Court filings regarding responses to Pulaski County Special School District's (PCSSD's) motion for a declaration of unitary status, notice of docket correction with additional exhibit, and response re: order regarding Pulaski Association of Classroom Teacher's (PACT's) request to file a belated response.

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<dcterms_description>Court filings: District Court, Pulaski County Special School District (PCSSD) reply to Pulaski Association of Classroom Teacher's (PACT's) response to Pulaski County Special School District's (PCSSD's) motion for a declaration of unitary status; District Court, motion to file a belated response to Pulaski County Special School District's (PCSSD's) motion for a declaration of unitary status; District Court, surreply to Pulaski County Special School District's (PCSSD's) motion for a declaration of unitary status; District Court, response to December 21, 2007, letter order; District Court, letter order; District Court, Joshua intervenors' response to Pulaski County Special School District's (PCSSD's) motion for unitary status; District Court, Joshua intervenors' response to the Pulaski County Special School District's (PCSSD's) brief in support of motion for unitary status; District Court, Joshua intervenors' reply to state's and North Little Rock School District's (NLRSD's) response to December 21, 2007, order; District Court, notice of electronic filing, notice of docket correction with additional exhibit; District Court, letter order; District Court, response re: order regarding Pulaski Association of Classroom Teacher's (PACT's) request to file a belated response; District Court, response re: order; District Court, motion for substitution of counsel; District Court, notice of electronic filing, order This transcript was create using Optical Character Recognition (OCR) and may contain some errors. Case 4:82-cv-00866-WRW Document 4178 Filed 01/07/2008 Page 1 of 5 IN THE UNIIBD STATES DISTRICT COURT EASIBRN DISTRICT OF ARKANSAS WESIBRN DMSION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. t-ARS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS PCSSD REPLY TO PACT'S RESPONSE TO PCSSD'S MOTION FOR A DECLARATION OF UNITARY STATUS INTRODUCTION This court should disregard the PACT Response for two (2) fundamental reasons: 1. The PCSSD filed its Motion for Unitary Status on October 29, 2007. The PACT ''Response" was filed on December 21, 2007, or almost two (2) months later. PACT neither sought nor obtained an enlargement of time to respond to the PCSSD Motion and under the Rules the ''Response" should be dismissed as untimely. 2. More substantively and fundamentally, the relief sought by PACT, to the extent it can be discerned, exceeds the limited reasons for which PACT was granted intervenor status in 1984. In 1984, PACT persuaded the Court of Appeals to permit it and the other teacher organizations then in operation in Pulaski County to intervene for the limited purpose of protecting their contractual rights and their collective bargaining rights, particularly assuming that consolidation might be ordered. 738 F.2d 82. (8th Cir. 1984). Here, the relief seemingly sought by PACT asks the district court to exclude from its ultimate decision the issues of racial discrimination in hiring and promotions as alleged in two individual cases: Humphries v. PCS SD ( citation omitted) and Dixon v. PCSSD ( citation omitted). PACT 's submission at p.4. 1121892.1 Case 4:82-cv-00866-WRW Document 4178 Filed 01/07/2008 Page 2 of 5 DISCUSSION 1. Pursuant to the rules of this court, a response to a motion is due within eleven (11) days of service. See Rule FRCP 6. Here, a response was due no later than November 9, 2007, even assuming that PACT had any standing or basis or make a response. The gross tardiness of the response alone is a sufficient basis for the court to strike or disregard it or to deny the relief sought. 2. Much of the PACT submission discusses the claims of two individuals, a Dr. Donna Humphries who wishes to be an administrator, and a Ms. Norma Dixon, a non-certified employee who would like to be a "buyer." Two preliminary observations are in order. If Dr. Humphries is ever successful in becoming an administrator, she would forfeit her eligibility to remain a member of PACT. PACT is an acronym for Pulaski Association of Classroom Teachers. Likewise, Ms. Dixon, as a non-certified employee who wishes to be a buyer in the business department, does not even aspire to be a classroom teacher, and is likewise not eligible to be a PACT member. Much of the rest of the PACT submission complains about the racial composition of the administrative staff of the PCS SD, a matter outside the scope of its intervention. 738 F.2d 82 (8th Cir. 1984). Nowhere does it point to a specific violation of Plan 2000, the Plan pursuant to which the District is seeking to demonstrate its compliance and thus attain unitary status. Plan 2000 states simply and exclusively as regards administrators that: "The PCSSD shall select its administrative staff from a racially diverse pool of applicants." Plan 2000 at page 6, SectionL. Staff Plan 2000 says nothing about what the statistical outcomes should be. The test for the hiring of teachers is phrased identically. Later in its submission, PACT seeks to make much of its view that the PCSSD is in compliance with some standards not found in Plan 2000 regarding the racial composition of its teacher corp. PACT cites a case from 1987 when the PCSSD operated pursuant to an earlier plan. At various points in this litigation, other litigants have sought to promote or otherwise litigate their perceived interests of individual employees. As predecessor judges in this case have consistently ruled, this class action institutional reform litigation is not a proper forum for the litigation of individual claims or perceived individual slights. The PACT ''Response" should be dismissed on this basis as well. Premises considered, PACT, as an organization of teachers 1121892.1 2 Case 4:82-cv-00866-WRW Document 4178 Filed 01/07/2008 Page 3 of 5 allowed to intervene to protect their contract rights as teachers, simply lack standing to file their ''Response." WHEREFORE, the PCS SD prays for an order denying whatever relief is sought by PACT and for all other proper relief. 1121892.1 Respectfully submitted, :l\1ITCHELL, WILLIAMS, SELIG, GATES &amp; WOODY ARD, P.L.L.C. 425 West Capitol Avenue, Suite 1800 Little Rock, Arkansas 72201 Telephone: (501) 688-8800 Facsimile: (501) 688-8807 Isl M. Samuel Jones. III M. Samuel Jones III (76060) E-mail: sjones@mwsgw.com Attorneys for Pulaski County Special School District 3 Case 4:82-cv-00866-WRW Document 4178 Filed 01/07/2008 Page 4 of 5 CERTIFICATE OF SERVICE I hereby certify that on January 7, 2008, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which shall send notification of such filing to the following: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mbumette@mbbwi.com John Clayburn Fendley, Jr clayfendley@comcast.net,yeldnef@yahoo.com Christopher J. Heller heller@fec.net,tmiller@fec.net,brendak@fec.net M. Samuel Jones , III sjones@mwsgw.com,aoverton@mwsgw.com Stephen w. Jones sjones@jlj.com,linda.calloway@jlj.com Philip E. Kaplan pkaplan@williamsanderson.com,nmoler@williamsanderson.com Office of Desegregation Monitor andreeroaf@odmemail.com,aroaf@seark.net,paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov,agcivil@arkansasag.gov,danielle.williams@arkansasag .gov John W. Walker johnwalkeratty@aol.comJorap72297@aol.com.jspringer@gabrie1maiLcom I certify that on January 7, 2008, I mailed the foregoing document and a copy of the Notice of Electronic Filing (NEF) by United States Postal Service to the following non CM/ECF participants: Mr. Robert Pressman 22 Locust Avenue Lexington, Massachusetts 02173 1121892.1 4 Case 4:82-cv-00866-WRW Document 4178 Filed 01/07/2008 Page 5 of 5 Judge J. Thomas Ray U.S. District Courthouse 600 West Capitol Avenue, Suite 149 Little Rock, Arkansas 72201 1121892.1 Isl M. Samuel Jones. III M. Samuel Jones, III Arkansas Bar No. 76060 Attorneys for Pulaski County Special School District MITCHELL, WILLIAMS, SELIG, GATES &amp; WOODY ARD, P.L.L.C. 425 West Capitol Avenue, Suite 1800 Little Rock, Arkansas 72201 Telephone: (501) 688-8800 Facsimile: (501) 688-8807 E-Mail: sjones@mwsQW.com 5 Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Monday, January 07, 2008 2:34 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Brief in Opposition This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered by Jones, M. on 1/7/2008 at 2:33 PM CST and filed on 1/7/2008 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: Pulaski County Special School District WARNING: CASE CLOSED on 01/26/1998 Document Number: 4178 Docket Text: BRIEF IN OPPOSITION filed by Pulaski County Special School District re [4175] Response to Motion - PCSSD Reply to PACT's Response to PCSSD's Motion for a Declaration of Unitary Status (Jones, M.) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mburnette@mbbwi.com John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net M. Samuel Jones , III sjones@mwsgw.com, aoverton@mwsgw.com Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com 1/8/2008 Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle.williams@arkansasag.gov Page 2 of2 John W. Walker johnwalkeratty@aol.com,jspringer@gabrielmail.com, lorap72297@aol.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610 James M. Llewellyn , Jr Thompson &amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson &amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [ST AMP dcecfStamp ID= 1095794525 [Date= 1/7/2008] [FileNumber= 1070655-0] [3c6b7ca956241038bba68bdb4ddbd820dlfl89c0e21297c6b3bf7c923d8308b67520 7a3c381397c5b193a0e0fe82c9a085839e3146b6d3e33a97ae9a8df83dec]] 1/8/2008 Case 4:82-cv-00866-WRW Document 4179 Filed 01/09/2008 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. PLAINTIFF DEFENDANT INTER VEN ORS INTER VEN ORS MOTION TO FILE A BELATED RESPONSE TO PCSSD'S MOTION FOR A DECLARATION OF UNITARY STATUS Comes the Intervenor, Pulaski Association of Classroom Teachers (PACT), and, moves for leave to file its Response to Motion for a Declaration of Unitary Status, and in support, states: 1. PACT mistakenly relied upon the Court's prior grant ofan extension of time until December 29, 2007, for the Joshua Intervenors to file their response to PCS SD' s motion for declaration of unitary status, and therefore, filed its response on December 21 , 2007. 2. PCSSD now seeks to strike that response pursuant to Rule 6, FRCP. 3. As PCS SD' spending motion is a dispositive motion for this case, PACT should be heard on the issues raised in its December 21, 2007, response, despite the delay in filing relative to PCSSD's motion. 4. PCS SD is not prejudiced by this delay, as the Joshua Intervenors were previously granted an extension of time for filing their response, and PACT filed within that time period. Further, the court has indicated that it will not set a hearing on PCSSD's motion until after the Court Page 1 of 3 'I Case 4:82-cv-00866-WRW Document 4179 Filed 01/09/2008 Page 2 of 3 of Appeals for the Eighth Circuit rules on the Joshua Intervenor's appeal of the court's order granting LRSD unitary status. PCSSD has had adequate time to reply, and has done so, substantively, already. Wherefore, PACT prays for an order, nunc pro tune, granting it additional time to respond to PCSSD's motion for declaration of unitary status to include December 21, 2007. Respectfully submitted, ls/Mark Burnette Mark Burnette, ABN 88078 MITCHELL,BLACKSTOCK,BARNES WAGONER, IVERS &amp; SNEDDON, PLLC 1010 West Third P. 0. Box 1510 Little Rock, AR 72203-1510 (501) 378-7870 Page 2 of 3 Case 4:82-cv-00866-WRW Document 4179 Filed 01/09/2008 Page 3 of 3 CERTIFICATE OF SERVICE I hereby certify that on January 9, 2008, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which shall send notification of such filing to the following: ___ John Clayburn Fendley, Jr. clayfendley@comcast.net; yeldnef@yahoo.com Christopher J. Heller heller@fec.net;tmiller@fec.net;brendak@fec.net M. Samuel Jones , III sjones@mwsgw.com;aoverton@mwsgw.com Stephen W. Jones sjones@jlj.com;linda.calloway@jlj .com Philip E. Kaplan pkaplan@williamsanderson.com;nmoler@williamsanderson.com Office of Desegregation Monitor andreeroaf@odmemail.com;aroaf@seark.net;paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov;agcivil@arkansasag.gov danielle.williams@arkansasag.gov John W. Walker johnwalkeratty@aol.com; lorap72297@aol.com;jspringer@gabrielmail.com M. Samuel Jones, III sjones@mwsgw.com I certify that on January 9, 2008, I mailed the foregoing document and a copy of the Notice of Electronic Filing (NEF) by United States Postal Service to the following non CM/ECF participants: Mr. Robert Pressman 22 Locust Avenue Lexington, Massachusetts 02173 By: ls/Mark Burnette Mark Burnette, ABN 88078 Page 3 of 3 Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Wednesday, January 09, 2008 3:26 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Motion for Extension of Time to File Response/Reply This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including prose litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered by Burnette, Mark on 1/9/2008 at 3:25 PM CST and filed on 1/9/2008 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: Pulaski Association of Classroom Teachers WARNING: CASE CLOSED on 01/26/1998 Document Number: 4179 Docket Text: First MOTION for Extension of Time to File Response/Reply as to [4159] MOTION for Order for a Declaration of Unitary Status by Pulaski Association of Classroom Teachers (Burnette, Mark) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mburnette@mbbwi.com John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net M. Samuel Jones , III sjones@mwsgw.com, abray@mwsgw.com Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com 2/12/2008 Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com - Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle. williams@arkansasag.gov Page 2 of2 John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Office of the Governor State Capitol Room238 Little Rock, AR 72201 James M. Llewellyn , Jr Thompson &amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson &amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=l/9/2008] [FileNumber=1073027-0] [85f4eb2890762693857547f8cfcac50348467752285b7alae8f633abcd5fD2dd6189 6101f3a91ed914aa161cdd93858ecd6af6dlbfadd94ffaa2bd2f1084eb3e]] 2/12/2008 Case 4:82-cv-00866-WRW Document 4180 Filed 01/09/2008 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. SURREPLY TO PCSSD'S PLAINTIFF DEFENDANT INTER VEN ORS INTER VEN ORS MOTION FOR A DECLARATION OF UNITARY STATUS Comes the Intervenor, Pulaski Association of Classroom Teachers (PACT), and, for its surreply to Pulaski County Special School District's Motion for a Declaration of Unitary Status, states: 1. PACT simultaneously files herewith a Motion for Leave to File Belated Response and Sur Reply to PCSSD's Motion for a Declaration of Unitary Status to meet PCSSD's objection to the previously filed response without an order granting such a belated filing. PACT mistakenly relied upon the time granted to the Joshua Intervenors as setting a deadline for all responding to the dispositive motion filed by PCSSD. The usual eleven days for responding to motions was insufficient to allow PACT to assess the motion relative to the multiple interests at stake. PACT urges the court to accept its original pleading filed ono December 21, 2007, after considering the accompanying motion, and thereafter, grant the relief requested. 