Includes memorandum of allowance for extension of time, responses to Pulaski County Special School District's (PCSSD's) fourth motion to enforce settlement agreement, PCSSD's response to Bollen intervenors, and notice of rejoinder.

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<dcterms_description>Court filings: District Court, memorandum of allowance for extension of time; District Court, Knight intervenors' response to Pulaski County Special School Districts (PCSSD's) fourth motion to enforce settlement agreement and Little Rock School District's (LRSD's) motion to dismiss Pulaski County Special School District's (PCSSD's) fourth motion to enforce settlement agreement; District Court, order; District Court, motion to withdraw as counsel and for substitution of counsel; District Court, Pulaski County Special School District (PCSSD) response to the Bollen intervenors' motion to intervene; District Court, Pulaski County Special School District (PCSSD) memorandum in support of its response to the Bollen intervenors; motion to intervene; District Court, motion to dismiss the Pulaski County Special School District's (PCSSD's) fourth motion to enforce settlement agreement; District Court, memorandum brief in support of motion to dismiss the Pulaski County Special School District's (PCSSD's) fourth motion to enforce settlement agreement; District Court, the Bollen intervenors' response to the Pulaski County Special School District's (PCSSD's) statement of material facts related to the Pulaski County Special School District's (PCSSD's) fourth motion to enforce settlement agreement; District Court, memorandum brief in support of the Bollen intervenors' response to the Pulaski County Special School District's (PCSSD's) fourth motion to enforce settlement agreement; District Court, the Bollen intervenors' response to the Pulaski County Special School District's (PCSSD's) fourth motion to enforce settlement agreement; District Court, notice of rejoinder This transcript was create using Optical Character Recognition (OCR) and may contain some errors. - ILL WILSON - JUDGe: To: All Counsel UNITED STATES DISTRICT COURT EASTERN DISTRICT OF AAKANSAS 600 W. CAPITOL, ROOM 423 LITTLE ROCK. ARKANSAS 72201-3325 (S01) 804-5140 Facslrnlle (501) 804-5149 August 11, 2003 BYFAX RECEIVED AUG 11 2003 OFFICE OF DESEGREGATION MONITORING . RE: Little Rock School District v. Pulaski County Special School District, et al., 4:82CV00866 WRW/JTR Mr. Steve Jones, counsel for the North Little Rock School District, called Matt Morgan, my new LRSD law clerk, regarding the deadline I imposed in the August 6, 2003 Order. _The Order required that responses to the Fourth Motion to Enforce Settlement Agreement and for Allied Relief (Doc. No. 3760) and the Motion to Intervene (Doc. No. :,766) be filed no iater than 12:00 p.m., noon, today. Mr. Jones advises that be had been out of town since August 1, had just received notice of the order, and requested a one day extension to reply. Due to his circumstances, I have allowed Mr. Jones until 2:00 p.m., Tuesday, August 12, 2003 , to reply to. either of the pending motions. Cordially, c El~ Original to Clerk TO: FAX COVER SHEET UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS Chris Heller Sam Jones Steve Jones Richard Roachell John Walker Timothy Gauger Mark Hagemeier Ann Marshall :Mark Burnette Scott Smith Clay Fendley Will Bond Mike Wilson Telephone: 501-604-5140 Fa.x Number: 501-604 5149 376-2147 376-9442 375-1027 374-4187 682-2591 682-2591 371-0100 375-1940 682-4249 907-9798 982-9414 982-9414 DATE: 8 II -o ':;&gt; There are ;2 pages, including this Cover Sheet, being sent by this faGsirnile transmission. MESSAGE SENT BY: Office of Judge Wm. R. Wi1501 U.S. Distri,;t Court 600 West Capitol, Room 423 Little Rock, Arkansas 72201 Matt Morg1m, LRSD Law Clerk 501-604-5141 --- --- ------------ ~- - - ~ l , r;:.' .: ... ) _ _ w ~, l ~ ::. "\-:n t'. .1 '- . U.S. DI STRICT CCURT IN THE UNITED STATES DISTRICT cou:~r EASTERN DiSTisiCT ARKANSAS EASTERN DISTRICT OF ARKANSAS t( - /.:..-..:G i 1 "L."~ ~J WESTERN DIVISION -: JAMES W. McCORMACK, CLEF-K LITTLE ROCK SCHOOL DISTRICT By_ ---~'T"TT..,._.....,._.,,..... PLAIN I lllf CL~R--.- V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. RECEIVED DEFENDANT INTERVENORS INTERVENORS AUG 1 2 2003 OFFICE OF DESEGREGATION MONITORING MS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. GREG BOLLEN, ET AL. MOVANT/INTERVENORS KNIGHT INTERVENOR'S RESPONSE TO PULASKI COUNTY SPECIAL SCHOOL DISTRICT'S &lt;PCSSD'S) FOURTH MOTION TO ENFORCE SETTLEMENT AGREEMENT AND LITTLE ROCK SCHOOL DISTRICT'S (LRSD'S) MOTION TO DISMISS PCSSD'S FOURTH MOTION TO ENFORCE SETTLEMENT AGREEMENT Knight Intervenors support PCSSD's motion in full, but put forward a different rationale I for why this Court must act to enjoin the State Board of Education now, rather than await the outcome of the election the State Board has ordered. A. The State Board Has Unilaterally Initiated an Alteration of the Settlement Agreement, and PCSSD's Desegregation Plan, Over Which It No Longer Has Discretionary Authority to Stop; It has Taken This Action In Clear Contravention of This Court's Authority and Obligation to Make Prior Approval of Any Such Proposed Alterations If the voters approve the plan to create a new district on September 16, 2003, the State Board "shall order the creation of the new school district." A.C.A. 6-13-1505(a). To that extertt, the State defendant has taken its final discretionary administrative action on the issue of creation of a new school district, notwithstanding the outcome of the vote. The State Board's "vote" has been cast in favor of the creation of a new district whether that negatively impacts the ---- - ------ I I I I I I I I I I I I I desegregation of the Pulaski County districts or not. At this point, the question is not "what - happens if the voters approve the plan," - the State Board will be bound to the creation of the new district automatically - but, "whether the State Board has made an "end run" around the Court's authority to approve proposed alterations of the desegregation plans before the alteration is made." As discussed below, the State Board has adopted the detachment proponents position that this Court will make the necessary future adjustments to the settlement agreement and desegregation plans to accommodate the creation of a new district, despite its own statutory obligation, A. CA. 6-13-1504(b )(2)(A), to investigate the question of whether there will be any negative impact on the Pulaski County school districts' desegregation efforts and reject the proposal for an election if any negative impact exists. Unfortunately, if PCS SD awaits the statutorily required invocation of this Court's after-the-fact approval, see A.CA. 6-13- - 1505(b)(2), the analysis of those issues will c9me too late. The new district will be afait accompli: by statue, the State Board must create a new district if the voters approve. By statute, it is then the new district which petitions the Court for what will amount to absolution for its own creation. See A. CA. 6-13-1 SOS(b )(2). It is a fundamental tenet of this Court's jurisdiction over the settlement of this case that a party seeking an alteration ofthe settlement agreement must obtain the Court's prior approval. The State Board has not done so prior to passing on its discretionary authority to stop the creation of a new district. It has approved the proposed new district and forwarded it to the public for a vote. The very act of doing so denigrates the very existence of one of the parties to this litigation, accedes to the creation of a new entity over which the court must then assume jurisdiction, and thus, fundamentally, seeks to change the desegregation efforts of all three Pulaski County school districts. This Court should therefore stay the order of an election unless the Court concludes - that the State Board is entitled to approval of an alteration of the settlement agreement through creation of a new entity. 1 Toe Court should not await the dismemberment of one of the parties to the Settlement Agreement to consider whether unilateral acts initiated by one party to dismember another party violate the settlement agreement. B. The State Board Has Proceeded in Contravention of State Law By Abdicating its Role to Approve an Election Only If the Creation of the New District Does Not "Hamper, Delay or in any Manner Negatively Affect Desegregation Efforts" of PCSSD. The State Board's own inquiry into the critical questions of whether the creation of the proposed new district would negatively effect the settlement agreement, or desegregation generally, was limited to its statutorily required request for an attorney general opinion. The Attorney General's first opinion clearly only raised more questions which, it said, the Board must answer before it could make a legitimate factual determination of the desegregation questions / can me made. For the reasons set forth below, we cannot definitively opine as to whether the detachment would in fact negatively affect desegregation in any school district or negatively impact the effort of the State to assist any '.'affected" school district in the desegregation of public schools in the State. Nonetheless, the proposed detachment raises serious questions with regard to potential negative impact on the ability of one or more of the schools districts in Pulaski County to comply with their court imposed obligations in the Pulaski County school desegregation litigation. For this reason, before it authorizes an election on the proposed detachment, the State Board of Education should carefully scrutinize the proposal, gathering whatever information, 1So far, the State Bord has not even filed such a Motion. Further, based upon the PCSSD's pending motion and the discussion below, Knight argues that the Movant's and the State Board will not be able to meet the standard of proof necessary to approve such a fundamental alteration of the Settlement Agreement and the other outstanding Orders of the Court which establish the contours of PCSSD's present desegregation plan. commentary or testimony it deems necessary (including input from the three school districts in Pulaski County), to ensure that it has properly exercised its responsibility to determine whether the creation of the new district would hamper . . . . Attorney General Opinion of June 4, 2003, (italics in original). After a review of some of the questions which would have to be answered to make these determinations, it repeatedly concluded that there was insufficient information before the Board to make the determination required by the statute. With this clearly equivocal opiPJon in hand, the State Board was not to be dissuaded. It insisted on clarification of the opinion from the Attorney General2 and responses from the detachment petitioners and others. The proponents offered a legal opinion by attorney Clay Fendley to compete with the Attorney General's opinion. But that opinion, again, invokes this Court's authority to cure all the harms that will be visited on the desegregation efforts in Pulaski County and violations of the Orders of this Court that will result from secession and appears to I concede that detriment to the desegregation plans are inevitable.3 Mr. Fendley's opinion is also defective as a basis for meeting the State Board's statutorily required review of the negative impact of the proposal because, as Mr. Fendley states, "my analysis will be limited to two 2The Attorney General's second response still gave the State Board no basis for its approval. The Attorney General opined that before granting its approval, the State Board must be assured that "the detached district and its students will be permitted to participate in all existing transfer programs under the various orders and agreements in the Pulaski County desegregation case." To do that, the Board would have had to seek this Court's prior approval for the participation of the newly created detached district in these programs. It has not pursued that assurance from this Court. 