Court filings regarding Amicus Curiae brief of the state of Arkansas in support of affirmance in favor of appellee Little Rock School District (LRSD), Office of Desegregation Management report, Arkansas Department of Education (ADE) project management tool, reply brief of Joshua intervenors, response in opposition to motion for declaratory judgment, response to Pulaski County Special School District's (PCSSD's) motion for a declaration of unitary status

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<dcterms_description>Court filings: Court of Appeals, Amicus Curiae brief of the state of Arkansas in support of affirmance in favor of appellee Little Rock School District (LRSD); District Court, notice of electronic filing, Office of Desegregation Management report, ''2007-2008 Enrollment and Racial Composition of the Pulaski County Special School District (PCSSD)''; District Court, notice of filing, Arkansas Department of Education (ADE) project management tool; Court of Appeals, reply brief of Mrs. Lorene Joshua, et al.; District Court, notice of electronic filing, response in opposition to motion for declaratory judgment; Court of Appeals, notice of filing, Joshua intervenors' reply brief; Court of Appeals, certificate of service; District Court, response to Pulaski County Special School District's (PCSSD's) motion for a declaration of unitary status; District Court, letter-order This transcript was create using Optical Character Recognition (OCR) and may contain some errors. I I I I I I I I I I I I I I I I I I I No. 07-1866 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT LITTLE ROCK SCHOOL DISTRICT PLAINTIFF/ APPELLEE LORENE JOSHUA, et al. INTERVENOR PLAINTIFFS/ APPELLANTS V. NORTH LITTLE ROCK SCHOOL DISTRICT, PULASKI COUNTY SPECIAL SCHOOL DISTRICT, and STATE OF ARKANSAS DEFENDANTS On Appeal from the United States District Court for the Eastern District of Arkansas, Little Rock Division Honorable William R. Wilson AMICUS CURIE BRIEF OF THE STATE OF ARKANSAS IN SUPPORT OF AFFIRMANCE IN FAVOR OFAPPELLEE LITTLE ROCK SCHOOL DISTRICT DUSTIN McDANIEL Attorney General State of Arkansas SCOTT P. RICHARDSON #01208 MATTHEW B. McCOY #01165 Assistant Attorney General 323 Center Street, Suite 1100 Little Rock, AR 72201 (501) 682-1019 ATTORNEYS FOR ST A TE OF ARKANSAS I I I I I I I I I I I I I I I I I I I TABLE OF CONTENTS Table of Contents .. ............................ .. .... .. ............... .. ..................................... .. .... i Table of Authorities ................................................... .. ................. .. ..................... ii Statement of Amicus Curiae and Summary of the Argument.. .... .. ........ ............. I Argument. ... ....................... .. ............... ............. ............. .... ..... ...................... .... ..... 4 I. NO CLEAR ERROR IN THE COURT'S CREDIBILITY DETERMINATIONS ................................. ............ ..... 4 II. NO CLEAR ERROR IN THE COURT'S DETERMINATION THAT LRSD SATISFIED ITS 2.7.1 OBLIGATIONS ...... .. .... .. .... .. .. 7 II. GOOD FAITH COMPLIANCE WITH A DESEGREGATION PLAN IS THE LAW OF THIS CASE, NOT "DEEPLY EMBEDDED" COMPLIANCE .... .. .. .. ............ .... ... ... I 0 Conclusion ...................... .... .. .. .. ... ....... ... ..... .. .. ......... ..... ... ...... ..... .. .... ...... ... .. ...... I 7 Certificate of Service .......... .. ............ ..... .. ......................... .. ................... .. ......... . 19 Certificate of Compliance .... ... ... .... ..... ...... .. ... .. .............. .. ..... .. ............... .. ...... .... 20 I I I I I I I I I I I I I I I I 1 I I TABLE OF AUTHORITIES CASES PAGE Anderson v. Beseimer City, 470 U.S. 564, 105 S.Ct. 1504 (1985) ...... .... ................ .. ........ ................... .. ... .... .. ... ..... 6 Arizona v. California, 460 U.S. 605 , 103 S.Ct. 1382 (1983) .................................... ............... ........ ..... .. ...... 11 Board of Education v. Dowell, 498 U.S. 237, 111 S.Ct. 630 (1991) .... ..... ... .. .. ... .......... ......... .. ........ .. ............... 2, 12, 13 Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753 (1955) ... .. .... 3, 12 Enterprise Rent-a-Car, Inc. v. Rent-a-Wreck of America, Inc., 181 F.3d 906 (8th Cir. 1999) .............................. .. ............. .... .. ............. 5 First Union Nat. Bank v. Pictet Overseas Trust Corp. , Ltd. 477 F.3d 616 (8th Cir. 2007) ............ ................. .... ..... ............... .... 10-11 Freeman v. Pitts, 503 U.S. 467, 112 S.Ct. 1430 (1991) ............... ............. .. 13 Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689 (1968) .. ... .. ....................................... .. ..... .. ....... .. ........ .. 12 Little Rock School District, et al. v. Armstrong, et al. , 359 F.3d 957 (8th Cir. 2004) ......... .... ...... .. ... .. ...... .. .. ..... ... ..... .. ... 3, 5, 14 LRSD v. NLRSD, 451 F.3d 528 (8th Cir. 2006) ............ ........... .. .. ........ 3, 15, 16 LRSD v. PCSSD, et al., 237 F.Supp.2d 988 (E.D. Ark. 2002) ................ 3, 13 LRSD v. PCSSD, 470 F. Supp. 2d 963 (E.D. Ark. 2004) ... ... ............ 2, 14, 15 LRSD v. PCSSD, et al., 2007 WL 624054 (E.D. Ark. Feb. 23, 2007) .... ....................... ....... ................... 8, 9, 10, 15 United States v. Hively , 437 F.3d 752 (8th Cir. 2006) ....... ........................... 11 II I I I I I I I I I I I I I I I I I I I United States v. Manfre, 456 F.3d 871 (8th Cir. 2003) ................................ 11 United States v. McCarthy, 97 F .3d 1562 (8th Cir. 1996).... ...... .......... ...... .. .. 5 RULES Fed. R. Civ. Pro. 52(a) ..................................................... ................ .. ...... ... 5, 6 111 I I I I I I I I I I I I I I I I I I I STATEMENT OF AMICUS CURIAE AND SUMMARY OF THE ARGUMENT The State of Arkansas files this Amicus Curiae brief pursuant to Federal Rule of Appellate Procedure 29(a) in support of the District Court's finding that the Little Rock School District (LRSD) has achieved full unitary status. The State's interest in this proceeding arises out of its status as a party to the 1990 settlement agreement in this case, its general supervisory authority over the LRSD, the over $60 million each year the State spends in support of the desegregation efforts of the three Pulaski County school districts in this case, and the State's interest in seeing that the three Pulaski County school districts substantially comply with their desegregation plans. The Joshua Intervenors argue on appeal that the District Court's judgment finding the LRSD to have achieved unitary status should be reversed and that the LRSD should be returned to its nearly fifty years of court supervision. In support of this argument the Joshua Intervenors argue three points on appeal: 1) that the District Court erred in its fact and credibility determinations, 2) that the LRSD failed to do enough in establishing its program assessment and evaluation process, and 3) that the District Court should not have returned to the proper standard by which to measure the school district's desegregation plan compliance. I I I I I I I I I I I I I I I I I I I The Joshua Intervenors argue that the District Court erred in its factual findings. Their primary dispute on appeal with those findings is their disagreement with the District Court's credibility determinations. The Court below properly chose which witness testimony to credit. The Joshua Intervenors have failed to demonstrate that the District Court abused its wide discretion. The LRSD took many steps and spent considerable resources to ensure that a process to continually assess and evaluate its key 2.7 programs was a permanent part of its curriculum. Although, the District Court had improperly imposed the heightened "deeply embedded" standard on the LRSD in this area, the record amply supports a finding that the LRSD met even this heightened standard. The District Court properly acknowledged that it had changed the law on the LRSD when it required that the district's "comprehensive program assessment process must be deeply embedded as a permanent part of LRSD's curriculum and instruction program." LRSD v. PCSSD, 470 F. Supp. 2d 963, 997-8 (E.D. Ark. 2004)(emphasis in original). The correct legal standard is whether the district substantially complied with its desegregation plan in good faith. This has been the standard since Brown II was decided by the Supreme Court. Brown v. Board of Education, 349 U.S. 2 I I I I I I I I I I I I I I I I I I I 294, 299, 75 S.Ct. 753, 746 (1955). This standard was also clearly laid out by the District Court in its 2002 opinion finding the LRSD unitary as to the majority of its plan obligations, LRSD v. PCSSD, et al., 237 F.Supp.2d 988, 1035-36 (E.D. Ark. 2002), and was affirmed by this Court in 2004. LRSD v. Armstrong, 359 F.3d 957 (8th Cir. 2004). In this Court's 2006 opinion, it clearly reserved judgment on the propriety of the "deeply embedded" requirement. LRSD v. NLRSD, 451 F .3d 528, 541 (8th Cir. 2006). Accordingly, the "deeply embedded" standard is not the law of this case but was a departure from the settled law of this case. Two other school districts remain as defendants in this case: the North Little Rock School District (NLRSD) and the Pulaski County Spe~ial School District (PCSSD). A holding from this Court that the "deeply embedded" standard was proper would destabilize the settled law of this case. It would allow the standard for plan compliance to be changed without notice to these districts, as happened with the LRSD. Accordingly, the District Court's return to the proper standard should be clearly affirmed. 