decision to file its counsel's June 10, 1998 letter as an exhibit to its March 15, 2002 Memorandum Brief in Support of Motion for an hnmediate Declaration of Unitary Status that alerted me to this issue. 54As indicated previously, Joshua's counsel argued to Judge Wright that LRSD should be allocated 75% to 80% of his $795,301 in attorneys' fees associated with performing past monitoring activities ( docket no. 2792). If those attorneys' fees had been allocated on that basis, LRSD would have been responsible forpayingJoshua's counsel between $596,475 and $636,240. I am at a loss to understand why LRSD would agree, in the June l 0, 1998 letter, to voluntarily pay Joshua's counsel $700,000, almost $ I 00,000 more than the median amount Joshua's counsel originally sought to recover from LRSD for his post-settlement monitoring work. -40- A072A 113eYA/ expended in connection with monitoring activities.55 It appears to me that Judge Wright's wellreasoned Memorandum Opinion (docket no. 2821) denying Joshua's Request for an Interim Award of Attorneys' Fees and her subsequent Order (docket no. 2959) denying Joshua's Motion for Reconsideration placed LRSD in an excellent position to prevail on Joshua's appeal of the district court's rulings to the Eighth Circuit. Holding what seemed to be the winning hand on appeal, I find it passing strange that LRSD would voluntarily agree to pay Joshua's counsel an additional $700,000 for post-settlement monitoring work when, as stated above, one of Joshua's other attorneys admitted this work was already included in the $2,000,000 LRSD paid to Joshua's counsel under the 1990 Settlement Agreement. I find it somewhat discomforting that LRSD and Joshua had a meeting of the minds on an essentially new desegregation settlement plan at the same time their attorneys were discussing the settlement of Joshua's counsel's request for a large interim award of attorneys' fees. However, I know of no facts establishing that the simultaneous negotiation of those two unrelated issues did not take place at arms length or involved a quid pro quo. From the inception of this case, Joshua's counsel has fought hard for his clients and has a well-documented record of zealously protecting their interests. I also rec~gnize that Joshua's counsel has manned the barricades of civil rights litigation in Arkansas for over four decades and that he has a reputation for never yielding on matters of principle. Accordingly, while I do not conclude that anything improper occurred in the simultaneous negotiation of these two unrelated issues, I do have a real concern about the public's perception of the timing of these events--which I fear has raised troubling questions and lingering doubts. 55See supra, pp. 34-35. -41- I also find it unsettling that, going forward, LRSD agreed to pay Joshua's counsel ''up to $48,333.33 per year for three years beginning July 1, 1998," for "fees and costs incurred for implementing and monitoring the Revised Desegregation and Education Plan." June 10, 1998 letter agreement, attached as Exhibit 7 to docket no. 3581. At a minimum, all of the terms and conditions of such an unusual arrangement should have been spelled out in writing, with a clear statement regarding the duties, if any, that Joshua's counsel owed to LRSD, the party paying his fees formonitoringthe implementation of the Revised Plan, and whether, under this arrangement, LRSD and Joshua's counsel entered into an attorney-client relationship. In any case, at least one thing is clear from the June 10, 1998 letter agreement: In exchange for being paid $4,027.78 per month by LRSD, Joshua's counsel specifically agreed to undertake the obligation of monitoring all aspects ofLRSD's implementation of the Revised Plan. Subsequently, Joshua's counsel submitted to LRSD periodic "Statements for Legal Services Rendered" for attorneys' fees incurred in connection with his work "implementing and monitoring" the Revised Plan.56 See Exhibit 8 to docket no. 3581. According to Joshua's counsel's periodic statements for legal services, LRSD paid him a total of $124,861.15, which was billed in the following installments: July, 1998, through October, 1998: $16,111.12; November, 1998, through October, 1999: $48,333.33; November, 1999: $4,027.78; December, 1999: $4,027.78; January, 2000, through May, 2000: $20,138.90; June, 2000: $4,027.78; July, 2000: $4,027.78; August, 2000, through September, 2000: $8,055.56; October, 2000: $4,027.78; 56As discussed infra at pp. 57-59, at no point between the district court's approval of the Revised Plan on April 10, 1998, and thefilingofLRSD's Compliance Report on March 15,2001, did Joshua's counsel ever raise any of the compliance issues that are now before me, pursuant to 8.2 through 8.2.5 of the Revised Plan. -42- A072A November, 2000: $4,027.78; December, 2000: $4,027.78; and January, 2001: $4,027.78. See Exhibit 8 to docket