Court filings regarding District Court proposed findings of fact, Little Rock School District (LRSD) board's proposed findings of fact and conclusions of law, and Arkansas Department of Education (ADE) project management tool.

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<dcterms_description>Court filings: District Court, proposed findings of fact; District Court, Little Rock School District (LRSD) board's proposed findings of fact and conclusions of law; District Court, notice of electronic filing, amended notice to file; District Court, notice of filing, Arkansas Department of Education (ADE) project management tool This transcript was create using Optical Character Recognition (OCR) and may contain some errors. IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT COURT WESTERN DMSION LITTLE ROCK SCHOOL DISTRICT CASE NO. 4: 82CV0866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. PLAINTIFF DEFENDANT MRS. LORENE JOSHUA, ET AL. KATHERINE W. KNIGHT, ET AL. INTERVENORS INIBRVENORS PROPOSED FINDINGS OF FACT HISTORY 1. The LRSD began making verbal commitments to narrow the achievement gap between African American and Caucasian students as early as 1989. To that end, the State of Arkansas, LRSD and the Joshua Intervenors approved a plan of desegregation designed to address the accomplishment of that objective. The State of Arkansas devoted substantial amounts of money to that task. 2. It was contemplated that the objectives of the desegregation plan would 1 E0d t&gt;S9ON ~ d ~3~ll;K1 M NHOf Wd2t&gt;:21 L00291'N~f be completed by 1996. That date was extended for various reasons of noncompliance none of which may be attributable to Joshua. 3. In 2002, the court entered an Order releasing LRSD from court supervision in all areas with exception of program assessments. 4. When the district did not comply with the Court's order by 2004, the Court entered a new order making more specific its requirements upon the district and the parties. The Court contemplated that by October 15, 2006 the district would submit its final report reflecting its performance pursuant to its June, 2004 order. This date has now been extended and a hearing regarding compliance is - scheduled to begin January- 20, 2007. 5. The LRSD urges the Court to find that its has complied with the Court's 2004 Compliance Remedy in all respects and that the Court's supervision of any aspect ofLRSD's school operations should end. The Joshua lntervenors contend that the LR.SD has not approached the Court's 2002 and 2004 orders in good faith; that the ~chool administration during the intervening years has tried to frustrate and abort implementation of the Court's Orders; that the LRSD has been aided in that respect by the advice of district counsel, Chris Heller, and his law finn; and that the Court's Order of June, 2004 has been disrespected and disobeyed. 6. Part of the reason for the district's noncompliance with the 2002 order 2 was its preoccupation with promoting the return of white students to west Little Rock schools and with establishing programs that would assure parents of that section of the district that they could have majority white high quality schools in that area. For this reason, the school district has never publicly acknowledged in any publication or board resolution that it had a priority to address the dismal state of education for African American students in the LRSD. 7. In July, 2004, the majority of the board chose to select Dr. Roy G. Brooks over far more qualified applicants including Dr. Morris Holmes for the Superintendent's position. Dr. Brooks has never been a superintendent and is - unknowledgeable about any pertinent subject matter area before the Court. He was chosen to rubber stamp the majority agenda and to dismantle the strengths of the existing desegregation plan. His selection was opposed by large segments of the African American community. 8. When Dr. Brooks was hired, he was given a blank check to do as he pleased by the majority Caucasian board. Their emphasis was to provide technical compliance with the Court's Order, but to do as little as possible to otheIWise implement it. 9. A number of the Caucasian board members have been hostile to the Joshua Intervenors' participation in the implementation process and Joshua's 3 S"d vS9"ON ~ d ~3&gt;il~M M NHOr Wd2v:21 L002 91Ntir making appearances before the Board to address the subject. 10. The present attitude of the school board majority differs materially from that of the precious majority with respect to program assessment and evaluation, addressing the achievement gap and support of the PRE Department. The PRE has not been fully supported in the past by the Dr. Roy Brooks and the majority of the school board. 11. The school administration and district counsel have sought to punish PRE Director Dr. DeJarnette because she made reports that honestly reflected the status of compliance and because she would not change them to reflect the school - administration's view point. For these reasons, she was tenninated by the Superintendent and replaced by Dr. Ed Williams but the school board overruled the Superintendent's actions and reinstated her. 12. This history is important because it sets forth the context in which the compliance remedy is to be considered by the Court. 13. The Court directed on June 30, 2004 the prompt establishment of a first rate professional research and evaluation department with a highly qualified director. The district did not post the position promptly. On or about October 1, 2004, it selected Dr. Karen DeJarnette for that position. 14. Dr. DeJamette's qualifications are set forth in PRE's 1st quarterly report 4 9'd vS9'0N ~ d ~3~l~M M NHOf Wd2v:2l l002"9l'N~f to the Court as well as the other members of the PRE department. Dr. DeJamette's qualifications for the task are universally acknowledged. She was selected ahead of Dr. Ed Willia.ms, a long term statistician within the district. He was the person responsible for the data presented to the Court by Dr. Bonnie Lesley. He was one of the persons to whom the Court referred at page 52 ofits June 30, 2004 order when the Court observed that lack of evidence of any current administrator in LRSD who had the experience or training necessary to perfonn prescribed informal assessments and/or evaluations. 15. When Dr. DeJarnette was selected she reported directly to - Superintendent Brooks. 16. Upon Dr. Brooks hiring, he selected two people who had worked with him in Orange County, Florida. Dr. Hugh Hattabaugh, Brooks' Deputy Superintendent, had been a high school principal. Dr. Olivine Roberts had been a math teacher who served for a short time as coordinator of math and science curriculum for the same school district. Neither of these three had ever held a position at the highest level of a large school district. This is reflected Dr. Robert's salary of $60,000 and by her testimony. 17. The majority board was content with these selections because that enabled board members Berkley, Rose and Dr. Beverly Williams, Human 5 l"d vs90N Resources Director, the opportunity to make the relevant major decisions regarding undoing the positive effects of the desegregation plan from which the district had been released by the Court. 18. Dr. Brooks' first major act was to adversely affect a number of African American school principals, replace them with white persons and then to adversely impact through a reorganization scheme a large number of African American staff members. Dr. Katherine Mitchell has described the reorganization as being "racial" and "mean spirited." 19. Dr. DeJamette was made a part of the reorganization team, even though - she was new to the district. She was informed that the reorganization cuts would affect each department including her own. Dr. Beverly Williams required her to cut two positions and to reduce one other. This was in direct defiance of the Court's directive that the district create and maintain a highly trained and adequate PRE staff .. 20. Between January, 2005 and June 2005, Dr. DeJarnette began ,performing many tasks necessitated by the Court's order including holding regular meetings with stakeholders including the Joshua Intervenors and the ODM, if it may be called a stakeholder. 21. The LRSD reorganization in 2005 created a conflict situation for PRE 6 8d t7S9"0N ~ d ~3~l~M M NHO WdEt?:21 L002"9l"N~ staff and the school system regarding the content and priority of assessments/evaluations. PRE previously reported directly to the Superintendent. As a result of the reorganization, PRE now reports to the Associate Superintendent in charge of instructional programs. This violates the district's policy regarding evaluations. 22. In the Spring of 2006, Dr. DeJarnette informed senior administrators that there were problems with respect to implementing the Court's Order. It was at that point that Dr. Brooks became openly hostile to her. PROBLEMS WITH COMPLIANCE 23. The LRSD has not at all relevant times provided the staff in its PRE department required by the 2004 Compliance Remedy. (Compliance Remedy, para. A) 24. LRSD administrators have during the period of the Compliance Remedy assigned additional duties to PRE staff. This factor has played a role in LRSD's failure to complete tasks required by the 2004 Compliance Remedy and necessary to embed a comprehensive assessment process as a permanent part of the LRSD's curriculum and instruction program. [Compliance Remedy, para. A.; see para. 3 below regarding "school portfolios", "district portfolio'', and "data warehouse."] Joshua Ex._ 7 6'd t&gt;S9'0N ~ d ~3~7tJM M NHOf WdE:t&gt;:2t L002'9t'Nl:::lf 25. In the preparation of the eight .. formal step 2 evaluations," PRE staff have not been involved in observing programs, formulating the content of questionnaires, or writing the evah~ation reports. See Joshua Ex __ ( cover pages of three draft evaluations for 2005-06 do not include PRE staff among authors of any evaluation). These failures violate multiple aspects of the 2004 Compliance Remedy, considered alone or in combination. [Compliance Remedy, para. A ( court concerns about abilities of PRE staff with respect to designing and preparing program evaluations); para. B ("comprehensive program assessment process must be deeply embedded as a part permanent part of LRSD' s curriculum and instruction program"); other outside consultants hired to prepare these step 2 evaluations; ... ") It was at all times apparent that building the abilities of PRE staff to conduct program evaluations without the assistance of outside evaluators ( or to supplement the efforts of outside evaluators) was necessary to embed the program assessment process in the operations of LRSD. 26. LRSD has failed to make feasible and adequate progress in the creation of computer data bases needed to embed the comprehensive program assessment process in the district's instructional programs. [Compliance Remedy, para. B] a. It is and has been feasible for LRSD to create one or more computer bases allowing compilation and manipulation of at least the following data and 8 ~ d ~3)1l~M M NHOf Wdvv:2l l0029l"N~f variables: [i] student's name; [ii] student's date of birth; [iii] sex; (iv] race; [v] date(s) entering the system; [vi] school(s) attended, by date and grade, including participation in pre-K program; [vii] student absences by date and school year; [viii] free and reduced price lunch status by school year; [ix] special education status, if any, by date and school year; [x] whether limited English proficient by date and school year; [xi] for elementary students, teachers(s) by date and school year; [xii] for elementary students, special programs, such as Reading Recovery, by date and school year; [xiii] for other students, courses and teachers by year; [xiv] for other students, special programs, such as Read 180, by date and school - year; [xv] teacher absences by date and school year; (xvi] results of all standardized assessments by date and school year. b. The data identified in (a) could be manipulated to prepare assessments/evaluations. For example, one could compare test outcomes for similar elementary students from two schools exposed to two different reading programs, taking into account as well the student and teacher absences in the relevant period. [Additional work might be necessary, such as preparation of program descriptions and observations to detennine levels of implementation.] c. The use of questionnaires, which the Court expected ( Page 62, Footnote 39, Compliance Remedy) to be a part of the comprehensive assessment process 9 nd 17S9'0N ~ d ~3~l~M M NHOf Wdl717:21 L00291Nt::1r has been delayed indefinitely. [Compare Compliance Report of March 1, 2006 at 3 with Compliance Report of June 1, 2006 at 3. ( use of questionnaire postponed) d. PRE's "quarterly written updates" show work on "school" and "district portfolios" -- compilations of some of the data listed above in paragraph 4 (a). [E.g., 9-1-05 at 3; 12-1-05 at 3; 6-1-03 at 3] [i] Although LRSD first mentioned "school portfolios" in its quarterly report of9-l-05 at 3, corrections in the "Little Rock School District's Revised Compliance Report" of October 25, 2006," early in the 2006-07 school year, " show that ~'LRSD expects to begin the creation of school portfolios during the 2007-2008 school year." [At 7, para. 15; emphasis added] [ii] The quarterly report dated 12-1-05 states: "Data to be included in the district portfolio