IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT VS. NO.4:82CV00866 WRW/JRT PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL RECEIVED MRS. LORENE JOSHUA, ET AL JUL 5" - 2002 KATHERINE KNIGHT, ET AL desegregation monitoring EASTERN DISTRICT ARKANSAS AUG 0 2 2002 JAMEa w By: z* PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS ORDER The parties appeared before the Court by telephone in the absence of a court reporter on August 1, 2002 at 11:15 a.m. at which time the Court considered, upon the Joshua Intervenors request, concerns they had with respect to Plaintiff LRSDs Motion to Strike. After hearing the position of the parties counsel regarding the matter, the Court determined that the Plaintiff would have unitl August 9,2002 in which to designate the specific testimony in the record which it wishes to have stricken, and that the Joshua Intervenors would have until Wednesday, August 14, 2002 at 5:00 p.m. in which to respond thereto IT IS SO ORDERED thi: day of ,2002. UNITED STATES DISTRICT JUDGE THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WIT 68 AND/OR 7' ON. RCP 6 2 RECEIVFO IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION ^UG 1 9 2*502 OFFICE OF OeSGQRSGATlOH UOjiiTDiyiMI LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1,ET AL received MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL DEFENDANTS INTERVENORS INTERVENORS PLAINTIFFS DESIGNATION OF TESTIMONY TO BE STRICKEN Plaintiff Little Rock School District ("LRSD") hereby designates the following testimony to be stricken from the record for the reasons set forth in the LRSDs Motion to Strike and accompanying brief: WITNESS PAGE LINES EXPLANATION C. Norman 45 1-25 Concerns 2001-02 curriculum audit dated March 2002 (CX 785). C. Norman 46 1-12 Same as above. C. Norman 53 6-25 Complaints about Pickering occurred during the 2001-02 school year (See Testimony of Chris Payne). C. Norman 54 1-25 Same as above. C. Norman 55 1-25 Same as above. C. Norman 56 1-25 Same as above. C. Norman 57 1-25 Same as above C. Norman 58 1-25 C. Norman 59 1-25 Complaints about Norman by the BCC occurred during the 2001-02 school year (See Norman, p. 71-72). Complaints about Pickering and about Norman by the BCC occurred during the 2001-02 school year.WITNESS PAGE LINES EXPLANATION C. Norman 60 1-25 C. Norman 61 1-20 Complaints about Rutherford occurred during the 2001-02 school year (See testimony of Avis and D.J. Thames). Same as above. C. Norman 62 1-25 C. Norman 63 1-25 C. Norman 64 1-21 C. Norman 65 11-25 C. Norman 66 1-25 BCCs support of Ross and Klais occurrred during the 2001-02 school year. BCC action against Norman and disciplinary action against Rutherford occurred during the 2001-02 school year. Rutherford disciplinary action occurred during 2001-02 school year. Teacher refusal to give recommendation occurred during 2001-02 school year (See testimony of Chris Payne). Same as above. C. Norman 70 17-25 C. Norman 71 1-25 BCC action against Mr. Norman occurred during the 2001-02 school year. Same as above. C. Norman 72 1-18 C. Norman 91 15-25 C. Norman 92 1-14 C. Norman 92 8-23 C. Norman 93 1-14 P. Watson 105 10-11 P. Watson no 14-25 P. Watson 122 11-19 M. Faucette 196 12-25 Same as above. Cross concerning Rutherford.' Cross concerning BCC.^ Redirect concerning Rutherford. Concerns Chris Payne and 2001-02 school year. Concerns 2001-02 school year. Concerns 2002-03 school year. Concerns 2001-02 school year (see p. 105) Concerns 2001-02 school year (see p. 197, line 13) ^Plaintiffs designation of cross-examination testimony is contingent upon the direct examination being stricken. If the designated direct testimony is not stricken, Plaintiff does not want the cross-examination testimony stricken. ^See Footnote 1. 2WITNESS PAGE LINES EXPLANATION M. Faucette 197 1-25 Same as above. M. Faucette 198 1-25 Same as above. M. Faucette 199 116 Same as above. J. Mercer 329 20-25 Concerns 2001-02 school year (see p. 329, lines 14-16) J. Mercer 330 1-24 Same as above. J. Mercer 338 21-25 Concerns his experience during his senior year, 2001-02, in Brooks English IV-AP class. J. Mercer 340 18-25 Same as above. J. Mercer 341 1-25 Same as above. J. Mercer 342 1-25 Same as above. J. Mercer 343 1-25 Same as above. J. Mercer 344 1-25 Same as above. J. Mercer 345 1-25 Same as above. J. Mercer 346 1-25 Same as above. J. Mercer 347 1-25 Same as above. J. Mercer 347 1-25 Same as above. J. Mercer 348 1-25 Same as above. J. Mercer 349 1-25 Same as above. J. Mercer 350 1-10 Same as above. J. Mercer 350 11-25 Concerns his experience during his senior year, 2001-02, in Art History-AP. J. Mercer 351 1-21 Same as above. J. Mercer 379 10-25 Cross regarding Brooks. J. Mercer 380 1-25 Same as above. J. Mercer 381 1-25 Same as above. J. Mercer 382 1-25 Same as above. ^See Footnote 1. 