3 Among the plans Mr. Fendley has for this Court to solve all these new problems that are likely to occur are, "ordering the new district to retain the PCSSD teachers currently employed at the detached schools," p. 8, and "address [the anticipated] overcrowding at Sylvan Hills" p. 7, by "revis[ing] the attendance zones for all of PCSSD's high schools," p. 6, "discontinue [Sylvan Hills] specialty programs," or even "build add,itional classrooms at Sylvan Hills High School." - See PCSSD's Exhibit 17, Fendley Opinion Letter, at the indicated pages. areas," "student assignment and faculty." Clearly, other considerations must be made. The detachment will necessarily result in the loss of teacher and support service personnel. Contractually, those losses to PCSSD will be in reverse order of seniority in each certification area, not by a teacher's current association with one school in the PCSSD or another. The teachers currently assigned to schools in the detachment area are still PCSSD employees; they may thus choose to exercise their right to remain in PCSSD where they have a negotiated contract and job security rather than resign for the unknown contract. Thus, the Court must consider "what affect will the extensive redistribution of teachers within and without PCS SD do to the success of the desegregation efforts in place?" "What will that redistribution look like in terms of the experience of the teachers and racial makeup once the break-up occurs? Moreover, "Does the Court have the authority to alter the plans in such a radical manner as will be required by the detachment being - forwarded?" "Can the Court even order the detachment area teachers to remain in their current school, even if it requires them to resign from the PCS SD and be re-employed by the new district?" The answer to the last question appears to be a resounding "No" and therefore dispositive of the detachment question. "A federal district court does have remedial authority in necessary cases, to modify or even abrogate [employment] agreements that perpetuate segregation or impede a desegregation plan. Such action however can be taken only 'after an evidentiary hearing and upon a finding that the change is essential to the desegregation remedy.'" Knight v. PCSSD, 112 F.3d 953 (8th Cir. 1997)(quoting LRSD v. PCSSD, 839 F.2d 1296, 1315 cert denied 488 U.S. 869 (1988). No one is even arguing that the proposed detachment is "essential to the desegregation remedy," (clearly it is not), and therefore, the numerous other adjustments to the existing agreement and plans which this Court would be asked to take cannot be made by order of this Court. The Board agreed to assign these tasks to this Court rather than make an adequate inquiry into the issues itself. For these reasons, the time for this Court to act is now. The appropriate Order is to stay the election and put the burden of proof on the State to meet the requirements for altering the Settlement Agreement and PCSSD's desegregation plans, as the Board itself anticipates these must be altered. WHEREFORE, Knight Intervenors join PCSSD in respectfully requesting that the Court enjoin the election approved by the State Department of Education or enjoin the State Board from performing its ministerial duties under A. C.A. 6-13-1505( a) relative to the creation of a new district out of the PCSSD. Respectfully submitted, Clayton Blackstock Mark Burnette MITCHELL,BLACKSTOCK,BARNES WAGONER &amp; IVERS 1010 West Third P. 0. Box 1510 Little kock, AR 72203-1510 (501) 378-7870 By:2?7~~ Mark Burnette ABN # 88078 Certificate of Service A true and accurate copy of the foregoing has been mailed to the following by U.S. Mail, postage paid, on this jJ_.,IJ.,jay of~ ,.z4: , 2003: Mr. Samuel Jones, III Wright, Lindsey &amp; Jennings 200 W. Capitol, Suite 2000 Little Rock, AR 72201 Mr. John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Richard Roachell 20 Nottingham, #3 Little Rock, AR 72205 James M. Llewellyn, Jr. Thompson &amp; Llewellyn 412 South Eighteenth Street P. 0. Box 818 Fort Smith, AR 72902-0818 Dennis R. Hansen Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street, Suite 200 Little Rock, AR 72201 John Clayburn Fendley, Jr. Friday, Eldredge &amp; Clark 2000 Regions Center 400 W. Capitol A venue Little Rock, AR 72201 Sharon Carden Streett Streett Law Offices P. 0. Box 250418 Little Rock, AR 72225-0418 I Mr. Christopher Heller Friday, Eldredge &amp; Clark 400 W. Capitol, Suite 2000 Little Rock, AR 72201 Mr. Stephen W. Jones Jack, Lyon &amp; Jones 425 W. Capitol , Suite 3400 Little Rock, AR 72201 Ms. Ann Marshall One Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 William P. Thompson Thompson &amp; Llewellyn, P.A. 412 South Eighteenth Street P. 0. Box 818 Fort Smith, AR 72902-0818 Mark Arnold Hagemeier Arkansas Attorney General 's Office Catlett-Prien Tower Building 323 Center Street, Suite 200 Little Rock, AR 72201 Norman J. Chachkin NAACP Legal Defense &amp; Educ. Fund, Inc. 99 Hudson Street, Suite 1600 New York, NY 10013 By: 72ld, ~ Mark Burnette BAR NO. 88078 RECEIVED AUG 1 2 2003 - OFFICE OF DESEGREGATION MONITORING 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. ORDER FIL.ED U.S. DISTR1'.::T COURT EASTEP.N 01sr:::1CT ARKANSAS AUG 1 l 2003 JAME~LERK By:7 ~~ PLAINTIFF DEFENDANTS INTERVENORS INTER VEN ORS Pending is Senior Assistant Attorney General Timothy G. Gauger's Request for Entry of Appearance (Doc. No. 3772) as additional counsel of record for the Arkansas Department of Education for the limited purpose of addressing the PCSSD's "Fourth Motion to Enforce Settlement Agreement and for Allied Relief." The Request for Entry of Appearance by Mr. Gauger for the above mentioned limited purpose is GRANTED. IT IS SO ORDERED this 11th day of August, 2003 . UNITED ST ATES DISTRICT JUDGE THIS DOCUMENT ENTERED GN DOCKET SHE:ET IN COM.PLIANCE WIT~1RULffe 58 AND/OR79-) FRCP ON it II {_p3 BY ~ -7-r-'"'-.::_.:..... _ WILL BOND NEIL CHAMBERLIN VIA AND BOND &amp; CHAMBERLIN TRIAL LAWYERS 602 W. MAIN JACKSONVILLE, ARKANSAS 72076 August 11 , 2003 The onorable William R. Wilson , Jr. 60 W. Capitol , Room 423 ittle Rock , AR 72201 TELEPHONE: (501) 982-9411 FAX: (501 ) 982-9414 RECEIVED AUG 12 2003 OFACEOF DESEGREGATION MONITORING RE : Little Rock School District v . Pulaski County School District , et al ., United States District Court , Eastern District of Arkansas , Western Division , Case No . 4 : 82CV00866WRW - August 18th Hearing Dear Judge Wilson : One of the Intervenors ' counsel , Clay Fendley , has had a vacation scheduled for quite some time . He cannot move his vacation . The vacation conflicts with the August 18 th hearing date . Can Mr . Fendley be a part of the hearing via telephone or video conference? Any help with accommodating the Intervenors would be greatly appreciated . est Regards , TWB :tt Enclosure(s) cc : All Counsel school district detachment\judge wilson.aug.11 .03 RECENEO r~ "J - ~; -~ ) It" :J !. !.':'""' ! ~.:... . EA u.s. DISTR1cr CcuRT - . - STERN OISTR1CT AR MN SAS 2, 1uu1 IN THE UNITED STATES DISTRICT COURT ~\.\G l EASTERN DISTRICT OF ARKANSAS JAMES W. McCORMACK CLERK Off\Ct Of Ql\\ll\i WESTERN DIVISION By: , , n~itGRtG~1\0" ~Qll\1 c..EP CLER. rnTLE ROCK SCHOOL DISTRICT PLAINTIFF V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. GREG BOLLEN, ET AL. DEFENDANT INTERVENORS INTERVENORS MOVANT/INTERVENORS MOTION TO WITHDRAW AS COUNSEL AND FOR SUBSTITUTION OF COUNSEL Come the Knight Intervenors, by and through their undersigned counsel, and for their Motion to Withdraw as Counsel and for Substitution of Counsel, state: 1. The Knight Intervenor's former counsel, Richard W. Roachell, has retired from the practice of law, and therefore requests to withdraw as counsel for the Knight Intervenors. 2. Intervenors have engaged Clayton Blackstock and Mark Burnette, MITCHELL, BLACKSTOCK, BARNES, WAGONER, IVERS, &amp; SNEDDON, PLLC, 1010 West Third Street, Little Rock, Arkansas 72201, (501) 378-7870, as counsel to replace Mr. Roachell in this matter. 3. Intervenors request that the Court and parties direct all future services and correspondence to Mark Burnette. WHEREFORE, Knight Intervenors respectfully request that the Court grant the Motion to Withdraw as Counsel and for Substitution of Counsel and that Clayton Blackstock and Mark Burnette be substituted as their counsel of record. Respectfully submitted, Clayton Blackstock Mark Burnette MITCHELL, BLACKSTOCK, BARNES WAGONER &amp; IVERS 1010 West Third P. 0 . Box 1510 Little Rock, AR 72203-1510 (501) 378-7870 By: Z?lrklhta~K Mark Burnette ABN # 88078 Certificate of Service A true and accurate copy of the foregoing has been mailed to the following by U.S. Mail, postage paid, on this -/ /--11ciay of ~'!,Av ,'.