3 I I I I I I I I I I I I I I I I I I I ARGUMENT Almost fifty years after the Little Rock School District's first major step in the integration of its schools, the District has achieved another milestone: a judgment from the district court granting full unitary status and complete release from court supervision. Through their appeal, the Joshua Intervenors seek to return the school district to court supervision. The State of Arkansas files this Amicus brief in support of the Little Rock School District's full unitary status. The Joshua Intervenors urge reversal of the District Court for three reasons: 1) they assert that the District Court was wrong in its factual findings because they disagree with the court's credibility determinations, 2) they believe that the School District's many efforts to embed a program evaluation process has not gone far enough, and 3) they assert that the District Court should not have analyzed district efforts using the good faith standard of substantial compliance. Because the District Court was clearly correct in each of its determinations, the judgment of the District Court should be affirmed in all respects. I. NO CLEAR ERROR IN THE COURT'S CREDIBILITY DETERMINATIONS. The Joshua Intervenors argue factual errors based on their disagreement with the District Court's credibility determinations. Most 4 I I I I I I I I I I I I I I I I I I I notably, the bulk of the testimony relied upon by the Joshua Intervenors are not factual statements but mere conclusions of certain witnesses about the effectiveness of the Little Rock School District's (LRSD's) efforts to comply with the District Court's 2004 order. "Credibility determinations are within the exclusive domain of the district court, and are virtually unreviewable on appeal." United States v. McCarthy, 97 F.3d 1562, 1579 (8th Cir. 1996). A district court's factual determinations, including credibility of witnesses, are reviewed for "clear error." Enterprise Rent-a-Car, Inc. v. Rent-a-Wreck of America, Inc., 181 F.3d 906, 909 (s1h Cir. 1999); Fed. R. Civ. Pro. 52(a) ("Findings of fact ... shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses"). The Eighth Circuit does not overturn a district court's factual findings unless it is left with the "definite and firm conviction that a mistake has been committed." Little Rock School District, et al. v. Armstrong, et al., 359 F.3d 957, 963 (8th Cir. 2004). The Supreme Court has instructed that Courts of Appeal may not reverse the district court's factual findings as long as "the district court's account of the evidence is plausible in light of the record viewed in its entirety ... even though [the circuit court may be] convinced that had it been 5 I I I I I I I I I I I I I I I I I I I sitting as the trier of fact, it would have weighed the evidence differently" Anderson v. Beseimer City, 470 U.S. 564, 573-4, 105 S.Ct. 1504 (1985)(holding that appellate courts are bound by Fed. R. Civ: Pro. 52's clearly erroneous standard). The Joshua Intervenors point this Court to no objective basis for overturning the District Court's credibility determinations. "[W]hen a trial judge's finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error." Anderson, 470 U.S. at 575, 105 S.Ct. at 1512. The Intervenors focus primarily on the testimony of one witness, the director of the LRSD's Planning, Research, and Evaluation (PRE) Department: Dr. Karen DeJarnette. As demonstrated by the record, Dr. DeJarnette's reliability in drawing conclusions about the district's unitary status efforts was substantially undermined at the unitary status hearings. Indeed, she revealed herself to have lost objectivity in opining on this ultimate issue of the unitary status hearings. Her testimony demonstrated that she had realized the effect that judicial supervision over 2. 7 .1 assessments and evaluations had on her 6 I I I I I I I I I I I I I I I I I I I office, which was charged with carrying out these programs, and for that reason she was willing to act in support of continuing judicial supervision of the LRSD. She was shown to have shifted from an effort to comply with the court's order to an effort to gather power to her department without regard to the decisions of district administrators or the advice of the district's attorney. The District Court properly chose to discredit her testimony. The Joshua Intervenors have not shown error in the District Court's credibility determinations. The judgment should, therefore, be affirmed. II. NO CLEAR ERROR IN THE COURT'S DETERMINATION THAT LRSD SATISFIED ITS 2.7.1 OBLIGATIONS As will be explained further in this brief, the District Court properly recognized that the requirement it imposed that the school district must show that its program for assessment and evaluation was "deeply embedded" in school policies, was outside the parameters set by prior court decisions and should be abandoned. Even so, the LRSD presented considerable proof that it had, in fact, "deeply embedded" a process for evaluating its 2.7 programs, those designed to improve the academic achievement of AfricanAmerican students, and that it was sincerely committed to that endeavor. The Joshua Intervenors only evidence to the contrary is that a "data warehouse" was not completed and that the LRSD was still in the process of 7 I I I I I I I I I I I I I I I I I I I developing school portfolios at the time of the hearing. These were initiatives to make the district's access to data on its students more readily accessible and better organized. However, the testimony and evidence demonstrated that the LRSD could produce accurate, reliable data on its student's academic performance without these programs. Chief among the District Court's factual findings in this regard is that the LRSD had in place a reliable process for gathering the information necessary to evaluate and assess its programs. ' LRSD maintains "data silos" (individual servers) in numerous departments, which contain all of the information PRE needs to prepare program assessments and evaluations. To access these data silos, PRE sends a "radar request" to LRSD's information technology department. Data specialists then go to the data silos and assemble the requested data. Dr. DeJamette and Mr. W ohlleb testified it usually takes two days or less for the data specialists to provide PRE with all of the requested data. Thus, even if the Data Warehouse failed to provide PRE with the data it needed, it could still prepare program assessments and evaluations using radar requests to access the data from the decentralized data silos where it is also maintained. The software concerns about perceived problems with the Data Warehouse represent a difference of opinion and preference, but the choice of Business Objects in no way indicates that LRSD has failed to comply with its obligations. LRSD v. PCSSD, et al., 2007 WL 624054 * 17 ,r 23 (E.D.AR. Feb. 23, 2007)( emphasis in original). The Joshua Intervenors do not dispute this finding. Appellant's Brief p. 1. Accordingly, the undisputed factual evidence demonstrates that the LRSD has and continues to have ready 8 I I I I I I I I I I I I I I I I I I I access to accurate, reliable data with which to assess and evaluate its 2. 