was identified during the last quarter and a draft district portfolio was designed. As new data becomes available, PRE staff members add them to the portfolio." [At 3] At present, one can not detennine the state of completeness of the "district portfolio,,, compared to what needs to be accomplished. [See Revised Compliance Report, 10-25-06 at 6-7] e. The quarterly report of 12-1-05 states (at 3): "PRE is also investigating Zl"d l&gt;S9"0N ~ d ~3~7t:/M M NHOf Wdl&gt;l&gt; :21 l 002 '9 l"NtJf the costs and benefits of an internet-based data warehouse system that would store all data collected by the district within one database, support its tabulation and analysis, and enable its electronic access at any time. The data warehouse would advance the district portfolio that PRE staff members are currently developing." The quarterly report of3-1-06 states (at 3): "To support the portfolio's expansion, frequent updates, and future utility, PRE is designing a 'data warehouse' which LRSD staff and others can consult on a 'real-time' basis." PRE identified a data warehouse system, designed for use by school systems, which could have been functioning as of the LRSD's recent submission of its compliance reports. See - Attachment at A-15 ("Compliance History" prepared by PRE at page 2, para. 3 (a)]. Upper level LRSD administrators rejected this proposal. One consequence of this action is that facts about students and teachers participating in particular programs continue to be difficult to retrieve. [Id., A-15 at para. 3 ( c )] f. Additional work is necessary to insure the accuracy of LRSD data needed for asses~ments and evaluations. (Id., A-14, para. 2; A-15 at para. 4 (PRE Compliance History")] g. Professional development in the area of program assessments and evaluations has not been and is not now a high priority for the district. See Joshua Ex. 27. The step 2 evaluations contain insufficient descriptions of the programs 11 ct .d 17S9'ON ~ d ~3~7~M M NHOf WdSl7:2t L002'9t'N~f being evaluated and their implementation to meet LRSD's own standards and the court's order. [See 2004 Compliance Remedy, paras. C and D ("Has the Section 2. 7 program being evaluated improved the academic achievement of African American students, as it bas been implemented in schools throughout the district?" [emphasis added)]. Joshua Ex. __ (Joshau Intervenors' Comments on evaluations) 28. While the LRSD submitted eight quarterly reports, some LRSD representatives censored the eighth report prepared by PRE to minimize notice of compliance problems. See 2004 Compliance Remedy, para. G; and Joshua Ex. ___ ("Compliance History" prepared by PRE at page 2, para, 4) 29. The LRSD superintendent interfered with the flow of information to ODM, in violation of paragraph Hof the 2004 Compliance Remedy. See Attachments atA-16 ["Compliance History" prepared by PRE at 3, para. 7 (a) "The Superintendent threatened ... (the] dismissal [ of PRE Director] if she shared information with ODM and Joshua."] 30. LRSD impeded Joshua Intervenors' ability to monitor the remedy. 31. The LRSD administration also has de-emphasized the importance of its policy with respect to evaluations. Members of evaluation teams have been coached, if not instructed, not to actively participate in the evaluation team 12 M "d 1&gt;S9.0N ~ d ~3~7t!M M NHOf WdSl&gt;:2l L00291 N~f meetings. Members have been instructed not to communicate concerns regarding the evaluation process in the presence of Joshua representatives. Moreover, team member participation has been sporadic to nonexistent over the past year. See Joshua Ex 32. The work of PRE staff has been frustrated by the failure of senior administrators and counsel to communicate and provide direction regarding how to proceed in meeting commitments within the Compliance Remedy. See Joshua Ex._ para. 7 (PRE "Compliance History"). For example, it is the view of Dr. Roberts, Associate Superintendent for Instructional Programs, that some of the key e Section 2. 7 programs were not included in those evaluated. If correct, this evidences a significant area of non compliance as the court stated that: "LRSD must hire one or more outside consultants to prepare four ( 4) fonnal step evaluations. Each of these ste,J2 2 evaluations must cover one of the key Section 2. 7 programs as it has been..,implemented in schopls throu~hout the district. ( Compliance Remedy, Part C, page 63) 33. The Compliance Remedy required the filing of four (4) step 2 program evaluations for the 2004-2005 school year with the Court no later than October 1, 2005. The four program evaluations for the 2005-2006 school were to be filed with the Court no later than October 1, 2006. The Court reluctantly granted the 13 sr d t7S9. ON ~ d ~3~7\:#M M NHOf WdSt7:2t l002"9t"Ntif LRSD extensions of time for filing of the latter group of evaluations. Joshua submits that the draft evaluation documents for the 2005-2006 school year filed by LRSD did not comply with the requirements of the Compliance Remedy. 34. The LRSD, under the current school administration, has refused to implement fully the Compliance Retnedy, thereby minimizing the extent to which key LRSD educational programs can be expected to improve the achievement of African American students compared to white students. The administration of the LR.SD undertook a major administrative reorganization without consideration of its impact on the Compliance Remedy. The reorganization has had a negative effect on the implementation of the Compliance Remedy. Release from court supervision is inappropriate for this reason and those previously stated. There is the prospect of a premature release from court supervision adversely affecting the LRSD financial resources at a time when the achievement of African American students continues to be less than desired. 35. As shown by the foregoing discussion, the implementation of the 2004 Compliance Remedy by LRSD representatives has been marked by bad faith. FURTHER BAD FAITH 36. District counsel Chris Heller did not fully cooperate with the process in implementing the Compliance Remedy. He was largely unavailable throughout 14 91 "d t7S9"0N much of 2006 to the PRE staff, participated in but few of the evaluation team meetings and sought to prevent Joshua from having direct access to PRE staff and others who were charged by the Court with the duty of implementing the Court's directives. Rather than support the PRE director and at least be available to address her concerns related to implementing the process, meeting court deadlines, and actions to embed the assessment process into the curriculum of the district, Mr. Heller sought to subvert the PRE Director's activities. He was aided in this respect by district superintendent, Dr. Roy Brooks. 3 7. The Court directed counsel for the parties to meet with ODM in an - attempt to resolve concerns which Joshua had regarding the district's compliance. Well in advance of the October 15, 2006 due report, Joshua then met with LRSD counsel, Chris Heller, in a meeting attended and arranged by ODM to further discuss Joshua's concerns. LRSD counsel refused to allow Dr. DeJamette or other officials to meet with Joshua to address the stated concerns. This meeting occurred on August 8, 2006. Mr. Heller did not offer to meet again with Joshua and ODM until November 1, 2006, shortly before the date for Joshua's submission of its objections to the Compliance Report. In the meantime, on August 17, 2006, being aware that Joshua knew a lot about the district's failings, he wrote Dr. DeJamette an email directing her not to discuss issues likely to be litigated in 15 L't'd t&gt;S9 "ON ~ d ~3~l~M M NHOr Wd9t&gt; :2 't L0029i;N~r December with lawyers or paralegals representing any other party in this case outside his presence. Accordingly the flow information of information between Springer and DeJamette ceased. Dr. DeJarnette wrote that she could not provide a response to Ms. Springer's concerns about data being fraught with errors because she had been instructed by Mr. Heller not to do so. Joshua Ex __ 38. Moreover, Or. DeJamette repeatedly requested that Mr. Heller inform the Court of a need for more time in which to make competent reports to the parties and to the Court. Mr. Heller refused to do so. 39. Mr. Heller refused to meet with the newly elected board members to - inform them of anything with respect to the Compliance Remedy. Instead, he met with the Caucasian board members and Dr. Brooks and his administration, and engineered the displacement of Dr. DeJamette. He then caused Dr. Brooks to hire the Quattlebaum law firm to make a purported independent investigation of Dr. DeJamette suggesting at the same time that Dr. Ed Williams, a rejected applicant for PRE director, could perfonn the tasks sufficiently and provide the Court the necessary evidence to allow a court detennination that LRSD had substantially complied with its obligations herein. 40. Mr. Heller revised the 8th quarterly report by deleting pertinent information which reflected that district's noncompliance with Item B. of the 16 a1d i,s9ON ~ d ~3~7t::lM M NHOf Wd9t&gt;:2"C L002 91Ntlf Compliance Remedy dealing with the development of a comprehensive program assessment process. 41. The LRSD has refused to acknowledge in a nwnber of its publications (Guiding Principles, Annual Reports) that it has an obligation to assess programs designed to improve the academic achievement of African American students. 42. Former school board member Tony Rose and current board member Larry Berkley have been openly hostile to Joshua's monitoring of the Compliance Remedy. 43. Superintendent Dr. Roy Brooks suspended Dr. DeJarnette with a - recommendation for termination after she reported to the Board problems of compliance regarding the Compliance Remedy. HIRE A IDGHLY TRAINED TEAM OF PROFESSIONALS 44. The PRE staff was materially reduced so that four staff members including Dr. DeJarnette, Mr. Ed Wohleb, Dr. Ed Williams and Ms. Maurceria Robinson had to fulfill seven (7) full time position responsibilities for 14 months. In addition, in July 2005, the reorganization by Dr. Brooks of PRE added far more work to PRE responsibilities. This included developing a comprehensive plan (ACSIP) for each school in the district and a district Title I plan for the Arkansas Department of Education. In addition, PRE was called upon to develop 17 6't d vs90N questionnaires for thousands of parents, students and community members for public relations reports for the school district. This added work by Dr. Brooks for PRE materially affected the schedule developed by Dr. DeJamette for embedding the assessment process into the district's curriculum. 45. The LRSD school administration took action to divide the staff of the PRE. Early in 2006, Dr. Brooks began relying on statistician Dr. Ed Williams as his PRE contact person who would address certain PRE activities of specific concern to Dr. Brooks. He did this without consultant with or approval of the PRE Director, Dr. DeJamette. Dr. Brooks now contends that there is disruption in PRE - that undermines the effectiveness of PRE. Dr, Williams on the other hand denies that there is any disruption within PRE staff. When asked ifhe had anything negative regarding PRE Director DeJamette or her leadership, he said no. It does appear that upon Dr. Brooks removal of Dr. DeJamette. He elevated Dr. Williams to the Director's position and advertised for a new statistician at a time when Dr. Brooks was arguing that the PRE staff was sufficient in size. I find therefore as fact that there has been disruption within the PRE department and that it has been attributable to Dr. Brooks and perhaps others working in concert with him. It is appropriate therefore for the PRE department, under these circumstances, to report directly to the Board, rather than Dr. Brooks. I make this finding in part 18 02"d t7S9ON ~ d ~3~lt/M M NHOf Wdlt7:2l L002'91'N\:1f because Dr. Brooks is not thoroughly acquainted with the remedy, does not intend to respect Dr. DeJ arnette, and is not inclined to respect the majority of the board members of the LRSD with respect to school district administration. DEVISE A COMPREHENSIVE PROGRAM ASSESSMENT PROCESS 46. Each of the key programs listed in 2.7 of the Revised Desegregation Plan compliance reports have not been assessed during the 2004-2005 and 2005- 2006 school years. Accordingly, the district does not represent any of those 2.7 programs as having been effective in improving the academic achievement of African American students. 4 7. The LRSD staff have not used the completed program evaluations as a part. of a comprehensive program assessment process to determine the effectiveness of those programs in improving African American achievement. Moreover, LRSD has not used the step 2 program evaluations to assess the effectiveness of other related programs in addressing whether improvement has been made with respect to African American achievement. 48. Dr. Roy Brooks has primary responsibility beyond that directly assigned by the Court to the PRE Director, for ensuring compliance with this court's decree. It can not be said that Brooks has an understanding of the remedy set forth by the Court or the intended obligations imposed by that remedy upon his 19 administrative leadership. He is content to say that he delegated the authority for implementation to his subordinates, Dr. Hugh Hattabaugh, Deputy Superintendent and Dr. Olivine Roberts, Associate Superintendent for Instruction. 