no. 3581.57 Thus, for each month between July, 1998, and January, 2001, LRSD paid Joshua's counsel $4,027.78 for attorneys' fees incurred "monitoring" LRSD's implementation of the Revised Plan. For good reason, there is a widespread public perception that this case has become a decades-old cottage industry--and a large one at that--for lawyers. Over ten years ago, in Judge Woods' decision to step down from this case, he decried "the many appeals perfected in this case, some of which have accomplished nothing but enrichment of the participating attorneys," and called the lawyer fees paid by the three districts "grossly exorbitant." LRSD, 740 F. Supp. at 635. Since that time, things appear to have changed little, with all three school districts paying substantial annual attorneys' fees to their own lawyers and substantial annual payments to the ODM, whose requested annual budget for the last several years has been in the range of$700,000. At the same time, the threat of paying large future attorneys' fees to Joshua's counsel hangs like the sword of Damocles above the heads of all the parties.58 57The record fails to contain an explanation of why Joshua's counsel did not submit "Statements for Legal Services Rendered" for the months of February thr01;igh June, 2001. 58As everyone knows, Arkansas is one of the poorest states in the country and has always had difficulty finding funds for public education. Although LRSD is better off than many school districts in the State, it is by no means affluent. Like other school districts, it struggles each year to make ends meet. For example, during the last few years, the Arkansas Democrat-Gazette has reported on the need for the repairorrenovation of the basic infrastructure in many LRSD schools and on school teachers who have been forced to purchase pencils and other basic school supplies for their students. By my calculations, since 1990, counsel for Joshua has been paid $3,974,861 ($3,150,000 + $700,000 + $124,861). Over that same period of time, I would guess LRSD, PCSSD, and NLRSD have paid their own attorneys a total of at least $4,000,000. If my estimate is correct, that means, since 1990, the attorneys for all parties in this case have been paid at least $8,000,000. As indicated, supra at footnote 47, the ODM has submitted budgets totaling $7,932,228.57. -43- I- A072A ~ /RAV R/R?I All members of the professional group, who have directly benefitted from the perpetuation of this case, are placed on notice that I intend to monitor closely the costs associated with this action. Being born and raised in Scott County, one of the poorest counties in Arkansas, I understand the meaning ofbeing careful with a dollar, and I expect the professional group to keep that important point fixed in their minds from here on out. Thus, since 1990, the "professional group" in this case probably has been paid close to $16,000,000. Counsel for LRSD, Joshua, and the staff of the ODM know that LRSD grapples annually with funding and budget issues. They also know that the approximately $16,000,000 paid to them since 1990 has come from funds earmarked for the school children of this district. In making this observation, I in no way mean to imply that lawyers and monitors have not been necessary to ensure that LRSD, NLRSD, and PCSSD properly implemented and "scrupulously adhered to" their desegregation obligations under the Settlement Plans. My only point is that I would have hoped this "professional group" would have kept uppermost in their minds that every penny paid to them for their work in this case is one less penny available to help in the education of a child. Thus, I would have also hoped that the "professional group" would have been as frugal and judicious as possible in the expenditure of their time or budgeted funds. One of the ways the attorneys could have kept this covenant with the district's school children would have been to discount their normal hourly billing rates. In the case of the ODM, it might have foregone raises and minimized staff and office space requirements in the interest of bringing this case to a close as economically as possible. My review of the pleadings since 1990 has dashed all such utopian hopes. For example, Judge Woods cited the "grossly exorbitant" lawyer fees paid by the three school districts as the "principal reason for [their] poor financial situation" and noted that LRSD' s attorneys had billed "31 days in a 30-day month." LRSD, 740 F. Supp. at 635. Similarly, Judge Wright noted in her September 23, 1996 Memorandum Opinion denying Joshua's motion for interim attorneys' fees that their counsel was attempting to bill his time at the rate of $250 per hour, which she found was not "reasonable." September 23, 1996 Memorandum Opinion at footnote 6 (docket no. 2821). Likewise, the staff and budget for the ODM has more than doubled since 1989, even though the more streamlined