Brief regarding Pulaski County Special School District (PCSSD), response to petition to de-annex territory from PCSSD, motion to enforce settlement agreement, motion and support for allied relief, Arkansas Department of Education (ADE) project management tool, and Office of Desegregation Management report.

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<dcterms_description>Before the Arkansas State Board of Education, brief of the Pulaski County Special School District (PCSSD) in re: petition to de-annex territory from the Pulaski County Special School District (PCSSD); District Court, fourth motion to enforce settlement agreement and for allied relief; District Court, memorandum brief in support of fourth motion to enforce settlement agreement and for allied relief; District Court, statement of material facts; District Court, notice of filing, Arkansas Department of Education (ADE) project management tool; District Court, notice of hearing; District Court, notice of filing, Office of Desegregation Management report, ''Update on the Redesign of Harris Elementary School and the Rezoning of Schools in the Sherwood Area of the Pulaski County Special School District (PCSSD)'' This transcript was create using Optical Character Recognition (OCR) and may contain some errors. I P. 03 RECEIVED BEFORE THE ARKANSAS STATE :SOARD OF EDUCATION JUL 1 O 2003 OFFICEOF DESEGREGATION MONITORING IN RE: PETITION TO DE-ANNEX TERRITORY FROM THE PCSSD BRIBf OF TiiE PCSSD Introduction Prior to tl1e hearing held on June 9, 2003, the PCSSD submjtted its "Analysis" of how the detachment, if approved, would negatively impact desegregation not only in the PCSSD but in tllc LRSD and the NLRSD as well. For -lbe _convenience of the Board another ~PY is included as Exhibit 1. The PCSSD asked ti1at 1hat document be made-part of the record and its cssenLial conclusions will only be briefly reiterated here . Although the PCS SD believes that its previously submitted Analysis is more than ample reason to deny Lhe petition for detachment, there is an even more fundamental reason why it should be turned down. SifI!Ply stated, the 1989 Settlement Agreement with the State, to which this -Board is a signatory i precJudes such a usurpation of the District's sovereignty and independence. 428241-vl The Settlement Agreement Provision Section II J of_the 1989 comprehensive Settlement Agreement states in its entirety: The State, Joshua and LRSD recognize that PCSSD and NLRSD are independent, sovereign desegregating school districts -operating pursuant to court orders and agreements and chat this agreement is both necessary and desirable to facilitate their desegregation activities as well as their cooperative desegregation .activities with the LRSD and others. [emphasis added] ----- - -- -- -- ~ Thi, language, whiCh remain, operative, was notsome idle boileiplaie.or filler. Indeed, as we will explain .further, it was not part of the original agreement between the State, LRSD and Joshua but was only negotiated after.the State had first reached .agreement with the LRSD and then turned its attention toward securing agreement from the PCSSD and the NLRSD. Further, thcr.e was a real and immediate specter of consolidation which prompted this _] negotiated language which, whHe it survived the legislative and judicial approval process, came I under attack from many legislators, commentators and in editorials. Indeed, for those who did not personally participate in or who do not clearly recall this historic process, a brief chronology might be useful. 1982 1985 1985 Late 1988 January 12, 1989 January 31, 1989 4?.8244-vl Not So Ancient History The LRSD sues the State, the PCSSD and the NLRSD successfully seeking consolidation of the three districts in Pulaski County. 9Zl F.2d 1371@ 1376. The Court of Appeals rejects consolidation but orders that the boundary between LRSD and PCSSD be adjusted. 921 F .2d 1371 @ 1377. This boundary adjusLinent caused PCSSD to lose sixteen schools and over one-third of its tax base_ Initial setLlerncntdiscussions are commenced among the State, the LRSD and the Joshua Intervenors. 921 F.2d 1371 @ 1376 . . Senator Jerry Jewell introduces Senate Bill 39 to consolidate the Little Rock, North Little Rock.and _P.ulaski County Special School District schools. Exhibit 2. The State Board, LRSD and Joshua Intervenors reach a proposed seulcment. The State's attorney reports that "meetings to obtain-t11e agreement of the otl1er _parties are underway today between attorneys and representatives of the State Boar&lt;l, PCSSD aml NLRSD." Exhibit 3. 2 i -I vUI.. I February 14, 1989 March 1989 March 3, 1989 March 7, 1989 March 11, 1989 March U, 1989 March 16, 1989 428244-vl The State hires t.lie national law furn of Hogan &amp; Hartson which specialized in school desegregation to advise it concerning desegregation. Exhibit 4. Counsel .for the LRSD delivers a draft of Proposed Settlement Agreement to the State's attorney. This draft does not contain a Section II J. Exhibit 5. The settlement is agreed to by all of the parties. The final version contains Section 11 J. Exhibit 6. It is submined to the legislature for funding. In an editorial discussing the settlement, the. Arkansas Gazette note~: that: "A key-provision is that the Little Rock, North Little Rock- and Pulaski County School Districts recognize that they remain independent, sovereign desegregating' districts. This could -becon,e an impediment to a countywide consolidation in the future, and if so it is an unfortunate pr.ovision." Exhibit 7. The Atkansas Gazette reports that the county district's attorney told the county board that the settlement went through 27 revisions before being made publi~ because of the complexity of the issues. Exhibit 8. .In .explaining .the settlement to the Joint Budget Committee, the State's attorney noted that: "This agreement. is so fragile that if it starts to unravel in any way, if there's any kind of modification to it, it'.s .going co fall apart and unravel in 100 djffcreht ways." In the same articfo, Senator Max Howell noted he djd not wanno vote Jor1he settlement if it meant forever prohibiting consolidation of the three county districts. "I'm not antagonistic toward the dollars, but I am concerned that I .under.stand the small print." Exhibit 9. One starewide commentator, in characterizing Section II J, o.pined that: "A brazen provision slipped into this settlement at the last minute guarantees there will be no consolidation of the school districts. Surprise!" Exhibit 10. The Arkansas Senate approves the bill funding the settlement but .idds an amendmenr asking tbe Federal Courts to consider four changes in the seLtlcment including: "Disapproval of language that would rctiin the autonomy of the three Pulaski County districts-." As Senator Max Howell stated: "I would hope tbt: Court woulil be aware that we hl the Legislature feel the folks who caused this should not continue to be in control of the situation." Exhibit 11. 3 I l ' II March 18, 1989 March 24, 1989 March 31, 1989 December 11, 1989 December 12, 1990. The press reported that: "Legislators have expressed concern that the provision would forever bar the State from merging the three districts, ancl the State Education Department's attorney told them Monday that McCutcheon (the _special Master) apparently shared that concern. n Exhibit 11. Press reports described II J as one of.the "key" provisions of the settlement. Exhibit 12. Mr. Herschel Friday writes the attorneys for the parties noting that: "During the debate which preceded the v.ote to fund the settlement in this case, l was repeatedly questioned on whether changes requested by the legislature could be made in the settlement. A copy of the requested changes is enclosed for your ready reference. I agreed to follow through to see that the legislative requests were auly considered by .the .parties and to use my best efforts in this regard. . .. Will you please discuss these requests with your clients so that we can meet in the near future and address these matters ." Exhibit 13. A copy of the requested changes, which included Section II J, is attached~ Exhibit 14 . Counsel for the AEA informs.Mr. Friday that they object to removing a.ny of the items from the settlement agreement. Exhibit 15. The District Court purports to approve the settlement agreement but only after imposing certain modifications. 726 F.Supp. 1544, 1549. The Court of Appeals reverses the District Court, ruling that the Settlement Agreement should hav.e been .approved as written by the parties. 971 F.2d 160 @ 164, 165. It should thus be clear that Section n J. was a key component of the settlement for which the PCSSD (as well as the NLRSO) separately negotiated. The reasons are clear, Not only was the PCSSD guarding against consolidation, but also any new usurpation of its territory. facilities and assets similar to the appropriation (albeit by judicial order) that occurred in the .early phases of the school case. While it is clear that many in the legislature 42$M4-vl 4 and those "commentin_g on tbe scene" opposed Section II J., the fact remains that it is an l integral part of the Settlement Agreement and retains full force and vitality today. In his June 4, 2003 letter, the Attorney General appropriately discussed the fact that while "successor district" language was included in the settlement agreement as respects the LRSD, it noted thar no such language is presented as regards the PCSSD or the NLRSD. As lhe Attorney General explained: All of this suggests that either (a) the parties simply did not anticipate that a "successor" district might be created from territory that was formerly within1he PCSSD, or (b) the parties specificaHy intended that there would not be any such "successor" district created under any circumstances, or that any successor district would not be a parcy to the Settlement Agreement. Subparagraph (b) of course is the correct outcome because of the presence of Section II J. On the san1e page and same footnote the Attorney General further noted that: Logic suggests, however, that a group of individual schools could not so easily extricate themselves from federal court supervision (and court-imposed obligations) in a desegregation case by merely "detaching" themselves from a schooJ district under supervision, at least not without the consem of all parties to the case and the Court overseeing the litigation. (Emphasis supplied). The Attorney General notes in his last footnote that: In this parcicular case, the parties with standing to object would be the Sr.ate it.o;clf, the three Pulaski County districts, and the 1osbua and Knight intervenors. The Potential For New Claims The principal motivation for the State to enter into and subsequently fund the Settlement Agreement was co minimize the dollar cost for its past constitutional violations and to obtain a release -of all claims for .all v.iolations which had occurred prior to execution of the Settlem~nt Agreement. While the State has been subjected to successful .claims by the school districts for 4282411-vl 5 ~ I I departures from the Settlement Agreement, it has, thus far, for over fourteen years, avoided a cbim or contention that .it has violated the constitution or enacted statutes which either prom~&gt;tc segregation or hamper desegregation. 1 However, the statute at issue, by its own legislative language, sets up an interesting dynamic not otherwise present in ATkansas law. As counsel for the Pcpanment of Education and the Attorney General's office have repeatedly pointed out: "the state board is proh~itcd by law from approving any petition fo1 detachment which hampers, delays or in any manner negative~y affects desegregation efforts of a school district or districts .in this state." Even if the Board makes a negative determination on this issue, it is virtually a foregone conclusion that one or another or more of the parties in the school case would contend in Federal Court that the detachment does "hamper, delay or ... negatively affects desegregation efforts ... ", would seek to hoist the State upon the petard of its own legislation, and, if successful, expose the State to new claims for millions of dollars, an exposure the S1ate avoic.Js if it .properly denies the petition. Indeed, it would appear that the legjsJature had the proscriptions of the Settlement Agreement in mind when it crafted this very narr.ow and rigorous test for detachment. The Settlement Agreement at page 10 states: "The State will enact no legislation which has a substantial adverse impact on the ability of the [Pulaski] I Districts to desegregate." 1 After each legisl:llive session, die ADE invites the PCSSD, as well as the olher Pulaski disu-icrs, to identify aew lc!gislation which the district believes will hamper or negatively affecc its desegregation efforts. The PCSSD duly noted by }ell.er dated April 26, 2002, thaUt believed tile detachment scaruce at issue would negatively -:tffoct it; desegregation efforts. 