49. The Court is not persuaded that either Dr. Olivine Roberts or Dr. Hugh Hattabaugh had the requisite experience for meeting the court's compliance expectations. Neither of them had ever had district wide responsibility for program evaluation. Dr. Robert's highest level of supervision was as a coordinator in the area of math and science in Orange County, Florida, a majority white school system. Dr. Hattabaugh's primary experience was as an elementary school principal several levels removed from the top school administration, and had no district wide responsibility for anything. Moreover, Dr. Brooks can not be said to be knowledgeable with respect to program evaluation. Indeed, he could not recall ,;, the subject of his doctoral dissertation. 50. The two new African American board members, Charles Armstrong and Dianne Curry, have not been made fully aware by the school administration or by counsel of their obligations with respect to the Compliance Remedy. They complain that they have been kept out of the information loop by Dr. Brooks and Mr. Heller; and that when they sought to become informed about the status of compliance, the school administration reacted by summarily suspending PRE 20 Director Dr. Karen DeJarnette with a recommendation that she .be terminated. They, therefore, can not address the Compliance Remedy other than to say that if they are uninformed, then employees of the district in many cases are also uninformed. 51. Board member Larry Berkley, like board member Rose, was unable to say that the assessment process set forth in IL-R was embedded into the curriculum ofLRSD. Indeed, it was Mr. Berkley's viewpoint that the process was to be deeply embedded in PRE rather than the district as a whole. (Berkley Dep. pp. 7-8) Mr. Berkley did not recall that the deeply embedded process.required involvement of all of the stakeholders. (Depp. 9, See also p. 12 .... " it's up to the admipistration to be make sure that ... this process within PRE is deeply embedded") 52. For Mr. Berkley there was no way that PRE could make a presentation of its concerns to the Board in a public session. (Berkley Dep. p. 13) Moreover, with respect to the Board resolution of November 16, 2006, Mr: Berkley testified that when it was presented to the Board by Mr. Heller, he did not recall an explanation by Heller. Before then, the Board was aware of concerns from Joshua, PRE and ODM but the Board made no inquiry of Joshua, PRE or ODM about the status of compliance. (Berkley Dep. p. 22) 21 53. Mr. Berkley opposed the election of Armstrong and Curry because he felt that Dr. Katherine Mitchell had opposed Dr. Roy Brooks and with their election would fonn a voting bloc against Dr. Brooks on matters including the Compliance Remedy (Dep. p. 25) 54. At least four members of the current LRSD School Board do not believe that it is appropriate for the Court to discontinue supervision of the evaluation and assess requirements of the consent decree and the Court Order of June 30, 2004. 55. The LRSD presented Baker Kurrus, a prominent attorney and local business man, to establish that the district has indeed complied with this Court's order.. He testified that the Board annually adopts a program evaluation agenda but that he is unable to identify programs specifically identified by the school ,:, administration for the purpose of remediating and improving the achievement of African American students. He is unable to describe any actions taken by LRSD other than on paper and could not testify as to how the assessment and evaluation process had been deeply embedded into the district's curriculum. 56. In the past, LRSD has informed the Court that it had at least 46 programs designed to improve African American achievement. Dr. Olivine Roberts, Associate Superintendent for Instruction, could not identify any programs 22 with that specific purpose. Her explanation was that all programs are implemented for all children and that all children include African American children. She could not identify any programs that were specific and exclusive within the LRSD for the purpose of addressing the academic needs of African American children. 57. In 2004, the Court observed that many of the program evaluations of the district were so flawed that they revealed little of substance to be helpful in determine whether the programs were useful. That is still a concern of the Court in view of Dr. DeJamette's comments about the error rate of the data submitted by LRSD to the outside evaluators and to the testing agency for production of the high stakes testing results. " 58. LRSD continually adds programs and program assessors and evaluators without regard for whether they address African American achievement. Dr. ~,&gt;. Roberts has added for example at least 9 additional programs for district wide implementation. They include: curriculum mapping, SOAR, Voyager, CRISS, K- 12 Literacry Adoption, Transition to Advanced Mathematics (TAM), Teacher Incentive Project at Meadowcliff and Wakefield Elementary schools, Inclusion Special Education and ESL. (See Draft September 1, 2006 Quarterly Report) 59. When PRE began to assess some of these programs she was admonished by district counsel for including them in the draft report being 23 submitted to the Court. Joshua has noted that none of these programs were on the initial list of programs submitted to the court as being intended to address African American achievement. Joshua notes further that the merit pay initiative (Teacher Incentive Project) is sponsored by a private provocateur determined to impose upon the LRSD a requirement that teachers be paid bonuses for certain achievements. These achievements do not address specifically the issue raised by 2.7.1 60. In addition, before Dr. James left, Dr. James created other programs and set forth an evaluation process for them within a private group, which he funded with district finds, known as the Public Education Foundation of the Little. Rock School District. Those programs also have an. assessment and evaluation process. These assessments are not being coordinated by PRE staff. Indeed, Dr. DeJarnette 1.::-_ has had no material involvement with the people at the Public Education Foundation or with Dr. Roberts and the programs that Dr. Roberts has unilaterally added to the list of district programs. 61. This Court previously found that the LRSD Board of Directors had not approved its policy regarding the evaluation process for instructional programs. The Court now finds that the requirements of Board regulation IL-R, revised by Dr. DeJ arnette and Dr. Steven Ross, and approved in December, 2004, have not 24 I - I I been embedded into the district's curriculum and instruction programs. 62. Dr. Roberts determined to impede the PRE's efforts to embed the comprehensive assessment process by expanding it to include the development of each school's ASCIP plans and then later disbanding that process as well. Thus, approximately one year of work by PRE was wasted. This is so because the district chose not to follow the recommendations of consultant, Dr. Victoria Benhardt to create an appropriate framework for the data collection that could be easily accessed and used by PRE or any of the stakeholders in the process. 63. PRE' s efforts appear to have been further impeded by senior administrators with respect to PRE' s efforts to develop procedures for embedding the a,~sessment process. Because of Dr. Benhardt's consulting fees, the LRSD chose not to implement her recommendations with respect to school portfolios, '&lt; creation of a database and development of questionnaire/surveys. Her recommendations were made in January, 2005 and were rejected by senior administrators in October, 2006. 64. With respect to the integrity of the data provided to the outside evaluators, Dr. Catterall acknowledged a high error rate which began at 65% in 2005, increased to 70% in 2006 and is likely to increase over time. Mr. Heller and Dr. Ed Williams disregard this high error rate as being important in making the 25 I I I I I I I necessary assessments and evaluations. It does not contribute according to Dr. DeJamette to valid reports that maybe used to address the issue. 65. Embedding the assessment process requires actually working at each school to improve the academic achievement of African American students. Input from a broad cross section of the teacher responsible for implementing each of the key 2. 7 programs, a determination that the key programs are being implemented with relatively equal effect and success at each school, an assessment of whether additional teaching specialists are needed at some schools in order to enhance the effectiveness of key programs and administering tests at various grade levels so that the achievement of African American students can be accurately followed and valid statistics complied regarding their year to year progress. Dr. DeJ amette agrees with this formulation while Dr. Williams and Mr. Heller do not. 66. Dr. Brooks never met with Dr. Ross regarding the comprehensive assessment process. Dr. Roberts met with Dr. Ross only one or two times. This is a reflection of the lack of importance those two parties attached to the comprehensive assessment and evaluation remedy. 67. The LRSD has hired outside consultants as directed by the Court. 68. The PRE staff worked closely with Drs. Ross and Catterall regarding the Step 2 evaluations with the exception that PRE had no role in classroom 26 observations, conducting focus groups or actual writing of the evaluations. 69. Joshua notes and the Court finds that many of the step 2 program evaluations completed by the outside evaluators remain deficient with respect to program descriptions. (See in particular Year Round Education, 21 st Century Leaming Centers, Read 180, A+ and PreK literacy) 70. The LRSD has not provided either ODM and Joshua any progress reports on any of the program evaluations which it previously completed that were designed and implemented to improve the academic achievement of African American. students. 71. Very little progress has been made in improving African American achievement insofar as norm referenced nationally recognized achievement tests are concerned. 72. The eight step 2 evaluations did not comply in important respects with the LRSD own regulation for preparing evaluations. 73. The Court finds that Little Rock has not followed the Court's directive to embed the assessment process into the district's curriculum as ordered by the Court, pursuant to the initial agreement by the parties. 7 4. The ODM and Joshua have attempted to assist LRSD in fulfilling its 27 obligations under the Court's Order. They have done this in myriad ways with differing responses at differing times from the senior district administrators. I find that it is necessary for the PRE staff to actively communicate with Joshua and ODM regarding its activities if they are to be of any use in helping to embed the assessment process into the district's curriculum. I also find that district counsel's efforts to set parameters for interaction between PRE staff, ODM and Joshua to be inappropriate and contrary to the spirit and letter of the court's orders herein. The Court does not approve of the treatment of the PRE Director by LRSD counsel and senior staff. It warns those parties and the school board that any further obstruction with the Court's Order will be met by a reference for ____ _ contempt of court. While Joshua has sought to have district counsel Heller held in contempt of court for obstruction, the Court will caution Mr. Heller again to \ \ cooperate with Joshua and if there are specific problems where strong proof exists that Joshua counsel has violated the Court's Order, notice should be promptly given to Joshua counsel and the Court whereupon a hearing will be scheduled to address the matter. In the meantime, I expect Joshua to continue for the next four years its monitoring role as previously set forth in the June 30, 2004 Order 75. I now address the District's continuing argument that Joshua has been less than diligent in bringing to the Court's attention problems it observed 28 regarding LRSD's compliance with the directives of the Court. The following is a listing of the Joshua's activities from which I conclude that Joshua has been timely, cooperative and non adversarial with respect to its monitoring of the June 30, 2004 Order of the Court. a. Upon the Court Order of June 30, 2006, Chris Heller announced th.at the District would appeal and most likely prevail thereon. The Court then entered an Order requiring that his June 30th Order be followed pendente lite. b. In late July, 2004, Joshua approached ODM with respect to having the LRSD post the PRE Director position. C. In August, 2004, the District posted the position and in October, Dr. DeJarnette was hired. d. Twice in November, 2005, Joshua wrote the District inviting discussion, requesting information and Joshua involvement in developing the process. e. In December, 2005, Mr. Heller, Dr. DeJarnette and ODM met at Joshua counsel's office regarding the Court's Orders and Joshua's concerns. f. In January, 2005, Dr. Victoria Bernhardt was hired as a 29 consultant for the purpose of assisting the LRSD in embedding the assessment process into the curriculum. In February, Joshua wrote Dr. DeJamette seeking to be included in the process. This was repeated in March with a request for all information shared with ODM. g. In April, Dr. Bernhardt submitted a training proposal and in May, 2005, Joshua made suggestions to PRE about programs to evaluate. h. In June, 2005, PRE statisticians spent a (training) week in Chico, California. 