obligations of the Revised Plan approved in early 1998 would seem to have required less monitoring ofLRSD's implementation of those obligations. Similarly, for the last few years, it appears NLRSD has been unitary and has required very little in the way of monitoring by the ODM. Thus, I would have expected annual reductions in the staff and budget for the ODM, beginning in 1998, and continuing through the current fiscal year. That has not happened. -44- A072A I. Final Approval Of Revised Desegregation And Education Plan On April 10, 1998, Judge Wright entered a Memorandum Opinion and Order ( docket no. 3144) approving the Revised Plan. Importantly, Judge Wright held that the Revised Plan constituted a "new consent decree or settlement agreement" between LRSD and Joshua: The LRSD and Joshua have agreed that, if approved, the proposed Plan: shall supersede and extinguish all prior agreements and orders in the Little Rock School District v. Pulaski County Special School District, U .S.D. C. No. LR-C-82- 866, and all consolidated cases related to the desegregation of the Little Rock School District ("LRSD") with the following exceptions: a. The Pulaski County School Desegregation Case Settlement Agreement as revised on September 28, 1989 ("Settlement Agreement"); b. The Magnet School Stipulation dated February 27, 1987; c. Order dated September 3, 1986, pertaining to the Magnet Review Committee; d. The M-to-M Stipulation dated August 26, 1986; and, e. Orders of the district court and court of appeals interpreting and enforcing sections a. through d. above to the extent not inconsistent with this Revised Plan. Based upon this provision, this Court considers the LRSD Proposed Revised Plan an entirely new consent decree or settlement agreement between the LRSD and Joshua. April 10, I 998 Memorandum Opinion and Order at 3 (docket no. 3144) (emphasis added). Alternatively, Judge Wright concluded that, even if the Court considered the Revised Plan as a modification to the 1990 Settlement Plan,59 she would still approve the Revised Plan because 59 As indicated supra atp. 27, LRSD and Joshua agreed to certain changes in LRSD's 1990 Settlement Plan and the Interdistrict Settlement Plan. In a forty-four page Order entered on May 1, 1992 (docket no. 1587), Judge Wright approved most of those proposed modifications which were incorporated in the "LRSD May 1992 Desegregation Plan" and the "May 1992 lnterdistrict Desegregation Plan." Judge Wright's April I 0, 1998 Memorandum Opinion fails to mention those Plans, which were the operative consent decrees LRSD was operating under at the time she entered her decision. -45- A072A I D- --- the parties had satisfied the standard for modifying a consent decree established by the Court in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 393 (1992), and LRSD, 56 F .3d at 914. In reaching this conclusion, Judge Wright noted that LRSD had implemented certain aspects of the 1990 Settlement Plan so successfully that the district court had withdrawn supervision over those areas. 60 However, the court also recognized that some goals in the 1990 Settlement Plan"[ were] out of date for the current situation that exists in the LRSD and other specific, rigid goals in the 1990 Plan ... may never be met, regardless of the amount of effort and good faith put forth by the LRSD." April 10, 1998 Memorandum Opinion and Order at 6 (docket no. 3144) (footnotes omitted). One such group of potentially unreachable goals cited by Judge Wright were the "goals in the 1990 Plan regarding achievement disparities [which] may never be met regardless of the effort put forth by LRSD." Id. See Testimony of Dr. Herbert J. Walberg at 17-25 (docket no. 2692); Testimony of Dr. David J. Armor at 18-39 (docket no. 2693); and Testimony of Dr. Gary Orfield at 25-31 ( docket no. 2768). J. LRSD's Implementation Of Its Obligations Under The Revised Plan Between April 10, 1998, and March 15, 2001, the date LRSD filed its Request for Scheduling Order and Compliance Report seeking unitary status, LRSD and Joshua filed no substantive pleadings addressing any problems arising from LRSD 's implementation of its obligations under the Revised Plan. In fact, only three documents dealing with LRSD's 601n an Order entered on March 27, 1996 ( docket no. 2648), Judge Wright released LRSD from Court supervision and monitoring in the areas of Multicultural Curriculum (LRSD May 1992 Desegregation Plan, docket no. 1587 at 63-80), Vocational Education (LRSD May 1992 Desegregation Plan, docket no. 1587 at 98-105), and Computerized Transportation System (LRSD May 1992 Desegregation Plan, docket no. 1587 at 227-28). See also February 9, 1996, Stipulation for Order (docket no. 2626). -46- implementation of the Revised Plan were filed during that period of time. First, on August 11, 1999, the ODM filed a lengthy Report (docket no. 3289) on LRSD's preparations