2. Further, PCSSD 's Reply, ,i 2, makes two erroneous "preliminary observations," which it presumably intends for the court to rely upon to find PACT "simply lack standing to file their Page 1 of 5 Case 4:82-cv-00866-WRW Document 4180 Filed 01/09/2008 Page 2 of 5 "Response." First, PCS SD asserts that the two individuals (Dr. Donna Humphries and Ms. Norma Dixon) for whom PACT responded on December 21, 2007, are either not members of PACT ( re:Ms. Dixon) or would "forfeit" PACT membership if "successful in becoming an administrator," and presumably, therefore, PACT does not have standing to represent the interests asserted in PACTs' Response to Motion for Declaration of Unitary Statuse. PCSSD Reply,p. 2. Dr. Humphries is a member of PACT, and will not forfeit membership upon being granted relief as an administrator. PCS SD is well aware that it withholds PACT membership dues for well over 40 principals and assistant principal administrators employed by the district. Further, PACT simply has no restriction on membership relative to an administrative employee's status as such so long as the member must have a teaching certificate as a condition of his or her employment, and, - the person is not the chief administrator of the district, i.e. the superintendent. PACT's bargaining status is limited to non-administrative personnel, but, as discussed below, that does not limit PACT's class representative status on behalf of virtually all employees of the district. See Dkt. No. 1179, also cited in PACT's Response. Secondly, with respect to Ms. Dixon and Dr. Humphries, PACT is obligated to represent both of these employees, whether members of PACT or not, pursuant to the April 17, 1989 consent Order Dkt. No. 1179, which states in relevant part: The Little Rock Classroom Teachers Association, the Pulaski Association of Classroom Teachers, the North Little Rock Classroom Teachers Association, Grainger Ledbetter, Joyce Elliott, Sue Simmons, Katherinie Knight, Ed Bullington, Willie Givens, Teretha Jackson, and Leola Scoggins, are certified as class representatives under Rule 23 of the Federal Rules of Civil Procedure for the class of all present, past and future certified and non- Page 2 of 5 Case 4:82-cv-00866-WRW Document 4180 Filed 01/09/2008 Page 3 of 5 certified, past and future certified, and non-certified staff employees of the Little Rock School District, Pulaski County Special School District No. 1, and the North Little Rock School District; Hence, by agreement and order of the court, PCSSD is precluded from asserting any alleged objection to PACT's standing on behalf of either non-teacher employees, non-certified employees, or non-PACT member employees. All are represented by PACT at this juncture. PCSSD's counsel may have been unaware of the expanded role of PACT on behalf of all PCSSD employees as he was not the attorney signing that consent order on behalf of PCSSD, attorney N. M. Norton, Jr., was counsel at that time. However, PACT cited DKT 1179 in its Response, thus PCSSD is aware that PACT's representative status has been expanded beyond the parameters of the 1984 Court of Appeals ruling which PCSSD cites. In light of the 1989 consent order establishing PACT's expanded class representative status, - PACT' s substantive interests in this matter are not constrained or controlled by the limits established in 1984, to "protect their [sic] contract rights as teachers" as asserted by PCS SD. Reply Brief p. 3. Nevertheless, the protection of PCSSD's employees' contract rights are precisely what is being raised by PACT herein. The contract rights which PACT seeks to protect from implicit resolution within this case are as based on the following: All employment contracts with public entities include an implied term of equal protection, pursuant to the 5th and 14th Amend. to the U.S. Const.; all employment contracts by employers who employ more than 15 employees include an implied term of equal employment opportunity as described by Title VII, 42 U.S.C. 2000e. Further, PCSSD's "Professional Negotiated Agreement," explicitly addresses the process for filling administrative positions from within the ranks of its employees, which is directly asserted as a basis for Dr. Humphries' claims. The problem Page 3 of 5 V &lt; ... ... Case 4:82-cv-00866-WRW Document 4180 Filed 01/09/2008 Page 4 of 5 PACT sees with PCSSD's position herein is its apparent attempt to gloss over, and gain potential legal advantage, by referring the court to its administrative assignment statistics, PCSSD 's Motion for Declaration of Unitary Status, p. 4-5, which, if approved, may be interpreted as implicitly approving its hiring statisics for these positions. One cannot "assign" minorities to 52% of the available administrative positions without having also "hired" 52% minorities for those positions. If the court grants its approval to one, it may well be held to have implicitly granted approval to the other. That should not be done, and that is what PACT seeks to prevent by filing its Response. WHEREFORE, PACT prays any order issued on PCS SD' spending motion for unitary status make explicit exclusion of the issues ofracial discrimination in hiring and promotions as alleged in Humphries v. PCSSD, Case No. 4 :06 CV-00606 (E.D. Ark.) and Dixon v. PCSSD, Case No. 4-07-cv- 01119 (E.D.Ark). Respectfully submitted, ls/Mark Burnette Mark Burnette, ABN 88078 MITCHELL,BLACKSTOCK,BARNES WAGONER, IVERS &amp; SNEDDON, PLLC 1010 West Third P. 0. Box 1510 Little Rock, AR 72203-1510 (501) 378-7870 Page 4 of 5 Case 4:82-cv-00866-WRW Document 4180 Filed 01/09/2008 Page 5 of 5 CERTIFICATE OF SERVICE I hereby certify that on January 9, 2008, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which shall send notification of such filing to the following: ___ John Clayburn Fendley , Jr. clayfendley@comcast.net; yeldnef@yahoo.com Christopher J. Heller heller@fec.net;trniller@fec.net;brendak@fec.net M. Samuel Jones , III sjones@mwsgw.com;aoverton@mwsgw.com Stephen W. Jones sjones@jlj.com;linda.calloway@jlj .com Philip E. Kaplan pkaplan@williamsanderson.com;nrnoler@williamsanderson.com Office of Desegregation Monitor andreeroaf@odmemail.com;aroaf@seark.net;paramer@odmemail.com ScottP.Richardson scott.richardson@arkansasag.gov;agcivil@arkansasag.gov danielle. williams@arkansasag.gov John W. Walker j ohnwalkeratty@aol.com; lorap72297@aol.com;jspringer@gabrielmai1.com M. Samuel Jones, III sjones@mwsgw.com I certify that on January 9, 2008, I mailed the foregoing document and a copy of the Notice of Electronic Filing (NEF) by United States Postal Service to the following non CM/ECF participants: Mr. Robert Pressman 22 Locust Avenue Lexington, Massachusetts 02173 By: ls/Mark Burnette Mark Burnette, ABN 88078 Page 5 of 5 Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Wednesday, January 09, 2008 3:33 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Response in Opposition to Motion This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including prose litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered by Burnette, Mark on 1/9/2008 at 3:32 PM CST and filed on 1/9/2008 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: Pulaski Association of Classroom Teachers WARNING: CASE CLOSED on 01/26/1998 Document Number: 4180 Docket Text: RESPONSE in Opposition re [4159] MOTION for Order for a Declaration of Unitary Status filed by Pulaski Association of Classroom Teachers. (Burnette, Mark) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mburnette@mbbwi.com John Clayburn Fendley , Jr clayfendley@comcast.net, yeldnef@yahoo.com Christopher J. Heller heller@fec .net, brendak@fec .net, tmiller@fec.net M. Samuel Jones, III sjones@mwsgw.com, abray@mwsgw.com Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com 2/12/2008 Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle. williams@arkansasag.gov Page 2 of2 John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Office of the Governor State Capitol Room238 Little Rock, AR 72201 James M. Llewellyn , Jr Thompson &amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson &amp; Llewellyn, P.A. Post Office Box 818 - Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=l/9/2008] [FileNumber=1073049-0] [295d492bfa46dlfbac44420e507ba0b87f98cld95027c217c49e075f825fl28763c7 ccd4b412a96ddb147da03783ac2a7a07d4c327baf3150e6b135c8f80c3be]] 2/12/2008 Case 4:82-cv-00866-WRW Document 4181 Filed 01/11/2008 Page 1 of 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION LITTLE ROCK SCHOOL DISTRICT v. No. 4:82-cv-866 WRW PLAINTIFF PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. DEFENDANTS RESPONSE TO DECEMBER 21, 2007, LETTER ORDER The Arkansas Department of Education (ADE), by and through its attorney, Assistant Attorney General Scott P. Richardson, and the North Little Rock School District, by and through its attorney Stephen W. Jones, state for their Response to the Court's December 21, 2007, Letter Order: 1. On December 21, 2007, the Court issued a letter expressing concern about scheduling hearings on the School Districts' motions for unitary status because of the Joshua Intervenors' "challenging the compliance standard [the Court] used during the last hearing" in the pending appeal of the LRSD's unitary status. 2. The standard for determining whether the school districts have complied with their desegregation plans is well established in this case. In 2002, when this Court released the LRSD from all but one of the areas of its desegregation plan, the Court explained that the standard was whether a district had "substantially complied" with its desegregation obligations. The 2002 opinion gave a focused definition of this standard when it held: I am required to examine whether any of LRSD's failures to comply with the Revised Plan in the six challenged areas are "serious enough": (1) to constitute "substantial noncompliance"; and (2) "to cast doubt" on LRSD's "future compliance with the constitution." Case 4:82-cv-00866-WRW Document 4181 Filed 01/11/2008 Page 2 of 5 LRSD v. PCSSD, et al., 237 F.Supp.2d 988, 1032-33 (E.D. Ark. 2002). 3. Although the Joshua lntervenors appealed the 2002 release of the LRSD, they did not challenge this standard on appeal. The Eighth Circuit in affirming this Court's 2002 decision relied on this standard to evaluate the LRSD's release. LRSD v. Armstrong, 359 F.3d 957 (8th Cir. 2004). This standard thus became the law of the case as the Court recognized in 2004. LRSD v. PCSSD, 470 F. Supp. 2d 963,965 (E.D. Ark. 2004). Accordingly, this is the standard that should continue to govern the evaluation of the school districts' compliance with their desegregation plans. 4. Further, the standard of substantial compliance in good faith established by this Court and the Eighth Circuit is consistent with Supreme Court precedent starting with Brown II in 1955. Brown v. Board of Education, 349 U.S. 294, 299, 75 S.Ct. 753, 746 (1955) (release from court supervision required if "the action of school authorities constitutes good faith implementation of the governing constitutional principles.") (emphasis added); Accord Green v. County School Board of New Kent County, 391 U.S. 430, 439, 88 S.Ct. 1689, 1695 (1968)(school district's obligation of compliance was "to be acting in good faith."); Board of Education v. Dowell, 498 U.S. 237, 249, 111 S.Ct. 630, 637-8 (1991)(requiring "good faith of the school board in complying with the decree."); Freeman v. Pitts, 503 U.S. 467, 493, 112 S.Ct. 1430, 1447 (1991)(rejecting assertion that school district had to engage in "heroic measures" to demonstrate compliance with a desegregation plan). 