1. In September, the district submitted its 4th Quarterly Report to the Court and parties. J. In September and October, 2005, Ms. Springer obtained further information about the report from Dr. DeJarnette. This was followed up with a letter request for information dated November, 2005. In October, 2005, the District did not meet its 2005 filing deadlines. k. In November, 2005, the Court held a hearing regarding compliance regarding the step 2 evaluations. In December, 30 2005, Joshua wrote PRE expressing concerns about PRE staffing. Joshua did not receive a reply to its concerns. 1. In January, 2006, Joshua brought to the Court's attention their concerns about the first four step 2 evaluations. m. Ms. Springer met with PRE during evaluation team meetings between January and April, 2006. During this time PRE experienced problems with data gathering and participation in meetings by other evaluation team members. ODM was present during these meetings. n. In April, 2006, Joshua first observed the evaluation team participation to include Mr. Hattabaugh and Dr. Olivine Roberts. o. In May, 2006, upon an evaluation team meeting, Joshua and ODM voiced concerns about embedding the assessment and evaluation process into the curriculum. p. In June, 2006, at evaluation team meetings, ODM and Joshua repeated their concerns raised in May, 2006. q. Because of the unavailability of District Counsel Heller, on June 21 , 2006, Joshua requested a hearing before the Court 31 regarding implementation problems that were being experienced. On the same day the Court directed a statement in support of the request for hearing. r. On June 28, 2006, Ms. Springer submitted an affidavit of concerns to the Court. s. In July, 2006, Dr. DeJarnette confirmed the substantial accuracy of the Springer affidavit contents. t. On August 1, 2006, the Court directed LRSD to meet with Joshua and ODM to address Joshua's concerns. Before the meeting, Joshua requested the participation of Dr. DeJamette. Mr. Heller refused. The foregoing chronology demonstrates that Joshua was timely in ,: submitting its concerns to LRSD, ODM and the Court. It also demonstrates that Joshua sought to _be fully involved and cooperative with the LRSD' s PRE staff. It further shows how District Counsel obstructed Joshua's involvement in the process. I further find that the district's responses to the Joshua objections with respect to program evaluations have at no time been valid, that they have been obstructive and constitute evasive and obdurate conduct. It is for these reasons I 32 will award fees and costs for Joshua for having prevailed on the issue of program assessment and evaluation on all issues. ,,,, .).) - - - --- ---- - - --- - ------ - Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 1 of 15 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL I. Background. BOARD'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW DEFENDANTS INTER VENO RS INTERVENORS On April 10, 1998, the Court approved an agreement between the Board of Directors of the Little Rock School District ("the Board") and the Joshua Intervenors ("Joshua") known as the Revised Desegregation and Education Plan ("Revised Plan"). See Docket No. 3144. In 2002, the Court found that the Board satisfied its obligations under the Revised Plan with one exception, Revised Plan 2.7.1 concerning program assessment. See Memorandum Opinion filed September 13, 2002, pp. 170-72. The Court outlined a remedy and ordered the Board to implement that remedy (''2002 Compliance Remedy"). In 2004, the Court found that the Board had not substantially complied with the Court's 2002 Compliance Remedy. See Memorandum Opinion filed June 30, 2004, p. 57-58. Again, the Court outlined a remedy and ordered LRSD to implement that remedy ("2004 Compliance Remedy"). The issue now before the Court is whether LRSD has substantially complied with the Court's 2004 Compliance Remedy. Page 1 of 15 Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 1 of 15 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION RECEIVED JAN 16 2007 OFRCEOF DIIIGREGATION MONITORING LITTLE ROCK SCHOOL DISTRICT PLAINTIFF v. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL RECEIVED JAN 16 200!7 OFACEOF DESEGREGATION MONITORING BOARD'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW I. Background. DEFENDANTS INTER VENO RS INTERVENORS On April 10, 1998, the Court approved an agreement between the Board of Directors of the Little Rock School District ("the Board") and the Joshua Intervenors ("Joshua") known as the Revised Desegregation and Education Plan ("Revised Plan"). See Docket No. 3144. In 2002, the Court found that the Board satisfied its obligations under the Revised Plan with one exception, Revised Plan 2.7.1 concerning program assessment. See Memorandum Opinion filed September 13, 2002, pp. 170-72. The Court outlined a remedy and ordered the Board to implement that remedy ("2002 Compliance Remedy"). In 2004, the Court found that the Board had not substantially complied with the Court's 2002 Compliance Remedy. See Memorandum Opinion filed June 30, 2004, p. 57-58. Again, the Court outlined a remedy and ordered LRSD to implement that remedy ("2004 Compliance Remedy"). The issue now before the Court is whether LRSD has substantially complied with the Court's 2004 Compliance Remedy. Pagel of 15 Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 2 of 15 II. Findings of Fact and Conclusions of Law. A. Substantial Compliance. 1. The Board appealed the Court's 2004 decision to the Court of Appeals for the Eighth Circuit, and the Eighth Circuit affirmed. In so doing, the Eighth Circuit noted that the Board's obligations under Revised Plan 2.7.1 were "clearly contractual" and not "constitutionally compelled." LRSD v. PCSSD, 451 F.3d 528,530 (8th Cir. 2006). Thus, the Eighth Circuit stated that the question of whether the Board has substantially complied with its 2.7.1 obligations must be examined "under ordinary rules of contract interpretation." Id. 2. Ordinary rules of contract interpretation require the Court to interpret the Revised Plan as a whole, with different sections being read together and interpreted, if possible, so that all sections are consistent with each other. See RAD-Razorback Ltd. Partnership v. B. G. Coney Co., - 289 Ark. 550, 713 S.W.2d 462 (1986); Fryer v. Boyett, 64 Ark. App. 7, 978 S.W.2d 304 (1998). Consequently, the Board's substantial compliance must be judged considering the term of the Revised Plan. The term of the Revised Plan was "three (3) school years beginning the 1998-99 school year and ending on the last day of classes of the 2000-01 school year." Revised Plan 9. However, Revised Plan 10 stated that "the first semester of the 1998-99 school year shall be a transition period in preparation for implementation of this Revised Plan." Revised Plan 10. Thus, the Revised Plan called for two-and one-half years of implementation by the Board. 3. The Board's substantial compliance must also be judged considering the purpose of a breach of contract remedy. The purpose of a breach of contract remedy "is to place the injured party in the same position it would have been in if the contract had been fully perlormed." Howard W. Brill, Law of Damages, 17 .1, p. 285 (5th Ed. 2004 ). Thus, the Board has substantially complied with Revised Plan 2.7.1 and the 2004 Compliance Remedy if Page 2 of 15 Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 2 of 15 II. Findings of Fact and Conclusions of Law. A. Substantial Compliance. 1. The Board appealed the Court's 2004 decision to the Court of Appeals for the Eighth Circuit, and the Eighth Circuit affirmed. In so doing, the Eighth Circuit noted that the Board's obligations under Revised Plan 2.7.1 were "clearly contractual" and not "constitutionally compelled." LRSD v. PCSSD, 451 F.3d 528,530 (8th Cir. 2006). Thus, the Eighth Circuit stated that the question of whether the Board has substantially complied with its 2.7.1 obligations must be examined "under ordinary rules of contract interpretation." Id. 2. Ordinary rules of contract interpretation require the Court to interpret the Revised Plan as a whole, with different sections being read together and interpreted, if possible, so that all sections are consistent with each other. See RAD-Razorback Ltd. Partnership v. B.G. Coney Co., - 289 Ark. 550, 713 S.W.2d 462 (1986); Fryer v. Boyett, 64 Ark. App. 7, 978 S.W.2d 304 (1998). Consequently, the Board's substantial compliance must be judged considering the term of the Revised Plan. The term of the Revised Plan was "three (3) school years beginning the 1998-99 school year and ending on the last day of classes of the 2000-01 school year." Revised Plan 9. However, Revised Plan 10 stated that "the first semester of the 1998-99 school year shall be a transition period in preparation for implementation of this Revised Plan." Revised Plan 10. Thus, the Revised Plan called for two-and one-half years of implementation by the Board. 3. The Board's substantial compliance must also be judged considering the purpose of a breach of contract remedy. The purpose of a breach of contract remedy "is to place the injured party in the same position it would have been in if the contract had been fully performed." Howard W. Brill, Law of Damages, 17.1, p. 285 (5th Ed. 2004). Thus, the Board has substantially complied with Revised Plan 2.7.1 and the 2004 Compliance Remedy if Page 2 of 15 Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 3 of 15 Joshua now stands in the same position or a better position than it would have occupied on the last day of classes for 2000-01 had the Board initially satisfied its 2.7.1 obligations. 4. On the last day of classes for 2000-01, Joshua could not have expected the Board to have completed more than two sets of formal program evaluations since the Board could not have completed evaluations for the 2000-01 school year by the last day of classes of that school year. The Board does not receive the student test data necessary for a formal evaluation until after (sometimes long after) the conclusion of the school year. On the last day of classes for 2000-01, the Board, at best, 1 could have prepared formal program evaluations for two school years- the 1998-1999 and the 1999-2000 school years. Nothing in the Revised Plan required the Board to conduct additional program evaluations after the Revised Plan expired. Clearly, the Revised Plan's three year term was not long enough for the Board to eliminate the racial - achievement disparity, and thereby, eliminate the need for programs designed to improve and remediate African-American achievement. Even so, "[j]udges should not substitute their own judgment as to optimal settlement terms for the judgment of the litigants and their counsel." Armstrong v. Board of School Directors, 616 F.2d 305, 315 (7th Cir. 1980). Accordingly, the Court does not interpret 2.7.1 or the 2004 Compliance Remedy as imposing any permanent or ongoing obligation on the part of the.Board. Indeed, such an obligation would be inconsistent with a finding of unitary status and a return to local control. See Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305,347 (4th Cir. 2001). See also Memorandum Opinion filed September 13, 2002, p. 169 (noting that upon being declared unitary "[the Board] must begin making its 1The first semester of the 1998-1999 school year was a "transition period." Revised Plan 10. Thus, it is not clear that The Board could have prepared a complete set of a formal program evaluations for that year. Page 3 of 15 Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 3 of 15 Joshua now stands in the same position or a better position than it would have occupied on the last day of classes for 2000-01 had the Board initially satisfied its 2.7.1 obligations. 4. On the last day of classes for 2000-01, Joshua could not have expected the Board to have completed more than two sets of formal program evaluations since the Board could not have completed evaluations for the 2000-01 school year by the last day of classes of that school year. The Board does not receive the student test data necessary for a formal evaluation until after (sometimes long after) the conclusion of the school year. On the last day of classes for 2000-01, the Board, at best, 1 could have prepared formal program evaluations for two school years - the 1998-1999 and the 1999-2000 school years. Nothing in the Revised Plan required the Board to conduct additional program evaluations after the Revised Plan expired. Clearly, the Revised Plan's three year term was not long enough for the Board to eliminate the racial - achievement disparity, and thereby, eliminate the need for programs designed to improve and remediate African-American achievement. Even so, "[j]udges should not substitute their own judgment as to optimal settlement terms for the judgment of the litigants and their counsel." Armstrong v. Board of School Directors, 616 F.2d 305, 315 (7th Cir. 1980). Accordingly, the Court does not interpret 2.7.1 or the 2004 Compliance Remedy as imposing any permanent or ongoing obligation on the part of the Board. Indeed, such an obligation would be inconsistent with a finding of unitary status and a return to local control. See Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 347 (4th Cir. 2001). See also Memorandum Opinion filed September 13, 2002, p. 169 (noting that upon being declared unitary "[the Board] must begin making its . 