&gt;-: , 2003: Mr. Samuel Jones, III Wright, Lindsey &amp; Jennings 200 W. Capitol, Suite 2000 Little Rock, AR 72201 Mr. John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Richard Roachell 20 Nottingham, #3 Little Rock, AR 72205 James M. Llewellyn, Jr. Thompson &amp; Llewellyn 412 South Eighteenth Street P. 0. Box 818 Fort Smith, AR 72902-0818 Dennis R. Hansen Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street, Suite 200 Little Rock, AR 72201 John Clayburn Fendley, Jr. Friday, Eldredge &amp; Clark 2000 Regions Center 400 W. Capitol A venue Little Rock, AR 72201 Sharon Carden Streett Streett Law Offices P. 0. Box 250418 Little Rock, AR 72225-0418 I Mr. Christopher Heller Friday, Eldredge &amp; Clark 400 W. Capitol, Suite 2000 Little Rock, AR 72201 Mr. Stephen W. Jones Jack, Lyon &amp; Jones 425 W. Capitol , Suite 3400 Little Rock, AR 72201 Ms. Ann Marshall One Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 William P. Thompson Thompson &amp; Llewellyn, P.A. 412 South Eighteenth Street P. 0. Box 818 Fort Smith, AR 72902-0818 Mark Arnold Hagemeier Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street, Suite 200 Little Rock, AR 72201 Norman J. Chachkin NAAC.? Legai Defense &amp; Educ. Fund, Inc. 99 Hudson Street, Suite 1600 New York, NY 10013 By: 2nw.JP~ Mark Burnette BAR NO. 88078 EDWARD L. WRIGHT (1903-1977) ROBERT S. LINDSEY (1913-1991) ISAAC A. SCOTT, JR. JOHN G. LILE WRIGHT, LINDSEY &amp; JENNINGS LLP ATTORNEYS AT LAW GORDON S. RATHER, JR . ROGER A. GLASGOW C. DOUGLAS BUFORD, JR . PATRICK J. GOSS ALSTON JENNINGS , JR. JOHN R. TISDALE KATHLYN GRAVES M. SAMUEL JONES 111 JOHN WILLIAM SPIVEY Ill LEE J. MULDROW N.M. NORTON CHARLES C. PRICE CHARLEST . COLEMAN JAMES J. GLOVER EDWIN L. LOWTHER, JR . WALTER E. MAY GREGORY T . JONES H. KEITH MORRISON BETTINA E. BROWNSTEIN WALTER McSPADDEN JOHN D. DAVIS I.UDY SIMMONS HENRY VIA HAND DELIVERY The Honorable Wm. R. Wilson, Jr. U.S. District Courthouse 600 West Capitol Avenue, Suite 360 Little Rock; Arkansas 72201 200 WEST CAPITOL A VENUE SUITE 2300 LITTLE ROCK, ARKANSAS 72201 - 3699 (501) 371-0808 FAX (501) 376- 9442 www . wlj.com OF COUNSEL ALSTON JENNINGS RONALD A. MAY BRUCE R . LINDSEY JAMES R. VAN DOVER Writer 's Direct Dial No . 501 -2 12 - 1273 mjoncs@wlj .com August 11, 2003 Re: Little Rock School District v. Pulaski County Special School District; et al. USDC Docket No.: 4:82CV00866WRW Dear Judge Wilson: KIMBERLY WOOD TUCKER RAY F. COX . JR . TROY A. PRICE PATRICIA SIEVERS HARRIS KATHRYN A. PRYOR J. MARK DAVIS CLAIRE SHOWS HANCOCK KEVIN W. KENNEDY JERRY J. SALLINGS WILLIAM STUART JACKSON MICHAEL D. BARNES STEPHEN R. LANCASTER JUDY ROBINSON WILBER KYLE R. WILSON C . TAD BOHANNON KRISTI M. MOODY J. CHARLES DOUGHERTY M. SEAN HATCH J. ANDREW VINES JUSTIN T. ALLEN MICHELLE M. KAEMMERLING SCOTT ANDREW IRBY PATRICK D . WILSON REGINA A. SPAULDING Lict:OSt:dtopn,cdcebefrx'elbt:Ulill:ltlSate:1 h1t:at aod Tn::tDUt Ol6ce RECEIVED AUG 1 2 2003 OFFICE OF DESEGREGATION MONITOffiNG Enclosed are courtesy copies of PCSSD's response to the "Bollen lntervenors" Motion to Intervene, and memorandum in support. The original have been filed and the parties served. Thank you for your consideration in this matter. MSJ:ao Encls. cc/w/encls.: 440028-vl Cordially yours, WRIGHT, LINDSEY &amp; JENNINGS LLP ~ Honorable J. Thomas Ray (via hand delivery) All Counsel of Record (via U.S. Mail) Mr. Ray Simon (via U.S. Mail) Mr. Scott Smith (via facsimile and U.S. Mail) Mr. Will Bond (via facsimile and U.S. Mail) Mr. Mike Wilson (via facsimile and U.S. Mail) Mr. John C. Fendley, Jr. (via facsimile and U.S. Mail) Mr. Timothy Gauger (via hand delivery) Mr. Mark Burnett (via U.S. Mail) IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. GREG BOLLEN, JAMES BOLDEN, RECEIVED AUG 1 2 2003 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS MARTHA WHATLEY and SUE ANN WHISKER MOV ANTS/INTERVENORS PCSSD RESPONSE TO THE "BOLLEN INTERVENORS" MOTION TO INTERVENE PCSSD for its response, states: 1. Admit that the movants seek to intervene pursuant to Fed. R. Civ. P. 24(a)(2). 2. Generally admits the allegations contained in Paragraph 2 but deny that the movants' "interest" is sufficiently unique to warrant intervention and states that the interest set forth parallel those of the Arkansas Board of Education which is already a party to this matter. 3. Admits that a new district cannot be created without an election but reiterates its position that the constitutional scheme pursued by the movants is both unconstitutional and violative of the 1989 Settlement Agreement. 4. Denies the allegations contained in Paragraph 4. S. Admits the allegations contained in Paragraph 5. 6. Admits the allegations contained in Paragraph 6. 439522-v1 WHEREFORE, the PCSSD prays that the motion be denied and for all proper relief. Respectfully submitted, WRIGHT, LINDSEY &amp; JENNINGS LLP 200 West Capitol Avenue, Suite 2300 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442 Jones III (7 or Pulaski oun Special trict CERTIFICATE OF SERVICE On August)!_, 2003, a copy of the foregoing was served via hand delivery on Mr. Timothy Gauger, Assistant Attorney General, 323 Center Street, Suite 200, Little Rock, Arkansas 72201. via facsimile and U.S. Mail on the following: Mr. Scott Smith General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Mr. John C. Fendley, Jr. John C. Fendley, Jr., P.A. 51 Wingate Drive Little Rock, AR 72205 and via U.S. Mail on the following: Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 439522-v1 2 Mr. Mike Wilson Mr. Will Bond 602 W. Main Jacksonville, AR 72076 Mr. Mark A. Hagemeier Assistant Attorney General Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Christopher Heller Friday, Eldredge &amp; Clark 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Mr. Ray Simon Director of the Arkansas Department of Education 4 State Capitol Mall Little Rock, Arkansas 72201-1071 439522-v1 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Mr. Mark Burnett 1010 W. Third Street Little Rock, AR 72201 3 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KA THERINE KNIGHT, ET AL. GREG BOLLEN, JAMES BOLDEN, RECEIVED AUG 1 2 2003 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS MARTHA WHATLEY and SUE ANN WHISKER MOV ANTS/INTERVENORS PCSSD MEMORANDUM IN SUPPORT OF ITS RESPONSE TO THE "BOLLEN INTERVENORS" MOTION TO INTERVENE The State has now filed its response to the PCSSD Fourth Motion to Enforce Settlement Agreement and for Allied Relief. The PCSSD movants, which include certain Board members in both their official and individual capacities, believe that the response of the State demonstrates that the State will adequately and properly represent the interests of the "Bollen Intervenors" on all issues presented in this action. Interestingly, however, the upshot of the Bollen Intervenors claims to intervene demonstrate that this matter must be ripe for adjudication; otherwise, they could not currently assert, with any logical force, a compelling need to intervene now. Accordingly, the PCSSD movants submit that the force and vigor of the Bollen Intervenors' position re-enforces the notion that the issues presented by the PCSSD movants 440038-v1 - are ripe for consideration and for the best interest of all of the parties to this case, and those interested in the outcome of these issues, these matters should be adjudicated now rather than at some distant point in the future. Stated another way, if the "disposition of the action may as a practical matter impair or impede the applicants' ability to protect [its] interest", then there must be legitimate and cogent reasons why the intervention is being sought now rather than after the election. The intervenors cannot have it both ways. Accordingly, their motion to intervene is a legal statement that the Court should adjudicate the issues now rather than later. 440038-v1 Respectfully submitted, WRIGHT, LINDSEY &amp; JENNINGS LLP 200 West Capitol Avenue, Suite 2300 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442 nty Special 2 CERTIFICATE OF SERVICE On August LL, 2003, a copy of the foregoing was served via hand delivery on Mr. Timothy Gauger, Assistant Attorney General, 323 Center Street, Suite 200, Little Rock, Arkansas 72201. via facsimile and U.S. Mail on the following: Mr. Scott Smith General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Mr. John C. Fendley, Jr. John C. Fendley, Jr., P.A. 51 Wingate Drive Little Rock, AR 72205 and via U.S. Mail on the following: Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 Mr. Christopher Heller Friday, Eldredge &amp; Clark 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Mr. Ray Simon Director of the Arkansas Department of Education 4 State Capitol Mall Little Rock, Arkansas 72201-1071 440038-v1 Mr. Mike Wilson Mr. Will Bond 602 W. Main Jacksonville, AR 72076 Mr. Mark A. Hagemeier Assistant Attorney General Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Mr. Mark Burnett 1010 W. Third Street Little Rock, AR 72201 M. ~ es III : 3 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHf, ET AL. GREG BOLLEN, JAMES BOLDEN, MARTHA WHATLEY AND SUE ANN WHISKER MOTION TO DISMISS RECEIVED AUG 11 2003 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS INTERVENORS THE PCSSD'S FOURTH MOTION TO ENFORCE SETTLEMENT AGREEMENT - Greg Bollen, James Bolden, Martha Whatley and Sue Ann Whisker (hereinafter the "Bollen Intervenors") for their Motion to Dismiss the PCSSD's Fourth Motion to Enforce Settlement Agreement state: 1. The Bollen Intervenors seek to create a new school district in northeast Pulaski County by detaching territory from the PCSSD through the process set forth in Ark. Code Ann. 6-13-1501 through 1505 (Michie Supp. 2002). In accord with that process,1 the State Board 1The election will be the fourth step in the process established by Ark. Code Ann. 6- 13-1501 through 1505. The Bollen Intervenors initiated the process by commissioning an independent feasibility study. Next, they gathered petition signatures and submitted them to the State Board of Education, along with additional information required by statute. Third, on July 14, 2003, the State Board of Education held a hearing on the petition, found it complied with the detachment statute and voted to order an election. Page 1 of 4 of Education on July 16, 20032 ordered an election to be held September 16, 2003 so that voters residing in the proposed new school district may vote on whether to detach from the PCSSD. If a majority of voters favor detachment, the State Board of Education will order the creation of the new district. See Ark. Code Ann. 6-13-1505(a). 2. In its Fourth Motion to Enforce Settlement Agreement, the PCSSD argues that detachment will violate the Court's Consent Decree arising out of the parties' 1989 Settlement Agreement and asks this Court to order the State Board of Education to rescind its July 16, 2003 order and to stop the September 16, 2003 election on detachment. 3. Also in the PCSSD's Fourth Motion to Enforce Settlement Agreement, individual PCSSD board members claim that the detachment statute denies them due process and equal protection because only those residing in the territory to be detached will be permitted to vote in the September 16, 2003 election. See PCSSD's Motion, ,r 9. 