7 programs. This was the same system used to provide data to Drs. Steven Ross and James S. Catterall for their 2.7 program evaluations. These experts vouched for the reliability of the data provided from this system in strong terms: "All six of these evaluations were 'good evaluations."' Id. at *19 ,rs. "Dr. Ross testified that PRE provided him with all of the data he needed to prepare .t hese six evaluations of 2.7 programs." Id. at *20 if6. "Dr. Ross and Dr. Catterall both testified that PRE provided them with all of the support and assistance they needed to prepare the eight evaluations." Id. at *21 ,r 2. Dr. Catterall "stated that the data he received from LRSD was better than the data he received from most school districts." Id. at *20 if7. The evidence presented at the unitary status hearings showed that the district's efforts to create a data warehouse, Id. at *16 ifl9, and school portfolios, Id. at * 15, if 13, were additional efforts that went well beyond what was required by the LRSD's desegregation plan and the District Court's 2002 and 2004 compliance remedies. Accordingly, the District Court properly concluded: In short, there is nothing in the 2004 Compliance Remedy or Regulation IL-R which obligates LRSD to create a Data Warehouse or School Portfolios or to accomplish those two objectives before the comprehensive program assessment 9 I I I I I I I I I I I I I I I I I I I process could be deemed to be "deeply embedded." Clearly, LRSD administrators voluntarily decided to create a Data Warehouse and School Portfolios, in part, to make it easier for PRE to have access to the data it needed to perform assessments and evaluations. Id. at * 17 ,I 24. The LRSD presented sufficient evidence that it had implemented a process of assessment and evaluation that satisfied the District Court's now (properly) abandoned "deeply embedded" requirement. If there was any doubt, it was erased by the evidence of the district's moving beyond its then existing data mining capabilities to the great expense it went to in developing a data warehouse and school portfolios to facilitate the process of program assessment and evaluation. Accordingly, the District Court determined that even though the "deeply embedded" standard should be abandoned, nevertheless the LRSD had satisfied that standard and had left no doubt that its 2. 7 program assessment and evaluation process met the requirements of the district's plan. III. GOOD FAITH COMPLIANCE WITH DESEGREGATION OBLIGATIONS IS THE LAW OF THIS CASE, NOT "DEEPLY EMBEDDED" COMPLIANCE The law of the case doctrine provides that a court's decision on a rule of law should continue to govern the same issues in subsequent decisions in that case. First Union Nat. Bank v. Pictet Overseas Trust Corp. , Ltd., 477 10 I I I I I I I I I I I I I I I I I I I F.3d 616 (8th Cir. 2007). It is an "amorphous" concept that directs the court's discretion, but "does not limit the tribunal's power." Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391 (1983). The doctrine does not apply to interlocutory orders, which can always be reconsidered and modified by the district court prior to entry of a final order. United States v. Hively, 437 F.3d 752 (8th Cir. 2006). As to appellate decisions, the law of the case "ordinarily" requires a district court to follow an appellate decision with re~pect to all issues directly decided by that opinion. United States v. Manfre, 456 F.3d 871, 874 (8th Cir. 2006). Of course, a district court is not bound as to legal issues not addressed by an opinion of an appellate court. Id. Even where an appellate court has addressed an issue, however, the district court may still reconsider and modify the decision on that issue. "Under law of the case doctrine, as now most commonly understood, it is not improper for a court to depart from a prior holding if convinced that it is clearly erroneous and would work a manifest injustice." Arizona, 460 U.S. at 619 fn. 8, 103 S.Ct. at 1391 fn. 8. Indeed, this Court has acknowledged that even where it has decided an issue of law, a district court is not prevented from revisiting the issue if the Eighth Circuit's decision was "clearly erroneous and worked a manifest injustice." Manfre, 456 F.3d at 874. 11 I I I I I I I I I I I I I I I I I I I Here, the District Court's insertion of a "deeply embedded" requirement into the case in 2004 was a departure from the settled law in desegregation cases. Since Brown II, the Supreme Court has held that a school district should be released from federal court supervision if "the action of school authorities constitutes good faith implementation of the governing constitutional principles." Brown v. Board of Education, 349 U.S. 294, 299, 75 S.Ct. 753, 746 (1955)(emphasis added). In Green v. County School Board, of New Kent County, the Court again affirmed that a school district's obligation of compliance was "to be acting in good faith." 391 U.S. 430, 439, 88 S.Ct. 1689, 1695 (1968). Twenty-three years later in a case on desegregation remedy, the Supreme Court again stated that a school district's compliance with its desegregation obligations must be weighed with a view to the "good faith of the school board in complying with the decree." Board of Education v. Dowell, 498 U.S. 237, 249, 111 S.Ct. 630, 637-8 (1991). In Dowell, the Court rejected a request that a higher standard (not unlike the "deeply embedded" standard at issue here) be applied to a school district and held that the principles supporting a federal court's displacement of a school board's authority did not "require any such Draconian result." Id. On the contrary, the Court instructed that "[t]he District Court should 12 I I I I I I I I I I I I I I I I I I I address itself to whether the Board ha[ s] complied in good faith with the desegregation decree." Id. at 249-50, 111 S.Ct. at 638 (emphasis added). Similarly, in Freeman v. Pitts the Court rejected the assertion that a school district had to engage in "heroic measures" to demonstrate compliance with a desegregation plan. 503 U.S. 467, 493, 112 S.Ct. 1430, 1447 (1991). Instead, the Court emphasized that the school district was simply required to demonstrate its good faith commitment to the principles of desegregation. Id. This case has consistently followed the good faith standard enunciated by the Supreme Court. In 2002, when the District Court ruled that LRSD was unitary as to the majority of its desegregation obligations, the court went to great length to analyze the proper standard by which to judge the LRSD's compliance efforts. LRSD v. PCSSD, et al., 237 F.Supp.2d 988 (E.D. Ark. 2002). The result of that analysis was the court's conclusion that the proper standard was "substantial compliance." Id. at 1032-33. It went on to give a focused definition of that term as it would apply to the case. Id. at 1035-36. The court 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." 13 I I I I I I I I I I I I I I I I I I I Id. It was this standard that the court went on to apply in holding that the LRSD was unitary as to all aspects of its desegregation plan, save one: 2.7.1. This Court adopted this standard and used it in reviewing the District Court's 2002 unitary status ruling. LRSD v. Armstrong, 359 F.3d 957 (8th Cir. 2004). Each section of that opinion analyzing the District Court's unitary holdings concludes with the statement that "we find no clear error in the District Court's finding of substantial compliance." Id. It does not ' appear from this Court's 2004 opinion that the question of what standard applied to the LRSD's conduct was seriously doubted. To the extent that a different standard may have been urged, that request was rejected. See Id. at 965. Not quite two months after this Court handed down its March 2, 2004, opinion, the District Court issued the Memorandum Opinion at issue here regarding the LRSD' s efforts to substantially comply with 2. 7 .1 of its desegregation plan. LRSD v. PCSSD, 470 F. Supp. 2d 963 (E.D. Ark. 2004). The District Court acknowledged the effect of this Court's March 2, 2004, opinion: "Thus, all aspects of the September 13[, 2002,] Decision are now final and law of the case." Id. at 965. Accordingly, the "substantial compliance" standard laid down in 2002 became the law of the case. 14 I I I I I I I I I I I I I I I I I I I Moreover, the District Court acknowledged that "[i]t is black letter law that a school district seeking an end to court supervision has the burden of proving substantial compliance with the judicially imposed remedy." Id. at 984 ( emphasis added). Despite the District Court's recognition of the proper standard, it departed from that standard in one aspect of its 2004 memorandum opinion. The court held that the LRSD's "comprehensive process for assessing 2.7 programs must become a deeply embedded part of LRSD's elementary and ' secondary curriculum." Id. at 985, 997. The court's desire to see that programs designed to improve the academic performance of AfricanAmerican children in the LRSD continue to be assessed and evaluated for effectiveness is certainly laudable and should be commended. LRSD, 2007 WL 624054 *7-8 fu. 43, 47. However, as the court recognized, that desire is not a basis to change the rule of law applicable to this case. As the District Court explained in its 2004 opinion, the law in this area, and in this case, did not require the LRSD to engage in heroic efforts to demonstrate its good faith; it required substantial compliance in good faith with the LRSD's desegregation plan. On appeal from the 2004 District Court decision, the majority opinion of this Court did not directly address the "deeply embedded" standard. 