5. The Joshua Intervenors have not challenged the general application of this standard to this case in their currently pending appeal. They have argued in their Appellant's Reply Brief that the "deeply embedded" requirement in the Court's 2004 2 Case 4:82-cv-00866-WRW Document 4181 Filed 01/11/2008 Page 3 of 5 Compliance Remedy was not a new standard but that it came "straight from the broad 2.7.1 bargain, by 'reasonable implication."' Ex. A, Joshua Reply Brief p. 9. The Joshua Intervenors go on to state that the "deeply embedded" standard does not apply to the other two districts, because "the standard is a part of LRSD's voluntary substantive obligation drawn from Sec. 2.7.1." Id. In short, the Joshua Intervenors have taken the position on appeal that the standard involved in their Eighth Circuit appeal applies only to the LRSD and only to one part of its desegregation plan. Principles of fairness and estoppel should prevent the Joshua Intervenors from changing positions on this issue as the two remaining school districts move forward. Hossaini v. Western Missouri Medical Center, 140 F.3d 1140 (8th Cir. 1998). 6. With regard to the PCSSD's petition for unitary status, a response to that pleading was due on or about November 12, 2007. Neither the LRSD (the original plaintiff in this case) nor the Joshua Intervenors have filed a response to that petition in the two months since it was filed. 7. The undersigned would also note that the Arkansas General Assembly has made funds available for reimbursement of attorneys' fees if the school districts can obtain a ruling by June 14, 2008, that they have at least partially complied with their desegregation plans. Ex. A, Act 395 of 2007. WHEREFORE, the State of Arkansas and the North Little Rock School District state that the currently pending appeal should not be an impediment to having the two remaining school districts provide their students assurance through court action that they either have fulfilled or are fulfilling their desegregation obligations and requests that the 3 Case 4:82-cv-00866-WRW Document 4181 Filed 01/11/2008 Page 4 of 5 Court enter a scheduling order on the pending petitions for unitary status, and issue all other just and proper relief to which it may be entitled. BY: BY: Respectfully submitted, DUSTIN McDANIEL Attorney General Isl Scott P. Richardson SCOTT P. RICHARDSON, Bar No. 01208 MATTHEW B. McCOY, Bar No. 01165 Assistant Attorneys General 323 Center Street, Suite 1100 Little Rock, AR 72201-2610 (501) 682-1019 direct (501) 682-2591 facsimile Email: scott.richardson@arkansasag.gov ATTORNEYS FOR STATE OF ARKANSAS AND ARKANSAS DEPARTMENT OF EDUCATION Isl Stephen W. Jones STEPHEN W. JONES, Bar No. 78083 Jack Nelson Jones Fink Jiles &amp; Gregory, P.A. 425 West Capitol Avenue Suite 3400 Little Rock, AR 72201 Telephone 501-375-1122 Fax 501-375-1027 ATTORNEY FOR THE NORTH LITTLE ROCK SCHOOL DISTRICT 4 Case 4:82-cv-00866-WRW Document 4181 Filed 01/11/2008 Page 5 of 5 CERTIFICATE OF SERVICE I hereby certify that on January 10, 2008, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which shall send notification of such filing to the following: Mr. Clayton R. Blackstock cblackstock@mbbwi.com Mr. Mark Terry Burnette mbumette@mbbwi.com Mr. John Clayburn Fendley , Jr clayfendley@comcast.net Mr. Christopher J. Heller heller@fec.net Mr. M. Samuel Jones , III sjones@mwsgw.com Mr. Stephen W. Jones sjones@j lj .com Mr. John W. Walker johnwalkeratty@aol.com Office of Desegregation Monitor andreeroaf@odmemail.com; aroaf@seark.net; paramer@odmmail.com I, Scott P. Richardson, Assistant Attorney General, do hereby certify that I have served the foregoing and a copy of the Notice of Electronic Filing by depositing a copy in the United States Mail, postage prepaid, on January 10, 2008, to the following nonCM/ ECF participants: Mr. Robert Pressman 22 Locust A venue Lexington, Mass. 02173 Isl Scott P. Richardson SCOTT P. RICHARDSON 5 - 1 2 3 4 5 6 7 8 9 10 ' 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 - 35 Case 4:82-cv-00866-WRW Document 4181-2 Filed 01/11/2008 Page 1 of 5 Stricken language would be deleted from and underlined language would be added to the law as it existed prior to this session of the General Assembly. Act 395 of the Regular Session State of Arkansas As EAosB .-i}3i7/07 86th General Assembly Regular Session, 2007 HOUSE BILL 1829 By: Representative Bond For An Act To Be Entitled AN ACT TO ENSURE EFFICIENCY AND ACCOUNTABILITY FOR SCHOOL DISTRICTS INVOLVED IN DESEGREGATION LITIGATION; AND FOR OTHER PURPOSES. Subtitle AN ACT TO ENSURE EFFICIENCY AND ACCOUNTABILITY FOR SCHOOL DISTRICTS INVOLVED IN DESEGREGATION LITIGATION. BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: SECTION 1. Findings. It is found and determined by the General Assembly that: (1) The school districts in Pulaski County entered into a settlement agreement and desegregation plans in 1989 with the intent to fulfill a "promise for achieving unitary school systems which are free from the vestiges of racial discrimination"; (2) The State of Arkansas has paid the districts in excess of approximately seven hundred million dollars ($700,000,000) to assist the districts in fulfilling their promise to achieve unitary schools free from the vestiges of racial discrimination; (3) There has never been a date certain when the state's desegregation obligations in the case styled Little Rock School District v. Pulaski County Special School District No. 1, et al, No. LR-C-82-866, are to end; (4) The Little Rock School District has recently been declared lllllllllllll 111111111111111111111111111 Exhibit A 03-07-2007 09:14 JDFlll 1 2 3 4 Case 4:82-cv-00866-WRW Document 4181-2 As Engrossed: H3/7/07 Filed 01/11/2008 Page 2 of 5 HB1829 unitary and has been released from federal court supervision, but the Pulaski County Special School District and the North Little Rock School District have yet to attain a ruling that they have fulfilled their promise to their students to achieve unitary school systems; 5 (5) These school districts believe they are unitary or have 6 achieved a unitary status in some respect, and have stated so publicly in 7 legislative committee meetings; 8 (6) The General Assembly finds that without any ruling from the 9 federal district court that the districts have achieved unitary status, there 10 is no assurance that the promise of schools free of the vestiges of racial 11 discrimination has been fulfilled by these districts; 12 (7) The General Assembly finds that, as a part of the state's 13 overall obligation to provide a general, suitable, and efficient school 14 system, the students and parents of the Pulaski County districts deserve to 15 know that they are being educated in a unitary school district, or if their 16 district is not unitary in some respect the district should be making 17 18 19 20 adequate progress towards being declared fully unitary; (8) The General Assembly seeks to assist the school districts to achieve unitary status and to fulfill their promise to provide school systems which are free from the vestiges of racial discrimination consistent with 21 their desegregation plans; and 22 (9) The General Assembly also seeks to provide some assurance to 23 the children in the districts that the promise of unitary schools in the 24 Pulaski County districts will be fulfilled within a reasonable amount of 25 time. 26 27 28 29 30 31 32 33 34 35 36 SECTION 2. Arkansas Code Title 6, Chapter 20, Subchapter 4 is amended to add additional sections to read as follows: 6-20-415. Consultants. The Department of Education in consultation with the Attorney General shall hire consultants on the following basis: (1) The consultants shall be qualified as experts in public school district desegregation; 1, 2007; (2) The department shall hire the consultants prior to October (3) The purposes for employing the consultants are to determine 2 Exhibit A 03-07-2007 09:14 JDFlll 1 2 3 4 Case 4:82-cv-00866-WRW Document 4181-2 As Engrossed: H3/7/07 Filed 01/11/2008 Page 3 of 5 HB1829 whether and in what respects any of the three (3) Pulaski County school districts: (A)(i) Are unitary. (ii) If a school district has been declared unitary 5 or has been declared unitary in some respects, the consultants shall not 6 examine the school district on those issues; and 7 (B) Have complied with their respective consent decrees; 8 and 9 (4) The consultants shall understand and acknowledge in their 10 work and research that their testimony in court may be required. 11 12 13 14 15 16 17 18 19 6-20-416. Desegregation funding. (a) The Department of Education and the Attorney General are authorized to seek proper federal court review and determination of the current unitary status of any school district in the case of Little Rock School District v. Pulaski County Special School District No. 1, et al, No. LR-C-82-866. (b)(l) Upon the effective date of this section, the department and the Attorney General are authorized to seek modification of the current consent 20 decree or enter into a new or an amended consent decree or settlement 21 agreement under this section that allows the State of Arkansas to: 22 (A) Continue necessary and appropriate payments under a 23 post-unitary agreement to the three (3) Pulaski County school districts for a 24 limited and definite time period not to exceed seven (7) years and for a 25 definite limited sum of payments; 26 (B) Ensure that the amount of funding provided under the 27 post-unitary agreement is the total maximum obligation of the state and the 28 school districts in the case; 29 (C) Ensure that the payments required pursuant to the 30 post-unitary agreement are structured so that the total amount of the 31 payments decrease so that no financial obligation remains due or owed by the 32 state at the end of the time period specified in the post-unitary agreement; 33 and 34 35 36 (D) Ensure that the total of any financial obligation created or established for the state in any one (1) year shall not exceed the state's desegregation obligation for the 2007-2008 school year. 3 Exhibit A 03-07-2007 09:14 JDFlll 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 Case 4:82-cv-00866-WRW Document 4181-2 As Engrossed: H3n /07 Filed 01/11/2008 Page 4 of 5 HB1829 (2) The agreement under this subsection (b) may only be a postunitary agreement and the school districts shall receive the continued funding only if they are declared unitary. However, the agreement does not have to be post unitary and may commence upon all districts having been declared, previously or in the future, unitary in terms of student assignment and student racial balance so long as all other requirements in subdivision (b)(l) of this section are met. (3) Before any agreement is entered into pursuant to this subsection (b), the proposed post-unitary agreement shall be submitted to the Legislative Council for review and approval. (c)(l) The department in consultation with the Attorney General shall have the authority to enter into agreements with the three (3) Pulaski County school districts to reimburse the school districts for legal fees incurred for seeking unitary status or partial unitary status. (2) To be eligible for possible reimbursement under this subsection (c) for legal fees incurred, motions seeking unitary status or partial unitary status shall be filed no later than October 30, 2007 1 and the school districts must be declared unitary or at least partially unitary by the federal district court no later than June 14 1 2008. (3) Under no circumstances shall any one (1) school district be entitled to reimbursement under this subsection (c) in excess of two hundred fifty thousand dollars ($250,000). (4) Before a reimbursement agreement is entered into pursuant to this subsection (c), the proposed reimbursement agreement shall be submitted to the Legislative Council for review and approval. (d)(l) By modifying the current consent decree or entering into a new or an amended consent decree or post-unitary agreement, the State Board of Education may create one (1) or more new school districts within Pulaski County if the creation of the new school district or districts does not eliminate the Pulaski County Special School District from existence. (2) The state board shall seek the federal district court's approval prior to creating a new school district pursuant to this subsection (d), unless the federal district court's approval is not required because: (A) The school district or districts involved have been released from the federal district court's supervision; or (B) The new school district or districts is contemplated 4 Exhibit A 03-07-2007 09:14 JDFlll 1 2 Case 4:82-cv-00866-WRW Document 4181-2 As Engrossed: H3n/07 only as part of the post-unitary agreement. Filed 01/11/2008 Page 5 of 5 HB1829 (3) Any new school district created in Pulaski County shall 3 receive a pro rata distribution based on its average daily membership of the 4 funding provided under subsection (b) of this section for the school district 5 or districts from which it was created. 6 (e) Nothing in this section shall be construed: 7 (1) To force entry of a consent decree or settlement agreement 8 by the department or the Attorney General with the three (3) Pulaski County 9 school distri cts; or 10 (2) As protecting any school district from action or sanction by 11 the department for fiscal, academic, or facilities distress. 