for implementation of the Revised Plan. This Report reviewed the status ofLRSD's implementation of all aspects of the Revised Plan, including the following areas that have special relevance to Joshua's opposition to LRSD's pending request for unitary status: Extracurricular Enrichment Activities (pp. 12-16); LearningEnvironment(pp. 20-22); Mathematics(pp. 27-31); Program Assessment (pp. 42-43); Reading and Language Arts (pp. 44-48); Remediation (pp. 49- 52); and Student Discipline (pp. 67-71 ). The ODM's "Summary and Conclusions" that followed each section of the Report indicated that, overall, LRSD was doing a satisfactory job of implementing the Revised Plan. Second, on April 18, 2000, LRSD filed a 129-page Interim Compliance Report (docket no. 3356 dated March 15, 2000). Although LRSD was not obliged to file this Report, it voluntarily did so for two stated reasons: (1) "to help the District assess its progress toward full compliance and to reassure the court, the parties, and the community of the District's good faith efforts to be in total compliance with the Revised Plan"; and (2) "[t]he District hopes to receive comments and suggestions from interested persons as to the Distric;t's compliance with the Revised Plan and the format and content of this status report." Interim Compliance Report at 1 (docket no. 3356). The Interim Compliance Report set forth in detail all of the programs, policies, and procedures that LRSD was implementing in accordance with its obligations under the Revised Plan. The ODM did not file any comments or objections to anything contained in LRSD's Interim Compliance Report. Likewise, nothing contained in that Report caused Joshua's counsel, -47- ! A072A who was being paid $4,027.78 per month by LRSD to monitor its implementation of the Revised Plan, to raise any compliance issues. Finally, no "interested party'' raised any questions concerning whether, based on the programs, policies, and procedures described in the Interim Compliance Report, LRSD was in substantial compliance with its obligations under the Revised Plan. This silence, it seems to me, speaks rather eloquently. Third, on June 14, 2000, the ODM filed a 127-page Report of Disciplinary Sanctions in the LRSD (docket no. 3366).61 The introduction to this Report contained a broad disclaimer of what was not being evaluated: This document neither evaluates the district's discipline policies and procedures nor determines how the policies are followed at various schools. Moreover, the report does not measure the effectiveness of any program, training or practices the district may have instituted to address the need for all students to be disciplined fairly and equitably, regardless of their race or sex. While the disciplinary procedures are represented by the data are legitimate and important areas of inquiry, we have not examined them here. We do provide some additional information to explain the district's general approach to discipline and to set the context for our findings, but our report focuses on the LRSD's own records and what they reflect. Report of Disciplinary Sanctions at 1 (docket no. 3366).62 Furthermore, because LRSD maintained disciplinary records on only "suspensions and expulsions," the Report was limited to an examination of LRSD's raw data, broken down by race and sex, for students who were 61The ODM prepared this Report as part of its ongoing monitoring of the way all three Pulaski County school districts imposed disciplinary sanctions on students. In previous years, the ODM had prepared similar Reports on NLRSD and PCSSD. Thus, the ODM's June 14 Report was not triggered by or related to anything in LRSD's March 15, 2000 Interim Compliance Report. 62By failing to evaluate and examine the many important areas covered by this disclaimer, the ODM substantially reduced the usefulness of its Report and made it virtually impossible to draw any conclusions from the Report that were not based on pure speculation. -48- I I A072A ( suspended or expelled from each elementary school, junior high school, and high school during six school years, 1993-94 through 1998-99. While the data compiled in the Report revealed that a disproportionate number of AfricanAmerican male students were suspended or expelled at many schools, the lack of specific facts surrounding each suspension and expulsion (e.g., a description of the conduct giving rise to the disciplinary sanction, race of teacher or administrator issuing disciplinary sanction, socioeconomic background of student, etc.) made it impossible to determine, without speculation, the reason for this disparity. 