4. This Court lacks jurisdiction over both the PCSSD's claims based on the Consent Decree and the individual board members' claims based on the U.S. Constitution. The Court has no jurisdiction over the PCSSD's claims because the PCSSD's alleged harm (detachment) is contingent upon a majority of voters approving detachment, and therefore, the PCSSD's claims are not ripe for adjudication. The Court has no jurisdiction over the individual board members' claims because their claims do not implicate the Consent Decree and because the board members, in their individual capacities, are not parties to this case. For these reasons, the PCSSD's Fourth Motion to Enforce Settlement Agreement should be dismissed. 2Although the hearing was July 14, 2003, the State Board of Education did not actually issue its order until July 16, 2003. Page2 of 4 WHEREFORE, the Bollen Intervenors pray that the PCSSD's Fourth Motion to Enforce Settlement Agreement be dismissed; that they be awarded their costs and attorneys' fees expended herein; and that they be awarded all other just and proper relief to which they may be entitled. Respectfully Submitted, Greg Bollen, James Bolden, Martha Whatley &amp; Sue Ellen Whisker Mike Wilson 602 W. Main Street Jacksonville, AR 72076 (501) 982'.'9411 Will Bond Bond &amp; Chamberlin 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 John C. Fendley, Jr. John C. Fendley, Jr. P.A. 51 Wingate Drive Little Rock, AR 72205 (501) 907-9797 Attorneys for the Bollen Intervenors BY: t!: c. 9-w1ll V[&lt; ~ ~ C. Fendley.Jr. Page 3 of 4 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people via handdelivery on August 11, 2003: Mr. Christopher Heller Friday, Eldredge &amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201 Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey &amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON &amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-34 72 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaz.a 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Timothy Gauger Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark A. Hagemeier Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark Burnette Mitchell, Blackstock, Barnes, Wagoner, Ivers &amp; Sneddon 1010 W. Third Street Little Rock, AR 72201 Mr. Scott Smith General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Page 4 of 4 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DNISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. GREG BOLLEN, JAMES BOLDEN, MARTHA WHATLEY AND SUE ANN WHISKER PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS INTERVENORS MEMORANDUM BRIEF IN SUPPORT OF MOTION TO DISMISS THE PCSSD'S FOURTH MOTION TO ENFORCE SETTLEMENT AGREEMENT - I. Ripeness. This Court must presume that it lacks jurisdiction "unless 'the contrary appears affirmatively from the record."' Bender v. Williamsport Area School Dist., 475 U.S. 534,546 (1986) (quoting King Bridge Co. v. Otoe County, 120 U.S. 225,226 (1887)). "It is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers." Bender, supra, at 546, n. 8 (quoting Warth v. Seldin, 422 U.S. 490, 517-518 (1975)). The PCSSD fails to allege facts demonstrating that its Fourth Motion to Enforce Settlement Agreement is ripe for adjudication. "The basic rationale of the ripeness doctrine is 'to prevent the courts, through avoidance Page I of 6 of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effect felt in a concrete way by the challenging parties."' National Right to Life Political Action Committee v. Conner, 323 F.3d 684,692 (8th Cir. 2003) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967), overruled on other grounds by Califano y. Sanders, 430 U.S. 99 (1977)). Consistent with this rationale, "courts deciding whether a dispute is ripe should consider (1) the hardship to the plaintiff caused by delayed review; (2) the extent to which judicial intervention would interfere with administrative action; and (3) whether the court would benefit from further factual development." Id. Each of the three factors weighs in favor of a finding that the PCSSD's motion is not ripe. First, the PCSSD will suffer no hardship by delaying review until after the September 16, 2003 election. The detachment statute requires this Court's approval before detachment may actually take place. See Ark. Code Ann. 6-13-1505(b)(2). Consequently, the PCSSD will not suffer any harm before this Court has an opportunity to resolve the issues raised in its Fourth Motion to Enforce Settlement Agreement. Next, this Court granting the relief sought by the PCSSD would substantially interfere with administrative action taken by the State Board of Education. The State Board of Education ordered an election based on its finding that the Bollen Intervenors satisfied the requirements of the detachment statute. The PCSSD's request that the State Board of Education be directed to rescind its order would, if granted, directly interfere with the State Board of Education's action taken pursuant to state law. Page 2 of 6 Finally, this Court could benefit from further factual development, in that the Court needs to wait and see whether the voters approve detachment. If they do not, the PCSSD's motion will be rendered moot. It is well-settled that "[a] claim is not ripe for adjudication if it rests upon 'contingent future events that may not occur as anticipated, or indeed may not occur at all."' Texas v. United States, 523 U.S. 296, 300 (1998)(quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985)). The PCSSD's Fourth Motion to Enforce Settlement Agreement is not ripe for adjudication because the alleged harm is contingent upon voter approval of detachment in the September 16, 2003 election ordered by the State Board of Education. Accordingly, this Court lacks jurisdiction to hear the motion, and it should be dismissed. n. Individual Board Member Claims. The PCSSD may argue that a live controversy exists based on the constitutional claims made by individual PCSSD board members. In their individual capacities, they claim that the detachment statute denies them due process and equal protection because only those residing in the territory to be detached will be permitted to vote in the September 16, 2003 election. See PCSSD's Motion, ,i 9. However, this Court does not have jurisdiction to decide these claims as a part of the present case for two reasons. First, this Court's remedial authority is limited to interpretation and enforcement1 of its Consent Decree. Knight v. PCSSD, 112 F.3d 953, 955 (8th Cir. 1997). In that case, this Court (the Honorable Susan Webber Wright) enjoined a strike by the PCSSD's teachers. The teachers 1Enforcement includes modification of the Consent Decree based on changed factual circumstances. See Rufo v. Inmates of the Suffolk County Jail. 502 U.S. 367,388 (1992). Page 3 of 6 appealed, and the Eighth Circuit noted that the Consent Decree does not address the teachers' right to strike and reversed holding, "The jurisdiction of the District Court to enforce [the Consent Decree] does not include the authority to resolve other disputes among the parties or to adjust their legal rights and responsibilities arising from other sources." Id. Similarly, the individual board members' constitutional claims have nothing to do with the Consent Decree. They allege that the detachment statute denies them due process and equal protection because they cannot vote in the detachment election. The Consent Decree simply does not address who should be permitted to vote in a detachment election. Therefore, this Court does not have jurisdiction to address the constitutional claims being asserted by the individual board members. Second, this Court lacks jurisdiction over the constitutional claims of the board members because they are not parties to this case in their individual capacities. See Bender v. Williamsport Area School Dist., 475 U.S. 534, 543-44 (1986)(individual school board member sued in his official capacity lacks standing to appeal grant of declaratory judgment against school district); Doe v. Claiborne County, Tenn., 103 F.3d 495, 511 (6th Cir. 1996) (individual school board members cannot act under of color of state law as required for liability under 1983 ); Ark. Code Ann. 6-13-620 (establishing the power and duties of school boards). To pursue their individual claims, the board members must file a separate case. m. Conclusion .. In sum, this Court lacks jurisdiction over both the PCSSD's claims based on the Consent Decree and the individual board members' claims based on the U.S. Constitution. The Court has no jurisdiction over the PCSSD's claims because the PCSSD's alleged harm (detachment) is Page4 of 6 contingent upon a majority of voters approving detachment, and therefore, the PCSSD's claims are not ripe for adjudication. The Court has no jurisdiction over the individual board members' claims because the claims do not implicate the Consent Decree and because the board members, in their individual capacities, are not parties to this case. For these reasons, the PCSSD's Motion to Fourth Enforce Settlement Agreement should be dismissed. Respectfully Submitted, Greg Bollen, James Bolden, Martha Whatley &amp; Sue Ellen Whisker Mike Wilson 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 Will Bond Bond &amp; Chamberlin 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 John C. Fendley, Jr. John C. Fendley, Jr. P.A. 51 Wingate Drive Little Rock, AR 72205 (501) 907-9797 Attorneys for the Bollen Intervenors Page 5 of 6 ------ - - -- - CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people via handdelivery on August 11, 2003: Mr. Christopher Heller Friday, Eldredge &amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201 Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey &amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON &amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-34 72 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Timothy Gauger Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark A. Hagemeier Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark Burnette Mitchell, Blackstock, Barnes, Wagoner, Ivers &amp; Sneddon 1010 W. Third Street Little Rock, AR 72201 Mr. Scott Smith General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 ~hnC.. F en~dley,J~r. ,~ Page 6 of 6 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION L!TI1..,E ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. GREG BOLLEN, JAMES BOLDEN, MARTHA WHATLEY AND SUE ANN WHISKER THE BOLLEN INTERVENORS' RESPONSE TO RECE\\JED AUG 11 1003 Off\CE Of OESEGREG~i\ON MONliORlltG PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS INTERVENORS THE PCSSD'S STATEMENT OF MATERIAL FACTS RELATED TO THE PCSSD'S FOURTH MOTION TO ENFORCE SETTLEMENT AGREEMENT The Bollen Intervenors hereby respond in turn to each numbered paragraph of the PCSSD's Statement of Material Facts related to the PCSSD's Fourth Motion to Enforce Settlement Agreement: 1. Admitted. 