12 13 14 15 16 17 - 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 - 36 Isl Bond 5 APPROVED: 3/21/2007 Exhibit A 03-07-2007 09:14 JDFlll Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Friday, January 11, 2008 4:16 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Response (Non Motion) This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered by Richardson, Scott on 1/11/2008 at 4:16 PM CST and filed on 1/11/2008 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: Arkansas, State of WARNING: CASE CLOSED on 01/26/1998 Document Number: 4181 Docket Text: RESPONSE re [4176] Order of December 21, 2007 by Arkansas, State of (Attachments: # (1) Exhibit A, Act 395 of 2007)(Richardson, Scott) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mburnette@mbbwi.com John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net M. Samuel Jones , III sjones@mwsgw.com, abray@mwsgw.com Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com 2/12/2008 Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle.williams@arkansasag.gov Page 2 of2 John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Office of the Governor State Capitol Room238 Little Rock, AR 72201 James M. Llewellyn , Jr Thompson &amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson &amp; Llewellyn, P.A. Post Office Box 818 - Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=l/11/2008] [FileNumber=1075449-0 ] [a025e51e79d39c79ba67025907cd934ad8bc4b0d36928763bf7f9903f31a89c73d8 d7f4471 b50b27998567a6f720aa60faf0ae6211 bdbfe4b75c7758b5f27583]] Document description:Exhibit A, Act 395 of2007 Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=l/11/2008] [FileNumber=1075449-l ] [7fb9987a8c1692f917deb5b9830564c6385221857531cb9a136c61e009318e08746 23afc1693fbe3e2d80f0146153a8c5e2e49525fb2bec8fde06ac8a6a3411f]] 2/12/2008 Case 4:82-cv-00866-WRW Document 4182 Filed 01/14/2008 Page 1 of 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS RICHARD SHEPPARD ARNOLD UNITED STATES COURTHOUSE 500 W. CAPITOL, ROOM 0444 LITTLE ROCK, ARKANSAS 72201-3325 (501) 604-5140 Facsimile (501) 604-5149 January 14, 2008 Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, AR 72024 Re: LRSD v. PCSSD, 4:82-CV-00866 Dear Mr. Walker: It appears that you have not filed a response to the Pulaski County Special School District's Motion for Declaration of Unitary Status (Doc. No. 4159), which was filed on October 29, 2007. Do you concede their motion? If not, why has no response been filed? Please advise by noon, on Tuesday, January 22, 2008. I also note that the State and the North Little Rock School District have filed a response (Doc. No. 4181) to my December 21, 2007 Letter-Order. If you wish to reply to this pleading, do so by noon, Tuesday, January 22, 2008. Original to the Clerk of Court cc: The Honorable J. Thomas Ray Other Counsel of Record Cordially, /s/ Wm. R. Wilson, Jr. Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Monday, January 14, 2008 2:10 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Order This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered on 1/14/2008 at 2:10 PM CST and filed on 1/14/2008 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: WARNING: CASE CLOSED on 01/26/1998 Document Number: 4182 Docket Text: ORDER responses due by noon Tuesday, January 22, 2008 re [4176] Order, [4159] MOTION for Order for a Declaration of Unitary Status filed by Pulaski County Special School District. Signed by Judge William R. Wilson, Jr on 1/14/08. (dac) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com Christopher J. Heller heller@fec.net, brendak@fec.net, trniller@fec.net M. Samuel Jones, III sjones@mwsgw.com, abray@mwsgw.com Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com - John W. Walker johnwalkeratty@aol.com,jspringer@gabrielmail.com, lorap72297@aol.com Mark Terry Burnette mburnette@mbbwi.com 1/15/2008 John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle.williams@arkansasag.gov Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Office of the Governor State Capitol Room238 Little Rock, AR 72201 James M. Llewellyn , Jr Thompson &amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson &amp; Llewellyn, P.A. Post Office Box 818 - Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [ST AMP dcecfStamp ID= 1095794525 [Date= 1/14/2008] [FileNumber= 107 6222-0 ] [9b46924dedf356eb7397040212d07959ac9fl 7602042c 1 b2481 fl 05d3284f0bdb70 46fff719b4a842adl24874634e131ae33a7f6e8ce961e2bbf0461cc19b6at]] 1/15/2008 Page 2 of2 , . Case 4:82-cv-00866-WRW Document 4184 Filed 01/15/2008 Page 1 of 2 INTI-IE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. Case No. 4:82cv866WRWIJTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE W. KNIGHT, ET AL. PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS JOSHUA INTERVENORS' RESPONSE TO PCSSD'S MOTION FOR UNITARY STATUS 1. They deny the allegations of paragraph one. 2. They deny the allegations of paragraph two. 3. They deny the allegations of paragraph three. 4. They admit the allegations of paragraph four. WHEREFORE, the Joshua Intervenors oppose the Motion for Declaration of Unitary Status. Respectfully submitted, Isl John W. Walker 1 Case 4:82-cv-00866-WRW Document 4184 Filed 01/15/2008 Page 2 of 2 John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72206 501-374-3758 501- 374-4187 (Facsimile) Email: johnwalkeratty@aol.com CERTIFICATE OF SERVICE I do hereby state that a copy of the foregoing Opposition has been filed using the CM/ECF system on this 15th day of January, 2007 wherein on copy will be served on the following counsel: M. Samuel Jones, III sjones@mwsgw.com Christopher Heller heller@fec.net Scott P. Richardson scott.richardson@arkansasag.gov 2 Stephen W. Jones sjones@jlj.com Mark T. Burnette mBumette@mbbwi.com Office of Desegregation Mon. andreeroaf@odemail.com Isl John W. Walker Page 1 of2 polly From: ecf _ support@ared. uscourts. gov Sent: Tuesday, January 15, 2008 11 :57 AM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Response to Motion This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. Notice of Electronic Filing U.S. District Court Eastern District of Arkansas The following transaction was entered by Walker, John on 1/15/2008 at 11 :56 AM CST and filed on 1/15/2008 Case Name: Case Number: Filer: Little Rock School, et al v. Pulaski Cty School, et al 4:82-cv-866 Leslie Joshua Stacy Joshua Wayne Joshua Lorene Joshua WARNING: CASE CLOSED on 01/26/1998 Document Number: 4184 Docket Text: RESPONSE to Motion re [4159] MOTION for Order for a Declaration of Unitary Status filed by Lorene Joshua, Leslie Joshua, Stacy Joshua, Wayne Joshua. (Walker, John) 4:82-cv-866 Notice bas been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mburnette@mbbwi.com John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com - Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net M. Samuel Jones , III sjones@mwsgw.com, abray@mwsgw.com 1/15/2008 .. \ . .,,. Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle. williams@arkansasag.gov Page 2 of2 John W. Walker johnwalk:eratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Office of the Governor State Capitol Room238 Little Rock, AR 72201 James M. Llewellyn , Jr Thompson &amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson &amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=l/15/2008] [FileNumber=1077106-0 ] [4fe730110079004854c2a451 bc5efff96e21694690b61eee0739979fl 5276a21e9a 18320e6a6e6ec8514a5c659ed01539ec66b5378cdlcfc7ab215d5454f12aa]] 1/15/2008 Case 4:82-cv-00866-WRW Document 4185 Filed 01/15/2008 Page 1 of 10 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION LITILE ROCK SCHOOL DISTRICT PLAINTIFF V. Case No. 4:82cv866WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE W. KNIGHT, ET AL. JOSHUA INTERVENORS' RESPONSE TO DEFENDANTS INTERVENORS INTERVENORS THE PCSSD'S BRIEF IN SUPPORT OF MOTION FOR DECLARATION OF UNITARY STATUS The Joshua Intervenors respectfully oppose the motion that the PCSSD be declared unitary. The Joshua Intervenors respectfully request that this matter be set for hearing at which point the defendants be required to demonstrate by a substantial evidentiary showing that the schools have fulfilled the requirements of law and the agreements between the parties. To the court's inquiry regarding Joshua's delay in filing this response, Joshua respectfully shows the Court that issues related to compliance have been the subject of ongoing negotiations between Joshua and the PCSSD with the United States Department of Justice being the mediating source as provided by the settlement agreement. Joshua has 1 Case 4:82-cv-00866-WRW Document 4185 Filed 01/15/2008 Page 2 of 10 kept the Office of Desegregation Monitoring informed of the Joshua objections and has invoked the process set forth in the settlement agreement for resolution of disputes between the parties. The PCSSD motion was filed during the period that the invoked process was underway. 1 The matter was further set for negotiation on December 18, 2007 but was cancelled due to the unavailability for health related reasons of PCSSD counsel, M. Samuel Jones. The process is scheduled to resume on a date to be determined by the parties now that Mr. Jones health is no longer an issue. The Joshua objections are generally that the PCSSD has not substantially complied with the provisions of the settlement agreement and that it has not implemented the recommendations of this court's Office of Desegregation Monitoring. The PCS SD has generally taken the position that it is no longer required to implement the provisions of the settlement agreement because "desegregation is over, as a matter of law." That opinion has been stated on many occasions by district officials though not embraced in any writing known to undersigned counsel. 1 . The motion filed was more or less mandated by the State officials represented by the Arkansas Legislature, the Arkansas Department of Education and the Attorney General's office. Neither of those officials have made a substantive assessment of the district's compliance with law and the existing agreements. 2 Case 4:82-cv-00866-WRW Document 4185 Filed 01/15/2008 Page 3 of 10 The ODM has submitted a number of monitoring reports which reflect PCSSD's dismal performance with respect to meeting its settlement and legal obligations. Joshua has persistently brought these matters to the attention of the court through ODM. The invocation of the process for raising objections and discussions pursuant thereto, as provided by the plan, have been underway now for more than two (2) years. The parties have not been able to resolve the issues. 1. To the argument set forth in the PCSSD "Introduction," i.e., schools should ordinarily be under local control, Joshua points up that a district's having remedied acknowledged violations is prerequisite to that perspective. Whether that remedy has occurred as directed would ordinarily be a judicial determination. Local control as a concept, however, is subordinate to insuring that promised constitutional rights and remedies are implemented. 2. The PCSSD's observation that LRSD has been declared unitary, Section A, p. 2, is correct only in part. Moreover, because partial unitary status was induced without express direction of the LRSD Board of Education by recorded Board motion and vote, and by documentation of that fact which is now that earlier decision may be the subject of a new or other appropriate. 3. PCSSD argues that it is "positioned to be declared unitary in the area of student assignments." The trouble with the PCSSD position is that upon the 3 Case 4:82-cv-00866-WRW Document 4185 Filed 01/15/2008 Page 4 of 10 ending of M to M funding, the schools located in Pulaski county which now house African American students from Little Rock will no longer accept those students. The students will thus be left homeless because LRSD, through the initiative of Ken James, and his successor Superintendent Roy Brooks, have closed schools located in the African American communities and have no plans for accommodating the return of those students upon cessation of M to M funding who now claim PCSSD schools as their home site. This is underway as those forces in the LRSD which initiated the Motion for Unitary status, i.e., ADE Director Ken James, LRSD board members Baker Kurrus and Larry Berkeley, and unidentified persons in the LR business community, seek to have constructed primarily for white children another school in west Little Rock. If this happens state imposed segregation will be continued. Furthermore, the students who will be necessarily returned from PCS SD will have no home school for, contrary to LRSD plans, schools in their neighborhoods - Rightsell, Mitchell, Badgett and Cloverdale have been closed. 4. PCSSD acknowledges that a number of its schools are out of compliance, p. 3. The district's figures presented were for 2006-7, not the present term. The court's Office of Desegregation Monitoring (ODM) noted that 5 of 23 elementary schools fell "outside the plan described range for 2007-8, each above 4 Case 4:82-cv-00866-WRW Document 4185 Filed 01/15/2008 Page 5 of 10 the maximum black enrollment." The ODM said that the same situation persisted in 2006-7 as well. The district refers to Harris and relies upon court approval of district strategies for correcting the imbalance. The strategies presented to the court did not work and have largely been ignored by PCSSD. Importantly, PCSSD did not report is failed strategy to the court and as a result state imposed segregation clearly remains at Harris. Upon partial unitary status being declared for Mills, Fuller and College Station, those schools will become racially identifiable for white students will largely no longer be in the surrounding attendance zones. Fuller, College Station and Harris are physically unequal to the new Chenal school which will be virtually one race. Surely, the court will recognize the force of Plessey v. Ferguson. 1898, which required equal facilities at the least and as a condition for release require substantial new facilities for those areas which are equal to Chenal and Maumelle, the replacement site for Oak Grove. 5. On page 4 of the brief, the PCSSD addresses faculty and administrative assignments. Joshua Intervenors note that the ODM has addressed this area and has made recommendations regarding the matter. See ODM report dated December 15, 2006. 