15 I I I I I I I I I I I I I I I I I I I LRSD v. NLRSD, 451 F.3d 528 (8th Cir. 2006). Instead the majority stated "that had the question of compliance been submitted to us in the first instance, we might well have found that LRSD had met its burden of proof, all the more so in light of the heightened requirements imposed by the district court in its 2002 order." Id. at 540-41. The majority then made clear that its affirmance of the "even more heightened requirements" of the 2004 compliance remedy was based on the LRSD's ongoing efforts to comply with that remedy. Id. The question of. the propriety of these requirements was specifically reserved for another day: "Suffice it to say that there will be time enough for us to revisit the requirements of the 2004 order if this case should once again come before us." Id. at 541. This precatory language certainly falls short of this Court having decided to depart from the good faith, substantial compliance standard and to adopt the "deeply embedded" standard. To hold that LRSD was required to satisfy the subjective "deeply embedded" requirement would drastically alter the law governing the future progress of this case. As this Court is aware, two more school districts remain under the supervision of the District Court in this case. Recognition and affirmance of the good faith standard of substantial compliance with a 16 I I I I I I I I I I 1 I I I I I I I I desegregation plan by this Court would ensure that no such departures from the long standing law would be imposed upon these two remaining districts. The 2006 affirmance of the District Court's 2004 compliance remedy was clearly premised on the time that had passed and the then ongoing efforts of the LRSD in complying with the 2004 remedy. If this Court were now to approve the 2004 departure from the long-standing law of this case, it would allow the District Court to alter the standards for compliance applicable to the two remaining districts. without prior notice to those districts and the opportunity to conform their actions to the newly announced expectations of the court as opposed to the settled law. The Joshua Intervenor's request that this Court sanction this shifting sands approach to this half-century old litigation should be soundly rejected. The State of Arkansas requests that the District Court's return to the settled law of this case be affirmed for the benefit of the future litigation of the unitary status of the two remaining districts. CONCLUSION For the foregoing reasons, the State of Arkansas, as Amicus Curiae, requests that this Court affirm the District Court's grant of complete unitary status to the Little Rock School District in its entirety. 17 I I Respectfully submitted, DUSTIN McDANIEL I Attorney General I By: /4-~ I Scott P. Richardson, Ark. Bar # 2001208 MatthewB.McCoy, Ark. Bar#2001165 I Assistant Attorneys General 323 Center Street, Ste 200 Little Rock, AR 72201 I (501) 682-1019 (501) 682-2591 fax scott.richardson@arkansasag.gov I ' Dennis R. Hansen I Deputy Attorney General Attorneys for Amicus Curiae the State of I Arkansas. I I I I I I I I I 18 I I I I I I I I I I I I I I I I I I I CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief and one virus free diskette containing a copy of the brief have been served on the following via regular U.S. Mail, postage prepaid, on this z~:ttay of November, 2007: Mr. Christopher Heller Friday, Eldredge &amp; Clark 400 W. Capitol, Suite 2000 Little Rock, AR 72201 Mr. Robert Pressman 22 Locust A venue Lexington, MA 024 21 Mr. John W. Walker John W. Walker, P.A. 1 723 Broadway Little Rock, AR 72206 Hon. Andree Roaf Office of Desegregation Monitoring 124 W. Capitol, Suite 1895 Little Rock, AR 72201 /4--~ Scott P. Richardson 19 I I I I I I I I I I I I I I I I I I I CERTIFICATE OF COMPLIANCE I certify that the applicable parts of this brief comply with typevolume limitation of Federal Rule of Appellate Procedure 32(a)(7). The Brief contains 3,797 words and 355 lines of text. Pursuant to Local Rule 28A, Appellees hereby submit a 3 " computer diskette to the Clerk and counsel for the principal parties. The brief was prepared in Microsoft Office Word 2003 using the proportionally spaced typeface Times New Roman in font size fourteen point. I, Scott P. Richardson, hereby certify that the diskettes presented to the Clerk and Appellant's counsel have been scanned for viruses and are virus free. Scott P. Richardson 20 Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Friday, December 07, 2007 4:35 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 (Other) 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 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 12/7/2007 at 4:34 PM CST and filed on 12/7/2007 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: Office of Desegregation Monitor WARNING: CASE CLOSED on 01/26/1998 Document N um be_!: 4171 (No document attached) Docket Text: NOTICE of Filing 2007-2008 Enrollment and Racial Composition of the PCSSD by Office of Desegregation Monitor (available in paper format only) (dac) 4:82-cv-866 Notice has been electronically mailed to: H. William Allen (Terminated) hwallen@allenlawfirrnpc.com, njjackson@allenlawfirmpc.com Clayton R. Blackstock cblackstock@mbbwi.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com Stephen L. Curry (Terminated) scurry@aristotle.net John T. Lavey (Terminated) jlavey@laveyandburnett.com, jsmith@laveyandburnett.com - Philip K. Lyon (Terminated) pklyon@jljnash.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net 12/10/2007 M. Samuel Jones, III sjones@mwsgw.com, aoverton@mwsgw.com - Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com Richard W. Roachell (Terminated) rroachell@aol.com, schoollaw@msn.com William H. Trice, III (Terminated) btrice@hfc-law.com Page 2 of2 John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com Mark Terry Burnette mburnette@mbbwi.com Sharon Carden Streett (Terminated) scstreett@comcast.net John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com Will Bond (Terminated) will@mcmathlaw.com, tasha@mcmathlaw.com Mark Arnold Hagemeier (Terminated) mhagemeier@uasys.edu, tsmith@uasys.edu 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 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 12/10/2007 ARKANSAS DEPARTMENT OF Dr. T. Kenneth James, Commissioner Educatilfn 4 State Capitol Mall Little Rock, AR 72201-1071 (501) 682-4475 http://ArkansasEd.org December 20, 2007 Mr. Christopher Heller Friday, Eldredge &amp; Clark 400 West Capitol, Suite 2000 Little Rock, AR 72201-3493 Mr. John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72206 Mr. Mark Burnette Mitchell, Blackstock, Barnes, Wagoner, Ivers &amp; Sneddon P. 0. Box 1510 Little Rock, AR 72203-1510 "ECEJVED DEC 2 o 2in Office of Desegregation Monitoring vlll One Union National ~,., .. _ OFFICE OF 124 West Capitol, Suh,t!~ATION MONITOR/ Little Rock, AR 72201 NG Mr. Stephen W. Jones Jack, Lyon &amp; Jones 425 West Capitol, Suite 3400 Little Rock, AR 72201 Mr. M. Samuel Jones III Mitchell, Williams, Selig, Gates &amp; Woodyard 425 West Capitol Avenue, Suite 1800 Little Rock, AR 72201 RE: Little Rock School District v. Pulaski County Special School District, et al. US. District Court No. 4:82-CV-866 WRW Dear Gentlemen: Per an agreement with the Attorney General 's Office, I am filing the Arkansas Department of Education's Project Management Tool for the month of December 2007 in the above-referenced case. If you have any questions, please feel free to contact me at your convenience. General Counsel Arkansas Department of Education SS:law cc: Scott Richardson, Attorney General's Office STATE BOARD OF EDUCATION: Chair: Diane Tatum, Pine Bluff Vice Chair: Randy Lawson, Bentonville Members: Sherry Burrow, Jonesboro Jim Cooper, Melbourne Dr. Calvin King, Marianna Dr. Tim Knight, Arkadelphia Dr. Ben Mays, Clinton MaryJane Rebick, Little Rock Dr. Naccaman Williams, Springdale An Equal Opportunity Employer UNITED STATES DISTRICT cc&amp;~CEIVED EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION DEC 2 0 2007 OFFICE OF DESEGREGATION MONITORING LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. No. LR-C-82-866 WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al DEFENDANTS NOTICE OF FILING In accordance with the Court's Order of December 10, 1993, the Arkansas Department of Education hereby gives notice of the filing of the AD E's Project Management Tool for December 2007. Respectfully Submitted, Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 501-682-4227 CERTIFICATE OF SERVICE I, Scott Smith, certify that on December I Cy-f--_-1:,)007, I caused the foregoing document to be served by depositing a copy in the United States mail, postage prepaid, addressed to each of the following: Mr. Christopher Heller Friday, Eldredge &amp; Clark 400 West Capitol, Suite 2000 Little Rock, AR 72201-3493 Mr. John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72206 Mr. Mark Burnette Mitchell, Blackstock, Barnes Wagoner, Ivers &amp; Sneddon P. 0. Box 1510 Little Rock, AR 72203-1510 Office of Desegregation Monitoring One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Mr. Stephen W. Jones Jack, Lyon &amp; Jones 425 West Capitol, Suite 3400 Little Rock, AR 72201 Mr. M. Samuel Jones, III Mitchell, Williams, Selig, Gates &amp; Woodyard 425 West Capitol, Suite 1800 Little Rock, AR 72201 Page 1 of 3 polly From: ecf_support@ared.uscourts.gov Sent: Wednesday, December 19, 2007 3:12 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 (Other) 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 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 12/19/2007 at 3:12 PM CST and filed on 12/19/2007 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: Arkansas Department of Education WARNING: CASE CLOSED on 01/26/1998 Document Number: 4172 Docket Text: NOTICE Of Filing the ADE's Project Management Tool for December 2007 by Arkansas Department of Education (dac) 4:82-cv-866 Notice has been electronically mailed to: H. William Allen (Terminated) hwallen@allenlawfirmpc.com, njjackson@allenlawfirmpc.com Clayton R. Blackstock cblackstock@mbbwi.