4282'14-vl 6 Thus, those who might pursue a new claim, where none currently exists, would likely si.multancously argue that the Settlement Agreement itself has been breached, a claim that carries with it not only the potential for new money damages .but substantial legal fees as well. The petitioners are correct that the racial balance tests for the -PCS SD accommodate a growing. black enrollment. However, the racial balance test is only a fraction of the issue involved. By ultimately approving a new school district, the State- will have participated in a process that artificially accelerates the evolution of the PCCSD to a majority black school district. When all three districts become majority black, then the State will argue that its oblig~tion to fund M-to.:M payments will suddenly and abruptly end. (Indeed, a cynic.might wonder if there are those in authority who may have already figured this out.) lf and when this day comes, the financial consequenct;S to the three current districts in this county would be crippling. Thus, to lhc extent that the State endorses steps to hasten and accelerate this day, then perhaps a new round of claims against the Slate would logically follow. The black student population of the PCSSD has grown on average between one-half percent and one percent per year. By accelerating tlle process by 6.5 -percentage points (sec further analysis) in 1hc year of detachment, the State will have "gained" approximately 7 .5 years toward the day when M-to-M funding might end. (See 15 years enrollment trend.) The Detachment Statute Constitutes Impermissible Special Local Legislation The Arkansas Constimtion succinctly provides that: "The legislature shall not pass any local or-special Act". (Arkansas Constitution Amendment 14). 428244vl 7 I' l As the staff of -the ADE can verify, this statute, by its tcnns, can_only apply to the _PCSSD. No ot:h,er school district in the State meets the quaJifying characteristics of the legislation. Further, there is no plausible .argument that the statute could ever apply to any other school district in Arkansas -in the future. -Bottom line: It was carefully crafted to apply only to the Jacksonville area, cannot apply elsewhere, and as such is impermissible special, local legislation which should not be enforced. Not-All Of The Pai1ies Have Been Consulted_ The Attorney General's letter ofJime 4, 2003 (hereafter-the June 4 letter), strongly urges the Board to seek input from the three school districts in Pulaski as well as Joshua and the Knight Intervenors before determining whether or not .creation of the new district would "hamper, delay, or in any manner affect 'desegregation efforts of a school district or distrkts in the State." While tht'. PCSSD has supplied information to the Board, the -PCSSD is unaware that the Knight Intcrvenors have been solicited for their input. The Focus Of The Petitioner's New Submissions Is Much Too Nan-ow As .the June 4 lctter explains (and even Mr. Fendley's letter quotes the same language), dest:grcgation includes much more than racial balance from school to school. Accordingly, the Board should look nor only at student assignments, but to every facet of school operations including faculty, staff, transportation, extl'acurricular activities and facilities. (June 4 letter at page 2). While the submissions of the petitioners do touch upon student assignment, faculty and somewhat upon transportation, there is no mention of staff (which is also unionized in the PCSSD) or extracurricular activities. This omission alone is sufficient for this Board to 428244-vl 8 I 1 conclude that insufficient information concerning desegregation in the area of staff and extracurricular activities has been presented. While .the supplemental submissions address current enrollments by school, enrolhnents before and after M-to-M and magnet transfers and deployment .of staff at schools, (all under cenain assumptions about which we will write later), the submission is otherwise largely devoid of analysis and specificity, particularly as it relates to specific matters set forth in the PCSSD's "Analysis" previously submitted to this Board. '\, for instance, there is scant mention of the three specialty schools. in th~ southeast portion of Pulaski County, all of which contain programs which were specifically designed for aml gained Court approval for .desegregation. The supplemental filings simply do not contest the PCSSD calculation that approximately 200 students from the area proposed for detachment attended those schools last year. These students are necessary for the continued vitality of these programs, all of which feed to Mills Uniyersity Studies High School, recently recognized as the 201 !, "best" high school in the country. }lewsweek, May 2003. (Exhibit 16). Does this Board really want to play a role in undermining one of the most shining success stories in Arkansas .education? el 1 Included as Exhibit 17 is a memor11ndum from Davis Hendricks, the.District Director of Talented and Gifted Programs, prepared the day after the Board's June 9 hearing. The memorandum explains at least two things. First, it shows the extensive array of AP courses currently available at both JacksonviJle High School and North Pulaski High School. It also explains in some detail how the detachment would negatively impact the College Station, .Fuller and Mills progl'ams. 428244-vJ 9 - I While the supplemental submissions do purport to Cl!lculate enrollment in the / &lt;letachment.schools if M-to-M and magnet transfers ended, Lhey singularly do not provide any analysis as to what affect the lack of such transfers would have not only upon the finances of the PCSSD but upon the schools and finances affected in the NLRSD.and .theLRSD. Although the June 4 letter was necessarily fairly general in most respects, it was quite ~pecific as regards certain areas. As the Allorney General opined: (a]ny detachment of a significant amount of territory from the PCSSD could almost certainly be expected to have an "impact" on the -PCSSD's ability to comply with its desegregation plan and have an impact on the operation of the Settlement Agreement, including the Agreement's provisjons concerning M.:M students and the Magnet schoolsjh the LRSD. Teacher Deployment As to teacher deployment, the petitioners stake out thena1ve position that the Federal District Court could simply order all the teachers to stay where they are. This assumption ignores the realities of teacher unions, teacher contracts and previous admonitions from the United States Court of Appeals. For instance, the PCSSD successfully enjoined an on-goinJ teacher strike fo .1996. The union appealed to the Federal Court of A.ppeals arguing that the union negotiated contract beLwccn lhc PCSSD and .the Teachers' Union was none of the District Court's business. The Court of Appeals agreed, reversed the District Court ~d explained to the parties that the role of the District Court is to enforce the Settlement Agreement (which is silent as to the master contracts), but not to otherwise interfere with the rights of employees and organizations of employers. 112 F.3d 953 @ 955 . . Petitioners' position is completely silent regarding recognition of a new teacher organization for a new district . .Is this or js this not pan of their proposed calculus? As the.! 428244-vl 10 - - - - - --- - PCSSD knows from prior difficult and n-ying circrunst&gt;nccs, many teacliers prefer working in / a district which reco_gnizes a union. I I e l J The PCSSD "Analysis" Revisited Petitioners claim u1at Exhibit 5 in their supplemental submission demonstrates that detachment will not have a negative impact upon the PCSSD. However, even though petitioners purport to have used data obtained from the PCSSD, the PCSSD cannot reconcik its data with chat presented by tne petitioncr.2 For instance, petitioners' Exhibit 5 predicts that the detached school district would have 3,345 elementary students of whom 34.1 % would bt! black. However, the PCSSD .calculates lhat the detached district would have 3,700 elementrtry srudents of wlmm only 32. 7% would be black. (Exhibit 18).. At the secondary level, the petitiom;:rs project 3,750 students of whom 36.6% would be black. While the total number calculated by the PCSSD is similar a.t 3,757, it calculates that ollly 32.4 % of those students would be black. (Exhibit 18). Since the petitioners calculate that the residual PCSSD would be 39 % black, there is a difference of six and one-half percentaie points. Also, while the petitioners project a .total .enrollment of 7,095 students, the PCSSD calculates that the new district would enrolt 7,457 srudents. (Exhibit 18), As for individual schools, the impact upon Clinton Elementary is profound. Detachmem would cause the loss of 124 sLudents and would push Clinton from 55 % black to 60% black. (Exhibit 18). It is required to be no more than 50% black. : The PCSSD once a.ga.iu 1ecommends that these discrepancies be .evaluated by the staff of the ADE. 4282M-vl 11 ) l' -! l e l I As we previously projected, 61 students would leave College-Station reducing its enrollment from 215 .to 159. (Exhibit 18) . This would artificially increase the black population at College Station from the current 55 % to 59 % black. The enrollment at Sylvan Hills Middle School would increase from 878 to 972, the African-American percentage would increase from 39 % to 45 % and the building capacity of 925 would be grossly exceed~d- (Exhibit 18). Court Orders While the petitioners seek to cast doubt upon the over capacity reported for the Sylvan Hills schools, they are either unaware of the fact or.have neglected to inform the Board that as recently as March 25, 2003, the District CoUit noted that: Fur.ther, the Court is jnformed that Sylvan Hills Middle School no Ionger has tho capacity .to .accommodate all 6111 _grade M-to-M students who attended Clintou Interdistrict School through the 5111 grade. Those students should be informed of their opportunity to attend the new middle school in Mawnelle. (Order, Exhibit 19, at page 2.) Accordingly, the PCSSD supplements its previous Analysis and reiterates its point that the displaced students, many of whom are black, who the petitioners submit can "easily be accommodated at Sylvan Hills" simply cannot be. Part of the detachment proposal flies in the face of another order entered by the District Court on January 28, 2003. In evaluating and approving the PCSSD plans for the redesign of Harris Elementary School, the Federal Court ruled that: 428244-vl African American students from Brushy Island will not be reassigned to Harris but will continue to attend Cato El~mentary. Cato Elementary student enrollment will.remain 75% Caucasian (white) and 25% African American (black). (Order, Exhibit 20 at page 2.) 12 \ I l Of course, the petitioners arc excluding the Brushy lsland students from Cato and are leaving them .to he assigned somewhere in the PCSSD. The petitioners say send them to Sylvan Hills but there is no room. The Court has .said they will not be reassigned to Harris. Where can they go? Another aspect of the Court's January order as respects Harris requires the PCSSD to vigorously recruit minority snidents (white) from north of the river for placement at Harris. The Director of Equity and Multicultural Education was ordered to direct this "intensification" of.eff 01t. Of course, if most of the PCSSD nonh of the river is allowed to detach, it will render the PCSSD substantially unable to comply with this order. Sylvan Hills Petitioners make some rather astonishing suggestions regarding Sylvan Hills High School. At page 6 of counsel's letter, the following statements are made: Moreover, even assuming a real capacity problem at Sylvan Hills High School, the District Court coo.ld address the problem in a number.of ways to avoid any negative affect on desegregation. One option may be to revise the attendance zones for all of PCSSD's high schools. The ODM reported that the PCSSD has .nor revised its attendance zones in "many years" and recommended that it do so. See ODM March 26, 2003, pp. 19 and 21. Another option may be to discontinue the school's specialty program that allows smdents residing outside the attendance zone to attend the school. This program was implemented to increase the African-American enrollment at the school at a tirnc when it was below the minimum of 20 percent. The African-American enrollment at the school in 2002-03 was 35 percent. This calls into question the continuing need for the program to increase African-American enrollment. A rhir4 option may be to build additional classrooms at Sylvan Hills High School. The PCSSD recently addcdnew classrooms at Robinson High.Sc;:hool to address overcrowding at that school. In short, a capacity problem at Sylvan Hills High School can easily be addressed without negatively affecting desegregation. 