3WITNESS PAGE LINES EXPLANATION J. Mercer 383 1-5 Same as above. J. Mercer 394 24-25 Concerns his graduation in 2002. J. Mercer 395 1-10 Same as above. J. Mercer 395 11-25 Redirect regarding Brooks. J. Mercer 396 1-9 Same as above. J. Mercer 398 8-25 Re-cross regarding Brooks.** J. Mercer 399 1-9 Same as above. C. Payne 400 15-25 Concerns his senior year, 2001-02. C. Payne 401 1-25 Same as above. C. Payne 402 1-25 Same as above. C. Payne 403 1-25 Same as above. C. Payne 404 1-25 Same as above. C. Payne 405 1-25 Same as above. C. Payne 406 1-25 Same as above. C. Payne 407 1-25 Same as above. C. Payne 408 1-10 Same as above. C. Payne 408 11-25 Cross concerning his senior year, 2001- 02.5 C. Payne 409 1-25 Same as above. C. Payne 410 1-25 Same as above. C. Payne 411 1-25 Same as above. C. Payne 412 1-25 Same as above. C. Payne 413 1-25 Same as above. C. Payne 414 1-5 Same as above. C. Payne 414 6-25 Redirect concerning his senior year, 2001- 02. 4 See Footnote 1. ^See Footnote 1. 4WITNESS PAGE LINES EXPLANATION C. Payne 415 1-25 Same as above. C. Payne 416 10-13 Same as above. D. Thames 418 15-25 Concerns his senior year, 2001-02. D. Thames 419 1-25 Same as above. D. Thames 420 1-25 Same as above. D. Thames 421 1-25 Same as above. D. Thames 422 1-25 Same as above. D. Thames 423 1-25 Same as above. D. Thames 424 1-25 Same as above. D. Thames 425 1-25 Same as above. D. Thames 428 12-25 Same as above. D. Thames 429 1-17 Same as above. D. Thames 434 9-25 Cross regarding Beta Club and National Honor Society. D. Thames 435 1-9 Same as above. D. Thames 436 10-25 Cross regarding Pickering. 7 D. Thames 437 1-2 Same as above. D. Thames 439 1-5 Redirect regarding Beta Club. P. Mercer 453 20-25 Cross regarding Brooks. P. Mercer 454 1-25 Same as above. P. Mercer 455 1-25 Same as above. P. Mercer 456 1-25 Same as above. P. Mercer 457 1-25 Same as above. P. Mercer 458 1-25 Same as above. See Footnote 1. 7, See Footnote 1. See Footnote 1. This cross relates to Justin Mercers testimony. Pam Mercer only discussed the issue generally without specific reference to Brooks, and Plaintiff has not designated that testimony to be stricken. 5WITNESS PAGE LINES EXPLANATION P. Mercer 459 1-25 Same as above. P. Mercer 460 1-25 Same as above. P. Mercer 461 1-11 Same as above. P. Mercer 461 18-25 Redirect regarding Brooks. P. Mercer 462 1-25 Redirect regarding Brooks. J. Carter 497 21-25 Concerns 2001-02 curriculum audit dated March 2002 (CX 785). J. Carter 498 1-3 Same as above. J. Carter 499 1-16 Same as above. The audit led to recommended staff cuts to be implemented during the 2002-03 school year (see p. 527). J. Carter 501 19-24 Same as above. J. Carter 527 4-11 Cross regarding staff cuts. WHEREFORE, the LRSD prays that the testimony designated herein be stricken from the record for the reasons set forth in its Motion to Strike and accompanying brief. Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT Christopher Heller (#81083) John C. Fendley, Jr. (#92182) FRIDAY, ELDREDGE & CLARK Regions Center, Suite 2000 400 West Capitol Little Rock, AR 72201-3493 (501)376-2011 BY: /I John C. Fendley, Jr. + See Footnote 1. 6CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by U.S. mail on August 9, 2002: Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 (VIA FAX and MAIL) Mr. Sam Jones Wright, Lindsey & Jennings 2200 NationsBank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON & JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 Little Rock, AR 72201 Ms. Ann Brown Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 e. C. Fendley, Jr. I L F
\HOME\FENDLEY\LRSD 2001\des-unitary-mot-strikc-designalions.wpd 7 V FILED is
hic!' COUR i IN THE UNITED STATES DISTRICT COLDIT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION u.g. Di
T'l AUG 1 9 2002 JAM vv. RK Ev T ,.",P>'^\NSAE R LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. NO, 4:82CV00866 WW/TTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. LET AL RECEIVED DEFEND.ANTS NIRS. LORENE JOSHUA, ET AL AUG 1 9 2002 INTERVENORS KATHERINE KNIGHT, ET .AL OFFICE OF DESEGREGATION MONITORING INTERVENORS JOSHUA INTERVENORS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW IN OPPOSITION TO THE LRSDS REQUEST FOR UNITARY STATUS REGARDING THE PLAN SECTIONS INTRODUCTION This case is before the Court upon the LRSDs motion to be released from Court