1The first semester of the 1998-1999 school year was a "transition period." Revised Plan 10. Thus, it is not clear that The Board could have prepared a complete set of a formal program evaluations for that year. Page 3 of 15 Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 4 of 15 own decisions, guided by the Constitution, applicable case law, and its best professional judgment . ... ")(emphasis in original). B. . Waiver and Estoppel. 5. For the third time now, Joshua waited until it was too late for the Board to change course to bring to the Board's and the Court's attention alleged noncompliance. See Memorandum Opinion dated September 13, 2002, pp. 58-59 ("The record is undisputed that Joshua's counsel never raised any compliance issues under 8.2 of the Revised Plan. The record is also undisputed that the first time Joshua raised any of the specific compliance issues now before the court was when they filed their Opposition to LRSD's Compliance Report (docket no. 3447) on June 25, 2001."); Memorandum Opinion filed June 30, 2004, p. 20 ("LRSD's March 12, 2004 Compliance Report constituted my first notice that Ms. Marshall's facilitation efforts in - late 2002 failed -- neither the parties2 nor the ODM brought this to my attention, although they were required to do so by subpart D of the Compliance Remedy and by my November 6, 2002, letter to Ms. Marshall."); LRSD v. PCSSD, 451 F.3d at 539 ("[l]n light of its failure to call the district court's attention to its disagreement with LRSD' s interpretation of the 2002 order, it would ill behoove Joshua to raise any further technical complaints about LRSD's efforts to comply with the 2002 order."). If Joshua became aware of compliance problems, the 2004 Compliance Remedy required Joshua to "immediately bring them to my attention so that I can 21n fact, subpart D of the 2002 Compliance Remedy required Joshua, not the Board, to bring compliance issues to the Court's attention. The Board understood Joshua's silence to mean that Joshua accepted the Board's interpretation. See LRSD v. PCSSD, 451 F.3d at 536 ("Because Joshua elected not to challenge LRSD' s interpretation, that interpretation became controlling under ordinary principles of contract law."). Page 4 of 15 Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 4 of 15 own decisions, guided by the Constitution, applicable case law, and its best professional judgment . .. . ")(emphasis in original). B. 5. Waiver and Estoppel. For the third time now, Joshua waited until it was too late for the Board to change course to bring to the Board's and the Court's attention alleged noncompliance. See Memorandum Opinion dated September 13, 2002, pp. 58-59 ("The record is undisputed that Joshua's counsel never raised any compliance issues under 8.2 of the Revised Plan. The record is also undisputed that the first time Joshua raised any of the specific compliance issues now before the court was when they filed their Opposition to LRSD's Compliance Report (docket no. 3447) on June 25, 2001."); Memorandum Opinion filed June 30, 2004, p. 20 ("LRSD's March 12, 2004 Compliance Report constituted my first notice that Ms. Marshall's facilitation efforts in - late 2002 failed -- neither the parties2 nor the ODM brought this to my attention, although they were required to do so by subpart D of the Compliance Remedy and by my November 6, 2002, letter to Ms. Marshall."); LRSD v. PCSSD, 451 F.3d at 539 ("[I]n light of its failure to call the district court's attention to its disagreement with LRSD' s interpretation of the 2002 order, _it would ill behoove Joshua to raise any further technical complaints about LRSD's efforts to comply with the 2002 order."). If Joshua became aware of compliance problems, the 2004 Compliance Remedy required Joshua to "immediately bring them to my attention so that I can 2In fact, subpart D of the 2002 Compliance Remedy required Joshua, not the Board, to bring compliance issues to the Court's attention. The Board understood Joshua's silence to mean that Joshua accepted the Board's interpretation. See LRSD v. PCSSD, 451 F.3d at 536 ("Because Joshua elected not to challenge LRSD's interpretation, that interpretation became controlling under ordinary principles of contract law."). Page 4 of 15 Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 5 of 15 resolve them while there is still time for LRSD to make 'mid-course corrections."' Memorandum Opinion filed June 30, 2004, p. 66. 6. The first notice the Court received of alleged noncompliance was on June 21, 2004 - almost two years to the date after entry of the 2004 Compliance Remedy. On June 28, 2006, Joshua filed an affidavit from Joy Springer describing the District's alleged noncompliance. See Docket Nos. 4018 and 4024. Springer worked for Joshua counsel as a paralegal and her responsibilities included monitoring the Board on behalf of Joshua. Springer reported that the District was not in compliance with the "embedding program assessments" requirement of the 2004 Compliance Remedy. Springer Affidavit, 'I[ 12 (Docket No. 4024). Springer was referring to the requirement of paragraph B of the 2004 Compliance Remedy that a comprehensive program assessment process be "deeply embedded as a permanent part of the - Board's curriculum and instruction program." Memorandum Opinion filed June 30, 2004, p. 62. 7. Joshua attempted to place other paragraphs of the 2004 Compliance Remedy at issue in objections filed November 15, 2006. See Docket No. 4058. The Court finds that these issues could have, and therefore should have, been brought to the Board's and the Court's attention much earlier, and by failing to do so, Joshua "waive[d] its right to insist on the breach." Stephens v. West Pontiac-GMC, Inc., 7 Ark. App. 275, 278, 647 S.W.2d 492, 493 (1983). Applying ordinary rules of contract interpretation, the Court finds that Joshua waived and should be estopped from claiming that the Board failed to comply with the 2004 Compliance Remedy, with the exception of the "deeply embedded" requirement of paragraph B. See Bharodia v. Pledger, 66 Ark. App. 349, 355, 990 S.W.2d 581, 585 (1999)("It has also been held that a party with knowledge of a breach of contract by the other party waives the right to insist on a forfeiture when he allows the other party to continue in performance of the contract."); Stephens, 7 Ark. Page 5 of 15 Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 5 of 15 resolve them while there is still time for LRSD to make 'mid-course corrections."' Memorandum Opinion filed June 30, 2004, p. 66. 6. The first notice the Court received of alleged noncompliance was on June 21, 2004 - almost two years to the date after entry of the 2004 Compliance Remedy. On June 28, 2006, Joshua filed an affidavit from Joy Springer describing the District's alleged noncompliance. See Docket Nos. 4018 and 4024. Springer worked for Joshua counsel as a paralegal and her responsibilities included monitoring the Board on behalf of Joshua. Springer reported that the District was not in compliance with the "embedding program assessments" requirement of the 2004 Compliance Remedy. Springer Affidavit, &lt;J[ 12 (Docket No. 4024). Springer was referring to the requirement of paragraph B of the 2004 Compliance Remedy that a comprehensive program assessment process be "deeply embedded as a permanent part of the - Board's curriculum and instruction program." Memorandum Opinion filed June 30, 2004, p. 62. ' 7. Joshua attempted to place other paragraphs of the 2004 Compliance Remedy at issue in objections filed November 15, 2006. See Docket No. 4058. The Court finds that these issues could have, and therefore should have, been brought to the Board's and the Court's attention much earlier, and by failing to do so, Joshua "waive[d] its right to insist on the breach." Stephens v. West Pontiac-GMC, Inc., 7 Ark. App. 275, 278, 647 S.W.2d 492, 493 (1983). Applying ordinary rules of contract interpretation, the Court finds that Joshua waived and should be estopped from claiming that the Board failed to comply with the 2004 Compliance Remedy, with the exception of the "deeply embedded" requirement of paragraph B. See Bharodia v. Pledger, 66 Ark. App. 349, 355, 990 S.W.2d 581, 585 (1999)("1t has also been held that a party with knowledge of a breach of contract by the other party waives the right to insist on a forfeiture when he allows the other party to continue in performance of the contract."); Stephens, 7 Ark . . Page 5 of 15 Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 6 of 15 App. at 278, 647 S. W.2d at 493 ("The rule is that a party to a contract who, with knowledge of a breach by the other party, continues to accept benefits under the contract and suffers the other party to continue in performance thereof, waives the right to insist on the breach."). 8. Joshua argued that its silence should be excused because District administrators failed to cooperate with Joshua. This argument has no merit. The Board and District administrators cooperated with Joshua to the extent required by the 2004 Compliance Remedy and beyond. PRE provided Joshua the comprehensive evaluation process, the names of the programs to be evaluated, quarterly updates and the program evaluations as required by the 2004 Compliance Remedy. In addition, PRE provided Joshua notice of and an opportunity to participate in evaluation team meetings. Finally, PRE and other District administrators responded to dozens requests for documents by Joshua. - 9. Joshua argued that the District failed to cooperate by refusing to treat Joshua just like ODM. No order of this Court required the District to treat Joshua just like ODM, especially considering that Joshua's counsel and his paralegal performed all of Joshua's monitoring. This Court has on three occasions ordered Joshua's counsel to comply with Rule 4.2 of the Arkansas Rules of Professional Conduct before communicating with District officers and personnel. See Orders of June 29, 2001 (Docket No. 3448), August 20, 2001 (Docket No. 3483) and October 3, 2001 (Docket No. 3575). The Court, interpreting Rule 4.2, ordered Joshua (1) "to go through counsel for the Little Rock School District when seeking information" pertaining to matters pending before the court; and (2) "to inform counsel for the Little Rock School District prior to contacting district officials and personnel about matters not currently before the Court." Order filed October 3, 2001, p. 3. See ABA Formal Opinion 97-408. Moreover, after the October 3, 2001 Order, Joshua promised to comply that Order, and in reliance on that promise, the Board Page 6 of 15 Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 6 of 15 App. at 278, 647 S.W.2d at 493 ("The rule is that a party to a contract who, with knowledge of a breach by the other party, continues to accept benefits under the contract and suffers the other party to continue in performance thereof, waives the right to insist on the breach."). 8. Joshua argued that its silence should be excused because District administrators failed to cooperate with Joshua. This argument has no merit. The Board and District administrators cooperated with Joshua to the extent required by the 2004 Compliance Remedy and beyond. PRE provided Joshua the comprehensive evaluation process, the names of the programs to be evaluated, quarterly updates and the program evaluations as required by the 2004 Compliance Remedy. In addition, PRE provided Joshua notice of and an opportunity to participate in evaluation team meetings. Finally, PRE and other District administrators responded to dozens requests for documents by Joshua. - 9. Joshua argued that the District failed to cooperate by refusing to treat Joshua just like ODM. No order of this Court required the District to treat Joshua just like ODM, especially considering that Joshua's counsel and his paralegal performed all of Joshua's monitoring. This Court has on three occasions ordered Joshua's counsel to comply with Rule 4.2 of the Arkansas Rules of Professional Conduct before communicating with District officers and personnel. See Orders of June 29, 2001 (Docket No. 3448), August 20, 2001 (Docket No. 3483) and October 3, 2001 (Docket No. 3575). The Court, interpreting Rule 4.2, ordered Joshua (1) "to go through counsel for the Little Rock School District when seeking information" pertaining to matters pending before the court; and (2) "to inform counsel for the Little Rock School District prior to contacting district officials and personnel about matters not currently before the Court." Order filed October 3, 2001, p. 3. See ABA Formal Opinion 97"408. Moreover, after the October 3, 2001 Order, Joshua promised to comply that Order, and in reliance on that promise, the Board Page 6 of 15 Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 7 of 15 withdrew a pending Motion for Contempt. See Docket No. 3516. Therefore, Joshua's contacts with District personnel were subject to Rule 4.2, as clarified by the Court's October 3, 2001 Order. 