428244-vl 13 i l I I J, e l As to revisingattendancezones or disestablishing a specialty program, a cardinal rule in desegre_gation is "if it ain't broke, don't fix ic". Any effort to disestablish a successful program would .immediately be attacked by Joshua. Moreover, ifthe PCSSD is compelled Lo build .additional classrooms because of the efforts of the pelitioners and the actions of the State, who is going to pay for this construction? The petitioners? The State'? The upshot of petitioners' suggestions is that the "suggestions" prove that the detachment would have a negative impact on desegregation in the PCSSD. Further, they ignore the fact lhat .much of the increase in black enroilment at Sylvan Hills is M-to-M students from- the LRSD. To discontinue or ecn diminish the specialty program, affects not only the; PCSSD but the LRSD as well. F..nrollmcnt The foasibility study at page 1 predicts the new district would contain 5,700 students. Alternative IV predicts 6,578. The supplemental submissions (Exhibit 5) predicts the new district will contain approx.imately 7,500 students if transfers cease. The numbers keep growing and growing. While the feasibility study forecasts that the PCSSD would remain .the .second largest district in the State, it is clear that a comparison of petitioners' Exhibit5 to its "district size" exhibit would relegate the PCSSD to only the sixth largest district in the State with fewer tban 10,500 students. (Before the Pulaski County school desegregation case was filed, the PCSSD boasted an enrollment of almost 33;000 students and was by far the largest school district h1 the State.) 42.SZ44-vl 14 I e l l ! Such a dramatic reduction in enrollment will undoubtedly require a reduction in force not only among teachers and staff but within the Central Office as well. Such dislocations, heartache and ,car.eer affecting decisions will be unnecessary if this Board finds the petition to be invalid. Further, lhe feasibility study points outthatdensity ofstudents per square mile would improve from 25 in. the current PCSSD to approximately 53 students per square mile- in 'the new dislrict. While the feasibility study boasts that this will irnprnve transportation in the new district, it singularly fails to point out that the current density of 25 students per square mile logically and .necessarily becomes far less in the residual PCSSD. This sets up the real potential for more and longer bus rides, less efficiency and an undoubted ne_gative impact upon desegregation and the district's ability to stem enrollment declines and to attract more students . The Stipulations The M~to-M stipulation and the magnet schools stipulation are just that: Stipulated agreements among all of the parties. Therefore, as a threshold matter, it would seem that the specific written consent of Joshua, the Knight Intervenors, the Norl.h Little Rock School District, the J,irtle Rock School District, the State and the PCSSD would be required before tllese "agreements" cm1ld be made operative as to a detaching district. Indeed, as w~ know from the Eig_hth Circuit, a District Coun cannot impose agreements but can only -accept or reject them. 921 .F.2d 1371@ 1388. Further. both stipulations are part of the 1989 Settlement Agreement. It seems log.ical that the Agreement would have to be renegotiated and rc--cxecuted by all of the parties to the case to include the new district. Query, would the re, negotiated agreement then have to be submitted to the next session of the legislature to 428244-vJ 15 . I dctcnnine if !he legislature was Willing l-0 fund tl1i modified agreement? Again, as the Eighth Circuit has taught us, the District Court cannot impose an agreement upon the parties to this case unless they all consent. I Federal-Court An emerging strategy of the petitioners seems to be to shift as muc~ of the process ar,d decision making as possible to the. Federal District Court often re-assuring this 'Board that the Federal Court can do whatever is necessary to 1mpose obligations, agreements and the like. We have previously explained that the District Court is not all powerful. It cannot, for instance, as we have explained, tell teachers where they are going to teach. It cannot create capacity in sehoolswhere11one exist. Indeed, the current jurisdiction of the District Court 'is "only" to enforce the -SettlemGnt Agreement (which it has done) and to monitor and enforce the desegregation plans (which it. continues to do). The detachment statute is, in effect, an effort by a State to confer jurisdiction upon a Federal Court. So far as the PCSSD knows, this effort is unprecedented. It is also highly suspect. However, to the extent that the petitioners ,can convince lhis Board that "the Federal Court will fix it", it can perhaps win the authorization for an election, presumably hay..c ,a successful election followed by a large street party and then show up onthe District Court's doorstep with a ten page laundry list of issue!i to be decided. This scenario is not likely to result in a very happy District Court judge. 428244-vl 16 I I The PCSSD Would Have To Rezone In no shape, .form or fashion does the proposed detachment auempt to follow current Board member 'zoneboundarics. For instance, Zone 5,. from which Board Member Carol Burgett was elected last year, is largely eviscerated. The detachment would require the residual PCSSD. to constitute new zones some seven years in advance of the next census. Tliis would constitute an unnecessary and unwarranted ~xpense and disruption to the governance of the residual PCSSD. Conclusion For all of the foregoing reasons, this Board should determine that the petition is invalid and decline to aulhorize an e1ection. 428244-vl Respectfully submitted, WRIGHT, LINDSEY &amp; JENNINGS LLP 200 West Capitol Avenue, .Suite 2.300 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376:..9442 -- By ----'-=;,.,,&lt;e---.----:...=-r--f=--- cy Special School 17 EDWARD L. WRIGHT (1903-1977) ROBERT S. LINDSEY (1913-1991) WRIGHT, LINDSEY &amp; JENNINGS LLP ATTORNEYS AT LAW ISAAC A. SCOTT, JR. JOHN G. LILE 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 Ill JOHN WILLIAM SPIVEY 111 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 McSPADOEN JOHN 0 . DAVIS JJJOY 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 AVENUE 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 . 501-212-1273 mjoncs@wlj .com July 25, 2003 R5ElYED JUL 2 8 2003 OFFICE OF DESEGREGATION MONITORING 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. MARX DAVIS CLAIRE SHOWS HANCOCK KEVIN W. KENNEDY JERRY J. SALLINGS WILLIAM STUART JACKSON MICHAEL 0 . BARNES STEPHEN R . LANCASTER JUDY ROBINSON WILBER KYLER . 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 0 . WILSON REGINA A. SPAULDING Lia::Dsi=d IO pn,cti be&amp;-e tbe UDilt/ Suta hlt:DI ud Tndt:mvt Olfice Enclosed is a courtesy copy of PCSSD's fourth motion to enforce settlement agreement and for allied relief, together with supporting memorandum brief and statement of material facts . The originals have been filed and the parties served. Thank you for your consideration in this matter. Cordially yours, WRIGHT, LINDSEY &amp; JENNINGS LLP MSJ:ao Encls. cc/w/encls.: d,(__ \ Honorable J. Thomas Ray All Counsel of Record Mr. Ray Simon Mr. Scott Smith Mr. Will Bond Mr. Timothy Gauger Mr. Mark Burnett 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. RECEIVED )-c1.,f \&lt;J JY7uv{_ JUL 2 8 2003 OFFICE OF DESEGREGATION MONITORING FOURTH MOTION TO ENFORCE SETTLEMENT AGREEMENT AND FOR ALLIED RELIEF PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS The PCSSD for its fourth motion to enforce Settlement Agreement, states: 1. This motion is brought both by the PCSSD and its Board of Directors. The individual directors are named defendants in this action. For purposes of this motion, Directors, Mildred Tatum, Pam Roberts, Don Baker, Jeff Shaneyfeld and Gwen Williams, are moving in both their official and individual capacities because of the equal rights issues asserted herein. 2. This motion is accompanied by a lengthy Statement of Material Facts. The movant respectfully suggests that the reader first examine this Statement for a full and complete context for this motion. 3. On July 14, 2003, the Arkansas State Board of Education purportedly acting - pursuant to Ark. Code Ann. 6-13-1501 , et seq., voted to order an election on September 434830-v1 - 16, 2003, for the purpose of allowing voters in the greater Jacksonville area to consider approval of a ballot measure to detach certain territory from the PCSSD and form a new school district. The statute does not provide for a vote by those residing in other areas of the PCS SD. 4. The statutory scheme, as well as the election which the State has authorized, violates the 1989 Settlement Agreement in this case. This Court has continuing jurisdiction over the State via the Arkansas Department of Education to enforce compliance with the Settlement Agreement. 5. The actions described above violate Section II.J of the Settlement Agreement which states in its entirety: 6. The State, Joshua and 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. [emphasis added] The above-described actions also violate Section ILL of the Settlement Agreement which states in pertinent part that: The State will enact no legislation which has a substantial adverse impact on the ability of the Districts to desegregate. 7. As the PCSSD will demonstrate, the creation of a "new" district as agreed to by the State Board of Education will both "substantially affect the ability of the district to desegregate" and will violate Ark. Code Ann. 6-13-1504(b)(2)(b) since the detachment would "hamper, delay or in any manner negatively affect desegregation efforts" of the PCSSD. 434830-v1 2 8. The detachment, if successful in the State-authorized scheme, would call upon this Court to recognize a "new defendant" in this 20 year old case while the case is in its remedial phase, liability having been long ago established and subsequently settled in the 1989 Settlement Agreement. This Court should not and cannot embark upon such a slippery slope. Unless or until this case ends, the parties have been established, their liability adjudicated, their differences compromised and settled and a new and different entity should not be introduced to this litigation in the remedial phase. 9. The statute is also unconstitutional because it denies due process and equal protection to those patrons in the PCSSD who do not reside in the area proposed in the petition for detachment and therefore are not allowed to exercise their constitutional right to vote upon the issue. Specifically, Directors Tatum, Williams, Roberts, Shaneyfeld and Baker and all others similarly situated are being denied the opportunity to vote upon the detachment question even though each represents a zone of patrons and voters who will be directly and negatively affected if the detachment is successful. Further, each of them will be negatively affected individually if the detachment proves successful. 10. Discreet provisions of orders of this Court would be violated if the detachment proved successful. For instance, this Court noted on March 25, 2003, that: 434830-v1 Further, the Court is informed that Sylvan Hills Middle School no longer has the capacity to accommodate all 6th grade M-to-M students who attended Clinton Interdistrict School through the 5th grade. Those students should be informed of their opportunity to attend the new middle school in Maumelle. (Order, Exhibit 22 to Statement of Material Facts, at page 2.) 3 However, if the detachment proved successful, several hundred students who currently attend Cato and other schools in the area proposed for detachment would, in the eyes of the petitioners, be reassigned to the several Sylvan Hills schools. Simply stated, there is no room for these students, many of whom are black and no feasible alternative exists for reassignment that does not involve a significant bus ride. 11. The detachment, if successful, would also negatively impact this Court's order of January 28, 2003, which stated in pertinent part that: African American students from Brushy Island will not be reassigned to Harris but will continue to attend Cato Elementary. Cato Elementary student enrollment will remain 75 % Caucasian (white) and 25% African American (black). (Order, Exhibit 23 to Statement of Material Facts, at page 2.) The detachment would leave the Brushy Island students in the residual PCSSD but would take Cato from the PCSSD. The petitioners propose that these students be reassigned to Sylvan Hills as well. However, there is simply no room for these mainly black students and they would face a long bus ride somewhere. 12. Sylvan Hills has proven to be a popular destination for M-to-M students from Little Rock. Obviously, the detachment would place all of the Sylvan Hills schools well over capacity. Since the M-to-M stipulation specifies that M-to-M students can only be accepted on a space available basis, it is likely that all current M-to-M students would have to be evicted from Sylvan Hills if the detachment proved successful. 13. The detachment would artificially accelerate the evolution of the PCS SD to a majority black school district, facilitating the State's inevitable argument that, at such a point, 434830-v1 4 - M-to-M funding should end. The State should not be permitted to effect such an artificial change in enrollment percentages. 