superxdsion and to be released from its remedial obligations to African American students. Upon the liability findings of the District Court in 1987 and in earlier proceedings, the first remedial agreement occurred in 1989 and was approved by the Court of Appeals in 1990. Between 1990 and 1998, the District Court, the Honorable Susan Webber Wright, oversaw remedial proceedings and, as directed by the Court of Appeals, appointed and involved an Office of Desegregation Monitoring (ODM) staff to assist with achievement of the objectives of the Revised Desegregation and Education Plan. After repeated hearings before the Court, and upon the urging of the District Court, in January, 1998 the LRSD and the Joshua Inten-'enors entered into a Revised Desegregation and Education Plan before the Court - the Revised Desegregation and Education Plan. The Revised Plan w^as intended to A:''JOSHZ-A.OPP -1-t I implement the orisinai remedy of school desegregation ordered by the Court. The Revised Desegregation Plan was to be a minimum of three (3) years in duration and its terms of expected action were generally set forth therein. It was anticipated that upon compliance the school District would petition, with approval, of the Joshua Intervenors, the Court for release of the District from Court supervision. The predicate for release was substantial compliance with commitments set forth therein and otherwise required by law as well as ancillary agreements entered into on behalf of the Joshua class between the LRSD and the State of Arkansas Department of Education. The District developed a Compliance Committee which consisted ofthe school superintendent and his senior staff of associate superintendents. The Compliance Committee was assisted by District counsel during its deliberations. The Joshua Intervenors were not invited or allowed to participate in Compliance Committee deliberations or activities. The District employed two experts with Joshuas approval to assist the District in devising remedies as set forth in the Revised Plan, Dr. Terrence Roberts and Dr. Steven Ross. The experts were not participants of the Compliance Committee. Ultimately, the Compliance Committee developed the Compliance Report, dated March 15, 2001 which is now before the Court after a second set of hearings before the Honorable William R. Bill Wilson. The first set of hearings occurred in July, August and November of2001 and were overseen by the Honorable Susan Webber Wright, Chief District Judge of the Eastern District of Arkansas. The LRSD moved for her recusal in October, 2001. The Court denied recusal. Ultimately, these proceedings were scheduled for Januaiy-', 2002 but they were delayed upon motion of Joshua. The Honorable Susan "Webber Wright decided in January, 2002 to withdraw as the judge in this case and the case was assigned to the Honorable William R. Bill Wilson.i _ I 7 Wilson scheduled and held hearings during July. 2002 upon the objections raised by Joshua the Compliance Report of March 15, 2001. After the hearings, the Court required the parties to submit contemporaneous findings of fact and conclusions of law and/or statements in further u of the parties respective positions to the Coun by 11:00 a.m., August 19, 2002. This filing repr nts the Joshua Intervenors compliance with the Courts directive. It also summarizes the rebuttal evidence presented by Joshua through Ms. Ann Marshall. The : -ovisions of the Revised Desegregation and Education Plan of 1998 which are now- before the 2 for review' and decision are Sections 2.1., 2.6, 2.6.1, 2.6.2, 2.6.3, 2.11, 2.11.1. These secti idress, among other topics, the obligation to take steps to increase participation of qualified At. an American students in advanced and enriched courses to ensure that there are no barriers to such participation, and to implement programs promoting the success of the students in these courses. These parts of the Plan also address increased participation in extracurricular activities, pre v: on of guidance counseling services in a nondiscriminatory manner and more equity in academic h ..^rs, a.wards and scholarships. The Joshua Intervenors emphasize the importance of giving attention to the overall picture which it portrays regarding the Systems good faith and other matters. Good faith requires conscious intent by the school District to take actions which promote the ultimate j-.