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com Stephen L. Curry (Terminated) scurry@aristotle.net John T. Lavey (Terminated) jlavey@laveyandburnett.com, jsrnith@laveyandburnett.com Philip K. Lyon (Terminated) pklyon@jljnash.com Christopher J. Heller heller@fec.net, brendak@fec.net, trniller@fec.net 2/5/2008 M. Samuel Jones, III sjones@mwsgw.com, aoverton@mwsgw.com - Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com Richard W. Roachell (Terminated) rroachell@aol.com, schoollaw@msn.com William H. Trice, III (Terminated) btrice@hfc-law.com Page 2 of3 John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com Mark Terry Burnette mburnette@mbbwi.com Sharon Carden Streett (Terminated) scstreett@comcast.net John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com Will Bond (Terminated) will@mcmathlaw.com, tasha@mcmathlaw.com Mark Arnold Hagemeier (Terminated) mhagemeier@uasys.edu, tsmith@uasys.edu 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 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: [STAMP dcec:fStamp_ID=1095794525 [Date=12/19/2007] [FileNumber=l061501- 2/5/2008 0] [b95ad922a60bf757b40e2d3b8d210b19d9b11916044018f5bed3923038f3651d56 490c805980ba10dd76aafe7662051e96104aeecb06bd6203db604e359ff052]] 2/5/2008 Page 3 of3 Page 1 of3 polly From: ecf_support@ared.uscourts.gov Sent: Wednesday, December 19, 2007 3:12 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 (Other) 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 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 on 12/19/2007 at 3:12 PM CST and filed on 12/19/2007 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: Arkansas Department of Education WARNING: CASE CLOSED on 01/26/1998 Document Number: 4172 Docket Text: NOTICE Of Filing the ADE's Project Management Tool for December 2007 by Arkansas Department of Education (dac) 4:82-cv-866 Notice has been electronically mailed to: H. William Allen (Terminated) hwallen@allenlawfirmpc.com, njjackson@allenlawfirmpc.com Clayton R. Blackstock cblackstock@mbbwi.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com Stephen L. Curry (Terminated) scurry@aristotle.net John T. Lavey (Terminated) jlavey@laveyandburnett.com, jsmith@laveyandburnett.com Philip K. Lyon (Terminated) pklyon@jljnash.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net 2/12/2008 M. Samuel Jones, III sjones@mwsgw.com, aoverton@mwsgw.com - Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com Richard W. Roachell (Terminated) rroachell@aol.com, schoollaw@msn.com William H. Trice, III (Terminated) btrice@hfc-law.com Page 2 of3 John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com Mark Terry Burnette mburnette@mbbwi.com Sharon Carden Streett (Terminated) scstreett@comcast.net John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com Will Bond (Terminated) will@mcmathlaw.com, tasha@mcmathlaw.com Mark Arnold Hagemeier (Terminated) rnhagemeier@uasys.edu, tsmith@uasys.edu 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 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: [STAMP dcecfStamp_ID=1095794525 [Date=12/19/2007] [FileNumber=l061501- 2/12/2008 0] [b95ad922a60bf757b40e2d3b8d210b19d9b11916044018f5bed3923038f3651d56 490c805980ba10dd76aafe7662051e96104aeecb06bd6203db604e359ff052]] 2/12/2008 Page 3 of 3 I I I I I I I I I I I I I 1 I I I I I 07-1866 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT MRS. LORENE JOSHUA, ET Absc INTERVENOR/APPELLANTP 1 civc 0 v. DEc 2 o 2001 DESEG11/jf!lct OF ,7DN /,f O,JJ LITTLE ROCK SCHOOL DISTRICT ,;JTORJN(J 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 22 Locust Avenue Lexington, MA 02421 781-862-1955 John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, AR 72206 501-374-3758 501-374-4187 (F) .I I .I, I I I I 'I I I I I I 1 I I I I Table of Contents Table of Contents ............ .. ..... .... ... .. ...... ...... ........................ .... .. ......... . Table of Authorities .......... .................... ... ........ ....... .... ... .. ... ............... . Argu1nent oooo " oo OO OO " 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. The District Court's 2004 Decision and Its Second Compliance Remedy to Address LRSD Default F. The District Court's Giving Notice of a Change in the Standards for Judging Compliance Only After the Hearing Requires Reversal Certificate of Service ... .... ............ ... ..... ......... ..... .... ..... ... .. ... ........ .... .. .... . Certificate of Compliance ... .... ........ ....... ...... ......... ... .... ............ ... ....... ... . Attachments i 11 1 1 3 3 4 6 9 12 14 I I ,, I ,, I I .I I I I , , I I I I 1 I I Table of Authorities Black v. Lane, 22 FJd 1395 (7thCir. 1994) Board of Education of Oklahoma City v. Dowell, 498 U.S. 237 (1991) First Union National Bank, Tmstee v. Pictet Overseas Tmst 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 (1 stCir. 1980) Ramos-Falcon v. Autoridad de Energia Electrica, 301 FJd 1 (1 stCir. 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, 12 10 2 10 4,9 3,4 8 2,4,6 6, 7, 11, 12 1, 6, 9 2, 12 9, 11 4 2 I I I I I I I I ,, I I I I I I I I I I Rule 55, Federal Rules of Civil Procedure Restatement (Second) of Contracts, Sec. 201(1) (1981) iii 10 2 I I I ., , I I I I I I I I I I I I I I I 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 knowledge 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 detennine 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 fonn 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 I I I I I I I I 'I I I I I I I I I I I 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 re.mediate 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 obviously 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 persom1el capable of perfonning assessments and evaluations; interaction with those involved in the content of LRSD curriculum; communication with and training of school-level personnel; reports on implementation to high level administrators and the school board; oversight; and docmnents containing 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 tenn 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 detennine in what sense the term was used.") 2 I I I I ., I I I I I I I I I I I I I l1 completed program studies. Not infrequently, a phrase is used to describe an endeavor of considerable complexity. Here, a reasonable constmction of the parties' broa,d voluntary agreement was that it contemplated, over time, multiple, mature actions at different levels and locales in the LRSD, i.e., that a stmcture to carry out the parties' broad agreement be "deeply embedded" in the LRSD curriculum and instmction 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 tenns. 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 13 78-80. Rejecting mlings 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]: It is important for the settlement plans to be scmpulously adhered to -- and here 3 I I I I I I. I I I I I I, I I I I I I ( I I 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 mlings 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 mies generally applicable to otl1er judgments and decrees."); Knight v. PCSSD, 112 F.3d 953, 955 (8th Cir. 1997) (parties' agreement "becomes, 111 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 mled 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. 237 F.Supp. at 1086, 1089. 4 I. I I I I I I .,I I I I I I I I I I I, 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 swmnarized 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 and use certain "program evaluations" which it had identified; [iii] continue during a 5 I I I I I I I I I 1. I I I I I I I I I specified period to assess each 2.7 program and use this and other available infonnation 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 constrned by the parties. The District Court fulfilled the responsibility identified in strong tenns 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 tennination of court supervision based upon asserted compliance with the court's 2002 remedy and Sec. 2. 