14. Mills University Studies High School was recently recognized by Newsweekas the twentieth "best" high school in the country. This is a remarkable achievement for any Arkansas school. However, if the detachment proves successful, approximately 200 students from the area proposed for detachment would no longer qualify for transfer to College Station, Fuller Middle and Mills. These three schools are among the centerpieces of Plan 2000 and previous desegregation plans and this Court should not tolerate an action that would likely wreck these successful desegregation programs. 15. If successful, the detachment would work a substantial negative impact upon the current employee force in the PCS SD. The PCS SD calculates it would have to undergo a reduction in force of approximately 475 employees. Since seniority controls such a reduction, the PCSSD would be left with an artificially senior teacher corps and with an artificially imposed salary schedule that would be top heavy in the highest paid teachers. Such an outcome would work a substantial financial hardship upon the PCSSD and interfere with its ability to desegregate. 16. Such a reduction in force would also artificially make the residual PCSSD teacher force whiter than it currently is since the PCSSD has been aggressive the past several years in hiring young minority teachers. These would be the first to be laid off in a reduction in force. 17. If the detachment were successful, Clinton Elementary would lose 124 students and would move from being 55 % black to 60 % black. 434830-v1 5 18. College Station would lose 61 students reducing its enrollment from 215 students to 159. This would also artificially increase the black population at College Station from the current 55 % to 59 % black. 19. The enrollment at Sylvan Hills Middle School would increase from 878 to 972. The building capacity is only 925. Even if they could be accommodated, this infusion of students would increase the enrollment from 39 % black to 45 % black. 20. The detachment, if successful, would reduce the student population in the PCSSD to only approximately 10,500 students. It would change it from the second largest district in the State to only the sixth largest district. With a reduction in enrollment of approximately 7,500 students, the PCSSD would be substantially reduced in its capability to send and receive M-to-M students and to send magnet students to the stipulation magnets. 21. The current student density per square mile in the PCSSD is 25 students per square mile. The detachers calculate that the new district would improve this density to 53 students per square mile in the new district. Logically, however, the current density of 25 students per square mile in the current PCSSD would be significantly reduced leading to longer and less efficient transportation of students in the residual PCSSD and likely imposing an artificial and unwarranted busing burden upon black students. 22. The State Board granted the petition and in its subsequent order for elections based its decision largely upon "the petitioners' willingness to seek, accept, and comply fully with any and all additional orders and requirements that might be imposed by the Federal Court ... ". The PCSSD submits that that which petitioners seek is legally impossible, particularly as respects the agreements entered into in this case. For instance, the M-to-M 434830-v1 6 - stipulation, the magnet stipulation and the 1989 Settlement Agreement are just that. They are agreements entered among the current parties and this Court cannot "impose" those agreements upon a new entity. Rather, all of the parties would have to consent and presumably the legislature would have to concur. 23. As the Court of Appeals has explained, the current jurisdiction of this Court is to enforce the Settlement Agreement and to monitor and enforce the desegregation plans. The detachment statute is an effort by a State to confer jurisdiction upon a Federal Court. The PCSSD knows of no precedent for this effort. 24. This motion is brought now because the action of the State Board in authorizing the election has created a clear and current case or controversy. Since the effects of a detachment are palpable and provable, it is respectfully submitted that this Court should exercise its jurisdiction now to end an effort which violates the Settlement Agreement and would work a manifest injury upon the ability of the PCSSD to carry out its Court approved plans and obligations and would have significant adverse outcomes financially and enrollment wise upon the other parties to this case. WHEREFORE, for all of the foregoing reasons, this Court should enter its order finding that the Settlement Agreement has been violated or that the detachment would work an impermissible negative affect upon the PCSSD's efforts to desegregate and comply with Court orders and agreements entered into with the other parties. For all of these reasons, this Court should enter its order directing the State Board of Education to rescind its order of July 16, 2003, and cancel its authorization for an election. 434830-v1 7 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 Att Sc CERTIFICATE OF SERVICE On July 25, 2003, a copy of the foregoing was served via U.S. mail on each of 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 434830-v1 8 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 Roach ell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 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 434830-v1 9 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 J 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. MEMORANDUM BRIEF IN SUPPORT OF FOURTII MOTION TO ENFORCE SETILEMENT AGREEMENT AND FOR ALLIED RELIEF REf,1~0 JUL 2 8 2003 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS Simply stated, the 1989 Settlement Agreement with the State, to which the State Board of Education is a signatory, precludes any such usurpation of the District's sovereignty and independence, as would result from the detachment the State recently authorized. It is the law of the case that the Court retains jurisdiction to insure that the parties, including the State, comply with the terms of the Settlement Agreement as well as the settlement plans. (Order dated January 13, 1995, at page 2, Docket No. 2337). The Settlement Agreement Provision Section II J of the 1989 comprehensive Settlement Agreement states in its entirety: 435830-v1 The State, Joshua and 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. [emphasis added] This language, which remains operative, was not some idle boilerplate or filler. Indeed, as we will explain further, it was not part of the original agreement between the State, LRSD and Joshua but was only negotiated after the State bad first reached agreement with the LRSD and then turned its attention toward securing agreement from the PCSSD and the NLRSD. (Exhibit 2). Further, there was then a real and immediate specter of consolidation which prompted this negotiated language which, while it survived the legislative and judicial approval process, came under attack from many legislators, commentators and in editorials. (Exhibits 1, 6, 7, 8, 9, 10, 12, and 14). It should thus be clear that Section II J. was a key component of the settlement for which the PCSSD (as well as the NLRSD) separately negotiated. The reasons are clear. Not only was the PCSSD guarding against consolidation, but also against any new usurpation of its territory, facilities and assets similar to the appropriation (albeit by judicial order) that occurred in the early phases of this case. Absent this promise by the State, it had no logical reason to join the settlement. Were it to be either consolidated or carved up into pieces, it would have no reason to settle. While it is clear that many in the legislature and those "commenting on the scene" opposed Section II J., the fact remains that it is an integral part of the Settlement Agreement and retains full force and vitality today. In his June 4, 2003 letter (Exhibit 16), generated as part of the proceedings before the State Board, the Attorney General appropriately discussed the fact that while "successor district" language was included in the settlement agreement as respects the LRSD, he noted 435830-v1 2 that no such language was presented as regards the PCS SD or the NLRSD. As the Attorney General explained: All of this suggests that either (a) the parties simply did not anticipate that a "successor" district might be created from territory that was formerly within the PCSSD, or (b) the parties specifically intended that there would not be any such "successor" district created under any circumstances, or that any successor district would not be a party to the Settlement Agreement. Subparagraph (b) of course is the correct analysis because of the presence of Section II J. On the same page and same footnote the Attorney General further noted that: Logic suggests, however, that a group of individual schools could not so easily extricate themselves from federal court supervision (and court-imposed obligations) in a desegregation case by merely "detaching" themselves from a school district under supervision, at least not without the consent of all parties to the case and the Court overseeing the litigation. (Emphasis supplied). The Attorney General notes in his last footnote that: In this particular case, the parties with standing to object would be the State itself, the three Pulaski County districts, and the Joshua and Knight intervenors. Section II L. The principal motivation for the State to enter into and subsequently fund the Settlement Agreement was to minimize the dollar cost for its past constitutional violations and to obtain a release of all claims for all violations which had occurred prior to execution of the Settlement Agreement. While the State has been subjected to successful claims by the school districts for departures from the Settlement Agreement, (Statement 1s 20, 21, 22 and 23) it has, thus far, for over fourteen years, avoided a claim or contention that it has violated the constitution or 435830-v1 3 enacted statutes which either promote segregation or hamper desegregation. 1 However, the statute at issue, by its own legislative language, sets up an interesting dynamic not otherwise present in Arkansas law. As counsel for the Department of Education and the Attorney General's office have repeatedly pointed out: "the state board is prohibited by law from approving any petition for detachment which hampers, delays or in any manner negatively affects desegregation efforts of a school district or districts in this state." (Exhibit 16) Indeed, it would appear that the legislature had the proscriptions of the Settlement Agreement in mind when it crafted this very rigorous test for detachment. The Settlement Agreement at page 10 states: "The State will enact no legislation which has a substantial adverse impact on the ability of the [Pulaski] Districts to desegregate." By ultimately approving a new school district, the State will have participated in a process that artificially accelerates the evolution of the PCCSD to a majority black school district. When all three districts become majority black, then the State will argue that its obligation to fund M-to-M payments will suddenly and abruptly end. (Indeed, a cynic might wonder if there are those in authority who may have already figured this out.) If and when this day comes, the financial consequences to the three current districts in this county would be crippling. 1 After each legislative session, the ADE invites the PCSSD, as well as the other Pulaski districts, to identify new legislation which the district believes will hamper or negatively affect its desegregation efforts. The PCSSD duly noted by letter dated April 26, 2002, that it believed the detachment statute at issue would negatively affect its desegregation efforts. 