10. Joshua violated Rule 4.2 and engaged in numerous ex parte communications with LRSD's Director of PRE, Dr. Karen DeJarnette, without notice to or the consent of LRSD counsel. Consistent with Rule 4.2 and the Court's orders, LRSD's senior administrators directed Dr. DeJarnette not to communicate with Joshua without LRSD counsel present. Nevertheless, Joshua succeeded in convincing Dr. DeJarnette that she had a duty to communicate with Joshua regarding the 2004 Compliance Remedy. Many of these communications occurred after Joshua filed its June 21, 2006 request for a hearing, and thus, LRSD counsel's consent was required before communications with the District officials and personnel pertaining to the 2004 - Compliance Remedy. See Order filed October 3, 2001, p. 3. 11. Joshua's unethical communications with Dr. DeJarnette clearly prejudiced the Board in this case. During a September 18, 2006 ex parte meeting with Dr. DeJamette, Springer testified that Dr. DeJarnette agreed "that the Court wanted the District -- specifically PRE -- to be cooperative, not only with ODM, but Joshua as well." See Springer 12/7/2006, p. 35-38. Dr. DeJ amette' s belief that she was being ordered to violate the Court's orders caused Dr. DeJ amette to "fe[el] estranged (if not driven) from LRSD's and its counsel's rapport and progressively cooperative with both ODM and Joshua." See Joshua's Objections, Compliance History, p. 3 of 5 (Docket No. 4058). This estrangement resulted in Dr. DeJamette filing an employee grievance alleging "interference on the part of LRSD with her duties understood from the Compliance Remedy ... " and recommending that the District's senior administrators be "replac[ed]" because they were "not trustworthy." See Joshua's Objections, Compliance History, pp. 3-4 of 5. Dr. Page 7 of 15 Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 7 of 15 withdrew a pending Motion for Contempt. See Docket No. 3516. Therefore, Joshua's contacts with District personnel were subject to Rule 4.2, as clarified by the Court's October 3, 2001 Order. 10. Joshua violated Rule 4.2 and engaged in numerous ex parte communications with LRSD's Director of PRE, Dr. Karen DeJame~te, without notice to or the consent of LRSD counsel. Consistent with Rule 4.2 and the Court's orders, LRSD's senior administrators directed Dr. DeJamette not to communicate with Joshua without LRSD counsel present. Nevertheless, Joshua succeeded in convincing Dr. DeJamette that she had a duty to communicate with Joshua regarding the 2004 Compliance Remedy. Many of these communications occurred after Joshua filed its June 21, 2006 request for a hearing, and thus, LRSD counsel's consent was required before communications with the District officials and personnel pertaining to the 2004 Compliance Remedy. See Order filed October 3, 2001, p. 3. I 1. Joshua's unethical communications with Dr. DeJamette clearly prejudiced the Board in this case. During a September 18, 2006 ex parte meeting with Dr. DeJarnette, Springer testified that Dr. DeJamette agreed "that the Court wanted the District -- specifically PRE -- to be cooperative, not only with ODM, but Joshua as well." See Springer 12/7/2006, p. 35-38. Dr. DeJamette's belief that she was being ordered to violate the Court's orders caused Dr. DeJamette to "fe[el] estranged (if not driven) from LRSD's and its counsel's rapport and progressively cooperative with both ODM and Joshua .. " See Joshua's Objections, Compliance History, p. 3 of 5 (Docket No. 4058). This estrangement resulted in Dr. DeJarnette filing an employee grievance alleging "interference on the part of LRSD with her duties understood from the Compliance Remedy . . . " and recommending that the District's senior administrators be "replac[ed]" because they were "not trustworthy." See Joshua's Objections, Compliance History, pp. 3-4 of 5. Dr. Page 7 of 15 Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 8 of 15 DeJarnette's grievance against LRSD's senior administrators now provides the basis for Joshua's allegations in this case. In other words, Joshua's allegations represent one side of an internal, personnel dispute that arose, at least in part, due to Joshua's conduct.3 C. Burden of Proof. 12. The Revised Plan 11 placed the burden on Joshua to establish noncompliance. In evaluating the Board's compliance with the 2002 Compliance Remedy, the Court stated: While 11 of the Revised Plan contained the parties' binding contractual agreement on the allocation of the burden of proof, for purposes of the unitary status hearings, that section of the Revised Plan no longer controls my decision on whether LRSD has met its obligations under the (2002] Compliance Remedy. It 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. [citations omitted]. Thus, I conclude that LRSD has the burden of proving by preponderance of the evidence that it has substantially complied with each of the obligations contained in subparts A, B, and C of the (2002] Compliance Remedy. - Memorandum Opinion filed June 30, 2004, p. 37. On appeal, the Eighth Circuit did not address the burden of proof. However, the Eighth Circuit made it clear that there were no constitutional issues remaining in this case: "LRSD's obligations under section 2.7.1 are clearly contractual '. matters." LRSD v. PCSSD, 451 F.3d at 531. Consequently, the Court finds that traditional contract principles should govern allocation of the burden of proof. Thus, Joshua, the party alleging noncompliance, bears the burden of proof. Hydrotex Industries v. Sharp, 212 Ark. 886, 208 S.W.2d 183 (1948). 3This Court has authority to sanction counsel for Joshua for violating Rule 4.2 and orders of this Court pertaining thereto. See Fed. R. Civ. P. 37(b)(2); Jones v. Clinton, 36 F.Supp.2d 1118, 1125-26 (E.D. Ark. 1999); Greiner v. City of Champlin, 152 F.3d 787, 790 (8th Cir. 1998); Meat Price Investigators Ass'n v. Spencer Foods, Inc., 572 F.2d 163, 165 (8th Cir. 1978). Joshua's ex parte communications with Dr. DeJarnette violated Rule 4.2 and the Court's Orders of June 29, 2001 (Docket No. 3448), August 20, 2001 (Docket No. 3483), and October 3, 2001 (Docket No. 3575). The Court will determine an appropriate sanction at a future hearing. Page 8 of 15 Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 8 of 15 DeJarnette's grievance against LRSD's senior administrators now provides the basis for Joshua's allegations in this case. In other words, Joshua's allegations represent one side of an internal, personnel dispute that arose, at least in part, due to Joshua's conduct.3 C. Burden of Proof. 12. The Revised Plan 11 placed the burden on Joshua to establish noncompliance. In evaluating the Board's compliance with the 2002 Compliance Remedy, the Court stated: While 11 of the Revised Plan contained the parties' binding contractual agreement on the allocation of the burden of proof, for purposes of the unitary status hearings, that section of the Revised Plan no longer controls my decision on whether LRSD has met its obligations under the [2002) Compliance Remedy. It 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. [citations omitted]. Thus, I conclude that LRSD has the burden of proving by preponderance of the evidence that it has substantially complied with each of the obligations contained in subparts A, B, and C of the (2002) Compliance Remedy. - Memorandum Opinion filed June 30, 2004, p. 37. On appeal, the Eighth Circuit did not address the burden of proof. However, the Eighth Circuit made it clear that there were no constitutional issues remaining in this case: "LRSD's obligations under section 2.7.1 are clearly contractual \ matters." LRSD v. PCSSD, 451 F.3d at 531. Consequently, the Court finds that traditional contract principles should govern allocation of the burden of proof. Thus, Joshua, the party alleging noncompliance, bears the burden of proof. Hydrotex Industries v. Sharp, 212 Ark. 886, 208 S.W.2d 183 (1948). 3This Court has authority to sanction counsel for Joshua for violating Rule 4.2 and orders of this Court pertaining thereto. See Fed. R. Civ. P. 37(b)(2); Jones v. Clinton, 36 F.Supp.2d 1118, 1125-26 (E.D. Ark. 1999); Greiner v. City of Champlin, 152 F.3d 787, 790 (8th Cir. 1998); Meat Price Investigators Ass'n v. Spencer Foods, Inc., 572 F.2d 163, 165 (8th Cir. 1978). Joshua's ex parte communications with Dr. DeJamette violated Rule 4.2 and the Court's Orders of June 29, 2001 (Docket No. 3448), August 20, 2001 (Docket No. 3483), and October 3, 2001 (Docket No. 3575). The Court will determine an appropriate sanction at a future hearing. Page 8 of 15 Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 9 of 15 With these considerations in mind, the Court turns to the issue of whether LRSD substantially complied with Paragraph B of the 2004 Compliance Remedy. D. 13. The Board's Efforts to Comply with Paragraph B. The Board made a sincere, good faith effort to satisfy the requirements of the 2004 Compliance Remedy. The Board employed Dr. Karen DeJarnette to lead PRE and a team of highly trained professionals. The Board approved regulation IL-R, the comprehensive program evaluation process. The Board approved and filed eight Quarterly Updates. Finally, the Board approved and filed the eight step 2 evaluations required by the 2004 Compliance Remedy. 14. Sometime in the summer of 2006, Springer learned of a disagreement between Dr. DeJarnette and her immediate supervisor, Dr. Olivine Roberts, and filed an affidavit based on information provided by Dr. DeJamette. See Docket No. 4024. On November 13, 2006, Dr. DeJarnette recommended to the Board that the Superintendent, Dr. Roy Brooks, and other senior administrators (presumably including Dr. Roberts) be terminated for impeding her ability to comply with the 2004 Compliance Remedy. On December 1, 2006, Dr. Brooks suspended Dr. DeJarnette and recommended her termination for insubordination, among other things. On January 8, 2006, the Board rejected Dr. Brooks recommendation and reinstated Dr. DeJarnette as Director of PRE. 15. Dr. Roberts and Dr. DeJarnette disagreed about what the "deeply embedded" requirement of Paragraph B required the District to do.4 Dr. DeJarnette viewed school portfolios as necessary for the District to meet the deeply embedded requirement of Paragraph B, and thus, 4Paragraph B stated, "The first task PRE must perform is to devise a comprehensive program assessment process .. . . [T]he comprehensive program assessment process must be Page 9 of 15 Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 9 of 15 With these considerations in mind, the Court turns to the issue of whether LRSD substantially complied with Paragraph B of the 2004 Compliance Remedy. D. The Board's Efforts to Comply with Paragraph B. 13. The Board made a sincere, good faith effort to satisfy the requirements of the 2004 Compliance Remedy. The Board employed Dr. Karen DeJarnette to lead PRE and a team of highly trained professionals. The Board approved regulation IL-R, the comprehensive program evaluation process. The Board approved and filed eight Quarterly Updates. Finally, the Board approved and filed the eight step 2 evaluations required by the 2004 Compliance Remedy. 14. Sometime in the summer of 2006, Springer learned of a disagreement between Dr. DeJarnette and her immediate supervisor, Dr. Olivine Roberts, and filed an affidavit based on information provided by Dr. DeJarnette. See Docket No. 4024. On November 13, 2006, Dr. - DeJarnette recommended to the Board that the Superintendent, Dr. Roy Brooks, and other senior adIIllnistrators (presumably including Dr. Roberts) be terminated for impeding her ability to comply with the 2004 Compliance Remedy. On December 1, 2006, Dr. Brooks suspended Dr. , DeJamette and recommended her termination for insubordination, among other things. On January 8, 2006, the Board rejected Dr. Brooks recommendation and reinstated Dr. DeJarnette as Director of PRE. 15. Dr. Roberts and Dr. DeJarnette disagreed about what the "deeply embedded" requirement of Paragraph B required the District to do.4 Dr. DeJarnette viewed school portfolios as necessary for the District to meet the deeply embedded requirement of Paragraph B, and thus, 4Paragraph B stated, "The first task PRE must perform is to devise a comprehensive program assessment process .... [T]he comprehensive program assessment process must be Page 9 of 15 Case 4:82-cv-00866-WRW Document4092 Filed 01/15/2007 Page 10 of 15 foresaw implementing school portfolios during the term of the 2004 Compliance Remedy. Dr. DeJarnette planned to use Dr. Victoria Bernhardt (at a cost to LRSD of $5,000 per day), a nationally recognized expert on school improvement, to train school and District portfolio teams. Dr. Bernhardt invented the term "school portfolio" to describe her comprehensive school improvement plan. She defined a school portfolio as follows: A school portfolio is a purposeful collection of work telling the story of the school. A school portfolio describes efforts to engender and maintain systemic and continuous school improvement; it exhibits the schools goals, vision, plan and progress. A school portfolio allows for the continuous collection and assessment of evidence and is always evolving, growing, improving, and enabling school personnel to make better decisions. Victoria L. Bernhardt, The School Portfolio: A Comprehensive Framework for School Improvement (2d Ed. 1999), p. 9. Dr. Bernhardt stated that school _{)ortfolios served the following purposes: establish one document that describes an overall school plan, and the scho,ol' s mission, vision, beliefs, and ratioriale for improvement; document efforts on a number of elements important to school wide improvement; understand the complexities of the schoor org_anization; provide readily accessible and necessary information for data-based decision making; reflect on progress and purpose; trouble-shoot the continuous improvement efforts of the school; assess and guide the school's unique approach to continuous improvement; be accountable; and communicate. Id., p. 10-11. Notably absent from this list is evaluation of academic programs. 