63 Additionally, because LRSD administrators assigned many of the suspended or expelled students to alternative education programs64 but failed to maintain records documenting which suspended and expelled students were sent to those programs, it was impossible to determine from the Report how many days of school each of the suspended and expelled students actually missed. Finally, because the Report did not include any data for the 1999-00 school year, it was impossible to determine if converting LRSD's junior high schools to middle schools improved behavior problems and reduced the number of suspensions and expulsions. However, the Report made it clear that this change could affect future data: Beginning with the 1999-2000 school year, the district made a fundamental commitment to improving students' performance, both academic~lly and 63The preface to the Report made it clear that the disproportionate number of AfricanAmerican students suspended or expelled from school is a nationwide phenomenon. The Report also pointed out that the way students behaved in school was affected by a host of factors that were beyond the influence of school personnel, "such as home environment, family values, and the level of socialization prior to starting school. ... " Report at 6. Finally, the Report observed that: "Another aspect of discipline that requires note is the tremendous increase in the number of single-parent households in our society. . . . This deficiency is particularly significant for adolescent males who live with only their mothers." Report at 7. 64See Report at 10-12. -49- A072A _ IJ3 D_ V A/A?\ behaviorally, by converting to a middle school system (grades 6-8). Studies have shown that the grade 6-8 configuration is developmentally appropriate. The teaming practiced in middle schools is to provide a nurturing environment in which students can learn and also find help with the physical and emotional changes they are experiencing. Because the discipline data for 1999-2000 were not available at the time we prepared this report, we could not assess whether discipline and sanctions have changed in ways that might be attributable to the middle school approach. Report at 126. In the Report's "Conclusions," the ODM made two primary criticisms of LRSD's disciplinary practices: (1) it had not maintained and compiled "comprehensive data on all the discipline sanctions [which] may leave some problems uncovered, as well as thwart assessment of the extent to which the district is preventing racial discrimination in disciplinary actions overall"; and (2) "[ w ]bile the report data do not reflect overall serious behavior problems in LRSD, African-American males are being disciplined in disproportionately high numbers." Report at 125. The ODM also offered seven "ideas . .. as suggestions for improving disciplinary procedures for all students in LRSD, while also reducing the over-representation ofblack students in disciplinary actions." Report at 127. K LRSD Seeks Unitary Status Based Upon Its Substantial Compliance With The Revised Plan On March 15, 200 I, LRSD filed a Request for Scheduling Order and Compliance Report ( docket no. 3410) and requested the court to declare it ''unitary with respect to all aspects of school operations." On June 25, 2001, Joshua filed their Opposition to LRSD's Compliance Report ( docket no. 3447) in which they argued LRSD was not entitled to unitary status under the Revised Plan. On March 15, 2002, LRSD filed the pending Motion for an Immediate Declaration of -50- A072A ,~ --- Unitary Status (docket no. 3580) and Supporting Memorandum Brief (docket no. 3581). On May 30, 2002, Joshua filed their Response in Opposition to LRSD's Motion for hnmediate Declaration of Unitary Status (docket no. 3604). On June 7, 2002, LRSD filed its Reply Brief (docket no. 3607). As indicated previously, under 11 of the Revised Plan, LRSD was entitled to the entry of an order declaring it unitary if no party challenged its substantial compliance with th~ Revised Plan. Because Joshua chose to challenge LRSD's "substantial compliance," 11 of the Revised Plan imposed on them the burden of proof on that issue. Joshua's counsel has acknowledged that the Revised Plan imposed on his clients the burden of proving that, as of March 15, 2001, 65 LRSD was not in substantial compliance with its obligations under the Revised Plan. See Transcript of Proceedings on June 29, 2001, at 26 (docket no. 3461), and Transcript of Proceedings on July 9, 2001, at 26 (docket no. 3464). 