2. Admitted. 3. The Bollen Intervenors believe that the boundary adjustment occurred June 19, 1986 and that it involved 14 schools, but are without sufficient information to admit or deny whether it caused the PCS SD to lost one-third of its tax base. 4. Admitted. Page 1 of 6 - - 5. 6. 7. 8. 9. 10. 11. Admitted. Admitted. Admitted. Admitted. Admitted. Admitted. Admitted. 12. The Bollen Intervenors admit that the State's attorney and Senator Howell were reported by the Arkansas Gazette to have made the alleged statements. 13. Admitted. 14. The Bollen Intervenors admit that the Arkansas Democrat reported as alleged. 15. Admitted. 16. Admitted. 17. Admitted. 18. Admitted. 19. Admitted. 20. Admitted. 21. Admitted. 22. Admitted. 23. Admitted. 24. The Bollen Intervenors admit that the General Assembly enacted Ark. Code Ann. 6-13-1501, et~- They deny the remaining allegations contained in paragraph 24. Page 2 of 6 25. The Bollen Intervenors admit that an initial feasibility study was completed on or about November 21, 2002. They deny the remaining allegations in paragraph 25. 26. The Bollen Intervenors admit that the initial feasibility study examined three alternatives for detachment and recommended alternative one be selected. They deny all remaining allegations in paragraph 26. 27. The Bollen Intervenors admit that an addendum dated February 25, 2003 completed and added to the November 21, 2002 feasibility study. They deny all remaining allegations in paragraph 27. 28. The Bollen Intervenors admit that a petition drive was commenced after the completion of the February 25, 2003 addendum and admit that subsequently the petition drive was concluded and petitions were delivered to the Arkansas Department of Education on May 19, 2003. 29. The Bollen Intervenors admit that the legislature approved an amendment to Ark. Code Ann. 6-13- 1501, et seq. adding a criterium allowing detachment from school districts which encompass a total area of seven hundred square miles or more. They deny all remaining allegations in 29 and affirmatively assert that there is at least one other school district in excess of seven hundred square miles. 30. Admitted. 31. The Bollen Intervenors admit that the Attorney General's office rendered its first opinion letter on June 4, 2003. The letter speaks for itself, and they deny the allegations contained in this paragraph to the extent inconsistent therewith. 32. The Bollen Intervenors admit that the State Board of Education conducted a Page 3 of 6 hearing on or about June 9, 2003. That hearing was recorded and is being transcribed, and the transcript will speak for itself. They deny all remaining allegations in paragraph 32. 33. The Bollen Intervenors admit that supplemental materials were provided to the State Board of Education and to the Attorney General's office on or about June 27, 2003. They deny the remaining allegations in paragraph 33. 34. The Bollen Intervenors admit that on or about July 11, 2003 the Attorney General issued an opinion concerning the issue of detachment and the effect of detachment on desegregation. They state that the Attorney General's opinion speaks for itself. They deny the remaining allegations in paragraph 34. 35. Admitted. 36. Admitted. 37. Admitted. 38. Admitted. 39. Admitted. Page 4 of 6 Respectfully Submitted, Greg Bollen, James Bolden, Martha Whatley &amp; Sue Ellen Whisker Mike Wilson 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 Will Bond Bond &amp; Chamberlin 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 John C. Fendley, Jr. John C. Fendley, Jr. P.A. 51 Wingate Drive Little Rock, AR 72205 (501) 907-9797 Attorneys for Movants BY 7Jb. {!__ '}f2J_pA{, ~. ;c. Fendley, Jr. Page 5 of 6 ., 4 ' .... CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people via handdelivery on August 11, 2003: Mr. Christopher Heller Friday, Eldredge &amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201 Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey &amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON &amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Timothy Gauger Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark A. Hagemeier Assistant Attorney General Office of the Attorney General 3 23 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark Burnette Mitchell, Blackstock, Barnes, Wagoner, Ivers &amp; Sneddon 1010 W. Third Street Little Rock, AR 72201 Mr. Scott Smith General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Page 6 of 6 IN THE UNIIBD STAIBS DISTRICT COURT EASIBRN DISTRICT OF ARKANSAS WESIBRN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MRS. LORENE JOSHUA, ET AL. KA THERINE KNIGHT, ET AL. GREG BOLLEN, JAMES BOLDEN, MARTHA WHATLEY AND SUE ANN WHISKER MEMORANDUM BRIEF IN SUPPORT OF THE BOLLEN INIBRVENORS RESPONSE TO RECEIVED AUG 11 2003 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INIBRVENORS INTERVENORS INTERVENORS THE PCSSD'S FOURTH MOTION TO ENFORCE SETTLEMENT AGREEMENT I. The Consent Decree. A. Interpretation of Consent Decrees. "[C]onsent decrees bear some of the earmarks of judgments entered after litigation. At the same time, because their terms are arrived at through mutual agreement of the parties, consent decrees also closely resemble contracts." Int'! Ass'n of Firefighters v. City of Cleveland, 4 78 U.S. 501, 519 (1986). For purposes of interpretation and enforcement, judicially approved consent decrees are generally treated like contracts, United States v. City of Fort Smith, 760 F.2d 231, 233-34 (8th Cir. 1985), and fundamental principles of contract interpretation under state law govern their interpretation. United States v. City of Northlake, 942 F.2d 1164, 1167 (7th Cir. 1991 ). Even so, "[t]he interpretation of a consent decree should be a practical enterprise, Page 1 of 14 influenced, perhaps, by technical rules of construction, but not controlled by them." LRSD v. PCSSD, 60 F.3d 435, 436 (8th Cir. 1995). B. Section II. J. The PCS SD argues that Section II. J. of the 1989 Settlement Agreement prohibits detachment of territory from the PCSSD to create a new school district. Section II. J. provides: The State, Joshua and the LRSD recognize that PCSSD and NLRSD are independent, sovereign desegregating school districts operating pursuant to court orders and agreements and that this agreement is both necessary and desirable to facilitate their desegregation activities as well as their cooperative desegregation activities with the LRSD and others. 1989 Settlement Agreement, p. 9. The PCSSD contends that, by recognizing the PCSSD as an "independent, sovereign desegregating school district[]," the parties intended to prohibit "any new usurpation of [the PCSSD' s] territory, facilities and assets . ... " PCSSD Brief, p. 2. Apparently believing that Section II. J. is ambiguous, the PCSSD purports to provide the Court with extrinsic evidence of the parties' intent. See City ofNorthlake, 942 F.2d atl 167. In fact, the PCS SD provides the Court a series of newspaper articles and letters, none of which directly address the parties' intent. Rather, they show that various persons in the media and Legislature speculated that Section II. J. could preclude future consolidation of the three Pulaski County school districts, and if so, thought that was a bad idea. See, ~. PCSSD Exhibit 6 (indicating that Section II. J. "could become an impediment to a countywide consolidation in the future, and if so it is an unfortunate provision."). This speculation is inadmissible hearsay and should not be considered by the Court. See Fed. R. Evid. 801 and 802. Moreover, even assuming the speculation was correct, it would only prove that Section II. J. was intended to prevent consolidation of the three Pulaski County school districts. It does not establish that Page 2 of 14 Section Il. J. was intended to prohibit "any new usurpation of [the PCSSD' s) territory, facilities and assets ... ," as alleged by the PCSSD. The only evidence of intent the Bollen Intervenors have been able to locate to date1 comes from hearings before the Court's Special Master, Aubrey McCutcheon, during which the parties explained to Special Master McCutcheon the provisions of the 1989 Settlement Agreement. In an April 19, 1989 hearing, McCutcheon described his understanding of Section Il. J. as follows: I am also recommending to the court with respect to the settlement that the language in the settlement not be treated as imposing an absolute restriction on the consideration of any particular type of school, whether it be magnet, interdistrict school, consolidation, anything else. That the language in the settlement agreement that refers to the sovereignty and independence of the districts be considered just that, language which acknowledges the current status, but does not in any way infringe on the court's jurisdiction to determine whether or not there ought to be a merger of certain Junctions for the purpose of being more cost effective and more desegregative and a wiser use of the spending of the money. $120 million is a lot of money, and we ought to see to it that it is spent wisely and carefully, along with any other monies that are spent by the school districts as a part of their implementation of the desegregation responsibilities. See Exhibit 1 attached hereto, p. 22-23 (emphasis supplied). Special Master McCutcheon's interpretation is consistent with the plain language of Section II. J. Section II. J. was written in the present tense. It would have been easy to include language specifically prohibiting future consolidation or any other usurpation of the PCSSD's power, territory or assets, but no such language was included. Regardless of what was meant by "sovereign, independent school district[)," Section II. J. was unambiguously limited to the present and did not address future usurpations of the power, territory or assets of the PCSSD. Therefore, Section II. J. does not prohibit, 14 years later, the detachment of territory from the 1If the Court agrees with PCSSD that Section II. J. is ambiguous, the Bollen Intervenors respectfully request a reasonable amount of time to conduct discovery on this issue. Page 3 of 14 PCSSD to create a new school district. C. Section II. L. The PCSSD' s argument that detachment violates Section II. L. of the 1989 Settlement Agreement is answered in the discussion of the alleged negative impact on desegregation in Section III of this brief. II. Egual Protection. A. Introduction. Tue individual PCSSD board members argue that the detachment statute violates the Equal Protection Clause of the Constitution because it provides that only those "residing in the territory to be detached shall be entitled to vote in the election" on detachment. See Ark. Code Ann. 6-13-1504(3). Their argument fails because they have no constitutional right to vote on detachment. See Hunter v. City of Pittsburgh, 201 U.S. 161, 178 (1907). Since no constitutional right is at stake, the question before this Court is whether the detachment statute is rationally related to a legitimate governmental objective. Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 70 (1978)(applying rational basis review to a State statute granting authority to a cities over nonresidents who were unable to vote in city elections); Burdick v. Takushi, 504 U.S. 428,433 (1992)(setting forth the standard for challenges to election laws generally). The detachment statute should be upheld because it is rationally related to a legitimate governmental objective -- encouraging community support for education. Tue detachment statute encourages community support for education by providing small communities in large school districts a mechanism for assuming control of their schools. See Ark. Code Ann. 6-13- 1501 (a)(l ). Tue election required by the detachment statute serves this objective by testing the Page 4 of 14 community's support for detachment. B. No Substantive Constitutional Right at Stake. The individual PCS SD board members have no constitutional right to vote on detachment. School districts are political subdivisions of the State of Arkansas, and the State of Arkansas has discretion to decide the "nwnber, nature and duration of powers" conferred upon school districts and ''the territory over which they shall be exercised." Id. at 178. See Sailors v. Bd. of Educ. of County of Kent, 387 U.S. 105 (1967) (applying Hunter to school districts). In exercising this discretion, the State of Arkansas "at its pleasure may modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it . .. " Hunter, 201 U. S. at 178 ( emphasis supplied). Moreover, "all this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest." Id. (emphasis supplied). In this case, the State of Arkansas conditioned detachment on an election in which a majority of voters favor detachment. See Ark. Code Ann. 6-13-1504(3). It imposed a residence requirement consistent with the purpose of the election -- to confirm support for detachment in the territory to be detached. Given the purpose of the election, it would not make sense to allow persons to vote who reside outside the territory to be detached. It is beyond dispute ''that the States have the power to require that voters be bona fide residents of the relevant political subdivision." Dunn v. Blwnstein, 405 U.S. 330, 343-44 (1972). See Holt, 439 U.S. at 68-69 ("[O]ur cases have uniformly recognized that a government unit may legitimately restrict the right to participate in its political processes to those who reside within its borders."); Page 5 of 14 Carrington v. Rash. 380 U.S. 89, 91 (1965)("Texas has unquestioned power to impose reasonable residence restrictions on the availability of the ballot."). C. Rational Basis Review. Since the individual PCSSD board member have no constitutional right to vote on detachment, the question before this Court is whether the detachment statute is rationally related to .a legitimate governmental objective. Holt, 439 U.S. at 70; Burdick, 504 U.S. at 433. In Hol!, persons residing in Holt. an unincorporated area adjoining Tuscaloosa, Alabama, sought a declaration that a state statute was unconstitutional because it allowed Tuscaloosa to exercise police powers in Holt. They argued that the extraterritorial exercise of police powers violated the Due Process and Equal Protection Clauses because Holt residents were denied the right to vote in Tuscaloosa elections. Holt, 439 U.S. at 62-63. In determining the appropriate standard of review, the Supreme Court first distinguished cases such as Kramer v. Union Free School Dist. No. 15, 395 U.S. 621 (1969). where the challenged statute "denied the franchise to individuals who were physically resident within the boundaries of the govern.mental entity concerned." Id. at 68. It then recognized a State's power to impose reasonable residence requirements. Id. at 68- 69. Finally, the Supreme Court concluded that the State's power to impose reasonable residence requirements meant that the residents of Holt had no right to vote in Tuscaloosa elections. Id. at 70. Since there was no fundamental right at stake. it held that the statute in question was subject to rational basis review. Id. The Supreme Court went on to uphold the statute under that standard. Id. at 75. In Burdick, supra. the Supreme Court clarified the standard to be applied in a challenge to a state election law. That case involved a challenge to Hawaii's prohibition on write-in voting Page 6 of 14 based on the First and Fourteenth Amendment. Id. 504 U.S. at 430. The court first noted that not every burden on the right to vote must be subject to strict scrutiny. Id. at 432. It explained: Election laws will invariably impose some burden upon individual voters. Each provision of a code, "whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects -- at least to some degree -- the individual's right to vote and his right to associate with others for political ends." Anderson v. Celebrezze, 460 U.S. 780, 788 (1983). Consequently, to subject every voting regulation to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling state interest, as petitioner suggests, would tie the hands of States seeking to assure that elections are operated equitably and efficiently. See Brief for Petitioner 32-37. Accordingly, the mere fact that a State's system "creates barriers .. . tending to limit the field of candidates from which voters might choose ... does not of itself compel close scrutiny." Bullock v. Carter, 405 U.S. 134, 143 (1972); Anderson, supra, at 788; McDonald v. Board of Election Cornm'nrs of Chicago, 394 U.S. 802 (1969). Id. at 433-34. The court then addressed the question of when strict scrutiny would apply. It stated: A court considering a challenge to a state election law must weigh "the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate" against "the precise interests put forward by the State as justifications for the burden imposed by its rule," taking into consideration "the extent to which those interests make it necessary to burden the plaintiffs rights." Id., at 789; Tashjian, supra, at 213-214. Under this standard, the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subjected to "severe" restrictions, the regulation must be narrowly drawn to advance a state interest of compelling importance." Norman v. Reed, 502 U.S. , (1992). But when a state election law provision imposes only "reasonable, nondiscriminatory restrictions" upon the First and Fourteenth Amendment rights of voters, "the State's important regulatory interests are generally sufficient to justify" the restrictions. Anderson, supra, at 788; see also id., at 788-789, n. 9. Id. at 434. The Court went on to uphold Hawaii's prohibition on write-in voting applying Page 7 of 14 rational basis review. Id. at 441. The detachment statute should likewise be upheld based on rational basis review. For example, the California Supreme Court addressed this identical situation in the context of county government in Bd. of Supervisors v. Local Agency Formation Comm'n, Bd. of Supervisors v. Local Agency Formation Comm'n, 13 Cal. Rptr. 2d 245, 838 P.2d 1198, 3 Cal. 4th 903 (1992). In that case, the California Supreme Court rejected an equal protection challenge to California Government Code 57103. That code provision allowed unincorporated areas of a county to incorporate into a city ( detach from the county) following an election among only residents of the proposed city (the territory to be detached). Id., 3 Cal 4th at 908. County residents residing outside the territory to be detached alleged that 57103 violated the Equal Protection Clause because, although they would be impacted by detachment, it denied them the right to vote on detachment. In determining the standard ofreview, the California Supreme Court applied the flexible test described in Burdick. Id. 3 Cal 4th at 914. It noted that county residents had no right to vote on detachment because counties "are mere creatures of the state and exist only at the state's sufferance." Id. As a result, the court found that "individual interests in voting are much attenuated by the state's plenary power to oversee and regulate the formation of its political subdivisions, and the same power entitles the state to identify as differing in degrees the interests of those who may vote under 57103 and those who may not." Id. The court concluded that "the essence of this case is not the fundamental right to vote, but the state's plenary power to set the conditions under which its political subdivisions are created. For that reason, the impairment of the right to vote is insufficiently implicated to demand the application of strict scrutiny." Id. at Page 8 of 14 3 Cal. 4th at 918 (emphasis supplied). See Wit v. Berman, 306 F.3d 1256, 1259 (2nd Cir. 2002)(following Burdick and applying rational basis standard to a residence requirement). The court then looked to whether 57103 was rationally related to a legitimate governmental objective. It concluded that 57103 was rationally related to its stated objective of encouraging orderly growth and development stating: The act accommodates competing local governmental and private interests ... The election merely asks the affected residents to confirm that they desire selfgovernment To deny the Legislature the authority to let the potentially incorporating territory's voters have the final say in the matter would be to lessen political participation, not increase it. We do not believe that result is required by our federal or state Constitutions. Id. 3 Cal. 4th at 923. Accordingly, the California Supreme Court upheld the constitutionality of 57103. The detachment statute should likewise be upheld.2 The key case relied upon by the individual PCSSD Board members is Kramer v. Union - Free School Dist. No. 15, 395 U.S. 621 (1969). They argue the strict scrutiny applies simply because the state decided to hold an election, and indeed, taken out of context, some language from Kramer appears to support their argument. See Cipriano v. City of Houma, 395 U.S. 701 , 704 (citing Kramer, 395 U.S. at 629 n.11).3 However, the Supreme Court in Kramer explained 2The Florida Supreme Court reached the same result in a factually similar case. In City of Long Beach Resort v. Collins, 261 So.2d 498 (Fla. 1972), it rejected an equal protection challenge to Florida House Bill No. 5288 which permitted the consolidation of several municipalities and unincorporated areas upon a favorable vote in only the unincorporated areas. 