16. Dr. Roberts agreed that the District should implement school portfolios but did not believe the District was ready to implement them during the term of the 2004 Compliance Remedy. Dr. Roberts wanted to put the infrastructure in place to prepare schools for deeply embedded as a permanent part of LRSD's curriculum and instruction program." Page 10 of 15 Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 10 of 15 foresaw implementing school portfolios during the term of the 2004 Compliance Remedy. Dr. DeJarnette planned to use Dr. Victoria Bernhardt (at a cost to LRSD of $5,000 per day), a nationally recognized expert on school improvement, to train school and District portfolio teams. Dr. Bernhardt invented the term "school portfolio" to describe her comprehensive school improvement plan. She defined a school portfolio as follows: A school portfolio is a purposeful collection of work telling the story of the school. A school portfolio describes efforts to engender and maintain systemic and continuous school improvement; it exhibits the schools goals, vision, plan and progress. A school portfolio allows for the continuous collection and assessment of evidence and is always evolving, growing, improving, and enabling school personnel to make better decisions. Victoria L. Bernhardt, The School Portfolio: A Comprehensive Framework for School Improvement (2d Ed. 1999), p. 9. Dr. Bernhardt stated that school portfolios served the following purposes: establish one document that describes an overall school plan, and the scho?l' s mission, vision, beliefs, and rationale for improvement; document efforts on a number of elements important to school wide improvement; understand the complexities of the school org~ization; provide readily accessible and necessary information for data-based decision making; reflect on progress and purpose; trouble-shoot the continuous improvement efforts of the school; assess and guide the school's unique approach to continuous improvement; be accountable; and communicate. Id., p. 10-11 . Notably absent from this list is evaluation of academic programs. 16. Dr. Roberts agreed that the District should implement school portfolios but did not believe the District was ready to implement them during the term of the 2004 Compliance Remedy. Dr. Roberts wanted to put the infrastructure in place to prepare schools for deeply embedded as a permanent part of LRSD' s curriculum and instruction program." Page 10 of 15 Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 11 of 15 implementation of school portfolios. Dr. Bernhardt's testimony supported the need for this. Discussing implementation of school portfolios, she stated that "in order to get people ... using data on an ongoing basis in a way that they maybe haven't done it before, there has to be new structures put in place ... " Dr. Bernhardt, 1/10/2007, p. 11. Moreover, Dr. Roberts did not believe school portfolios were related to deeply embedding IL-R because school portfolios are not necessary for program assessment. Again, Dr. Bernhardt's testimony supports Dr. Roberts. She testified that school portfolios are not necessary for program evaluation. See Dr. Bernhardt, 1/10/2007, p. 54. Dr. Bernhardt further testified: Q. Can you embed the comprehensive program assessment process into the curriculum of the district without development of school portfolios? A. Yes. See Dr. Bernhardt 1/10/2007, p. 25. Dr. Bernhardt went on to explain that the school portfolio is only a framework for using data to improve achievement. See Dr. Bernhardt 1/10/2007, p. 25. Dr. Roberts testified that the District already has in place a framework for using data to improve achjevement mandated by the State known as the Arkansas Consolidated School Improvement Planning (ACSIP) model. In short, school portfolios, like ACSIP plans and Student Online Achievement Reports (SOAR)5, are good ways to use data for school improvement but are not necessary to assess "academic programs" as required by Revised Plan 2.7.1 and the 2004 Compliance Remedy. (emphasis in original). 5SOAR is a Public Education Foundation and District project that provides a formative assessment of student learning which is aligned to the State Benchmark exam. SOAR can be used to assist schools and teachers in immediately assessing students' strengths and weaknesses, improving instruction, and increasing student achievement. Page 11 of 15 Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 11 of 15 implementation of school portfolios. Dr. Bernhardt's testimony supported the need for this. Discussing implementation of school portfolios, she stated that "in order to get people . .. using data on an ongoing basis in a way that they maybe haven't done it before, there has to be new structures put in place . . . " Dr. Bernhardt, 1/10/2007, p. 11. Moreover, Dr. Roberts did not believe school portfolios were related to deeply embedding IL-R because school portfolios are not necessary for program assessment. Again, Dr. Bernhardt's testimony supports Dr. Roberts. She testified that school portfolios are not necessary for program evaluation. See Dr. Bernhardt, 1/10/2007, p. 54. Dr. Bernhardt further testified: Q. Can you embed the comprehensive program assessment process into the curriculum of the district without development of school portfolios? A. Yes. See Dr. Bernhardt 1/10/2007, p. 25. Dr. Bernhardt went on to explain that the school portfolio is only a framework for using data to improve achievement. See Dr. Bernhardt 1/10/2007, p. 25. Dr. Roberts testified that the District already has in place a framework for using data to improve achievement mandated by the State known as the Arkansas Consolidated School Improvement Planning (ACSIP) model. fu short, school portfolios, like ACSIP plans and Student Online Achievement Reports (SOAR)5, are good ways to use data for school improvement but are not necessary to assess "academic programs" as required by Revised Plan 2.7.1 and the 2004 Compliance Remedy. (emphasis in original). 5SOAR is a Public Education Foundation and District project that provides a formative assessment of student learning which is aligned to the State Benchmark exam. SOAR can be used to assist schools and teachers in immediately assessing students' strengths and weaknesses, improving instruction, and increasing student achievement. Pagellof 15 Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 12 of 15 17. Thus, the District has not yet implemented school portfolios. The District currently plans to implement school portfolios during the 2007-2008 school year. See LRSD's Revised Compliance Report, &lt;J[ 15 (Docket No. 4055). 18. The Court finds that school portfolios, like ACSIP Plans and SOAR, are beneficial ways to use data to improve student achievement but were not necessary for the Board to comply with paragraph B of the 2004 Compliance Remedy. The Court required a comprehensive program assessment process, and it's clear that LRSD's programs can be, and have been, assessed. The Court finds that the Board substantially complied with paragraph B of the 2004 Compliance Remedy based on the following evidence: (a) the Board reinvigorated PRE by hiring a team of highly qualified professionals; (b) the Board approved IL-R, the comprehensive program assessment process on December 16, 2004; (c) the Board implemented - IL-R by annually adopting a program evaluation agenda; (d) the District constructed a "data warehouse" to facilitate program assessment; (e) PRE began development of a District portfolio; (f) the District made program decisions based on the recommendations included in the eight evaluations required by the 2004 Compliance Remedy; and (f) the Board passed a resolution affirming its commitment to IL-Rand improving African-American achievement. 19. The Board reinvigorated PRE and now has a highly qualified staff in place capable of doing quality program assessments. In addition to Dr. DeJarnette, PRE has three statisticians on staff, Maurecia Malcolm Robinson, James C. Wohlleb and Dr. Ed Williams. The District plans to hire a fourth statistician to increase its ability to assess programs without using expensive, outside consultants. 20. The District devised a comprehensive program assessment process, IL-R, in accordance with paragraph B of the 2004 Compliance Remedy. As the Court suggested, the Page 12 of 15 Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 12 of 15 17. Thus, the District has not yet implemented school portfolios. The District currently plans to implement school portfolios during the 2007-2008 school year. See LRSD's Revised Compliance Report,&lt;][ 15 (Docket No. 4055). 18. The Court finds that school portfolios, like ACSIP Plans and SOAR, are beneficial ways to use data to improve student achievement but were not necessary for the Board to comply with paragraph B of the 2004 Compliance Remedy. The Court required a comprehensive program assessment process, and it's clear that LRSD's programs can be, and have been, assessed. The Court finds that the Board substantially complied with paragraph B of the 2004 Compliance Remedy based on the following evidence: (a) the Board reinvigorated PRE by hiring a team of highly qualified professionals; (b) the Board approved IL-R, the comprehensive program assessment process on December 16, 2004; (c) the Board implemented IL-R by annually adopting a program evaluation agenda; (d) the District constructed a "data warehouse" to facilitate program assessment; (e) PRE began development of a District portfolio; (f) the District made program decisions based on the recommendations included in the eight evaiuations required by the 2004 Compliance Remedy; and (t) the Board passed a resolution affirming its commitment to IL-Rand improving African-American achievement. 19. The Board reinvigorated PRE and now has a highly qualified staff in place . capable of doing quality program assessments. In addition to Dr. DeJarnette, PRE has three statisticians on staff, Maurecia Malcolm Robinson, James C. Wohlleb and Dr. Ed Williams. The District plans to hire a fourth statistician to increase its ability to assess programs without using expensive, outside consultants. 20. The District devised a comprehensive program assessment process, IL-R, in accordance with paragraph B of the 2004 Compliance Remedy. As the Court suggested, the Page 12 of 15 Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 13 of 15 District used Dr. Ross to assist in developing IL-R. The District shared the proposed IL-R with ODM and Joshua more than a month in advance of it being approved by the Board. IL-R was approved by the LRSD Board on December 16, 2004 with no objection being raised by either ODM or Joshua. 21. The Board implemented IL-R by annually adopting a program evaluation agenda recommended by PRE. In addition to the eight step 2 evaluations required by the 2004 Compliance Remedy, the Board approved the evaluation of District's magnet schools and programs. 22. The District contracted with the Janis Group to construct a "data warehouse" to facilitate program assessment and the future implementation of school portfolios. Larry Naeyaert of the Janis Group testified about his work for the District. He explained that a data - warehouse is a comprehensive database that allows for quick and easy access to and analysis of District data. The District's data warehouse consists of four data marts: student, assessment, financial and employee. As a part of constructing and maintaining the data warehouse, the District hired a full time employee to detect and resolve data errors and to train District employees to prevent errors during data entry. PRE has been trained on the use of the data warehouse and has full and complete access to all four data marts. The data warehouse will make it easier for PRE to conduct program evaluations or assessments in the future. 23, In the summer of 2005, PRE traveled to California for training by Dr. Bernhardt and began development of a District portfolio. The District portfolio is an ongoing process, but the District has several important components in place. In the future, PRE may use the District portfolio to identify programs for assessment pursuant to IL-R. Page 13 of 15 Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 13 of 15 District used Dr. Ross to assist in developing IL-R. The District shared the proposed IL-R with ODM and Joshua more than a month in advance of it being approved by the Board. IL-R was approved by the LRSD Board on December 16, 2004 with no objection being raised by either ODM or Joshua. 21. The Board implemented IL-R by annually adopting a program evaluation agenda recommended by PRE. In addition to the eight step 2 evaluations required by the 2004 Compliance Remedy, the Board approved the evaluation of District's magnet schools and programs. 