6. On page 5 of the brief under facilities, the PCS SD argues that unequal 5 Case 4:82-cv-00866-WRW Document 4185 Filed 01/15/2008 Page 6 of 10 schools are not "vestiges of the prior dual system of education for the races." It is to be noted that Harris Elementary school on a comparative basis is dismal, in need of remodeling or replacement. While the PCSSD has spent hundreds of thousands of dollars on the facility, it is still unequal and in no way can be regarded as comparable to the new Chenal school, Baker and Pine Forest and Maumelle elementary and middle schools among others. The reference to the Lakeview case is misplaced because Lakeview did not address racial inequalities with respect to facilities. The schools which are located in majority African American communities in Pulaski County, with few exceptions, are not the equal of those schools which are located in middle class, majority white communities. 7. On page 5 of the brief, the PCS SD further argues that it has complied in good faith and that it has eliminated the vestiges of past discrimination to the extent practicable. The District's good faith is not demonstrated by the filing of this petition. The filing of this petition for full unitary status was not authorized by the Board. Indeed, board members recognize that there are still vestiges of discrimination in the district. Moreover, the ODM has found continuing vestiges of discrimination. See status reports of ODM dated August 16, 2006 and December 15, 2006. Joshua is prepared to demonstrate that the PCSSD Board only authorized its administration and counsel to seek partial unitary status. 6 Case 4:82-cv-00866-WRW Document 4185 Filed 01/15/2008 Page 7 of 1 O However, prodded by state officials, PCSSD administrators changed the record to reflect Board action for unitary status. 8. The PCCSD made commitments with respect to student discipline which are the partial subject of the referenced conflict between the parties now pending before the Department of Justice as well as the area of Special Education. The District has conceded that it was non compliant with respect to those areas. It has been only within the last two years that they have initiated actions to address their dereliction in those areas. The motion does not address at all the pertinent area of academic achievement, discipline, and special education, all of which are being discussed by the parties with the Department of Justice. 9. The district basically acknowledges that it has not complied with obligations under the settlement decree and under law. Because of intense pressure from the State of Arkansas, the present motion has been filed. That pressure includes dissolution of part of the district and the establishment of one and possibly to separate school districts, one for the Jacksonville area and another for Maumelle-Sherwood. It is contemplated that there will be other efforts to diminish and realign the PCSSD which efforts operate to the detriment of the African American students in all three districts. Those efforts violate the stated good faith commitments. 7 Case 4:82-cv-00866-WRW Document 4185 Filed 01/15/2008 Page 8 of 1 O 10. In this action, upon release from it, the State of Arkansas committed to fully support desegregation actions, improve achievement, and to otherwise eliminate all vestiges of state imposed discrimination. This was done in what is called the "Allen letter". In this respect, the State of Arkansas has established, contrary to the wishes of PCS SD, a charter school, the LISA Academy in the district which is racially identifiable (79% white). The State appears anxious to establish other racially identifiable schools in Pulaski County under guise and label of "charter schools." The State is fully aware of the likely efforts of such privatization of public education. PCS SD is powerless to resist the State's resegregative initiative because of fear that the district will be taken over by the ADE as either academically or financially distressed. The court is obliged to respect the reports of ODM in considering the district's compliance. The PCS SD is also obliged to do so. The ODM is not a party but its role has been well defined and not modified by later court directive. The PCSSD (and the NLRSD) and the State of Arkansas may be of the view that this court does not respect the considered work of the ODM monitors because of the approach taken by the court during the LRSD proceedings now on appeal. Joshua submits that even in the absence of these objections the ODM reports establish that the PCSSD has not fulfilled its legal requirements approved by the 8 Case 4:82-cv-00866-WRW Document 4185 Filed 01/15/2008 Page 9 of 10 court. Furthermore, by "invoking the process" and utilizing the Department of Justice Community Relations Department, Joshua has proceeded as the plan directs. This court should not interfere by crediting PCS SD' s request until the parties have exhausted the process and until Joshua has presented its complaints to the court. The PCSSD motion should be denied! Respectfully submitted, Isl John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72206 501-374-3758 501- 374-4187 (Facsimile) Email: johnwalkeratty@aol.com CERTIFICATE OF SERVICE I do hereby state that a copy of the foregoing Opposition has been filed using the CM/ECF system on this 15th day of January, 2007 wherein on copy will be served on the following counsel: M.SamuelJones,ill sjones@mwsgw.com Christopher Heller heller@fec.net 9 Stephen W. Jones sjones@jlj.com Mark T. Burnette mBurnette@mbbwi.com Case 4:82-cv-00866-WRW Document 4185 Filed 01/15/2008 Page 1 O of 1 O Scott P. Richardson scott.richardson@arkansasag.gov 10 Office of Desegregation Mon. andreeroaf@odemail.com Isl John W. Walker Page 1 of2 pally From: ecf_support@ared.uscourts.gov Sent: Tuesday, January 15, 2008 12:02 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Brief in Support This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including prose litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered by Walker, John on 1/15/2008 at 12:01 PM CST and filed on 1/15/2008 Case Name: Case Number: Filer: Little Rock School, et al v. Pulaski Cty School, et al 4:82-cv-866 Leslie Joshua Stacy Joshua Wayne Joshua Lorene Joshua WARNING: CASE CLOSED on 01/26/1998 Document Number: 4185 Docket Text: BRIEF IN SUPPORT filed by Lorene Joshua, Leslie Joshua, Stacy Joshua, Wayne Joshua re [4184] Response to Motion {Walker, John) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mburnette@mbbwi.com John Clayburn Fendley , Jr clayfendley@comcast.net, yeldnef@yahoo.com - Christopher J. Heller heller@fec.net, brendak@fec.net, trniller@fec.net M. Samuel Jones , III sjones@mwsgw.com, abray@mwsgw.com 1/15/2008 - Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle. williams@arkansasag.gov Page 2 of2 John W. Walker johnwalkeratty@aol.com,jspringer@gabrielmail.com, lorap72297@aol.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Office of the Governor State Capitol Room238 Little Rock, AR 72201 James M. Llewellyn , Jr Thompson &amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson &amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original ftlename:n/a Electronic document Stamp: [ST AMP dcecfStamp ID= 1095794525 [Date= 1/15/2008] [FileNumber= 1077124-0 ] [lb59dfaa5eda3412fD9c87c2f62b8034d5ae976489fea19435b171d029b9446a35e 7ba8c5bbd6054ddca4 70b 1 c06c77bd8:f9e0bf9e0bd04 fl 5b7fD 11 e91 e5955]] 1/15/2008 Case 4:82-cv-00866-WRW Document 4186 Filed 01/15/2008 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. Case No. 4:82cv866WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE W. KNIGHT, ET AL. JOSHUA INTERVENORS' REPLY TO STATE'S AND NLRSD'S RESPONSE TO DECEMBER 21, 2007 ORDER PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS 1. The State is not a party to this proceeding. It's part in the motion is inappropriate unless it is to be considered as either a Motion to Intervene or for relief otherwise provided to it by agreements between the parties. There has been no showing of either. On the other hand, the State's response demonstrates the State's ability to direct the actions of the NLRSD (and the PCSSD). It's arguments are not appropriate unless and until it is made a party. 2. The NLRSD response was obviously dictated by the ADE and other state officials under threat of financial loss. 3. In reply to the Response to the Court's Letter Order, Joshua submits 1 Case 4:82-cv-00866-WRW Document 4186 Filed 01/15/2008 Page 2 of 4 that the Order was appropriate. The briefs of the LRSD and Joshua parties are before the Court of Appeals as is an amicus brief, denoting non party status, by the State as well. 4. The parties response essentially argues what LRSD is arguing on appeal. Those parties are in effect requesting this court to make a new ruling on the pending appeal while the standard of review used by the court in LRSD is being appealed and is under review itself. (Para(s). 3-4, p. 2 of Response.) 5. The parties' response is simply their assessment of the appeal before the Eighth Circuit. Their opinions of Joshua's pending Eighth Circuit case are not legally relevant to the issue set forth as a basis for deferring hearing. In short the Response to the Court's Order by an interloper party, the ADE, not properly before this court and who is an amicus in the referenced litigation, is inappropriate without express intervention for which there must be a factual and legal basis. The State must at least allege harm. The NLRSD' s argument which remains simply that notwithstanding the appeal in the Little Rock case, the court should proceed post haste to consider its motion. The court is reminded that this is the first motion filed by NLRSD in years. For NLRSD, time obviously has not been urgent in the past for considering the issue of unitary status. It is not urgent now and there is no demonstrated 2 Case 4:82-cv-00866-WRW Document 4186 Filed 01/15/2008 Page 3 of 4 prejudice to NLRSD. Indeed, the State of Arkansas has extended the time to NLRSD regarding this petition. The Court's Letter Order should therefore stand as issued. Respectfully submitted, Isl John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72206 501-374-3758 501- 374-4187 (Facsimile) Email: johnwalkeratty@aol.com CERTIFICATE OF SERVICE I do hereby state that a copy of the foregoing Opposition has been filed using the CM/ECF system on this 15th day of January, 2007 wherein on copy will be served on the following counsel: M. Samuel Jones, III sjones@mwsgw.com Christopher Heller heller@fec.net Scott P. Richardson scott.richardson@arkansasag.gov 3 Stephen W. Jones sjones@jlj.com Mark T. Burnette mBumette@mbbwi.com Office of Desegregation Mon. andreeroaf@odemail.com Isl John W. Walker Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Tuesday, January 15, 2008 12:08 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Reply (Non Motion) This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents ftled electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered by Walker, John on 1/15/2008 at 12:07 PM CST and filed on 1/15/2008 Case Name: Case Number: Little Rock School, et al v. Pulaski Cty School, et al 4:82-cv-866 Filer: Leslie Joshua Stacy Joshua Wayne Joshua Lorene Joshua WARNING: CASE CLOSED on 01/26/1998 Document Number: 4186 Docket Text: REPLY re [4181] Response (Non Motion) Joshua Intervenor's Reply to State's and NLRSD's Response to December 21, 2007 Order by Lorene Joshua, Leslie Joshua, Stacy Joshua, Wayne Joshua (Walker, John) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mburnette@mbbwi.com John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net 2/12/2008 M. Samuel Jones , III sjones@mwsgw.com, abray@mwsgw.com - Stephen W. Jones sjones@jlj .com, linda.calloway@jlj.