CTve^ of the Revised Desegregation and Education Plan. We submit that the ultimate objecti \ es of the Revised Desegregation and Education Plan necessarily include elimination ofthe vestiges of racial discrimination and the replacement of those vestiges with policies, programs, practices and procedures w'hich do not lead to resegregation. Joshua submits that the actions of the school district, a xm in the proceedings before Judge Wright and Judge Wilson, demonstrated that the District not acted in good faith in meeting the obligations which are set forth in the A:'JOSffUA.OPP4 _ I January, 1998 Revised Desegregation and Education Plan. 1. THE TESTIMONY OF ODM DIRECTOR ANN MARSHALL REBUTS THE LRSDS POSITION REGARDING EVALUATIONS AND OTHER ELEMENTS OF PLAN IMPLEMENTATION Ms. Marshall testified that when the March 15, 2001 Report was presented, the evaluation documents were not available as represented therein. [Tr. at 15] Many of the evaluations are still not locatable, especially the final reports [Tr. at 16-17] and could, not have been approved by the school board. Dr. Lesley, whose Division of Instruction was responsible for program evaluation. complained to Ms. Marshal! about the LRSDs lack of program evaluations as represented in the Report. [Tr. at 18 (Marshall)] She and Lesley agreed that, the quality of the reports was not good. [Tr. at 33] Marshall stated that the District did not make annual evaluations of all programs as LR represented would occur. (Section 2.7.1 of the Revised .Plan. Tr. at 20-22] Nor did LR make annual assessments of all programs or an annual listing of programs by the assistant superintendent to be assessed annually. [Tr. at 37, 39] She further stated that the school district developed a Research Agenda which further unilaterally narrowed the evaluation requirements of the Plan. The programs which were included in the research agenda were not completed. [Tr. at 36] She also stated that the ODM did not any evaluations of programs on behalf of the LRSD. [Tr. at 23] She testified that LRSD staff whom she met with understood the term assessment when used in the Plan to mean evaluations. Joshua reiterates therefore that the LRSD did not comply with the Plan commitments that it evaluate annually all programs from an effectiveness perspective in order A:yOSHUA.OPP -4-I to determine their efficacy in meeting plan objectives. Joshua now proceeds to address the areas on which the Court allowed the development of evidence during the July, 2002 hearings, Joshua now proposed the following facts A. The Good Faith Requirement of the Section 2.1 of the Revised Desegregation and Education Plan. With respect to Section 2.1, good faith, the Interim Compliance Report does not address that subject. The March 15, 2001 Compliance Report purports to state what the District will do upon unitary' status being declared, what has been done by campus leadership teams in the schools
and awards which the District has received Itnown as the Arkansas Quality Award, It does not in the body of the report address the objective of remedying the effects of past discrimination and ensuring that for the future racially discriminatory practices will not be reinstituted. Moreover, the District, did not develop a policy with respect, to this provision. B. The Obligations to Identify Qualified African American Students and to Promote their Successful Participation in AP and Other Honor and Enriched Courses 1. The Districts March 2000 and 2001 Compliance Reports 1. The Interim Report indicates that the school shall be active in identifying students for placement for Pre-AP and AP courses. (Interim Report, p. 20). At the outset of Revised Plan implementation, the written criteria for enrollment in Pre-AP and AP courses include multiple factors such as 1. High-level reading comprehension and writing skills as evidenced by norm-referenced test data and classroom performance and 4. B average and above in regular-level class. [CX. 719 (Reg. IHCC-R)
[Tr. at 49 (Norman)]
[Tr. at 560 (J. Mosby)] However, in approximately Januaiy' 2001, the LRSD revised the criteria so that thereafter there would be, basically, a free choice A:UOSHUA.OPP I assignment into advanced and enriched courses. [Tr. at 86 (Norman)