435830-v1 4 This Court has consistently reiterated the proposition that: "A party may not unilaterally change the implementation or language of an agreement or order without the prior approval of the Court and/or the consent of the parties." (Order dated January 13, 1995, at page 10, Docket No. 2337). The State of Arkansas needs to focus on its obligation in the settlement to give the Pulaski County school districts special consideration to enable these districts to meet their numerous and burdensome obligations under the settlement. The Court reminds the State of the Eighth Circuit's specific findings about the State's complicated and lengthy history of promotion of unconstitutional racial segregation which has led to this interminable litigation. The swiftest and surest way out of the federal court is to abide by the terms and spirit of this Settlement Agreement, and this includes following proper procedures for modification of the settlement. (Emphasis in the original) (Order dated January 13, 1995, at pages 16, 17, Docket No. 2337). The Equal Protection Claim Under the new detachment statute, when part of a school district attempts to detach itself from the school district, and become its own entity, a majority vote of only the voters in the area to be detached is permitted. Ark. Code Ann. 6-13-1504(3)(C). This provision is clearly unconstitutional and denies equal protection of the laws to those voters remaining in the original school district who are not allowed to vote even though they will be materially affected by detachment. The United States Supreme Court has stated that if a state statute is challenged on the grounds that it grants the right to vote in a limited purpose election to some otherwise qualified voters, but denies it to others, then the court must be called upon to determine whether the exclusion from the election is necessary to promote a compelling state interest. Kramer v. 435830-v1 5 Union Free School District, 395 U.S. 621, 633 (1969); Cipriano v. City of Houma, 395 U.S. 701, 704 (1969). The Kramer court went further to point out, that when the State's sole justification for the statute is that the classification provides merely a reasonable basis upon which to determine which voters have a special interest in the outcome of the election, then the statute fails to meet the "exacting standard of precision we require of statutes which selectively distribute the franchise ." Kramer, 395 U.S. at 632. In determining whether there has been a violation of the equal protection clause, the court's attention should be focused on two inquiries: (1) whether there is a genuine difference in interests among the two groups that the State has created, and (2) if so, whether any resulting increase . in voting strength of one group over the other amounts to discrimination under the Equal Protection Clause. Town of Lockport, N. Y. v. Citizens for Cmty. Action At - the Local Level, Inc., 430 U.S. 259, 268 (1976). In several cases the Supreme Court has allowed the electorate of a special-purpose unit of government to be apportioned to give more weight to a certain sector which is found to be most affected by the government unit's functions. Id. at 266. But, as Kramer points out, the classification of voters into "interested" and "non-interested" groups must be reasonably precise, and the State must have a compelling state interest that the statute, and its classification of voters, furthers. Kramer, 395 U.S. at 633. Several United State Supreme Court cases demonstrate these principles. For example, in Kramer the court found it was unconstitutional and a violation of equal protection to restrict the voting in a school board election to either those people who paid property taxes or rented homes, or to those people who had children enrolled in the schools. Id. The court applied 435830-v1 6 - heightened scrutiny, and reasoned that this distinction among voters was not necessary to promote a compelling state interest. Id. The court did not afford the usual presumption of constitutionality to this election statute. Presumptions of constitutionality for statutes are based on the premise that the state governments are structured to fairly represent people. Id. at 628. But, when the challenge to the statute is basically a challenge of the basic premise, the premise can no longer serve as the basis for presuming constitutionality. Id. Additionally, the court in Kramer pointed out that the statute defining who could vote in school board elections was not narrowly tailored to serve a compelling state interest, because it was simultaneously too over inclusive both as well as too under inclusive. Id. at 632. The court stated that these election criteria excluded "senior citizens and others living with children or relatives; military personnel, and others who live on tax exempt property; boarders and lodgers; parents who neither lease nor own qualifying property and whose children are too young to attend school; and parents who neither own nor lease property and whose children attend private school." Id. at 630. Further, the Supreme Court in Cipriano, decided that a Louisiana statute conferring the right to vote in bond issuance elections only to those people who paid property taxes was unconstitutional as denying equal protection. Cipriano, 395 U.S. at 704. Just as in Kramer, the Cipriano court pointed out that when the vote, in a special purpose election, is given to some people, but denied to others then the court must determine whether the exclusions are necessary to promote a compelling state interest. Id. The Cipriano court also noted that it is unconstitutional to deny the vote to some people because of the way the members of that group might vote. Id. at 705. 435830-v1 7 Similar to the voting classifications drawn in Kramer and Cipriano, the Arkansas statute which only allows voters in the area to be detached to vote in the detachment proceedings, and denies the vote to those in the remaining area is unconstitutional, because the statute offends the notion of "one person, one vote." By denying interested and affected voters the right to vote, the state is ultimately denying equal protection of the laws to those who are not allowed to vote in this school district election. This distinction of the voters does not further a compelling state interest, and is therefore unconstitutional.2 First, as indicated by the Kramer court, this statute should not be given a presumption of constitutionality because the challenge to the statute is to the basic premise that the laws are created by a fair process. Because the process is being challenged in this case, the usual presumption of constitutionality cannot be afforded. Therefore, in analyzing whether there has been an equal protection violation the court must focus on whether there is a genuine difference of interests among the two groups the state has created, and if so whether the resulting increase in voter strength in one of the groups amounts to discrimination under the Equal Protection clause. Since the Arkansas statute allows only those people residing in the area to be detached the vote, one gets no further than the first step under this analysis. There 2 Indeed, the principal interest being endorsed by the State in this instance is to apply detachment only to the PCSSD. As we noted in our State Court complaint (Exhibit 20), the detachment provision applies by definition only to the PCSSD and to no other school district. Thus, is not even dealing with "special purpose elections" Statewide but only to one that is limited to the PCSSD. Stated another way, to the extent that others in other school districts might wish detachment, there is no statutory provision available to them to seek it. The detachment statutes apply neither to the largest district in the State, middle sized districts or the smallest. It applies only to the PCSSD. 435830-v1 8 is no real and distinct difference, and certainly not a compelling difference, in the interests between those in the Jacksonville area and those remaining in the Pulaski County Special School District. The state must have a compelling reason or justification for distinguishing between those wanting to be detached and those who would remain from the original school district. It is not enough to say that distinguishing them in this manner is for purposes of determining who is interested or affected by the election and who is not. The residents of the PCSSD who do not seek to be detached have a real and palpable interest in the matter of the detachment, yet they are being denied the right to vote in the election. If Jacksonville were to detach, this would have a definite and immediate impact on the processes and operations of the other schools that would remain in the PCSSD. School funding, transportation and busing, teacher school assignments, and student assignments would most certainly be affected. The school district would have to immediately reconfigure its processes, resources and operations. Therefore, as a result of the sudden impact the detachment would have on the entire PCS SD, it is disingenuous to claim that those residing in the area that would remain the PCSSD are not interested or affected by this vote. Further, this distinction the State has made is not so precise as to satisfy the exacting standard set forth in Kramer. Just as in Kramer, this election statute is not narrowly tailored to achieving the goal of franchising those people interested or affected by the vote. The statute is over inclusive in the sense that it allows people in Jacksonville to vote that have, at best, a remote or indirect interest and are not affected by the school detachment election whatsoever. For example, a senior citizen residing in Jacksonville with no children, and no more children 435830-v1 9 expected in their lifetime are allowed to vote in this school detachment election. A single airman with no children living in base housing during a two year assignment may vote. On the other hand the statute is under inclusive because it denies the right to vote to those people in the PCSSD who do not live in the Jacksonville area and who would be severely affected by the outcome of the election, such as those people with children currently attending a school in the PCSSD particularly schools such as College Station, Fuller and Mills whose very programs are threatened by the detachment. This distinction is not made with the precision necessary to safeguard equal protection of the law. Negative Impact Upon Desegregation Although the June 4 letter of the Attorney General was necessarily fairly general in most respects, it was quite specific as regards certain areas. As the Attorney General opined: [a]ny detachment of a significant amount of territory from the 435830-v1 PCSSD could almost certainly be expected to have an "impact" on the PCSSD's ability to comply with its desegregation plan and have an impact on the operation of the Settlement Agreement, including the Agreement's provisions concerning M-M students and the Magnet schools in the LRSD. The Court of Appeals has previously succinctly explained the M-to-M arrangement: M-to-M students are peculiar to the districts that are parties to the Settlement Agreement. They are students who are of the majority race in their home districts, and who voluntarily transfer to .another Pulaski County district where they are of the minority race. The State, by way of a funding formula contained in the Settlement Agreement, compensates both the home district and the receiving district for each M-to-M student. The home, or sending, district receives one-half of the state aid that it would have received if the student had remained in the district, while the receiving, or host, district receives the full cots of educating the student. (United States Court of Appeals, No. 95-1481EA, Docket No. 2718, Opinion filed May 15, 1996). 10 The three specialty schools in the southeast portion of Pulaski County all contain programs which were specifically designed for and gained Court approval for desegregation. The PCSSD calculates that approximately 200 students from the area proposed for detachment attended those schools last year. These students are necessary for the continued vitality of these programs, all of which feed to Mills University Studies High School, recently recognized as the 20th "best" high school in the country. Newsweek, May 2003. Included as Exhibit 17 is a memorandum from Davis Hendricks, the District Director of Talented and Gifted Programs, prepared the day after the Board's June 9 hearing. The memorandum explains at least two things. First, it shows the extensive array of AP courses currently available at both Jacksonville High School and North Pulaski High School. It also explains in some detail how the detachment would negatively impact the College Station, Fuller and Mills programs. The PCS SD calculates that the detached district would have 3, 700 elementary students of whom only 32.7% would be black. At the secondary level, the PCSSD calculates an enrollment of 3,757 and that only 32.4% of those students would be black. Since the petitioners calculated that the residual PCSSD would be 39 % black, there is a difference of six and one-half percentage points. The PCSSD calculates that the new district would enroll 7,457 students. Individual Schools As for individual schools, the impact upon Clinton Elementary is profound. Detachment would cause the loss of 124 students and would push Clinton from 55 % black to 60 % black. It is required to be no more than 50 % black. 