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle. williams@arkansasag.gov Page 2 of2 John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Office of the Governor State Capitol Room238 Little Rock, AR 72201 James M. Llewellyn , Jr Thompson &amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson &amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=l/15/2008] [FileNumber=1077136-0 ] [99288d5be7fe75c1422e044a3bb24144ed7b15e18569b127833acb0122ca7ce7183 40585ace9a56c0eb4f436fa78a5e4b1769d0ce74617346681634c8f6041lfj] 2/12/2008 Case 4:82-cv-00866-WRW Document 4187 Filed 01/15/2008 Page 1 of 1 "Scott Richardson" &lt;Scott.Richardson@arkansas ag.gov&gt; 01/15/2008 02:14 PM To &lt;clerksoffice@ared.uscourts.gov&gt; cc "Sam Jones" &lt;SJones@mwsgw.com&gt;, &lt;sjones@jacknelsonjones.com&gt;, "Chris Heller" &lt;Heller@fec.net&gt;, &lt;johnwalkeratty@aol.com&gt;, bee Subject LRSD v. PCSSD, et al., No. 4:82-cv-866 WRW Attached is an exhibit that was inadvertently left off of the Response to December 21, 2007, Letter Order (Dkt. # 4181) (Docketed as "RESPONSE re 4176 Order of December 21, 2007 by Arkansas, State of) filed by the State of Arkansas and the North Little Rock School District. I understand that this exhibit can be appended to the original pleading by the clerk's office through the CM/ECF system. Please accept this as my request that you do so. Thank you for your assistance. Scott P. Richardson Assistant Attorney General 323 Center St., Suite 200 Little Rock, AR 72201 (501)682-1019 (501)682-2591 fax scott.richardson@arkansasag.gov Joshua Reply Brief. pdf Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Tuesday, January 15, 2008 2:33 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Notice of Docket Correction This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including prose litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered on 1/15/2008 at 2:32 PM CST and filed on 1/15/2008 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: WARNING: CASE CLOSED on 01/26/1998 Document Number: 4187 Docket Text: NOTICE OF DOCKET CORRECTION re: [4181] Response re: Order of 12/21/2007. CORRECTION: Exhibit B was added as an attachment to docket entry [4181], based on the attached request. (thd) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net M. Samuel Jones, III sjones@mwsgw.com, abray@mwsgw.com Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com Mark Terry Burnette mburnette@mbbwi.com 1/15/2008 John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle.williams@arkansasag.gov Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Office of the Governor State Capitol Room238 Little Rock, AR 72201 James M. Llewellyn , Jr Thompson &amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson &amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=l/15/2008] [FileNumber=1077392-0 ] [6bac00b54dbalc7e768e53ebldda7875e9bdd9851d43530fed40bb7f4014b3b77fe ecc977f94a8bddd3b536c204fadd5801d9435d0732ac0blcb9a14f658d2d5]] 1/15/2008 Page 2 of2 07-1866 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT MRS. LORENE JOSHUA, ET AL. INTERVENOR/APPELLANTS v. LITTLE ROCK SCHOOL DISTRICT APPELLEE Reply Brief of Mrs. Lorene Joshua, Et Al. On Appeal From United States District Court Eastern District of Arkansas Western Division Hon. William R. Wilson District Judge Presiding Robert Pressman John W. Walker 22 Locust A venue Lexington, MA 02421 781-862-1955 John W. Walker, P.A. 1723 Broadway Little Rock, AR 72206 501-374-3758 501-374-4187 (F) EXHIBIT B Table of Contents Table of Contents ............................................................................... . Table of Authorities ........................................................................... . Argument .......................................................................................... . The Arguments of the LRSD and the State Lack Merit A. The Original Section 2.7.1 Commitment Encompassed Structure for Assessment/Evaluation Deeply Embedded in the Operation of the LRSD B. The LRSD's Freedom to Craft an Implementation Plan During the Agreed Upon Duration of the Revised Plan C. This Court's Identification of the District Court's Remedial Authority D. The District Court's 2002 Decision and Its Initial Compliance Remedy to Address LRSD Default E. F. The District Court's 2004 Decision and Its Second Compliance Remedy to Address LRSD Default The District Court's Giving Notice of a Change in the Standards for Judging Compliance Only After the Hearing Requires Reversal 1 11 1 1 3 3 4 6 9 Certificate of Service............................................................................. 12 Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Attachments i EXHIBIT B Table of Authorities Black v. Lane, 22 F.3d 1395 (7thCir. 1994) Board of Education of Oklahoma City v. Dowell, 498 U.S. 237 (1991) First Union National Bank, Trustee v. Pictet Overseas Trust Corp., 477 F.3d 616 (8thCir. 2007) Goss v. Lopez, 419 U.s. 565 (1975) Grand State Marketing Co. v. Eastern Poultry Distributors, 975 S.W.2d 429 (Ark.App. 1998) Hynes v. Mayor and Council of Borough of Oradell, 425 U.S. 610 (1976) Knight v. PCSSD, 112 F.3d 953 (8thCir. 1997) LRSD v. PCSSD, 921 F.2d 1371 (8thCir. 1990) LRSD v. PCSSD, 83 F.3d 1013 (8thCir. 1996) LRSD v. PCSSD, 237 F.Supp.2d 988 (E.D.Ark. 2002) LRSD v. PCSSD, 470 F.Supp.2d 963 (E.D.Ark. 2004) LRSD v. PCSSD, 451 F.3d 528 (8thCir. 2006) LRSD v. PCSSD, Order Declaring the Little Rock School District Unitary, Feb. 23, 2007 McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226 (lstCir. 1980) Ramos-Falcon v. Autoridad de Energia Electrica, 301 F.3d 1 (lstCir. 2002) Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992) United States v. ITT Continental Baking Company. 420 U.S. 233 (1975) ii 10, 11 10 10, 12 10 2 10 4,9 3,4 8 2,4,6 6, 7, 11, 12 1, 6, 9 2, 12 10 9, 11 4 2 EXHIBIT B Rule 55, Federal Rules of Civil Procedure Restatement (Second) of Contracts, Sec. 201(1) (1981) iii 10 2 EXHIBIT B The Arguments of the LRSD and the State Lack Merit LRSD and the State ignore the breadth, in context, of LRSD's original commitment in Section 2. 7 .1; LRSD's agreement necessarily required multiple actions creating a structure for implementation fairly characterized by the "deeply embedded" language later employed by the District Court, after LRSD twice failed to fulfill its voluntary commitments. They do not account for these defaults, or the District Court's remedial authority in such circumstances. They minimize, or ignore entirely the District Court's communicating an important change in the criteria for judging LRSD compliance only in its February 23, 2007 post-hearing opinion, thereby denying Joshua counsel the opportunity to challenge LRSD compliance with know ledge of all governing standards. A. The Original Section 2. 7 .1 Commitment Encompassed a Structure for Assessment/Evaluation Deeply Embedded in the Operation of the LRSD In 1998, the District Court approved the Revised Desegregation and Education Plan (Revised Plan), to which the Joshua Intervenors and the LRSD had agreed. LRSD, 451 F.3d at 3. Section 2.7.1 provided that: LRSD shall assess the academic programs implemented pursuant to Section 2. 7 after each year in order to determine the effectiveness of the academic programs in improving African-American achievement. If this assessment reveals that a program has not and likely will not improve African American achievement, LRSD shall take appropriate action in the form of either modifying how the program is implemented or replacing the program. While only 65 words and 2 sentences, this was a commitment of considerable breadth. First. The text referred to annual reviews of the specified programs in terms of 1 EXHIBIT B - their effectiveness in improving African-American student achievement. 1 The text also obligated the LRSD to modify or replace programs shown to be ineffective. Second. The programs, identified in Sec. 2. 7 of the Revised Plan, were those "designed to improve and remediate the academic achievement of African American students .. . . " The LRSD "identified almost 100 [such] programs .... " LRSD, 237 F.Supp. at 1076, n. 135. Third. The parties interpreted "assess" and "assessment" to require evaluations, a more detailed study than an assessment, of at least the key Section 2.7 programs. 237 F.Supp. at 1076-80; LRSD (dist. ct.), 2-23-07, at 13-15.2 The mere agreement to and approval of these two sentences was obvious! y not the goal of the parties. The objective meaning of these words, in the context of a school district of substantial size, contemplated a great deal of activity by its officers - and employees. There would be a need, inter alia, for the adoption of policies and guidelines; the employment of personnel capable of performing assessments and evaluations; interaction with those involved in the content of LRSD curriculum; communication with and training of school-level personnel; reports on 1 In 1997-98, the LRSD enrolled 24,886 students, 16,664 of whom were African Americans; LRSD then operated 50 schools. [ODM enrollment report, Dec. 7, 2007] 2 As the district court notes [LRSD, 2-7-07, at 2, 15] RESTATEMENT (SECOND) OF CONTRACTS Sec. 201(1) (1981) provides: "Where the parties have attached the same meaning to a promise or agreement or a term thereof, it is interpreted in accordance with that meaning."; see also U.S. v. ITT Continental Baking Co., 420 U.S. 233,238 (1975) (reliance on "any technical meaning words used may have had to the parties"); Grand State Marketing v. Eastern Poultry Distribs., 975 S.W.2d 429,442 (Ark.App. 1998) ("In particular, when a technical term is used, the trier of fact may determine in what sense the term was used.") 2 EXHIBIT B - implementation to high level administrators and the school board; oversight; and documents containing completed program studies. Not infrequently, a phrase is used to describe an endeavor of considerable complexity. Here, a reasonable construction of the parties' broad voluntary agreement was that it contemplated, over time, multiple, mature actions at different levels and locales in the LRSD, i.e., that a structure to carry out the parties' broad agreement be "deeply embedded" in the LRSD curriculum and instruction program. B. The LRSD's Freedom to Craft an Implementation Plan During the Agreed Upon Duration of the Revised Plan Section 11 of the Revised Plan provided for implementation for a three-year period, assuming substantial compliance with its terms. In this period, the system's implementation of Section 2.7.1 was not constrained by any directive(s) of the District Court. The LRSD was free to fashion and implement steps to comply with the parties' agreement. C. This Court's Identification of the District Court's Remedial Authority Prior to the approval of the Revised Plan, this court addressed in this case the implementation and enforcement of agreements of the parties. The appeal in LRSD v. PCSSD, 921 F.2d 1371 (8th Cir. 1990) followed the parties' agreement to a desegregation plan for each of the three districts involved in the case, as well as an "Interdistrict Desegregation Plan" and a "Settlement Agreement" concerning obligations of State officials. 921 F.2d at 1378-80. Rejecting rulings of the District Court, this court approved the parties' plans. The court noted that "the parties have all agreed to continued monitoring" and continued [at 1386]: 3 EXHIBIT B It is important for the settlement plans to be scrupulously adhered to -- and here we have in mind especially the kinds of programs that the plan contemplates for the Incentive Schools -- and it will be the job of the District Court to see that the monitoring is done effectively, and that appropriate action is taken if the parties do not live up to their commitments. This court also addressed the District Court's authority in the concluding section of its 1990 opinion, which summarized this court's rulings and directives. This court wrote: 8. The District Court is instructed to monitor closely the compliance of the parties with the settlement plans and the settlement agreement, to take whatever action is appropriate, in its discretion, to ensure compliance with the plans and the agreement, and otherwise to proceed as the law and the facts require. See also Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367,378 (1992) ("A consent decree no doubt embodies an agreement of the parties and thus in some - respects is contractual in nature. But it is an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees."); Knight v. PCSSD, 112 F.3d 953, 955 (8th Cir. 1997) (parties' agreement "becomes, in a sense, a particularization of federal law applicable to these parties"). D. The District Court's 2002 Decision and Its Initial Compliance Remedy to Address LRSD Default In 2002, following hearings, the District Court ruled on the LRSD's effort to show compliance with the Revised Plan sufficient to achieve full unitary status and the termination of court jurisdiction. The court clustered the Plan provisions at issue in six areas. LRSD, 237 F.Supp. at 1086. In all areas but one, implementation of Plan provision 2. 7 .1, the court found substantial compliance and ended court supervision. 4 EXHIBIT B 237 F.Supp. at 1086, 1089. As to 2.7.1, the court found an absence of substantial compliance. Id. The District Court's discussion, 237 F.Supp. at 1076-80, may be summarized as follows: [i] LRSD interpreted Sec. 2.7 .1 consistently to obligate the district to prepare program evaluations of the key 2.7 programs, which by the text of that section were not limited to the programs in Plan Section 5. [At 1076-80] [ii] The school board adopted an evaluation policy belatedly, i.e., in February 2001, only in the month before LRSD filed its Compliance Report (at the time specified in the 1998 Revised Plan), seeking a complete release from court supervision. [At 1078, para. 7] [iii] LRSD lacked the personnel needed to prepare adequate evaluations. [At 1081, 5-16-01 E-mail] [iv] LRSD's March 2001 Compliance Report was marked by a lack of candor, - exaggerating the extent of completion of evaluations; none were complete. [At 1079- 80, para. 14] [v] In view of its earlier consistent position that Sec. 2.7.1 required the preparation of evaluations of key 2. 7 programs, LRSD's contrary position in the hearing also evidenced a lack of candor. [At 1078, para. 10] Faced with an absence of the evaluations which LRSD had agreed to be necessary and evidence of bad faith, the District Court did not simply plead with LRSD to comply. Rather, in keeping with this court's instructions in 1990, the Court devised a "Compliance Remedy." This remedy required LRSD, among other things, to [237 F.Supp. at 1087-88]: [i] establish "a program assessment procedure ... that can accurately measure the effectiveness of each program implemented under Sec. 2. 7 in improving the academic achievement of African-American students"; [ii] prepare 5 EXHIBIT 8 and use certain "program evaluations" which it had identified; [iii] continue during a specified period to assess each 2.7 program and use this and other available information in deciding on program modification and elimination; [iv] maintain certain written records regarding these assessments, including records regarding program modification and elimination, a topic specifically addressed in Sec. 2.7.1; and [iv] use a particular external expert or someone else with equivalent qualifications to prepare the evaluations, which the LRSD had referenced. There is no proper basis for criticism of the District Court regarding the 2002 remedy. Faced with LRSD default, the court extended the implementation period and identified actions inherent in the parties' 2. 