65In its October 3, 200 I Order ( docket no. 3515), the district court required LRSD to elect between two options: Option!: (A) Present evidence concerning the LRSD's activities with respect to the Revised Plan beyond the date of March 15, 2001; and- (B) Produce the e-mails requested by Joshua beyond that date. Option 2: (A) Present evidence concerning the LRSD's activities with respect to the Revised Plan up to the date of March 15, 2001, and not beyond; and (B) Correspondingly, the LRSD would have no obligation to produce the e-mails requested by Joshua beyond that date. LRSD filed a Response to the October 3, 2001 Order ( docket no. 3517) objecting ''to being forced to select from the two options offered by the Court." Subsequently, LRSD advised Judge Wright that, without waiving its objections, it selected "Option 2." Therefore, any evidence ofLRSD's "compliance activities" that took place after March 15, 2001, cannot be considered in deciding the question of unitary status. -51- A072A IAou A/0'&gt;\ rn. Relevant Provisions Of Revised Plan In Joshua's Opposition to LRSD's Compliance Report (docket no. 3447), they include a "Seriatim Response to District's March 15, 2001 Compliance Report" in which they list compliance problems or concerns with the following sections of the Revised Plan: 2.1 (LRSD's obligation of good faith); 2.1.1, 2.2, 2.2.1, 2.2.2, 2.2.3, 2.2.4, 2.2.5, and 2.2.7 (LRSD's obligations regarding faculty and sta:fl); 2.3 (LRSD's obligations regarding student assignment); 2.4 (LRSD 's obligations regarding special education and related programs); 2.5, 2.5.1, 2.5.2, 2.5 .3, and 2.5 .4 (LRSD' s obligations regarding student discipline); 2.6, 2.6.1, 2.6.2, and 2.11. l (LRSD's obligations regarding extracurricular activities, advanced placement courses, and guidance counseling); 2. 7 and 5 (LRSD's obligations regarding improving African-American academic achievement); 2.8 (parental involvement); and 3.6 (school construction and closing). Importantly, Joshua's Opposition to LRSD's Compliance Report was careful to note that their concerns regarding LRSD's compliance with faculty and staff, student assignment, special education and related programs, parental involvement, and school construction and closing were based primarily on "information and belief' or involved "generalized suspicions" regarding LRSD's future actions. After filing that Opposition, Joshua conducted consid~ble discovery to develop the facts to support their challenges to LRSD's request for unitary status. As indicated previously, before beginning the evidentiary hearings on Joshua's Opposition to LRSD's request for unitary status, Judge Wright instructed Joshua's counsel to present his argument beginning with his strongest first and proceeding to his weakest ( docket no. 3461 at 54- 55). During a hearing on July 9, 2001, which took place after the completion of the first two days -52- A072A ~ /1=1 ---- of testimony on July 5 and 6, 2001, Joshua's counsel stated that LRSD's three most serious areas of noncompliance under the Revised Plan were its failure to meet its obligations regarding: (1) good faith; (2) improvement of academic achievement for African-American students;66 and (3) improvement of the racial disparity in student discipline (docket no. 3464 at 26-29). During the evidentiary hearings on August 1 and 2, 2001, Joshua completed calling all of their witnesses on the issues ofLRSD's alleged substantial noncompliance with those three areas of the Revised Plan. At the beginning of the fifth day of evidentiary hearings on November 19, 2001, Judge Wright noted, on the record, that counsel for Joshua had "rested his case" on the first three areas of LRSD's alleged noncompliance (docket no. 3558 at 14-15). After Judge Wright denied LRSD's Motion for Directed Verdict, it presented its case on November 19 and 20 (docket nos. 3558 and 3559). On December 11, 2001, Judge Wright conducted a hearing to schedule the remaining days of evidentiary hearings on Joshua's Opposition to LRSD 's request for unitary status ( docket no. 3560). During this hearing, Judge Wright agreed to allow Joshua and LRSD no more than five days to present additional testimony on what Joshua's counsel identified as the last three areas ofLRSD's alleged noncompliance with the Revised Plan: (1) advanced placement courses; (2) .. extracurricular activities; and (3) guidance counseling. Judge Wright also agreed to allow Joshua to present non-cumulative testimony regarding: LRSD's alleged failure to comply with its overall obligation of good faith regarding its implementation of programs, policies, and procedures 66Part of Joshua's argument that LRSD had failed to substantially comply with its obligation to improve the academic achievement of African-American students included the contention that LRSD had failed to make the annual "assessments" of the academic programs implemented to improve the achievement of African-American students as required by 2.7.1 of the Revised Plan. -53- A,_0 72_A_ _ _ ,. regarding advanced placement courses, extracurricular activities, and guidance counseling-, and how LRSD's programs, policies, and procedures governing advanced placement courses, extracurricular activities, and guidance counseling had adversely affected the academic achievement of Afiican-American students. I conducted the final three days of evidentiary hearings on those issues, beginning on July 22, 2002. At no point during those hearings, or during the six previous days of ev:identiary hearings, did Joshua present any evidence