261 So. 2d at 499. The Florida Supreme Court summarily rejected an equal protection challenge by noting that the municipalities were all created by acts of the Legislature and concluding, "This was the prerogative of the Legislature which has life and death powers over municipalities which are created, modified and can be abolished by the Legislature." Id. 261 So. 2d at 500. 3Cipriano may be distinguished on the same grounds as Kramer. It also involved a statute that "grant[ ed] the right to vote in a limited purpose election to some otherwise qualified voters and denie[d] it to others . . . " 395 U.S. at 704. Decided the same day as Kramer, the court in Page 9 of 14 that strict scrutiny "is not necessitated by the subject of the election; rather, it is required because some resident citizens are permitted to participate and some are not." 395 U.S. at 629 (emphasis supplied). Thus, while Kramer involved a state's discrimination against some bona fide residents of the relevant political subdivision, the present case involves the state's identification of the relevant political subdivision. See Dunn, 405 U.S. at 343-44. The Supreme Court in Kramer noted the difference stating: Appellant agrees that the State may impose reasonable citizenship, age, and residency requirements on the availability of the ballot. [citations omitted]. The sole issue in this case is whether the additional requirements of 2012 -requirements which prohibit some district residents who are otherwise qualified by age and citizenship from participating in district meetings and school board elections -- violate the Fourteenth Amendment's command that no State shall deny persons equal protection of the laws. Id. at 625-26 (emphasis by court). Therefore, Kramer involved a discriminatory residence requirement, whereas the detachment statute does not discriminate among residents. Kramer holds that discriminatory residence requirements are subject to strict scrutiny, and this is consistent with Burdick and Holt. The Supreme Court in Burdick stated that rational basis review only applied to "reasonable, nondiscriminatory restrictions." 504 U.S. at 434. The Supreme Court in Holt distinguished Kramer because it involved a discriminatory residence requirement. It stated, "The challenged statute in [Kramer] denied the franchise to individuals who were physically resident within the geographic boundaries of the governmental entity concerned." Holt, 439 U.S. at 68. In this case, no residents of the territory to be detached are denied the right to vote -- nonresidents are denied Cipriano stated that strict scrutiny applied "if a challenged statute grants the right to vote in a limited purpose election so some otherwise qualified voters and denies it to others." 395 U.S. at 704. Page 10 of 14 the right to vote. Accordingly, Kramer does not require strict scrutiny of the detachment statute. See Columbia River Gorge United v. Yeutter, 960 F.2d 110, 115 (9th Cir. 1992) ("The equal protection clause, however, is not violated when a geographic area is singled out for different treatment. The Supreme Court has held that 'there is no rule that counties, as counties, must be treated alike; the Equal Protection Clause relates to equal protection of the laws between individuals rather than between areas."' ( quoting Griffm v. County School Bd. of Prince Edward County. 377 U.S. 218, 230 (1964)(intemal quotation omitted))). D. Conclusion. The individual PCSSD board members have no constitutional right to vote on detachment. Hunter, 201 U.S. at 178. As a result, the detachment statute must be upheld if its is rationally related to a legitimate governmental objective. See Holt, 439 U.S. at 68-69; Burdick, 504 U.S. at 434. In this case, the State of Arkansas decided to conduct an election to test a community's support for detachment, and it logically limited the vote to those residing in the territory to be detached. This was a legitimate exercise of the State's power and should be upheld. Accordingly, the individual board members' equal protection claims should be dismissed. III. Impact on Desegregation. If the voters confirm their support for detachment in the September 16, 2003 election, the State Board of Education will order the creation of a new school district in Northeast Pulaski County and appoint a Board of Education for the district. See Ark. Code Ann. 6-l 3- 1505(b )(1 ). Before any transfer of power, property or territory to the new district, the newly appointed board must intervene in this case and agree to such orders as necessary to ensure no Page 11 of 14 negative impact on desegregation. See Ark. Code Ann. 6-13-1505(b)(l). Thus, the detachment statute has a built in mechanism to ensure no negative impact on desegregation and does not violate Section IL L. of the Settlement Agreement. Once appointed by the State Board of Education, the Board of Directors of the new district cannot exercise any power over their schools unless and until authorized by this Court. See Wright v. Council of the City ofEmpori~ 407 U.S. 451 (1972). Even so, this Court does not have authority to grant the PCSSD the relief sought -- enjoining the September 16, 2003 election -- or to otherwise prevent the State Board of Education from creating the new district. See Ross v. Houston Ind. School Dist., 583 F.2d 712, 716 (5th Cir. 1978)("The district court exceeded the ambit of its discretion when it enjoined WISD's ability to maintain its corporate existence or to pursue those of its organizational rights under state law that do not involve the independent operation of a portion ofHISD as WISD."). Rather, when and if the time comes, the issue before this Court will be the "proper role [of the new district] in the desegregation of the county system." Stout v. Jefferson County Bd. of Educ., 466 F.2d 1213, 1214 (5th Cir. 1972). The proper role of the new district will be "essentially a factual determination in any particular case." Wright, 407 U.S. at 470. The precise role that may be requested by the board of the new district cannot be determined at this time, since the board has yet to be appointed. As a result, it would be inappropriate at this time to propose solutions to the concerns raised by the PCSSD. At a minimum, however, the PCS SD and new district should be prepared for an orderly transfer of control upon the PCSSD being declared unitary. This means that the new district will need funding and personnel. It also means that the new district should assume control to the extent Page 12 of 14 practicable before the PCSSD becomes unitary. To the extent the Bollen Intervenors can speak for the future board of the new district, they want to express their sincere desire to work in good faith with the PCSSD and the other parties to reach an agreement in the best interest of all children in Pulaski County. Respectfully Submitted, Greg Bollen, James Bolden, Martha Whatley &amp; Sue Ellen Whisker Mike Wilson 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 Will Bond Bond &amp; Chamberlin 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 John C. Fendley, Jr. John C. Fendley, Jr. P.A. 51 Wingate Drive Little Rock, AR 72205 (501) 907-9797 Attorneys for the Bollen Intervenors BY:~ f_. 9--~, ~ oiu:c. Fendley, Jr . Page 13 of 14 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people via handdelivery on August 11, 2003: Mr. Christopher Heller Friday, Eldredge &amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201 Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey &amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON &amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Timothy Gauger Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark A. Hagemeier Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark Burnette Mitchell, Blackstock, Barnes, Wagoner, Ivers &amp; Sneddon 1010 W. Third Street Little Rock, AR 72201 Mr. Scott Smith General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 7220 l Page 14 of 14 EXCERPT FROM TRANSCRIPT OF PUBLIC STATUS CONFERENCE April 19, 1989 (Docket No. 1179A) Special Master Aubrey Mccutcheon Speaking Pages 21-231 1These page numbers may not correlate with the actual transcript. They are based on a copy of the transcript that had been scanned and converted to a WordPerfect document. Bollen Intervenors Exhibit 1 to Response Brief is not the limit of their responsibility to implement a constitutional desegregation plan. So, there is no reason for me to recommend disapproval of the settlement, I am recommending its approval. I am recommending, however, that the state not be dismissed from the case until they have fulfilled all of their responsibilities under the settlement. I am further recommending to the U.S. District Court that even though the court re-dedicates the millage as requested by the parties in the settlement, that those re-dedications be conditional upon the parties fulfilling their obligations under the settlement and under any court orders that arc issued to alleviate the conditions of segregation that still exist. And the obvious reason for that is that we do not want to have the court re-dedicate the millage and have the general public have to pay more money to the schools, only to find out that the schools are not fulfilling their obligations under the desegregation orders of the court, and then the school districts go back to the public and have to ask for additional monies. So, we are recommending that the court 21 make the re-dedication of millages conditional upon the satisfaction by the districts of their obligations under the agreement, the settlement agreement, as well as the other court orders. I am also recommending to the court with respect to the settlement that the language in the settlement not be treated as imposing an absolute restriction on the consideration of any particular type of school, whether it be magnet, interdistrict school, consolidation, anything else. That the language in the settlement agreement that refers to the sovereignty and independence of the districts be considered just that, language which acknowledges the current status, but does not in any way infringe on the court's jurisdiction to determine whether or not there ought to be a merger of certain functions for the purpose of being more cost effective and more desegregative and a wiser use of