7 .1 agreement, as construed by the parties. The District Court fulfilled the responsibility identified in strong terms by this court in 1990, in order to give Joshua Intervenors the benefit of the parties' bargain. Importantly, the LRSD neither sought clarification of the meaning of this remedy, nor appealed. LRSD, 470 F.Supp. at 969; LRSD, 451 F.3d at 536. E. The District Court's 2004 Decision and Its Second Compliance Remedy to Address LRSD Default In 2004, the LRSD sought a termination of court supervision based upon asserted compliance with the court's 2002 remedy and Sec. 2.7.1. The District Court again found a lack of substantial compliance. Faced with a second instance of noncompliance, the court set forth the second Compliance Remedy, which was, intentionally, more specific than the 2002 remedy. LRSD, 470 F.Supp. at 997. The factors on which the court relied in finding non-compliance and framing its 2004 remedy included the following: [i] the LRSD had again recognized that its 6 EXHIBIT B obligation encompassed some program evaluations; [470 F.Supp. at 970-71]; [ii] although, as LRSD's expert witness testified, all districts implement sub-programs within a curriculum, which can be and should be evaluated [Dr. Ross, hearing transcript at 195; 470 F.Supp. at 986], the "evaluations" which the LRSD presented were global overviews of the entire literacy and math-science curricula, not studies of particular programs which could be used to make the requisite decisions about program modification and elimination [ 4 70 F.Supp. at 971-72, 987, 990]; [iii] neither global overview addressed the key research question identified in LRSD's assessment\evaluation policy, i.e., "has this curriculum/instruction program been effective in improving and remediating the academic achievement of AfricanAmerican students?" [470 F.Supp. at 987, 990]; [iv] LRSD did not maintain the - records regarding its program studies required in paragraph B of the 2002 Compliance Remedy [470 F.Supp. at 994-95]; [v] the shortcomings in LRSD performance were again attributable to staffing problems in the district [470 F.Supp. at 985-86]; [vi] in the opinion of the LRSD expert, Dr. Ross, a system the size of the LRSD could be expected to provide four or five evaluations a year [ 4 70 F.Supp. 994]; [vii] LRSD had failed to provide to ODM and Joshua Intervenors promised progress reports on the literacy and math-science evaluations [470 F.Supp. at 988-89, 991]. There is no proper basis for criticism of the District Court regarding the 2004 remedy. Faced with a second LRSD default, the court addressed more specifically required actions and steps to achieve them. No goal, required action, or standard was outside the parties' broad agreement. Except when it came to court, LRSD always 7 EXHIBIT B identified its obligations as including some evaluations. When LRSD had twice failed in this area, the court drew upon the testimony of LRSD's expert to identify the number of evaluations to require in its second remedy. LRSD having twice failed with regard to adequate personnel, the court was specific with regard to both in-house staff (PRE) and external experts (to do evaluations). The court's deeply embedded language was not a requirement untethered to the original 2. 7 .1 commitment, or fairly characterized as made up out of whole cloth, but instead a provision fairly descriptive of the LRSD landscape in a full compliance with Section 2. 7 .1 setting. Had LRSD complied at the outset, or after entry of the first compliance remedy, the District Court would not have had the need to articulate a global standard, geared to the particular subject matter of Sec. 2. 7 .1, to help measure compliance. The District Court could not allow itself to be "run off." It could not condone non-compliance. It had a responsibility, which its second remedy sought to address. To the extent relevant on this appeal, it should be noted that no part of the argument made by the dissenting judge in this court's 2006 decision withstands scrutiny. See 451 F.3d at 541-43. First. The interpretation of the word "assessment" and the identification of the type of program studies required overall by Sec. 2.7.1 ignores two critical factors. These are LRSD's repetitive construction of its bargain as requiring some evaluations and the relevance of the parties' position on this to proper interpretation of Sec. 2. 7 .1. 8 EXHIBIT 8 See n.2, supra.3 Second. Having qualified personnel was an inherent element of the original 2. 7 .1 bargain; and the District Court dealt specifically with this topic only after a second default, each encompassing personnel deficiencies, as previously shown. Third. The "deeply embedded" standard, invoked only after two defaults, comes straight from the broad 2. 7 .1 bargain, by "reasonable implication, "4 as previously shown. A focus on the status and completeness of the identified actions for achieving compliance with Sec. 2. 7 .1 is more (not less) objective than application of the "good faith" standard ultimately employed. The State expresses concern about the impact of the "deeply embedded" concept on the two other Pulaski County school districts. [State brief at 16-17] No factual basis for this concern is shown. The State shows no order employing this standard regarding these systems (Pulaski County and North Little Rock). The State does not relate its concern to any particular remaining remedial provision in one of these districts. Beyond this, the State does not recognize that the standard is a part of LRSD's voluntary substantive obligation drawn from Sec. 2.7.1. and invoked by the District Court only after a second LRSD default. F. The District Court's Giving Notice of a Change in the Standards for Judging Compliance Only After the 3 Factual findings bearing upon contract interpretation are reviewed for clear error. LRSD v. PCSSD, 83 F.3d 1013, 1017 (8thCir. 1996). Given the volume of evidence relied upon, the lower court's findings that Sec. 2.7.1 encompassed evaluations are unassailable. 4 Knight v. PCSSD, 112 F.3d 953, 954 (8th Cir. 1997). 9 EXHIBIT B Hearing Requires Reversal Prior notice, including of governing standards, is a fundamental and required element of fairness in many contexts. See [A] Ramos-Falcon v. Autoridad de Energia Electrica, 301 F.3d 1 (1st Cir. 2002) (district court entered default judgment on ADA claim, but after hearing conducted pursuant to Rule 55(b)(2), Fed.R.Civ.Pro., dismissed claim on the merits; while the district court could conduct a hearing "to 'establish the truth of any averment' in the complaint," it could only do so if it "had made 'its requirements known in advance to the plaintiff, so that [he] could understand the direction of the proceeding and marshal! such evidence as might be available to [him].' Id. (quoting McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226, 229 (lstCir. 1980)."; [B] Black v. Lane, 22 F.3d 1395, 1398 (7thCir. 1994) ( opinion written by Circuit Judge Lay, sitting by designation) (same); [C] First Union National Bank v. Pictet Overseas Trust, 4 77 F.3d 616, 621 (8thCir. 2007) ( discussing possible applicability of law of the case doctrine; "Even had the district court intended to resolve the fiduciary duty issue in its Interest Rate Decision, it failed to do so with sufficient directness and clarity to establish the settled expectations of the parties necessary for the subsequent application of the law of the case doctrine."); [D] Goss v. Lopez, 419 U.S. 565, 581-82 (1975) (in context of school suspension for disciplinary reason, required element of affording procedural due process rights is that "the student [must] first be told what he is accused of doing and what the basis of the accusation is"; this affords student "opportunity to present his side of the story" in an informed manner); [E] Hynes v. Mayor and Council of Borough of Oradell, 425 10 EXHIBIT B U.S. 610, 620 (1976) (whether as to law or rule persons "of common intelligence must necessarily guess at its meaning and differ as to its application"); [F] Board of Educ. of Oklahoma City v. Dowell, 498 U.S. 237,246 (1991) ("[A] school board is entitled to a rather precise statement of its obligations under a desegregation decree."). The District Court departed from this basic standard of fairness. In Part K of the 2004 Compliance Remedy, the District Court identified LRSD's "obligations under Sec. 2. 7 .1 as specified in the Compliance Remedy [ of 2004]" as the measuring rod for assessing the district's right to a termination of court jurisdiction. [ 4 70 F.Supp. at 1000] That remedy, in Part B, included the "deeply embedded" language, which even referred to "[p]art ofLRSD's proof, at the next compliance hearing .... " [470 F.Supp. at 998] The District Court gave notice of changing this standard only in its post-hearing opinion. [LRSD, 2-7-07, at 16-17] Obviously, Joshua counsel could not, on a key point, "understand the direction of the proceeding and marshall such evidence as might be available to [them]" [Ramos-Falcon and Black. supra], when the change to the "good faith" standard was set forth only after the evidentiary hearing was completed. Moreover, "management orders" and guidance to counsel before the hearing magnified the harm. By letter of December 6, 2006, the District Court required each side to present by December 8 for each witness "a fair and accurate summary of the expected testimony ... and the length of time you estimate for direct examination." In a letter of January 18, 2007, the court stated that each side would be limited to 7 11 EXHIBIT B hours for its direct case and 2 hours for cross-examination. The court added: "Crossexamination must be brisk and to the point, i.e., a Blitzkrieg, not an invasion of Normandy." [See attachments to this brief] In this setting, Joshua counsel had to focus with great care on the existing compliance standards. LRSD argues that Intervenors should have perceived the change in standards. [LRSD brief at 37-38] Neither the Court of Appeals, nor the District Court before the 2006 hearing or its decision, identified the good faith standard ultimately used by the lower court. Whether one refers to the law of the case or the criteria for assessing compliance, the standard actually used was not timely identified with "sufficient directness and clarity .... " First Union National Bank, 477 F.3d at 621. Moreover, LRSD does not recognize that the deeply embedded standard is a substantive element - of Sec. 2. 7 .1, fairly construed. The State discusses the law of the case concept. It is, however, silent on the problem here, the timing of the district court's changing in an important way the standards for judging compliance. [States's brief at 10-11] The State also does not recognize the nature of the deeply embedded standard; it is an element of the substantive bargain of Intervenors and LRSD in Sec. 2.7.1; it describes steps necessary to move from a few words on a page to a reality in the operation of the district. It is not, as the State discussion implies, a global standard, apart from Sec. 2. 7 .1, for assessing whether there is sufficient compliance with the agreement to justify a termination of the case as to LRSD or another district. Compare State brief at 12-13. 12 EXHIBIT B Conclusion This court should vacate the judgment of dismissal and: [i] direct the District Court, after a hearing, to reinstate a compliance remedy for an additional period; [ii] or, alternatively, direct that the District Court, after a hearing, determine the compliance of the LRSD with the second remedy, including the "deeply embedded" component as a substantive element of the remedy; [iii] or, alternatively, direct that the District Court, after a hearing, determine the compliance of the LRSD with the second remedy, utilizing the good faith standard in doing so. 13 Respectfully submitted, /s/,Tohn W. Walker John W. Walker, AR No. 64046 John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72206 (501) 374-3758 (501) 374-4187 E-Mail: johnwalkeratty@aol.com Robert Pressman 22 Locust A venue Lexington, MA 02421 (781) 862-1955 EXHIBIT B CERTIFICATE OF SERVICE I, JOHN W. WALKER, the undersigned counsel for the Joshua Intervenors, Appellant herein, hereby certify that a true and correct copy of the foregoing Reply Brief has been served on this 18st day of December, 2007, by dispatch to a third-party commercial carrier for overnight delivery to the United States Court of Appeals for the Eighth Circuit, Clerk's Office, Thomas F. Eagleton Court House, Room 24.329, 111 South 10th Street, St. Louis,Missouri 63102-1125 and via U.S. Mail and/orhanddelivery to Mr. Chris Heller, FRIDAY, ELDREDGE &amp; CLARK, 400 West Capitol, Suite 2000, Little Rock, AR 72201 and to the Office of Desegregation Monitoring, One Union National Plaza, 124 West Capitol, Suite 1895 Little Rock, Arkansas 72201. ls/John W. Walker 14 EXHIBIT B CERTIFICATE OF COMPLIANCE The undersigned hereby certifies, pursuant to Federal Rules of Appellate Procedure 32(a)(7)(C) and Eighth Circuit Rules 28A(c), that this Reply Brief (exclusive of the table of contents, the table of authorities, any addendum, and any certificates of counsel) contains 3427 words. This brief complies with the typeface requirements of FRAP.32(a)(5) and the type style requirements of FRAP.32(a)(6) because of this brief has been prepared in a proportionally spaced typeface using Wordperfect 9.0 in Times New Roman, 14-point. The undersigned has provided one virus free digital version of this brief to the Clerk of the United States Court of Appeals for the Eighth Circuit and to all counsel of record. The digital version of this brief has been furnished on a 3.5" computer diskette in Portable Document Format (also known as PDF or Acrobat Format). The digital version was generated by printing to PDF from the original word processing file. Dated: December 18, 2007 ls/John W. Walker 15 EXHIBIT B Case 4:82-cv-00866-WRW Document 4188 Filed 01/16/2008 Page 1 of 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS RICHARD SHEPPARD ARNOLD UNITED STATES COURTHOUSE 500 W. CAPITOL, ROOM 0444 LITTLE ROCK, ARKANSAS 72201-3325 (501) 604-5140 Facsimile (501) 604-5149 January 16, 2008 Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, AR 72024 Re: LRSD v. PCSSD, 4:82-CV-00866 Dear Mr. Walker: Regardless of whether there are "interloper parties" in the case, has Joshua taken the position at any time, in the District Court or in the Court of Appeals, that the standard applied in the most recent Little Rock School District Order is the standard to be applied in the North Little Rock and Pulaski County School District cases? I may have missed something, but I don't believe this issue was specifically addressed in your response of yesterday. Please let me have your specific response by noon, Tuesday, January 22, 2008. Original to the Clerk of Court cc: The Honorable J. Thomas Ray Other Counsel of Record Cordially, Isl Wm. R. Wilson, Jr. Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Wednesday, January 16, 2008 2:28 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Order This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including prose litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered on 1/16/2008 at 2:27 PM CST and filed on 1/16/2008 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: WARNING: CASE CLOSED on 01/26/1998 Document Number: 4188 Docket Text: LETTER/ORDER directing additional response of Joshua lntervenors by noon 'January 22, 2008 re [4184] Response to Motion filed by Leslie Joshua, Wayne Joshua, Lorene Joshua, Stacy Joshua. Signed by Judge William R. Wilson, Jr on 1/16/08. (dac) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net M. Samuel Jones, III sjones@mwsgw.com, abray@mwsgw.com Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com - John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, 1orap72297@aol.com Mark Terry Burnette mburnette@mbbwi.com 1/17/2008 John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle. williams@arkansasag.gov Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Office of the Governor State Capitol Room238 Little Rock, AR 72201 James M. Llewellyn , Jr Thompson &amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson &amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [ST AMP dcecfStamp ID=l 095794525 [Date= 1/16/2008] [FileNumber=l 078278-0 ] [56cd5acef3c3541f6a87a4b590b4b62c20f86c7935dd0154blf28c99944fe5df631 00d10c8e5cf409301flfbc4b1300dd936bcela22ead0a3f84badb2b9df60f]] 1/17/2008 Page 2 of2 Case 4:82-cv-00866-WRW Document 4190 Filed 01/16/2008 Page 1 of 2 LAW OFFICES MITCHELLWILLIAMS SELIG GATES WOODYARD PLLC M . SAMUEL JONES, Ill 01,tECT DIAL: 501688-8812 E-MAIL : S.JONE @MWSGW. COM Honorable William R. Wilson, Jr. United States District Court 600 W. Capitol Ave., Rm. 423 Little Rock, Arkansas 72201 JANUARY 16, 2008 Re: LRSD v. PCSSD, et al. U.S.D.C. No. 4:82CV00866WRWIJTR Dear Judge Wilson: 425 WE5T CAPITOL AVENUE, SUITE I BOO LITTLE ROCK, ARKANSAS 72201 3525 TELEPHONE 501 688-8800 FAX 501 6888807 The Court is probably aware that PACT, right before Christmas, filed a "Response" to the PCSSD Motion for Unitary Status. The PCSSD filed a Reply which was thereafter followed on January 9, 2008 by both a Motion by PACT to file a belated response and a Sur Reply. The PCSSD is going to respond in a timely fashion to PACT's Request to File a Belated Response. I also need to submit to the Court, in an appropriate form, an affidavit from the District's Assistant Superintendent for Business Affairs regarding the issue of what dues are withheld from paychecks and to whom or what they are paid. The procedural posture of the PACT "claim" seems a little odd and I am trying to figure out what to call this further pleading. I just wanted to apprise the Court and the parties that I am working on this, hope to have fresh papers in the Court's hands by Friday, and trust this will be satisfactory. Thank you. MSJlab Cordially yours, MITCHELL, WILLIAMS, SELIG, GATES &amp; WOODY ARD, P.L.L.C. By Isl M. Samuel Jones, III LITTLE RocK, ARKANSAS ROGERS, ARKANSAS AUSTIN, TEXAS cc. Case 4:82-cv-00866-WRW Document 4190 Honorable William R. Wilson, Jr. January 16, 2008 Page2 cc Via Email: Mark Terry Burnette John W. Walker Clayton R. Blackstock Philip E. Kaplan Christopher J. Heller Stephen W. Jones John Clayburn Fendley, Jr Scott P. Richardson Office of Desegregation Monitor Via US Mail: Timothy Gerard Gauger James M. Llewellyn , Jr. William P. Thompson Filed 01/16/2008 Page 2 of 2 Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Wednesday, January 16, 2008 4:30 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW little Rock School, et al v. Pulaski Cty School, et al Response (Non Motion) This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered by Jones, M. on 1/16/2008 at 4:30 PM CST and filed on 1/16/2008 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: Pulaski County Special School District WARNING: CASE CLOSED on 01/26/1998 Document N um her: 4190 Docket Text: RESPONSE re [4188] Order regarding PACT's Request to File a Belated Response by Pulaski County Special School District (Jones, M.) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mburnette@mbbwi.com John Clayburn Fendley , Jr clayfendley@comcast.net, yeldnef@yahoo.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net M. Samuel Jones , III sjones@mwsgw.com, abray@mwsgw.com Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com 1/17/2008 Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle.williams@arkansasag.gov Page 2 of2 John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Office of the Governor State Capitol Room238 Little Rock, AR 72201 James M. Llewellyn , Jr Thompson &amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson &amp; Llewellyn, P.A. Post Office Box 818 - Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original ftlename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=l/16/2008] [FileNumber=1078646-0 ] [5270da50b09118371a3dd85c21f4adb98f38480e14a0fdd3292779dbcfe87354a94 dfe79bbd3f768f432c945744cc221 b3be532edaf6e40edl b4312c018fa836]] 1/17/2008 Case 4:82-cv-00866-WRW Document 4191 Filed 01/18/2008 Page 1 of 2 LAW OFFICES MITCHELLWILLIAMS SELIG GATES WOODYARD PLLC M . SAMUEL JONES, Ill DlftECT DIAL: 501 6888812 EMAIL: SJONES@MWSGW.COM Honorable William R. Wilson, Jr. United States District Court 600 W. Capitol Ave., Room 423 Little Rock AR 72201 Re: LRSD v. PCSSD, et al. January 18, 2008 425 WEST CAPITOL AVENUE, SUITE 1 800 LITTLE RocK, ARKANSAS 72201 -3525 TELEPHONE 50 1 688-8800 FAX SO I 688-8807 U.S.D.C. No. 4:82CV00866WRWIJTR Dear Judge Wilson: Several days ago I wrote the Court concerning the papers PACT has filed. I predicted the PCSSD would be filing additional papers today. We have encountered logistical delays in obtaining pleadings and orders that are circa 1984 and 1989 but have now secured them. Since the latest PACT filings are dated January 9 and considering the federal holiday on Monday, January 21, 2008, I believe our additional papers, if transmitted to the court on or before January 22, 2008, would be timely. This is also the date the Court has been consistently using in suggesting further responses from Joshua and perhaps others. Accordingly, that is our new target date for additional filings and responses. MSJlab cc Via Email: Mark Terry Burnette John W. Walker Cordially yours, MITCHELL, WILLIAMS, SELIG, GATES &amp; WOODYARD, P.L.L.C. By Isl M. Samuel Jones, III LITTLE ROCK, ARKANSAS ROGERS, ARKANSAS AUSTIN, TEXAS 1127447.1 Case 4:82-cv-00866-WRW Document 4191 Honorable William R. Wilson, Jr. January 18, 2008 Page2 Clayton R. Blackstock Philip E. Kaplan Christopher J. Heller Stephen W. Jones John Clayburn Fendley, Jr Scott P. Richardson Office of Desegregation Monitor cc Via US Mail: 1127447.1 Timothy Gerard Gauger James M. Llewellyn , Jr. William P. Thompson Filed 01/18/2008 Page 2 of 2 Page 1 of2 - pol_lY_ ___________ _____ ____________ From: ecf_support@ared.uscourts.gov Sent: Friday, January 18, 2008 3:03 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Response (Non Motion) This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered by Jones, M. on 1/18/2008 at 3:02 PM CST and filed on 1/18/2008 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: Pulaski County Special School District WARNING: CASE CLOSED on 01/26/1998 Document Number: 4191 Docket Text: RESPONSE re [4188] Order regarding PACT's Request to File a Belated Response by Pulaski County Special School District (Jones, M.) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mburnette@mbbwi.com John Clayburn Fendley , Jr clayfendley@comcast.net, yeld.nef@yahoo.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net M. Samuel Jones , III sjones@mwsgw.com, abray@mwsgw.com Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com 1/18/2008 Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odrnemail.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle. williams@arkansasag.gov Page 2 of2 John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Office of the Governor State Capitol Room238 Little Rock, AR 72201 James M. Llewellyn, Jr Thompson &amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson &amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original ftlename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=l/18/2008] [FileNumber=1080472-0 ] [a8ad57a4ad578261cd064477cb0d80345dl43e534a3ee46496c9d712d86b3737660 fe2d4c032f2c729ccf70acf8f656cd4b13465fl 76fa3fd6c1540f34af0151]] 1/18/2008 Case 4:82-cv-00866-WRW Document 4192 Filed 01/18/2008 Page 1 of 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION LITTLE ROCK SCHOOL DISTRICT v. No. 4:82-cv-866 WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. MOTION FOR SUBSTITUTION OF COUNSEL PLAINTIFF DEFENDANTS The State of Arkansas and the Arkansas Department of Education (ADE), by and through its attorney, Assistant Attorney General Scott P. Richardson, and for its Motion for Substitution of Counsel, states: 1. Deputy Attorney General Tim Gauger has left the employ of the Attorney General's Office. 2. Assistant Attorney General Scott P. Richardson has been given responsibility as lead attorney for this case. WHEREFORE, the Arkansas Department of Education (ADE) and the State of Arkansas request that former Deputy Attorney General Tim Gauger be withdrawn from this case and that Assistant Attorney General Scott P. Richardson be substituted in his stead and for all other just and proper relief to which they may be entitled. Respectfully submitted, DUSTIN McDANIEL Attorney General BY: Isl Scott P. Richardson SCOTT P. RICHARDSON, Bar No. 01208 Case 4:82-cv-00866-WRW Document 4192 Filed 01/18/2008 Page 2 of 3 Assistant Attorney General 323 Center Street, Suite 1100 Little Rock, AR 72201-2610 (501) 682-1019 direct (501) 682-2591 facsimile Email: scott.richardson@arkansasag.gov ATTORNEYS FOR SEPARATE DEFENDANT ARKANSAS DEPARTMENT OF EDUCATION CERTIFICATE OF SERVICE I hereby certify that on January 18, 2008, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which shall send notification of such filing to the following: Mr. Clayton R. Blackstock cblackstock@mbbwi.com Mr. Mark Terry Burnette mbumette@mbbwi.com Mr. John Clayburn Fendley , Jr clayfendley@comcast.net Mr. Christopher J. Heller heller@fec.net Mr. M. Samuel Jones , III sjones@mwsgw.com Mr. Stephen W. Jones sjones@jlj.com Mr. John W. Walker johnwalkeratty@aol.com Office of Desegregation Monitor andreeroaf@odmemail.com; aroaf@seark.net; paramer@odmmail.com 2 Case 4:82-cv-00866-WRW Document 4192 Filed 01/18/2008 Page 3 of 3 I, Scott P. Richardson, Assistant Attorney General, do hereby certify that I have served the foregoing and a copy of the Notice of Electronic Filing by depositing a copy in the United States Mail, postage prepaid, on January 18, 2008, to the following nonCM/ ECF participants: Mr. Robert Pressman 22 Locust A venue Lexington, Mass. 02173 3 Isl Scott P. Richardson SCOTT P. RICHARDSON Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Friday, January 18, 2008 4:08 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Motion to Substitute Attorney This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered by Richardson, Scott on 1/18/2008 at 4:07 PM CST and filed on 1/18/2008 Case Name: Case Number: Filer: Little Rock School, et al v. Pulaski Cty School, et al 4:82-cv-866 Arkansas, State of Arkansas Department of Education WARNING: CASE CLOSED on 01/26/1998 Document Number: 4192 Docket Text: MOTION to Substitute Attorney by Arkansas Department of Education, Arkansas, State of (Richardson, Scott} 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mbumette@mbbwi.com John Clayburn Fendley , Jr clayfendley@comcast.net, yeldnef@yahoo.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net - M. Samuel Jones , III sjones@mwsgw.com, abray@mwsgw.com Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com 1/22/2008 Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle. williams@arkansasag.gov Page 2 of2 John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Office of the Governor State Capitol Room238 Little Rock, AR 72201 James M. Llewellyn , Jr Thompson &amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson &amp; Llewellyn, P.A. Post Office Box 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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