7. i. 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 obligation encompassed some program evaluations; [470 F.Supp. at 970-71]; [ii] 6 I I, I I I I I I I I I I I I I I I I I although, as LRSD's expert witness .testified, all districts implement sub-programs within a curriculum, which can be and should be evaluated [Dr. Ross, hearmg 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 [470 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/instmction program been effective in improving and remediating the academic achievement of African-American 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 [ 4 70 F.Supp. at 994-95]; [v] the shortcomings inLRSD perfonnance 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 [470 F.Supp. 994]; [vii] LRSD had failed to provide to ODM and Joshua Intervenors promised progress reports on the literacy and mathscience 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 identified its obligations as including some evaluations. When LRSD had twice failed 7 I I I I I I I I I I I I I I I I I I I 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 c01mnitment, 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 "nm 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. See n.2, supra.3 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. 8 I I I I I I I I I I I I I I I I I I I 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 defaul~s, 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, tl1e 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 tl1e 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 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 4 Knight V. PCSSD, 11,2 F.3d 953, 954 (8th Cir. 1997). 9 I I I I I I I I I I I I I I I I I I I claim, but after hearing conducted pursuant to Rule 5 5 (b )(2 ), F ed.R. Ci v .Pro., dismissed claim on the merits; while the district court could conduct a hearing "to 'establish the trnth of any avennent' 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 marshall 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 Tmst, 477 F.3d 616, 621 (8thCir. 2007) (discussing possible applicability oflaw 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 tl1e basis of the accusation is"; this affords student "opportunity to present his side of the story" in an infonned manner); [E] Hynes v. Mayor and Council of Borough of Oradell, 425 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."). 10 I I I I I I I I I I I I I I I I I I I 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 tennination of court jurisdiction. [470 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 . . .. " [4 70 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, imanagement orders" and guidance to counsel before the hearing magnified the hann. 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 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 11 I I I I I I I I I I I I I I I I I I I 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 oflntervenors 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 tennination of the case as to LRSD or another district. Compare State brief at 12-13. 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, detennine 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, detennine the compliance of the LRSD with the second remedy, 12 I I I I I I I I I I I I I I I I I I I utilizing the good faith standard in doing so. 13 Respectfully submitted, ls/John 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&lt;ruaol.com Robert Pressman 22 Locust A venue Lexington, MA 02421 (781) 862-1955 I I I I I I I I I I I I I I I I I I I 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 Briefhas been served on this 18st day ofDecember, 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/or handdelivery to Mr. Chris Heller, FRIDAY, ELDREDGE &amp; CLARK, 400 West Capitol, Suite 2000, Little Rock, AR 72201 and to the Office ofDesegregation Monitoring, One Union National Plaza, 124 West Capitol, Suite 1895 Little Rock, Arkansas 72201 . ls/John W. Walker 14 I I I I I I I I I I I I I I I I I I I CERTIFICATE OF COMPLIANCE The undersigned hereby certifies, pursuant to Federal Rules of Appellate Procedure 3 2( 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 ofFRAP.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 vims 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 Fonnat). The digital version was generated by printing to PDF from the original word processing file . Dated: December 18, 2007 ls/John W. Walker 15 I I I I I I I I I I I I I I 1. I I I 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS RICHARD SHEPPARD ARNOLD UNITED STATES COURTHOUSE 600 W. CAPITOL, ROOM 423 LITTLE ROCK, ARKANSAS 72201 -3325 (501) 604-5140 Facsimile (501) 604-5149 December 6, 2006 Mr. Christopher J. Heller Friday, Eldredge &amp; Clark, LLP - Little Rock Regions Center 400 West Capitol Avenue Suite 2000 Little Rock, AR 72201-3493 Mr. John W. Walker John W. Walker, P.A. 1 723 Broadway Little Rock, AR 72024 Re: LRSD v. PCSSD, et al, 4:82-CV-866 Dear Counsel: As you know, this case is set for a hearing to commence on Monday, December 18, 2006. By noon this Friday, December 8, 2006, please fax me a list of your witnesses with a fair and accurate summary of the expected testimony of each witness and the length of time you estimate for direct examination. Please also carefully identify each exhibit that you intend to offer at the hearing by noon Friday, December 8. By noon Monday, December 11, 2006, each of you should fax me a letter with your estimated time of cross-examination for each adverse witness. We may have to work~ long day to complete the testimony. I understand that the media has reported a stir or two concerning some of th.e potential witnesses, and concerning one or more of the lawyers of record. If these media reports are accurate, pf e~e advise me in exact and plenary detail what part, if any, these stirs will play in the December 18 hearing. Include any new issues that you anticipate (this information should also be submitted by noon, this Friday). It is my understanding that Mr. John Burnett and Mr. Steve Quattlebaum, both of the Little Rock Bar, are representing some of the potential witnesses or other principals in the case. Both of these Page 1 of 2 I I I I I I I I I I I I I I I I I I I lawyers are on Judge Tom Ray's recusal list. In view of this I think it is likely that he will recuse in the immediate future -- assuming, of course, that any of the individuals these lawyers represent will play a part in the hearing. I look forward to hearing from you. Cordially, Isl Wm. R.Wilson,Jr. P.S . No requests for extensions of the above deadlines, please. Original to the Clerk of the Court cc: The Honorable Joe Thomas Ray Ms. Mary Johnson Other Counsel of Record Page 2 of 2 I I I I I I 1 I I I I I I I I I I I I 1 Case 4:82-cv-00866-WRW . -Document 4095 Filed 01/18/2007 Page 1 of 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS RICHARD SHEPPARD ARNOLD UNITED STATES COURTHOUSE 600 W. CAPITOL, ROOM 423 LITTLE ROCK, ARKANSAS 72201 -3325 (501) 604-5140 Facsimile (601) 604-5149 January 18, 2007 Mr. Christopher J. Heller Friday, Eldredge &amp; Clark, LLP - Little Rock Regions Center 400 West Capitol Avenue Suite 2000 Little Rock, AR 72201-3493 Mr. John W. Walker John W. Walker, P.A. 1723 Broadway . Little Rock, AR 72024 Re: LRSD ~- PCSSD, et al, 4:82-CV-00866 Dear Counsel: . We will have a total of about 20 hours for the hearing, considering dinner (lunch) breaks, and a 15 minute break each morning and afternoon. -LRSD will have 7 hours to present its case. Joshua will have a total of2 hours for cross-examine of L_RSD's witnesses .. Joshua will have 7 hours to present its case. LRSD will have a total of 2 hours to cross-examine Joshua's witnesses. Cross-examination must be brisk and to the point, i.e., a Blitzkrieg, not an invasion of Normandy. You should be keenly aware of the time limits, lest evidence you deem important gets passed by. Original to the Clerk of the Court cc: The Honorable Joe Thomas Ray Other Counsel of Record Cordially, Isl Wm. R.Wilson.Jr. l/17?, Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Thursday, December 20, 2007 3:47 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 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 12/20/2007 at 3:46 PM CST and filed on 12/20/2007 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: Lorene Joshua WARNING: CASE CLOSED on 01/26/1998 Document Number: 4173 ( "Po /'If~ h4 \/&lt;. clo C.1,1 W\ C ") r Docket Text: RESPONSE in Opposition re [4141] MOTION for Declaratory Judgment, [4143] MOTION for Declaratory Judgment filed by Lorene 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, trniller@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, 1orap72297@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: [STAMP dcecfStamp_ID=1095794525 [Date=12/20/2007] [FileNumber=1062801- 0] [2c4a2e7112bb6558e0a14444d8175f6274883ca83101922b2eb8a45ff417b39196 1145745a839186c4571040330aba330e2abdbb6c616bd01284d06d3dd62049]] 1/8/2008 . . - JOHN W. WALKER, P.A. ATTORNEYS AT LAW 1723 BROADWAY LITTLE ROCK. ARKANSAS 722ftE" TELEPHONE (501) 374-37580 CEIVEO FAX (501) 374-4.187 . . . EMAIL: jolmwalkera ttYri'.uaol.com DEC 2 Q 200l l)oc.. l/l,'t JOHN W. WALKER SHAWN G. CHILDS . OFCOUNSEI DESEG OFFICE OF ROBERT McHENRY. P.A REGATION MONITORJNr. . 