the spending of the money. $120 million is a lot of money, and we ought to see to it that it is spent wisely and carefully, along with any other monies that are spent by the school districts as a part of their implementation of the desegregation 22 responsibilities. There has been a lot of talk about grandfathering. There has been a lot of talk about neighborhood schools. I don't know of any definition in a school desegregation case of neighborhood schools, and I don't find one in the plans that have been submitted. I do find much language, some of which I have referred to previously, indicating that we ought to seek stability, we ought to seek predictability and continuity of assignments, which means we ought to have feeder patterns, we ought to have attendance zones, we ought to make it possible for pupils to go to school together if they live on the same street, that ought to be possible. And one way it is possible is through a concept which I will be recommending regarding the pairing of certain schools and certain grade levels. But with respect to the grandfathering and the attendance zones and the neighborhood schools, I can tell you that the plans submitted by the Little Rock School District are in some portions incomprehensible on those three topics. In other sections, they are so inconsistent that 23 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MRS. LORENE JOSHUA, ET AL. KA THERINE KNIGHT, ET AL. GREG BOLLEN, JAMES BOLDEN, MARTHA WHATLEY AND SUE ANN WHISKER THE BOLLEN INTERVENORS' RESPONSE TO RECEIVED AUG 11 2003 OFACEOF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS INTERVENORS THE PCSSD'S FOURTH MOTION TO ENFORCE SETTLEMENT AGREEMENT The Bollen Intervenors for their Response to the PCSSD's Fourth Motion to Enforce Settlement Agreement state: 1. As to paragraph 1, the Bollen Intervenors admit that the PCSSD's Board of Directors, in their official capacities, are parties to this action. The Bollen Intervenors deny that the PCS SD Board of Directors are parties to this case in their individual capacities, and their claims should be dismissed for the reasons set forth in the Bollen Intervenors' Motion to Dismiss and the accompanying brief which are hereby incorporated by reference. The Bollen Intervenors affirmatively assert that the PCSSD lacks standing to assert the constitutional claims advanced by the individual PCSSD board members. 2. As to paragraph 2, the Bollen Intervenors' Response to the PCSSD's Statement of Page 1 of 6 Material Facts is hereby incorporated by reference. 3. The Bollen Intervenors admit the allegations contained in paragraph 3 of the PCSSD's motion. 4. The Bollen Intervenors admit that this Court has continuing jurisdiction over the State of Arkansas to enforce compliance with the 1989 Settlement Agreement. They deny that the July 14, 2003 action of the State Board of Education violates any provision of the 1989 Settlement Agreement. 5. The Bollen Intervenors deny the allegations contained in paragraphs 5, 6 and 7 of the PCSSD's motion. The Bollen Intervenors affirmatively assert that the Consent Decree should be modified, if necessary, to allow creation of a new school district in Northeast Pulaski County. 6. The Bollen Intervenors admit that, if voters approve detachment in the September 16, 2003 election, the Board of Directors for the new district must intervene in this case and "obtain any and all court orders or other relief necessary to ensure that the detachment will not cause the state or any affected school district to be in violation of any orders of the court or consent orders or decrees entered into by the parties with regard to the desegregation plan." Ark. Code Ann. 6-13-1505(b)(2). The Bollen Intervenors deny the remaining allegations contained in paragraph 8 of the PCSSD's motion. 7. Th.e Bollen Intervenors deny the allegations contained in paragraphs 9, 10, 11 and 12 of the PCSSD's motion. 8. As to paragraph 13, the Bollen Intervenors admit that detachment will marginally increase the percentage of African-American students in the remaining PCSSD. They deny that Page 2 of 6 detachment will "artificially accelerate the evolution of the PCSSD to a majority black school district." 9. The Bollen Jntervenors admit that Newsweek recently recognized Mills University Studies High School as the twentieth "best" in the country. They deny the remaining allegations contained in paragraph 14 of the PCSSD's motion. 10. The Bollen Jntervenors deny the allegations contained in paragraphs 15 and 16 of the PCSSD's motion. They affirmatively assert that the new district will seek to retain teachers currently employed in schools slated for detachment and believe it is highly unlikely that all of the approximately 475 teachers will seek new positions in the remaining PCSSD. 11. The Bollen Intervenors deny the allegations contained in paragraphs 17, 18 and 19 of the PCSSD's motion. 12. The Bollen Jntervenors admit that detachment will result in the PCSSD losing approximately 6500 students. They deny the remaining allegations contained in paragraph 20 of the PCSSD's motion. 13. The Bollen Jntervenors admit that the PCSSD's current population density per square mile is approximately 25 students per square mile. They admit that the feasibility study indicated that the population density of the new district would be 53 students per square mile. The Bollen Intervenors deny the remaining allegations containing in paragraph 21 of the PCSSD's motion. 14. The Bollen Intervenors state that the State Board of Education's July 16, 2003 order speaks for itself, and deny the allegations contained in paragraph 22 of the PCSSD's motion to the extent inconsistent therewith. They deny the remaining allegations contained in Page 3 of 6 paragraph 22 of the PCSSD's motion. The Bollen Intervenors affirmatively assert that the parties' 1989 Settlement Agreement is the Consent Decree. This Court may modify the Consent Decree without the agreement of the parties under the circumstances described in Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367 (1992). If approved by a majority of voters in the September 16, 2003 election, the creation of the new district will constitute changed factual circumstances justifying modification of the Consent Decree. 15. The Bollen Intervenors admit that this Court's jurisdiction is limited to monitoring and enforcing (including modifying as necessary) its Consent Decree. They deny the remaining allegations contained in paragraph 23 of the PCSSD's motion. 16. The Bollen Intervenors deny that a "case or controversy'' exists at this time. They affirmatively assert that this case is not ripe for adjudication for the reasons set forth in their Motion to Dismiss and the accompanying brief, which are hereby incorporated by reference. 17. The Bollen lntervenors' memorandum brief accompanying this Response is hereby incorporated by reference. WHEREFORE, the Bollen Intervenors pray that the PCSSD's Fourth Motion to Enforce Settlement Agreement be denied; that, if necessary, the Consent Decree be modified to accommodate the creation of the proposed new district by detachment from the PCS SD; that they be awarded their costs and attorneys' fees expended herein; and that they be awarded all other just and proper relief to which they may be entitled. Page 4 of 6 Respectfully Submitted, Greg Bollen, James Bolden, Martha Whatley &amp; Sue Ellen Whisker Mike Wilson 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 Will Bond Bond &amp; Chamberlin 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 John C. Fendley, Jr. John C. Fendley, Jr. P.A. 51 Wingate Drive Little Rock, AR 72205 (501) 907-9797 Attorneys for the Bollen Intervenors BYJhnC:. ~~-~fr Fendley, Jr. Page 5 of 6 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people via handdelivery on August 11, 2003: Mr. Christopher Heller Friday, Eldredge &amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201 Mr. John W. Walker JOHNW. WALKER,P.A. 1 723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey &amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON &amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-34 72 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Timothy Gauger Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark A. Hagemeier Assistant Attorney General Office of the Attorney General 3 23 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark Burnette Mitchell, Blackstock, Barnes, Wagoner, Ivers &amp; Sneddon 1010 W. Third Street Little Rock, AR 72201 Mr. Scott Smith General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Page 6 of 6 e !. IN THE UNITED STATES DISTRICT COURT 1 ., EASTERN DISTRICT OF ARKANSAS t WESTERN DIVISION :1l.:.::=: . ------- LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KA THERINE KNIGHT, ET AL. RECEIVED AUG 1 3 2003 DESEGREaiWCE OF ON MONITOR/NQ NOTICE OF JOINDER The Joshua Intervenors for their notice of joinder, state: -- ----- PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS 1. The Joshua Intervenors have reviewed the forth motion of the PCSSD to enforce settlement agreement, the statement of material facts and memorandum in support of motion. Premises considered, the Joshua Intervenors hereby give notice of their joinder within and adoption of these pleadings of the PCSSD dated July 24, 2003 . 439291 -v1 Respectfully submitted, JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 (501) 374-3758 FAX: (501) 374-4187 / ,,,,,.---. , /7:h_ ( I ,;,(;, : / / _? By ~ I/ - ' ~ W. Walker - Bar No. 64046 Attorney Joshua Intervenors d CERTIFICATE OF SERVICE On August /..L~o03, a copy of the foregoing was served via U.S. mail on each of the following : Mr. M. Samuel Jones III Wright, Lindsey &amp; Jennings LLP 200 W. Capitol, Suite 2300 Little Rock, Arkansas 72201 Mr. Christopher Heller Friday, Eldredge &amp; Clark 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Mr. Ray Simon Director of the Arkansas Department of Education 4 State Capitol Mall Little Rock, Arkansas 72201-1071 Mr. Will Bond 602 W. Main Jacksonville, AR 72076 Mr. Mark Burnett 1010 W. Third Street Little Rock, AR 72201 439291-v1 2 Mr. Mark A. Hagemeier Assistant Attorney General Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Mr. Scott Smith General Counsel Arkansas Department of Edudation #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Mr. Timothy Gauger Assistant Attorney General 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Mike Wilson 602 W. Main Street Jacksonville, AR 72076 hn C Fendley, Jr. M~J~. Fe~dley, Jr. P.A. Jo Drive 51 Wingatke AR 72205 Little Roe , 439291-v1 3 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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