435830-v1 11 Clinton is an inter-district school. The Court of Appeals has specifically stated that one of the elements of the Settlement Agreement it considers to be crucial, and with respect to which no retreat should be approved, is the operation of the agreed number of inter-district schools according to the agreed timetable. (Appeal of Little Rock School District, 949 F .2d 253,256 (8th Cir. 1991)). The PCSSD projects that 61 students would leave College Station reducing its enrollment from 215 to 159. This would artificially increase the black population at College Station from the current 55 % to 59 % black. The enrollment at Sylvan Hills Middle School would increase from 878 to 972, the African-American percentage would increase from 39% to 45 % and the building capacity of 925 would be grossly exceeded. Court Orders As recently as March 25, 2003, this Court noted that: Further, the Court is informed that Sylvan Hills Middle School no longer has the capacity to accommodate all 6th grade M-to-M students who attended Clinton Interdistrict School through the 5th grade. Those students should be informed of their opportunity to attend the new middle school in Maumelle. (Order, March 25, 2003) Accordingly, the PCSSD reiterates its point that the displaced students, many of whom are black, who the petitioners submit can "easily be accommodated at Sylvan Hills" simply cannot be. 435830-v1 12 Part of the detachment proposal flies in the face of another order entered by the District Court on January 28, 2003. In evaluating and approving the PCSSD plans for the redesign of Harris Elementary School, this Court ruled that: African American students from Brushy Island will not be reassigned to Harris but will continue to attend Cato Elementary. Cato Elementary student enrollment will remain 75 % Caucasian (white) and 25% African American (black). (Order, January 28, 2003). However, the petitioners are excluding the Brushy Island students from Cato and are leaving them to be assigned somewhere in the PCS SD. The petitioners say send them to Sylvan Hills but there is no room. The Court has said they will not be reassigned to Harris. Where can they go? Another aspect of the Court's January order as respects Harris requires the PCSSD to vigorously recruit minority students (white) from north of the river for placement at Harris. The Director of Equity and Multicultural Education was ordered to direct this "intensification" of effort. Of course, if most of the PCSSD north of the river is allowed to detach, it will render the PCSSD substantially unable to comply with this order. Sylvan Hills Petitioners make some rather astonishing suggestions regarding Sylvan Hills High School. At page 6 of counsel's letter (Exhibit 17), the following statements are made: 435830-v1 Moreover, even assuming a real capacity problem at Sylvan Hills High School, the District Court could address the problem in a number of ways to avoid any negative affect on desegregation. One option may be to revise the attendance zones for all of PCSSD's high schools. The ODM reported that the PCSSD has not revised its attendance zones in "many years" and recommended that it do so. See ODM March 26, 2003, pp. 19 13 and 21. Another option may be to discontinue the school's specialty program that allows students residing outside the attendance zone to attend the school. This program was implemented to increase the African-American enrollment at the school at a time when it was below the minimum of 20 percent. The African-American enrollment at the school in 2002-03 was 35 percent. This calls into question the continuing need for the program to increase African-American enrollment. A third option may be to build additional classrooms at Sylvan Hills High School. The PCSSD recently added new classrooms at Robinson High School to address overcrowding at that school. In short, a capacity problem at Sylvan Hills High School can easily be addressed without negatively affecting desegregation. As to revising attendance zones or disestablishing a specialty program, a cardinal rule in desegregation is "if it ain't broke, don't fix it". Any effort to disestablish a successful program would immediately be attacked by Joshua. Moreover, if the PCS SD is compelled to build additional classrooms because of the - efforts of the petitioners and the actions of the State, who is going to pay for this construction? The petitioners? The State? The upshot of petitioners' suggestions is that the "suggestions" prove that the detachment would have a negative impact on desegregation in the PCSSD. Further, they ignore the fact that much of the increase in black enrollment at Sylvan Hills is M-to-M students from the LRSD. To discontinue or even diminish the specialty program, affects not only the PCSSD but the LRSD as well. Enrollment While the feasibility study forecasts that the PCSSD would remain the second largest district in the State, the PCSSD calculates it would be relegated to only the sixth largest district in the State with fewer than 10,500 students. (Before the Pulaski County school desegregation 435830-v1 14 case was filed, the PCSSD boasted an enrollment of almost 33,000 students and was by far the largest school district in the State.) Such a dramatic reduction in enrollment will undoubtedly require a reduction in force not only among teachers and staff but within the Central Office as well. Such dislocations, heartache and career affecting decisions are simply unnecessary. Further, the feasibility study (Exhibit 15 at page 39) points out that density of students per square mile would improve from 25 in the current PCSSD to approximately 53 students per square mile in the new district. While the feasibility study boasts that this will improve transportation in the new district, it singularly fails to point out that the current density of 25 students per square mile logically and necessarily becomes far less in the residual PCSSD. This sets up the real potential for more and longer bus rides, less efficiency and an undoubted negative impact upon desegregation and the district's ability to stem enrollment declines and to attract more students. Strong Precedent Supports The PCSSD Position Many unsuccessful efforts to detach from districts operating pursuant to desegregation orders litter the legal landscape in this jurisprudence. The latest appears to be Lee vs. Chambers County Board of Education, 849 F.Supp. 1474, (M.D.Ala. 1994). The case is an outgrowth of Lee vs. Macon County Board of Education, 267 F.Supp. 458 (M.D.Ala.) (threejudge court), aff'd sub nom. Wallace v. United States, 389 U.S. 215, 88 S.Ct. 415, 19 L.Ed.2d 422 (1967). In that case, a three-judge district court ordered Alabama's local school districts, including Chambers County and Lanett City, to disestablish their racially segregated - and discriminatory systems. 435830-v1 15 While the Lee case is procedurally and statutorily complicated, it does bear remarkable similarities to the case at bar. By 1990, the City of Valley, located within Chambers County, had become frustrated with the Chambers County Board of Education believing it had ignored requests to improve the schools in the City of Valley. Id. at 1478. The City of Valley attempted to form its own separate school district which was opposed by the county. Among the complaints of the City of Valley was that the county enrollment had been declining, that historically there had been a tension between the Valley area and the rest of the county, and that no new facilities had been built in the Valley area since the early 1980s. As part of its proposal to create its separate school system, Valley agreed to abide by any orders of the Court which orders are designed to assure that such a system will not impede the desegregation process in Chambers County. It also committed itself to operate a totally integrated system including utilizing existing attendance zones. Id. Valley considered at least three options for configuring the district but chose Option 1 because it would leave existing attendance zones intact, cause the least student disruption, allow children to attend schools they or their parents had historically attended and effect no changes in the remaining schools. Id. at 1485. Among the factors that were not considered by Valley was the affect upon children having special educational needs, the Court pointing out that these costs are not fully funded from State or Federal sources and that the local cost for these programs can be a substantial burden. 435830-v1 16 We note that Jacksonville has performed no such analysis in this case either, even though the PCSSD facilities for children with multi handicapping conditions are all located in schools proposed for detachment. As the Court noted in Lee. (Id. at 1490) If the court permits the Valley district to operate, the Chambers County district would have to equip and operate special education programs now offered only at schools in the Valley area, such as the pre-school handicapped student program at Fairfax Elementary School and the gifted student program at Fairfax Elementary School. After a long discussion of the facts and the law, the Court finally came down to the issue of "Practicability". Beginning at page 1498, the Court explained that: (Id. at 1498) (Id. at 1498) 435830-v1 The court must also consider whether Valley's proposal introduces a level of complexity to the desegregation process in Chambers County that is so great that it will itself be an impediment to the speedy and effective elimination of the remaining vestiges of the dual school system. Valley takes the position that the ongoing desegregation process in the Chambers County school district will not be affected adversely by its establishment and independent operation as a separate system because any issues that may arise can be negotiated between the school systems, resolved by the State Superintendent of Education, or be determined by this court. Thus, at a time when Chambers County school authorities should be devoting their energies and attention to implementing the recent Orders of this court and to devising and implementing the comprehensive blueprint for final constitutional compliance as agreed by the parties and that is required by the 1993 Agreed Order, if operation of a Valley district were permitted, they would instead be enmeshed in negotiations, state administrative 17 (Id. at 1499) - (Id. at 1499) (Id. at 1500) proceedings, and possible further appearances before this court to resolve disputed matters. If the City of Valley is permitted to operate a separate and independent system, these efforts-and the progress of the Chambers County public schools toward unitary status-will become far more complex. For example, each teacher assignment decision presently is affected by current assignments throughout the existing Chambers County school district. To the extent that full constitutional compliance has not been attained-and it currently has not been attained at the time a separate Valley district begins operations, both school systems will share in the responsibility for achieving the original goal of having racially non-identifiable faculties among all of other schools that either operates. If the districts operate independently, however, ensuring the realization of this goal will inevitably cause friction and ultimately involve this court in a level of detailed supervision and administration of local schools that would be unwieldy and unwise. The court finds that the introduction of an independent decisionmaking body (a new school district) in the midst of the desegregation process in Chambers County will greatly complicate planning and implementation of measures necessary for constitutional compliance, will increase the potential for conflict, will be likely to involve this court in an unnecessarily detailed level of supervision and administration (thus displacing local control), and ultimately will impede the County's progress toward a unitary system from which all vestiges of past discrimination have been eliminated. In its conclusions of law, the Court appropriately traced the cases from the United States Supreme Court which culminate in the lead decision: 435830-v1 Over 20 years ago, the Supreme Court firmly established the test which must be applied in situations such as this: 18 435830-v1 We have today held that any attempt by state of local officials to carve out a new school district from an existing district that is in the process of dismantling a dual school system "must be judged according to whether it hinders or furthers the process of school desegregation. If the proposal would impede the dismantling of a dual system, then a district court, in the exercise of its remedial discretion, may enjoin it from being carried out." United States v. Scottland Neck Bd. of Educ., 401 U.S. 484, 489, 92 S.Ct. 2214, 2217, 33 L.Ed.2d 75 (1972) (citing Wright v. Council of City of Emporia, 401 U.S. 451 , 460, 92 S. Ct. 2196, 2202, 33 L.Ed.2d 51 (1972)). In Wright v. Council of City of Emporia, the city which wished to form and operate a splinter school district made much the same argument as that of Valley here: ... Emporia advances arguments that a separate system is necessary to achieve quality education for city residents, and that it is unfair in any event to force the city to continue to send its children to schools over which the city, because of the character of its arrangement with the county, has very little control. Id. at 467, 92 S.Ct. at 2205. The Supreme Court's answer to that argument must guide the court in its decision in the case at bar: The District Court, with its responsibility to provide an effective remedy for segregation in the entire city-county system could not property allow the city to make its part of that system more attractive where such a result would be accomplished at the expense of the children remaining in the county. Id. at 468, 92 S.Ct. at 2206. The year before, the Fifth Circuit had dealt with the issue of a splinter school district in a case involving Alabama splinters (Pleasant Grove, Vestavia, Midfield and Homewood) withdrawing from their parent (Jefferson County). Stout v. Jefferson County Board of Ed., 448 F .2d 403 (5th Cir., 1971 ("Stout I") [FN26] The court held: .. . [W]here the formulation of splinter school districts, albeit validly created under state law, have the effect