8210 HENDERSON .ROAI Mr. Michael Gans United States Court of Appeals for the Eighth Circuit Thomas F. Eagleton U.S. Courthouse 111 South 10th Street, Room 24.329 St. Louis; MO 63102 December 18, ] 007 . '!!!TILE ROCK, ARKA,'\JSAS 722 1( PHONE: (501 ) 374-3425 FA."\: (501) 372-3421 EMAIL: md1ear,&lt;l;Z&amp;,,wbd!.ne1 . ' Re: 07-1866 Little Rock School :District, et al. v. Joshua Intervenors, et al. Dear Mt. Gans: Enclosed please find ten copies of Joshua Iritervenors ' Reply Brief along with the digital version brief on a 3. 5" computer diskette in PDF format to be filed in the above matter. JWW:lp Enclosures cc: All Counsel of Record I I 07-1866 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT MRS. LORENE JOSHUA, ET Ab~c INTERVENOR/APPELLANT~ 11 ,;1 c,vco 'EC E O 200 V. . 7 DESEG11oiff'CE OF LITTLE ROCK SCHOOL DISTRICT 7081108 '10/iJNq 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 22 Locust A venue Lexington, MA 02421 781-862-1955 John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, AR 72206 501-374-3758 501-374-4187 (F) 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 RECEIVED DEC 2 O 2007 OFFICEOF DESEGREGATION MONITOIDNG 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) 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 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 Rule 55, Federal Rules of Civil Procedure Restatement (Second) of Contracts, Sec. 201(1) (1981) iii 10 2 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 II deeply embedded 11 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 knowledge 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 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 obviously 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 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 hnplementation 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 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 eff ecti vel y, 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. 4 237 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 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 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 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 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 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 marshall 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 NationalBankv. PictetOverseas Trust, 477 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 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. [ 470 F.Supp. at 1000] That remedy, in Part B, included the "deeply embedded" language, which even referred to "[p ]art of LRSD's proof, at the next compliance hearing .... " [ 4 70 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 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 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 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 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 JOHN W. WALKER, P.A. ATTORNEYS AT LAW 1723 BROADWAY LITTLE ROCK, ARKANSAS 1:miec E' ivE 0 TELEPHONE (501) 374_375f1'E,;, . FAX (501) 374-4187 EMAIL: johnwalkeratt1'1i:vaol.com DEC 2 G 2007 JOHN W. WALKER SHAWN G. CHILDS l\llr. Michael Shay United States Court of Appeals for the Eighth Circuit Thomas F. Eagleton U.S. Courthouse 111 South 10th Street, Room 24.329 St. Louis, MO 63102 December 20, 2007 OFFICE OF OF COUNS DESEGREGATION MONITORINIRoBERT McHENRY, P 8210 HENDERSON RO LITTLE ROCK, .-\RK.4..&lt;"\/SAS 72: PHONE: (501) 374-3425 FA,'{ (501) 372a3 EMAIL: mchenr,1.1hswbdl Re: 07-1866 Little Rock School District, et al. v. Joshua Intervenors, et al. Dear Ivlr. Shay: Pursuant to our telephone conversation, enclosed you will find the original pages 13, 14, and 15 with Mr. Walker's signature. By copy of this letter, I am also providing all counsel listed on the Certificate of Service with these pages. If there are any additional corrections which need to be made, please advise. Sincerely, /\ .Y l ....-2 r7'1[!l0,1 o~v~ YsiL6raPowell Secretary to John W. Walker LP: Enclosures 13 . Walker, AR No. 64046 John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72206 (501) 374-3758 (501) 374-4187 E-Mail: johnwalkeratty(a)aol.com Robert Pressman 22 Locust A venue Lexington, MA 02421 (781) 862-1955 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 was served on the 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, postage prepaid to Mr. Chris Heller, FRIDAY, ELDREDGE &amp; CLARK, 400 West Capitol, Suite 2000, Little Rock, AR 72201 and to the Office ofDesegregation Monitoring, One Union National Plaza, 124 West Capitol, Suite 18 14 CERTIFICATE OF COMPLIANCE The undersigned hereby certifies, pursuant to .Federal Rules of Appellate Procedure 3 2( 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 cotmsel) contains 3427 words. This brief complies with the typeface requirements of FRAP.32(a)(5) and the type style requirements ofFRAP.32(a)(6) because of this brief has been prepared in a proportionally spaced typeface using W ordperfect 9. 0 in Times New Roman, 14-point. The tmdersigned 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 cotmsel of record: The digital version of this briefhas been famished on a 3.5" computer diskette - in Portable Docmnent Fonnat (also known as PDF or Acrobat Fonnat). The digital version was generated by printing to PDE from the original word processing file . Dated: December 20, 2007 15 Page 1 of2 polly From: ecf _ su pport@ared. uscourts. gov Sent: Thursday, December 20, 2007 3:57 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 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 12/20/2007 at 3:56 PM CST and filed on 12/20/2007 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: Lorene Joshua WARNING: CASE CLOSED on 01/26/1998 Document Number: 4174 Docket Text: BRIEF IN OPPOSITION filed by Lorene Joshua re [4145] Brief in Support (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 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 johnwalk:eratty@aol.com, jspringer@gabrielmail.com, 1orap72297@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: [STAMP dcecfStamp_ID=1095794525 [Date=12/20/2007] [FileNumber=l062865- 0] [65977f3b2c5e2ab4a9418b842718fd4c5295:f29ef9e7ef3b12d48014f6ad014540 aead3a02061f86aal 1564a5f02afl 7570a3601c799a30116bc81d2c7b02225]] 1/8/2008 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. Poe. 'i 115 PLAINTIFF DEFENDANT INTER VEN ORS INTER VEN ORS RESPONSE TO PCSSD'S MOTION FOR A DECLARATION OF UNITARY STATUS Comes the Intervenor, Pulaski Association of Classroom Teachers (PACT), and, for its response to Pulaski County Special School District's Motion for a Declaration of Unitary Status, states: 1. Dr. Donna Humpries, a member of PACT, has pending an individual Title VII and 14th Amendment claim against Pulaski County Special School District (PCSSD) in Humphries v. PCSSD, E.D. Ark. Case No. 4:06 CV-00606. Likewise, Ms. Norma Dixon, a noncertified employee of PCS SD, has pending an individual Title VII claim against PCS SD. Both are represented herein by PACT and other named class representatives. [Dkt. 1179] 2. Dr. Humphries alleges PCS SD has preferentially hired and promoted minority applicants for elementary administrative positions since at least 2001. The statistical evidence in support of her allegation is overwhelming.. See, Employment Analysis of Elementary School Assistant Principals in the Pulaski County Special School District (report of plaintiffs Page 1 of 5 3. expert, Dr. David Sharp), Docket# 38, Exhibit 1, in 4:06cv00606. In its motion for release from court supervision, PCS SD cites the very statistic which tends to prove racial bias in hiring and promotion relative to Dr. Humphries' case. Specifically, PCS SD informs the court that over fifty-two percent of its school based administrators are black. Brief in Support of PCSSD'S Motion for a Declaration of Unitary Status, at 5, ("Brief, "hereafter). Unfortunately, PCS SD fails to report to the court that only 21 % of the relevant labor pool of certified teachers for those positions is black, and therefore, it has reached this 52% level by methods that imply a further violation of the 14th Amendment. It is so far undisputed that PCS SD hires or promotes black applicants to elementary assistant principal positions at a rate from 2. 