or arguments -to support the contentions in their Opposition to LRSD's Compliance Report (docket no. 3447) that LRSD was not in substantial compliance with its obligations regarding faculty and staff( 2.1.1, 2.2-2.2.5, and 2.2.7); student assignment( 2.3); special education and related programs( 2.4); parental involvement( 2.8); and school construction and closing( 3.6). Joshua's failure to present any evidence to support their contention regarding LRSD's alleged failure to substantially comply with those sections of the Revised Plan requires a finding that they have abandoned those arguments. In any case, Joshua clearly failed to maintain their burden of proving that LRSD failed to substantially comply with any of those particular sections of the Revised Plan. Thus, the detennination of LRSD 's request for unitary status turns on whether Joshua has ,' maintained their burden of proving by a preponderance of the evidence that LRSD has failed to substantially comply with the following obligations imposed on it under the Revised Plan: (I) good faith as set forth in 2.1; (2) student discipline as set forth in 2.5 through 2.5.4 and 2.12.2; (3) academic achievement of Afiican-American students as set forth in 2.7, 2.7.1, 5.1 through 5.8, and 2.12.2; ( 4) extracurricular activities as set forth in 2.6, 2.6.3, and 2.12.2; (5) advanced placement courses as set forth in 2.6, 2.6.2, and 2.12.2; and (6) guidance counseling -54- I AO~-- as set forth in 2.11.1. The provisions of the Revised Plan containing LRSD's obligations in these six disputed areas, along with other provisions of the Revised Plan that are relevant to the resolution of the issue of unitary status, are summarized below. A. LRSD's Obligation Of Good Faith Toe first obligation imposed on LRSD was to act in "good faith." Because of the importance of this obligation to the question of unitary status, 2.1 of the Revised Plan ought, in fairness, to be quoted in its entirety: LRSD shall in good faith exercise its best efforts to comply with the Constitution, to remedy the effects of past discrimination by LRSD against African-American students, to ensure that no person is discriminated against on the basis of race, color or ethnicity in the operation of LRSD and to provide an equal educational opportunity for all students attending LRSD schools. B. LRSD's Obligations Regarding Student Discipline Sections 2.5 through 2.5.4 set forth LRSD's obligations regarding student discipline. Section 2.5 obligated LRSD to implement programs, policies, and/or procedures "designed to ensure that there is no racial discrimination with regard to discipline." Section 2.5.1 required LRSD to "strictly adhere to the policies set forth in the Student Rights and Responsibilities Handbook to ensure that all students are disciplined in a fair and equitable manner," and 2.5.2 required LRSD to "purge students discipline records after the fifth and eighth grades of all offenses, except weapons offenses, arson and robbery." Section 2.5.3 established the position of "ombudsman," who was responsible for "acting as an advocate on behalf of students involved in the discipline process, investigating parent and student complaints ofrace-based mistreatment and attempting to achieve equitable solutions." Finally, 2.5.4 obligated LRSD to ''work with students and their parents to develop behavior modification plans for students who exhibit -55- A072A IR-&lt;&gt;ID'&gt;\ frequent misbehavior." C. LRSD's Obligations To Improve And Remediate The Academic Achievement Of African-American Students Section 2.7 contained LRSD's core obligation regarding the academic achievement of African-American students: 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. Very significantly, nowhere in this section or any other section of the Revised Plan does LRSD assume any obligation to narrow or close the academic achievement gap between white students and African-American students. In order to detennine the effectiveness of LRSD's academic programs designed to improve African-American achievement, Section 2. 7. l obligated LRSD to "assess the academic programs implemented pursuant to Section 2. 7 after each year." If the results of those assessments "[reveal] 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." D. LRSD's Obligations Regarding Extracurricular Activities, Advanced Placement Courses, And Guidance Counselors Section 2.6 required LRSD to "implement programs, policies and/or procedures designed to promote participation and to ensure that there are no barriers to participation by qualified African-Americans in extracunicular activities, advanced placement courses, honors and enriched courses and the gifted and talented program." Section 2.6.1 and 2.11.1 required LRSD to implement training programs to assist teac 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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