of 19 435830-v1 thwarting the implementation of a unitary school system, the district court may not ... recognize their creation. Id. at 404 (footnote omitted). On remand, the district court ordered the splinter districts to accept a proper role in the desegregation of the county system. This was affirmed on appeal, Stout v. Jefferson County Board of Education, 466 F2d 1213 (5th Cir. 1972) ("Stout II"), cert. denied, sub nom., Stripling v. Jefferson County Bd. of Educ., 410 U.S. 928, 93 S.Ct. 1361, 35 L.Ed.2d 589 (1973), with the Fifth Circuit holding that legally created splinter school districts could be disregarded if their existence thwarted implementation of a unitary school system in the county as a whole. The court went on to say that courts should not remove local control indefinitely and that sovereignty should be returned to a splinter district when the splinter demonstrates "by clear and convincing evidence" that it is able and intends to comply with the court's orders concerning its role in the desegregation of the county school district. Id. at 1215. Valley argues that the latter holding in Stout II should cause this court to authorize it to operate a separate school system because it has pledged to the court that it would follow any order which the court might issue as to the role which the Valley district should play in assisting to complete desegregation of the schools in Chambers County. Valley also emphasizes its commitment to operate an integrated system, even hopefully a "model" system, within its new district for the benefit of children of all races. While the court accepts the sincerity of Valley's officer, accepts Valley's assurance that it intends to operate a fully integrated school system that would be eligible to be adjudged a unitary system if judged along, and accepts Valley's commitment that it has no intention to impede the progress of desegregation in the county system, this begs the real issue. As the Supreme Court has stated, "[t]he existence of a permissible purpose cannot sustain any action that has an impermissible effect." Wright, 407 U.S. at 462, 92 S.Ct. at 2203. The issue here is not whether Valley could create a fully integrated unitary system for itself, or whether Valley is willing to accept a role in desegregating the county system. The basic issue before the court is whether a separate Valley system can be operated at this time, even accepting whatever role the court might assign it, in a way which does not impede the final dismantling of a dual school system in Chambers County. (Id. at 1500, 1501). 20 (Id. at 1502) (Id. at 1503) (Id. at 1503) The court has carefully considered Valley's proposals. Although it has expressed preferences, Valley has suggested several alternatives designed to address the various Green factors, all of which it is willing to accept. And, while the burden of proof is properly on Valley, the court has struggled with Valley's request that it "mandate a desegregation plan that incorporates, recognizes and accommodates the existence of and in turn operation of a city school system by the Valley City Board of Education." (Brief in Support of Amended Petition to Intervene on Behalf of the Valley City Board of Education and the City of Valley, Alabama.). The court has concluded that it cannot be done at this time. What we must all seek -- the parties, the lawyers, and the court -is to finally remedy the constitutional violations created by the old state-imposed system of segregated schools to the end that the federal courts no longer have to supervise the operation of the public schools of Chambers County, not to adopt a patchwork approach which depends on continued court involvement to make it work. The facts in this case impel the court to the inevitable conclusion that this ultimate objective for the Chambers County schools would be impeded by the operation of a Valley school system at this time. Accordingly, the court will deny Valley's request to operate as a separate school district. Teacher Deployment As to teacher deployment, the petitioners stake out the naive position that the Federal District Court could simply order all the teachers to stay where they are. (Exhibit 17 at 8). This assumption ignores the realities of teacher unions, teacher contracts and previous admonitions from the United States Court of Appeals. For instance, the PCSSD successfully 435830-v1 21 enjoined an on-going teacher strike in 1996. The union appealed to the Federal Court of Appeals arguing that the union negotiated contract between the PCSSD and the Teachers' Union was none of the District Court's business. The Court of Appeals agreed, reversed the District Court and explained to the parties that the role of the District Court is to enforce the Settlement Agreement (which is silent as to the master contracts), but not to otherwise interfere with the rights of employees and organizations of employers. 112 F.3d 953@ 955. Petitioners' position is completely silent regarding recognition of a new teacher organization for a new district. Is this or is this not part of their proposed calculus? As the PCSSD knows from prior difficult and trying circumstances, many teachers prefer working in a district which recognizes a union. The Stipulations The M-to-M stipulation and the magnet schools stipulation are just that: Stipulated agreements among all of the parties. Therefore, as a threshold matter, it would seem that the specific written consent of Joshua, the Knight Intervenors, the North Little Rock School District, the Little Rock School District, the State and the PCSSD would be required before these "agreements" could be made operative in a detaching district. Indeed, as we know from the Eighth Circuit, a District Court cannot impose agreements but can only accept or reject them. 921 F.2d 1371@ 1388. Further, both stipulations are part of the 1989 Settlement Agreement. It seems logical that the Agreement would have to be renegotiated and reexecuted by all of the parties to the case to include the new district. Query, would the renegotiated agreement then have to be submitted to the next session of the legislature to determine if the legislature was willing to fund this modified agreement? Again, as the Eighth 435830-v1 22 Circuit has taught us, the District Court cannot impose an agreement upon the parties to this case unless they all consent. The PCSSD Would Have To Rezone Zones 4 and 5 would be completely removed from the PCSSD. The detachment would require the residual PCSSD to constitute new zones some seven years in advance of the next census. This would constitute an unnecessary and unwarranted expense and disruption to the governance of the residual PCS SD. Time has yet to permit an analysis as to the effect such rezoning would have upon those protected by the Voting Rights Act if detachment was successful. Federal Court The strategy of the petitioners seems to be to shift as much of the process and decision - making as possible to the Federal District Court often re-assuring the State Board that the Federal Court can do whatever is necessary to impose obligations, agreements and the like. We have previously explained that the District Court is not all powerful. It cannot, for instance, as we have explained, tell teachers where they are going to teach. It cannot create capacity in schools where none exist. Indeed, the current jurisdiction of the District Court is "only" to enforce the Settlement Agreement (which it has done) and to monitor and enforce the desegregation plans (which it continues to do). The detachment statute is, in effect, an effort by a State to confer jurisdiction upon a Federal Court. So far as the PCSSD knows, this effort is unprecedented. It is also highly suspect. 435830-v1 23 However, petitioners successfully convinced the Board that "the Federal Court will fix it" , and won authorization for the election. Presuming a successful election followed by a large street party, the new district would then show up on the District Court's doorstep with a ten page laundry list of issues to be decided. This scenario is not calculated to advance the ultimate resolution of the case and should be ended now. Conclusion For all of the foregoing reasons, this Court should determine that the statutes violate the Settlement Agreement, are an unconstitutional denial of equal protection, and will negatively impact desegregation and the ultimate resolution of this case. 435830-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 By '-y)7 ' ?~ ~0~ M. _Srunuel Jones III (769 0) A-ifurneys 'or Pulaski c6un Special School strict 24 CERTIFICATE OF SERVICE On July ;25, 2003, a copy of the foregoing was served via U.S. mail on each of 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 Mr. Will Bond 602 W. Main Jacksonville, AR 72076 Mr. Mark Burnette 1010 W. Third Street Little Rock, AR 72201 435830-v1 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 M.S~nesII( 25 .. I II II II II II I I I I I I I .. I 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. STATEMENT OF MATERIAL FACTS History of the Settlement Agreement RE?L~D JUL 2 8 2003 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS 1. 1982. The LRSD sues the State, the PCSSD and the NLRSD successfully seeking consolidation of the three districts in Pulaski County. 921 F.2d 1371@ 1376. 2. 1985. The Court of Appeals rejects consolidation but orders that the boundary between LRSD and PCSSD be adjusted. 921 F.2d 1371@ 1377. 3. 1985. This boundary adjustment caused PCSSD to lose fourteen schools and over one-third of its tax base. 4. Late 1988. Initial settlement discussions are commenced among the State, the LRSD and the Joshua Intervenors. 921 F.2d 1371 @ 1376. 5. January 12, 1989. Senator Jerry Jewell introduces Senate Bill 39 to consolidate the Little Rock, North Little Rock and Pulaski County Special School District schools . (Exhibit 1) 434696-v1 I I 1: .- 1 I I I I .. I I 6. January 31, 1989. The State Board, LRSD and Joshua Intervenors reach a proposed settlement. The State's attorney reports that "meetings to obtain the agreement of the other parties are underway today between attorneys and representatives of the State Board, PCSSD and NLRSD." (Exhibit 2) 7. February 9, 1989. The State hires the national law firm of Hogan &amp; Hartson which specialized in school desegregation to advise it concerning desegregation. (Exhibit 3) 8. February 14, 1989. Counsel for the LRSD delivers a draft of Proposed Settlement Agreement to the State's attorney. This draft does not contain a Section II J . (Exhibit 4) 9. March 1989. The settlement is agreed to by all of the parties. The final version contains Section II J. (Exhibit 5) It is submitted to the legislature for funding . 10. March 3, 1989. In an editorial discussing the settlement, the Arkansas Gazette notes that: "A key provision is that the Little Rock, North Little Rock and Pulaski County School Districts recognize that they remain 'independent, sovereign desegregating' districts. This could become an impediment to a countywide consolidation in the future, and if so it is an unfortunate provision." (Exhibit 6) 11. March 7, 1989. The Arkansas Gazette reports that the county district's attorney told the county board that the settlement went through 27 revisions before being made public because of the complexity of the issues. (Exhibit 7) 12. March 11, 1989. In explaining the settlement to the Joint Budget Committee, the State's attorney noted that: "This agreement is so fragile that if it starts to unravel in any way, if there's any kind of modification to it, it's going to fall apart and unravel in 100 434696-v1 2 I I I I I I I I I I -~ I different ways." In the same article, Senator Max Howell noted he did not want to vote for the settlement if it meant forever prohibiting consolidation of the three county districts. "I'm not antagonistic toward the dollars, but I am concerned that I understand the small print." (Exhibit 8) 13. March 12, 1989. One statewide commentator, in characterizing Section II J, opined that: "A brazen provision slipped into this settlement at the last minute guarantees there will be no consolidation of the school districts. Surprise!" (Exhibit 9) 14. March 16, 1989. The Arkansas Senate approves the bill funding the settlement but adds an amendment asking the Federal Courts to consider four changes in the settlement including: "Disapproval of language that would retain the autonomy of the three Pulaski County districts." As Senator Max Howell stated: "I would hope the Court would be aware that we in the Legislature feel the folks who caused this should not continue to be in control of the situation." (Exhibit 10) The press reported that: "Legislators have expressed concern that the provision would forever bar the State from merging the three districts, and the State Education Department's attorney told them Monday that McCutcheon (the Special Master) apparently shared that concern." (Exhibit 10) 15. March 18, 1989. Press reports described II J as one of the "key" provisions of the settlement. (Exhibit 11) 16. March 24, 1989. Mr. Herschel Friday writes the attorneys for the parties noting that: "During the debate which preceded the vote to fund the settlement in this case, I was repeatedly questioned on whether changes requested by the legislature could be made in the settlement. A copy of the requested changes is enclosed for your 434696-v1 3 I I I . I I ready reference. I agreed to follow through to see that the legislative requests were duly considered by the parties and to use my best efforts in this regard. . . . Will you please discuss these requests with your clients so that we can meet in the near future and address these matters." (Exhibit 12) A copy of the requested changes, which included Section II J, is attached as (Exhibit 13) . 