22. The District contracted with the Janis Group to construct a "data warehouse" to facilitate program assessment and the future implementation of school portfolios. Larry Naeyaert of the Janis Group testified about his work for the District. He explained that a data - warehouse is a comprehensive database that allows for quick and easy access to and analysis of District data. The District's data warehouse consists of four data marts: student, assessment, financial and employee. As a part of constructing and maintaining the data warehouse, the District hired a full time employee to detect and resolve data errors and to train District employees to prevent errors during data entry. PRE has been trained on the use of the data warehouse and has full and complete access to all four data marts. The data warehouse will make it easier for PRE to conduct program evaluations or assessments in the future. 23, In the summer of 2005, PRE traveled to California for training by Dr. Bernhardt and began development of a District portfolio. The District portfolio is an ongoing process, but the District has several important components in place. In the future, PRE may use the District portfolio to identify programs for assessment pursuant to IL-R. Page 13 of 15 Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 14 of 15 24. The 2004 Compliance Remedy required the outside evaluators to include recommendations for program modifications in the eight step 2 evaluations. After the evaluations were completed, PRE reconvened the evaluation teams to consider the recommended modifications. Based on the recommendations of the evaluation teams, the District has implemented program modifications consistent with the evaluator's recommendations. 25. On November 16, 2006, the Board renewed its commitment to deeply embedding the 2004 Compliance Remedy by passing the following resolution: It is the intention of the Little Rock School District Board of Directors to continue to assess Little Rock School District programs, particularly those programs designed to improve and remediate the achievement of African-American students, and to modify or replace programs which are not working, even after LRSD is released from Court supervision. It is further the intention of the Little Rock School District Board of Directors to continue to follow the comprehensive program assessment process approved by the Board on December 16, 2004, even after LRSD is released from federal court supervision. See Board Exhibit 5. The Court ordered the Board to attend the hearing. Several Board members provided testimony that assured the Court that the District intends to continue using its comprehensive program assessment process for as long as it is needed to determine the effectiveness of its curriculum and instruction programs at improving the academic achievement of African-American students. 26. The need for this Court's monitoring and supervision of the Board has come to an end. Whatever challenges the Board faces in the future, "these challenges are better met by communities than by courts." Keyes v. Congress of Hispanic Educators, 902 F.Supp. 1274, 1307 (D. Colo. 1995). The Board is now unitary with regard to all aspects of school operations. All supervision and monitoring of the Board is terminated forthwith. Respectfully submitted, Page 14 of 15 Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 14 of 15 24. The 2004 Compliance Remedy required the outside evaluators to include recommendations for program modifications in the eight step 2 evaluations. After the evaluations were completed, PRE reconvened the evaluation teams to consider the recommended modifications. Based on the recommendations of the evaluation teams, the District has implemented program modifications consistent with the evaluator's recommendations. 25. On November 16, 2006, the Board renewed its commitment to deeply embedding the 2004 Compliance Remedy by passing the following resolution: It is the intention of the Little Rock School District Board of Directors to continue to assess Little Rock School District programs, particularly those programs designed to improve and remediate the achievement of African-American students, and to modify or replace programs which are not working, even after LRSD is released from Court supervision. It is further the intention of the Little Rock School District Board of Directors to continue to follow the comprehensive program assessment process approved by the Board on December 16, 2004, even after LRSD is released from federal court supervision. See Board Exhibit 5. The Court ordered the Board to attend the hearing. Several Board members provided testimony that assured the Court that the District intends to continue using its comprehensive program assessment process for as long as it is needed to determine the effectiveness of its curriculum and instruction programs at improving the academic achievement of African-American students. 26. The need for this Court's monitoring and supervision of the Board has come to an end. Whatever challenges the Board faces in the future, "these challenges are better met by communities than by courts." Keyes v. Congress of Hispanic Educators, 902 F.Supp. 1274, 1307 (D. Colo. 1995). The Board is now unitary with regard to all aspects of school operations. All supervision and monitoring of the Board is terminated forthwith. Respectfully submitted, Page 14 of 15 Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 15 of 15 LITTLE ROCK SCHOOL DISTRICT FRIDAY, ELDREDGE &amp; CLARK 400 West Capitol Avenue, #2000 Little Rock, AR 72201 501/376-2011 Isl Christopher Heller CERTIFICATE OF SERVICE I certify that on January 15, 2007, I have electronically filed the foregoing Notice with the Clerk of the Court using the CM/ECF system, which shall send notification of such filing to the following: mark.hagemeier@ag.state.ar.us scott.richardson@ag.state.ar. us sjones@mwsgw.com sjones@jlj.com johnwalkeratty@aol.com and mailed by U.S. regular mail to the following addresses: Gene Jones Office of Desegregation Monitoring 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Clayton Blackstock Mr. Mark Burnett 1010 W. Third Street Little Rock, AR 72201 Judge J. Thomas Ray U. S. District Courthouse 600 West Capitol Avenue, Suite 149 Little Rock, AR 72201 Page 15 of 15 Isl Christopher Heller Case 4:82-cv-00866-WRW Document 4092 Filed 01/15/2007 Page 15 of 15 LITTLE ROCK SCHOOL DISTRICT FRIDAY, ELDREDGE &amp; CLARK 400 West Capitol Avenue, #2000 Little Rock, AR 72201 501/376-2011 /s/ Christopher Heller CERTIFICATE OF SERVICE I certify that on January 15, 2007, I have electronically filed the foregoing Notice with the Clerk of the Court using the CM/ECF system, which shall send notification of such filing to the following: mark.hagemeier@ag.state.ar.us scott.richardson@ag.state.ar.us sjones@mwsgw.com sjones@j lj .com johnwalkerattv@aol.com and mailed by U.S. regular mail to the following addresses: Gene Jones Office of Desegregation Monitoring 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Clayton Blackstock Mr. Mark Burnett 1010 W. Third Street Little Rock, AR 72201 Judge J. Thomas Ray U. S. District Courthouse 600 West Capitol Avenue, Suite 149 Little Rock, AR 72201 Page 15 of 15 /s/ Christopher Heller "Lisa Walters (ADE)" &lt;Lisa. Walters@arkansas.gov &gt; 01/10/2007 03:26 PM Lisa Walters ADE Attorney's Office -----Original Message----From: Lisa Walters (ADE) To &lt;clerksoffice@ared.uscourts.gov&gt; cc bee Subject FW: amended notice to file in lrsd v pcssd, no. 4:82-cv-866 wrw; cause doc no. 4083 Sent: Monday, January 08, 2007 3:01 PM To: ' clerksoffice@are.uscourts.gov ' Subject : amended notice to file in lrsd v pcssd, no. 4 :82-cv-866 wrw; cause doc no. 4083 See attached cover letter and amended notice of filing which you requested. Lisa Walters ADE Attorney"s Office -----Original Message--- - - From: Toshiba 350 ATT [mailto:ToshibaATT@ADE~CAMPUSl) Sent : Monday, January 08, 2007 1:58 PM To: Lisa Walters (ADE) Subject : Scanned from att350 [LWalters_Mail Scan) 01 / 08 / 2007 14:58 Sc;anned from att350. LWalters_Mail Scan Date: 01/08 / 2007 14: 58 Pages:3 Resolution:200x200 DPI Please see attached PDF for your file. -m D0C070108.pdf MIME-Version:1.0 From:ecf_ support@ared.uscourts .gov To:ared_ecf@localhost.localdomain essage-Id: &lt;8l87 57@ared . uscourts.gov&gt; cc : Subject:Activity in Case 4:82-cv-00866-WRW Little Rock School , et al v . Pulaski Cty School, et al "Notice of Docket Correction " Content-Type : text / plain***NOTE TO PUBLIC ACCESS USERS*** You may view the filed documents once without charge. To avoid later charges , download a copy of each document during this first viewing.U .S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered on 1/11/2007 at 8:56 AM CST and filed on 1/11/2007 Case Name: Little Rock School, et al v . Pulaski Cty School , et al Case Number: 4:82-cv-866 http : //ecf.ared.uscourts . gov/cgi-bin/DktRpt.pl?26052 WARNING : CASE CLOSED on 01/26/1998 Document Number: 4090 Copy the URL address from the line below into the location bar of your Web browser to view the document: http://ecf.ared.uscourts.gov/cgi-bin/show_case_doc?4090,26052 ,, MAGIC,,,2005584 Docket Text: NOTICE OF DOCKET CORRECTION re: [4083) Notice of Filing. CORRECTION : The o.riginal document was submitted in error (contained an incorrect date identifier); the correct document was added to docket entry (4083] , and the docket text was modified to correct the description of the document filed as "NOTICE of Filing the Project Management Tool for December , 2006" based on the attached correspondence. (thd) A The following document(s) are associated with this transaction : ~ ocument description: Main Document Original filename : n/a - Electronic 'document Stamp: [STAMP dcecfStamp_ ID=l095794525 [Date=l/11/2007) [FileNumber=818756-0] [8d484cl6b5ldf4bec702ccb4b6fld02c4c52d7458fa27a43825a6157f84562c8c5618a66d2702dc ec7b8flb9d77d402f7458f4b3ad7e374f0ea77035baffc295)] 4:82-cv-866 Notice will be 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, kate . jones@jlj .com; linda . calloway@jlj.com Philip E. Kaplan pkaplan@kbmlaw .net, nmoler@kbmlaw.net Scott Paris Richardson scott . richardson@arkansasag . gov , patsy.dooley@arkansasag.gov; agcivil@arkansasag.gov John W. Walker johnwalkeratty@aol.com, lorap72297@aol . com; jspringer@gabrielmail . com 4:82-cv-866 Notice will be delivered by othe r means to : Norman J . Chachkin NAACP Legal Defense &amp; Educational Fund , Inc. - New York 99 Hudson Street RECEIVED JAN 12 2006 OFFICE OF DESEGREGATION MONITORING Suite 1600 New York , NY 10013 imothy Gerard Gauger rkansas 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 Office of Desegregation Monitor One Union National Plaza 124 West Capitol Suite 1895 Little Rock , AR 72201 William P . Thompson Thompson &amp; Llewellyn , P.A . Post Office Box 818 Fort Smith, AR 72902-0818 \ Case : 4 : 82cv866 Office of Desegregation Monitor 124 West Capitol Suite 1895 Little Rock , AR 72201 ARKANSAS DEPARTMENT OF Dr. T. Kenneth .lames, Commissioner .Educatii'n 4 State Capitol Mall Little Rock, AR 72201-1071 (501) 682-4475 http:/ /ArkansasEd.org January 30, 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 Office of Desegregation Monitoring One Union National Plaza 124 West Capitol, Suite 1895 RECEIVED 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 ill FEB 2 - 2007 OFFICE OF DESEGREGATION MONITORJNG 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 January 2007 in the above-referenced case. If you have any questions, please feeJ free to contact me at your convenience. Sincerely, 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 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 COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION 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 ADE's Project Management Tool for January 2007. Respectfully Submitted, &amp;~ General Counsel 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 January 30, 2007, 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. SamuelJones,m Mitchell, Williams, Selig, Gates &amp; Woodyard 425 West Capitol, Suite 1800 Little Rock, AR 72201 _Jg~ RECEIVED IN THE UNITED STATES DISTRICT COURT FEB 2 - 2007 EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION OFFICE OF DESEGREGATION MONITORING LITTLE ROCK SCHOOL DISTRICT, ET AL PLAINTIFFS V. NO. LR-C-82-866 WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL DEFENDANTS . MRS. LORENE JOSHUA, ET AL INTERVENORS KATHERINE W. KNIGHT, ET AL INTERVENORS ADE'S PROJECT MANAGEMENT TOOL In compliance with the Court's Order of December 10, 1993, the Arkansas Department of Education (ADE) submits the following Project Management Tool to the parties and the Court. This document describes the progress the ADE has made since March 15, 1994, in complying with provisions of the Implementation Plan and itemizes the ADE's progress against timelines presented iri the Plan. IMPLEMENTATION PHASE ACTIVITY I. FINANCIAL OBLIGATIONS A. Use the previous year's three quarter average daily membership to calculate MFPA (State Equalization) for the current school year. 1 . Projected Ending Date Last day of each mq~th, August - June. 2. Actual as of January 31, 2007 B. Include all Magnet students in the resident District's average daily membership for calculation. 1. Projected Ending Date Last day of each month, August - June. 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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