8 to 3 .2 standard deviations above what is expected based upon the relevant labor pool of certified teachers. See, Docket# 38, Exhibit 1, Case No. 4:06cv00606. No similar detailed analyses of junior high school and high school hires and promotions have been performed because of restrictions placed on discovery by the court in Humphries case. In Hazelwood Sch. Dist. v. United States, 433 U.S. 299 (1977), the court holds that hiring or promoting one race at rates two or three standard deviations above the expected rate for that race is sufficient to establish that race was a factor in the hiring or promotion process for those positions. 4. Nevertheless, citing the racial composition of its certified administrative staff, PCSSD asserts that it is "in compliance with" a constitutional standard for ''Faculty and Administrative Assignments," citing Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir. 1970). Brief at4-5, andfn. 8. For many years, PCSSD had met the legitimate racial diversity goals required by the court - i.e. nearly every certified Page 2 of 5 employee category reflected the relevant labor pool, - and thus, a phase of enhanced hiring and promotion of minorities was not required or contemplated by the court's approval of PCSSD's desegregation plans from 1987 forward. See, LRSD v. PCSSD, 659 F.Supp. 363, 369 (E.D.Ark. 1987)("Similarly, the affirmative action plan for administrative staff appears to have been successful although there remain underrepresentation in two specific categories: coordinators and directors .... The percentage of black administrators (24. 7%) is good and indicates a positive step toward curing this deficiency." Id.). By adoption of Plan 2000, PCS SD administration did reflect the labor pool - roughly 21 % of its administrators were black, and 21 % of certified teachers in the area were black. The same basic labor pool exists today, but 52.9% of administrators in PCSSD are black. At least in elementary schools, the statistics meet the legal standard for a prima facie case ofrace discrimination against white applicants for those jobs. How does this apparent race discrimination in employment affect the desegregation efforts of the three districts? We do not hazard a guess, nor is it PACT' s duty to analyze that question. However, these very considerations - the racial composition of PCSSD's employees - were a major component of the evidence which Judge Woods focused on when he made the original liability finding in this case. 5. PACT's concern on behalf of Dr. Humphries, is that PCSSD is seeking implicit or explicit court approval of the recent (2000-2006) hiring and promotions which resulted in the school's administration rising from 20% black to 52% black as if that rate of hiring of black administrators was related to a legitimate remaining remedial obligation in this case. Our concern is further heightened by the fact that PCS SD made no similar mention in its motion for unitary status that about 21% of its teachers are minority, and that about 21% of new Page 3 of 5 hires each year are black. Those statistics comport with the relevant labor pool percentages, but garnered no special mention for possible mention by this court when assessing PCS SD' s progress. 6. Whether the race discrimination now evident in PCSSD's employment of certified administrators will alter the court's opinion on unitary status, PACT urges the court to make an explicit exclusion of the district's administrative hiring and promotion process in any ruling on PCSSD's pending motion. If the court finds the issues raised herein need to be addressed in the hearing on the pending motion, PACT stands prepared to present that evidence for the court's benefit. 7. Ms. Dixon's employment claim arises out of her pursuit of a buyer position in the business department of PCS SD. On information and belief, that department has never hired a black buyer and all upper management positions in that department are filled by whites. 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 Certificate of Service I hereby certify that a true and accurate copy of the foregoing has been mailed to the following, postage prepaid, and filed electronically with the Clerk of Court using the CM/ECF system, which shall send notification of such filing to all counsel of record, this 21st day of December, 2007: Mr. SamuelJones,m Mitchell, Williams, Selig, Gates, Woodyard, PLLC 425 West Capitol Ave. Ste.1800 Little Rock, Arkansas 72201 Mr. John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Christopher Heller Friday, Eldredge &amp; Clark 400 West Capitol, Ste. 2000 Little Rock, AR 72201 Mr. Stephen W. Jones Jack, Lyon &amp; Jones 425 W. Capitol , Suite 3400 Little Rock, AR 72201 By: ls/Mark Burnette Mark Burnette, ABN 88078 Page 5 of 5 Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Friday, December 21, 2007 2:43 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 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 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 12/21/2007 at 2:42 PM CST and filed on 12/21/2007 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: 4175 Docket Text: RESPONSE to Motion 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, 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 ftlename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=12/21/2007] [FileNumber=1063977- 0] [6eeelb572383b02aa3b59dde83a32470fef7c66e2684100df9c47bc82e187b9ec9 a17dfd4938fe363ade679760fd69221e663289e4f47612309d62063ed2041b]] 1/8/2008 J)oc f/7? UNITED STATES DISTRICT COURT FILED EASTERN DISTRICT OF ARKANSAS EAS'Ji'S,DiSTRICTCOURT RICHARD SHEPPARD ARNOLD UNITED STATES COURTHOUSE RN DISTRICT ARKANSAS WILLIAM R. WILSON, JR. UNITED STATES DISTRICT JUDGE Mr. Stephen W. Jones 500 W. CAPITOL AVENUE, SUITE 0444 LITTLE ROCK, AR 72201 December 21, 2007 Mr. John W. Walker John W. Walker, P.A. 1723 Broadway DEC 21 2007 JAMES ~RMAC~CLERK By: ~~~ OFFICE: (501) efii.fil'l:QileRK FAX: (501) 6045149 Jack Nelson Jones Fink Jiles &amp; Gregory 425 West Capitol Avenue, Suite 3400 Little Rock, AR 72201-3483 Little Rock, AR 72024 Mr. Samuel Jones, III Mitchell, Williams, Selig, Gates &amp; Woodyard 425 West Capitol Avenue, Suite 1800 Little Rock, AR 72201 RE: Little Rock School District, et al v. Pulaski Cotmty School District, et al 4:82-CV-00866-WRW Dear Counsel: I'm strongly disinclined to have a hearing on your motions to declare your Districts unitary until the Eighth Circuit renders its decision in the Little Rock School District case. As you know, Joshua Jnterveners are challenging the compliance standard I used during the last hearing. Until this issue is resolved by the Eighth Circuit, it seems to me that it would be ill-advised to conduct extensive, expensive hearings on your requests. While I've still got my mind charged with this issue, I anticipate that I will soon enter an order along the lines suggested above. Original: cc: Cordially, [t{/{MJJIL Wm. R. Wilson, Jr. /4r. James W. McCmmack, Clerk of the Court The Honorable Thomas Ray The Honorable Andre-e Roaf MIME-Version : 1 . 0 From:ecf_support@ared . uscourts . gov To:ared_ecf@localhost . localdomain a-res sage-Id : &lt;1063998@ared . uscourts -. gov&gt; ~ cc: Subject:Activity in Case 4:82-cv-00866-WRW Little Rock Schoome.tr.ae Pulaski Cty School , et al Order n C fl/ED Content-Type : text/plain***NOTE TO PUBLIC ACCESS USERS*** Judicia ~elf'e f the United States policy permits attorneys of record and parties in a case to receive one free electronic copy of all documents filed electrc[j},F.5a2J-~ , ?Rlf7 receipt is required by law or directed by the filer. PACER access fees ~'ffl]ly to all other users. To avoid later charges , download a copy of each docurr#~cEBJuring this first viewing . U. S . District Court DESEGREGATION F Eastern District of. Arkansas MDNITORJNG Notice of Electronic Filing The following transaction was entered on 12/21/2007 2:55 PM CST and filed on 12/21/2007 Case Name : Little Rock School , et al v . Pulaski Cty School , et al Case Number : 4:82-cv-866 https://ecf.ared.uscourts . gov/cgi-bin/DktRpt . pl?26052 Filer : WARNING: CASE CLOSED on 01/26/1998 Document Number : 4176 Copy the URL address from the line below into the location bar of your Web browser to view the document : Document: https://ecf.ared.uscourts . gov/docl/02701103404?magic_num=MAGIC&amp;de_seq_num=200582 9&amp;caseid=26052 Docket Text: A LETTER/ ORDER the Court is strongly disinclined to have a hearing on Motions W,to Declare Districts Unitary until the Eighth Circuit renders its decision in the LRSD case. Signed by Judge William R. Wilson , Jr on 12 /21/07 . (d 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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