17. March 31, 1989. Counsel for the AEA informs Mr. Friday that they object to removing any of the items from the settlement agreement. (Exhibit 14) 18. December 11 , 1989. The District Court purports to approve the settlement agreement but only after imposing certain modifications. 726 F.Supp. 1544, 1549 . 19. December 12, 1990. The Court of Appeals reverses the District Court, ruling that the Settlement Agreement should have been approved as written by the parties. 971 F.2d 160@ 164, 165 . Previous Efforts To Enforce Violations Of The Settlement Agreement 20. At least three times during the decade of the 1990s, the Pulaski districts were forced to sue the State to enforce the Settlement Agreement. 21. On January 13, 1995, the District Court ruled that the State had violated the Settlement Agreement as respects Workers' Compensation payments due the three Pulaski districts. (Docket No. 2337). This order was affirmed on appeal. 22. On January 13, 1995, the District Court ruled that the State had violated the Settlement Agreement as respects "loss funding" for M-to-M students (Docket No. 2337) and the financial award was affirmed on appeal. 23. Later, the District Court rules that the State has violated the Settlement Agreement as respects reimbursement for teacher retirement and health insurance benefits due 434696-v1 4 I I I I I I I II I l _i I . I . I le I the three Pulaski districts. This matter was subsequently settled and the three districts continue to receive these payments to this day. The Detachment Effort 24. 2001. The General Assembly enacts ACA 6-13-1501, et seq. Representatives of the PCSSD testify against the measure. The statute permits detachment under specified circumstances but only for districts with an average membership of at least 15,000 students but not more than 20,000 students. The PCSSD is the only district in the State of Arkansas which fits this criterion. 25. November 21, 2002. A so-called feasibility study for forming an independent school district in Northeast Pulaski County detached from The Pulaski County Special School District is completed. (Exhibit 15) 26. The study examines three alternative areas for detachment and concludes at page 39 that Alternative I be selected. (Exhibit 15) 27. February 25, 2003. An "Addendum" to the feasibility study is completed and is inserted in the back of the November 21, 2002, study behind page 89, the concluding page of the November study. (Exhibit 15) 28. March, 2003. A petition drive is commenced, subsequently concluded and petitions are delivered on May 19, 2003, to the Arkansas Department of Education. 29. April 15, 2003. The Legislature approves an amendment to ACA 6-13-1501, et seq. adding a criterion allowing detachment from school districts which encompass a total area of 700 square miles or more. The Pulaski district, at 726 square miles, is the only district which meets this criterion. 434696-v1 5 , le I I 30. May 30, 2003 . Carolyn Staley certifies that the petition has sufficient signatures. 31. June 4, 2003. The Attorney General's office, as required by this statutory scheme, renders an opinion but states he is unable to clearly opine as to whether or not the statutory requirements have been met because of the lack of information in the feasibility study. (Exhibit 16) 32. June 9, 2003. The State Board of Education conducts a hearing on the detachment petition but delays action. It instructs the petitioners to "answer the questions" raised by the Attorney General and to submit that information to the Attorney General's office so that the Attorney General may issue a "definitive" opinion on the issue. 33 . June 27, 2003 . The petitioners deliver their supplemental materials to the State Board and to the Attorney General's office including an opinion from an attorney regarding the affects or lack thereof upon desegregation. (Exhibit 17) 34. July 11, 2003. The Attorney General issues a new opinion which, while still highly qualified in many respects, opines that the petition could be granted if certain findings are made. (Exhibit 18) 35. July 11, 2003 . The State Board of Education, in the afternoon, gives notice that it has scheduled a hearing to take up this matter again on July 14, 2003. 36. The PCSSD objects to the timing of the meeting and the lack of notice. (Exhibit 19) 37. July 14, 2003 . The State Board of Education conducts another hearing and votes unanimously to authorize an election on the detachment issue. 434696-v1 6 I le I I I I I I I -I I I I I I I I 38. 39. July 16, 2003. The State Board issues its "Order for Election". (Exhibit 20) July 24, 2003 . The PCSSD files suit in Pulaski County Circuit Court arguing that the Detachment Statute is unconstitutional and that the petition is invalid. (Exhibit 21) 434696-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 7 I I I I I I I I - I I I I I I I I CERTIFICATE OF SERVICE On July J.(io03 , a copy of the foregoing was served via U.S. mail on each of 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 Mr. Will Bond 602 W. Main Jacksonville, AR 72076 Mr. Timothy Gauger Assistant Attorney General 323 Center Street, Suite 200 Little Rock, AR 72201 434696-v1 8 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. Mark Burnette 1010 W. Third Street Little Rock, AR 72201 CERTIFICATE OF SERVICE II On July.2~003, a copy of the foregoing was served via U.S. mail on each of the following : II I I I I I 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 Mr. Will Bond 602 W. Main Jacksonville, AR 72076 Mr. Timothy Gauger Assistant Attorney General 323 Center Street, Suite 200 Little Rock, AR 72201 434696-v1 8 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. Mark Burnette 1010 W. Third Street Little Rock, AR 72201 Raymond Simon Director State Board of Eaucation JoNell Caldwell, Chair Little Rock Shelby Hillman, Vice Chair Carlisle Luke Gordy Van Buren Robert Hackler Mountain Home Calvin King Marianna Randy Lawson Bentonville Ma~- Rebick u;7:'ffock Diane Tatum Pine Bluff Jeanna Westmoreland Arkadelphia REl, ... .-vED JUL 2 9 2003 OFFICE OF Arkansas D EGREGATIOH MONITORING Department of Education #4 Capitol Mall, Little Rock, AR 72201-1071 501-682-4475 July 28, 2003 Mr. M. Samuel Jones, III Wright, Lindsey &amp; Jennings 200 West Capitol, Suite 2000 Little Rock, AR 72201 Mr. John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Mark Burnette Mitchell, Blackstock, Barnes, Wagoner, Ivers &amp; Sneddon P. 0. Box 1510 Little Rock, AR 72203-1510 Mr. Christopher Heller Friday, Eldredge &amp; Clark 400 West Capitol, Suite 2000 Little Rock, AR 72201-3493 Mr. Stephen W. Jones Jack, Lyon &amp; Jones 425 West Capitol, Suite 3400 Little Rock, AR 72201 Ms. Ann Marshall One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 http:/ /arkedu.state.ar.us RE: Little Rock School District v. Pulaski County Special School District, et al. U.S. District Court No. 4:82-CV-866 Dear Gentlemen and Ms. Marshall: Per an agreement with the Attorney General's Office, I am filing the Arkansas Department of Education's Project Management Tool for the month ofJuly 2003 in the above-referenced case. If you have any questions, please feel free to contact me at your convenience. ia~ General Counsel Arkansas Department of Education SS:law cc: Mark Hagemeier RECEIVED UNITED STATES DISTRICT COURT JUL 2 9 2003 EASTERN DISTRICT OF ARKANSAS WESTERN DNISION OFFICE OF DESEGREGATION MONITORING LITTLE ROCK SCHOOL DISTRICT PLAlNTIFF V. No. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al DEFENDANTS NOTICE OF FILING In accordance with the Court's Order of December 10, 1993, the Arkansas Department of Education hereby gives notice of the filing of the ADE's Project Management Tool for July 2003. Respectfully Submitted, ~ Attorney, Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 501-682-4227 CERTIFICATE OF SERVICE I, Scott Smith, certify that on July __ , 2003, I caused the foregoing document to be served by depositing a copy in the United States mail, postage prepaid, addressed to each of the following: Mr. M. Samuel Jones, III Wright, Lindsey &amp; Jennings 200 West Capitol, Suite 2000 Little Rock, AR 72201 Mr. John W. Walker John Walker, P.A. 1 723 Broadway Little Rock, AR 72201 Mr. Mark Burnette Mitchell, Blackstock, Barnes Wagoner, Ivers &amp; Sneddon P. 0. Box 1510 Little Rock, AR 72203-1510 Mr. Christopher Heller Friday, Eldredge &amp; Clark 400 West Capitol, Suite 2000 Little Rock, AR 72201-3493 Mr. Stephen W. Jones Jack, Lyon &amp; Jones 425 West Capitol, Suite 3400 Little Rock, AR 72201 Ms. Ann Marshall One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 j.1aL~ Smit IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION RECEIVED JUL 2 9 2003 LITTLE ROCK SCHOOL DISTRICT, ET AL OFFICE OF PLAINTIF~SEGREGATION MONITORING V. NO. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL DEFENDANTS MRS. LORENE JOSHUA, ET AL INTERVENORS KATHERINE W. KNIGHT, ET AL INTERVENORS ADE'S PROJECT MANAGEMENT TOOL In compliance with the Court's Order of December 10, 1993, the Arkansas Department of Education (ADE) submits the following Project Management Tool to the parties and the Court. This document describes the progress the ADE has made since March 15, 1994, in complying with provisions of the Implementation Plan and itemizes the ADE's progress against timelines presented in the Plan. - IMPLEMENTATION PHASE ACTIVITY I. FINANCIAL OBLIGATIONS A. Us_!:! the previous year's three quarter average daily membership to calculate MFPA (State Equalization) for the current school year. 1. Projected Ending Date Last day of each month, August - June. 2. Actual as of July 31 , 2003 l@b.!iiij1w:~b.~ffii:;~~ii!ir~B~Jli~f.~'2'-i9.ailii!li!l:ifYt.~t~d.\ffi~ B. Include all Magnet students in the resident District's average daily membership for calculation. 1. Projected Ending Date Last day of each month, August - June. - ---- - - I. FINANCIAL OBLIGATIONS (Continued) B. Include all Magnet students in the resident District's average daily membership for calculation. (Continued) 2. Actual as of July 31, 2003 ~lt.\i;ie~iil~i~tlll&amp;.i:1ir&amp;liifi4nif;.$.QJ~i&gt;.O~;Iif.i~:.A:t.li;\~I~.a:r~:i~:tj_fq,r.;;fX C. Process and distribute State MFPA. 1. Projected Ending Date Last day of each month, August - June. 2. Actual as of July 31, 2003 ~1i~~~-~~91i::g91t~E~t~.td~.Yti9'0:;2.f~~I~;:~!J~.!\~~'tr2.t\."'E;~nfffri:ef1.9.f.~.6X:q?/.9~-w.~re D. Determine the number of Magnet students residing in each District and attending a Magnet School. 1. Projected Ending Date Last day of each month, August - June. 2. Actual as of July 31, 2003 ~1'9\1~ Bi~~{~!~flilj~;i~f &amp;iliklr40g:9.?lti'.ai~c(a(::JlJH~::3.0}~'bo~.f.off.Y E. Desegregation Staff Attorney reports the Magnet Operational Charge to the Fiscal Services Office. 1. Projected Ending Date Ongoing, as ordered by the Court. 2 UNITED STATES DISTRICT COURT Little Rock Division Eastern District of Arkansas JUL 3 0 2003 NOTICE JAMES W. McCORMACK, CLERK .By: ______ __,,=~- DEP CLERK LITTLE ROCK SCHOOL DISTRICT, Plaintiff vs. Case No.: 4:82CV00866-WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, et al, Defendant ******************************************************************* Type of Case: CIVIL ** ****** ***************************** *** *************************** TAKE NOTICE that a proceeding in this case has been set for the place, date and time set forth below: ******************************************************************* Place: U. S . Courthouse 600 West Capitol Little Rock, AR Ave., Room 431 72201 Date: MONDAY, AUGUST 18, 2003 Time: 10:00 A.M. *- **************************************************************** Type of Proceeding: MOTION TO ENFORCE SETTLEMENT AGREEMENT HEARING ******************************************************************* Presiding Judge : BILL WILSON ******************************************************************* Instructions: ******************************************************************* James W. McCormack, Clerk of Court r By: JOHNSON Deput c9 Counsel of Record Dated: 07/30/03 RECEIVED JUL 3 1 2003 OFFICE OF DESEGREGATION MONITORING Fit1: ~-- tAsr~1:it g\SiR1cr P STR1cr A2!J~, '""NSAs JUL 3 0 20u3 JAMES W By: McCORMACK - , CLERK UPDATE ON THE REDESIGN OF HARRIS ELEMENTARY SCHOOL AND THEEPCLERi,; REZONING OF SCHOOLS IN THE SHERWOOD AREA OF THE Ann S. Marshall Federal Monitor PULASKI COUNTY SPECIAL SCHOOL DISTRICT July 30, 2003 Office of Desegregation Monitoring United States District Court Little Rock, Arkansas Horace R. Smith Associate Monitor 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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