[Tr. at 473, 498 (Caner)] 2, The District represents that it approved five new policies which were to ensure that There would be no barriers to African American student participation in advanced courses. (See Interim Report p. 17) Policy IHCC addressed training programs for teachers and counselors in identifying and encouraging increasing percentages of students to participate in advanced placement courses. Policy IHBB addressed assessing gifted potential through program designs that are flexible and varied enough to be adaptable to individual student need and through curricular designed to nurture gifted potential. Policy DCC addressed calculating grade point averages and rank and class. Policy IKF established enhanced course requirements with a total of twenty-four required units and. increased the rigor of the curriculum. Policy IHBEA addressed English as a second language. 3. Joshua submits that none of these policies addressed the subject of identifying and encouraging .African .American students to participate in advanced placement courses other than possibly Policy IHCC, the Professional Development Program for Teachers and Counselors. Even IHCC does not address the matter of identifying and encouraging increasing percentages of African .American students. 4. Policy IHBB is very general. Policy EKC does not address the issue of race. Policy DCF addresses increasing the units required for graduation and stiffens the requirements for honors at graduation time. Policy IHBBA does not apply to African .Americans although the District says that there are several students with .African backgrounds who may profit by the English as a second language program 5. The 2001 Report indicates that Policy DCF raised the bar even higher so that instead of twenty-four units being required to graduate, students were expected to complete twenty-eight units A:-JOSHUA.OPP -6-I including ai least eight Pre-.AP or AP courses. Raising the bar has not been shown by the District as a program, policy, practice or procedure which reasonably could be expected to either identify or encourage African American students to participate in advanced courses, or to assist them in being successful in advanced courses. Instead raising the bar in the manner the LRSD did became a barrier itself for African American children because of their dismal success on the measurem.ent barometers. 6. The 2001. Report content on pp. 30-31 does not demonstrate how African American students are benefitted by these policies 7. The Interim Report identifies Administrative Regulation IHCCR as being written to promote the percentage of African American students who enroll in Pre-AP and AP courses. The 2001 Compliance Report does not address Regulation IHCCR. No data are presented to show how this procedure has worked in practice between October 21 and March 15, 2001. The other regulations are IKC-R, IKF-R2 but they do not address issues relating to African American students in particular. IKC-R addresses rank in class and IKF-R2 relates to general graduation requirements. Both regulations appear to give advantage to white pupils in AP programs. 8. The 2000 Report (CX. 869 at 22-23) that the District will utilize a Quality Index to promote enrollment of African ^American students in advanced courses in order to make data driven decisions. The District further represents that the Quality Indicators are routinely disaggregated so that progress for each group can be derermined. The Quality Indicators for the high schools were not presented in the 2001 Report except for the percentages of students taking the ACT. The percentage of students taking the AP makes no reference at all to the race of-AP examinees [e.g. 43] Moreover, the District did not present the number of minority students earning a score 19" on the A:'JOSHUA.OPPI ACT as promised in the Interim Report. The average scores' of racial groups are presented, but th number of AA students who score 19" or above is not presented, [e.g. 4S-49j. 9. Disaggregated racial data were also promised with respect to students who earned at least 3" on AP exams. The District did not do this. [e.g. 44] The data presented included percentage of students earning a C or above in AP [e.g. 44] and Pre-AP courses in middle and high schools and the University Studies Program for one year only. [e.g. 44-47] 10, The District is also remiss in presenting data promised in the 2000 Report regarding the Quality Indicators set forth on page 23 [CX. 869] in its Report of March 15, 2001. For example, reference is made in the 2000 Report regarding the percentage of students who perform at the Advanced level on the Grade 4 benchmarks examinations in literacy and math, [p, 2.37
see also Tr. at 540] The data presented addresses the at or above proficient rather than, as promised, the. advanced level, p. 103 (literacy), p. 131 (math). 11. The data are not disaggregated with respect to gender. The data would allow consideration of the extent to which .African American males students fare within the District. 12. When the District did not present data, regarding Advanced students it prevented the parties from malting judgments regarding the extent to which African .American students were being compared to other students. Being at or above proficient does not disclose the relative relationship between non African .American students in comparison to African American students. Moreover, the 2000 Report promised to disclose the percentage of students who performed in the top quartile on the SAT9 in reading, language and mathematics, [p. 23] The 2001 report does not disclose the top quartile student performances on the SAT9. The District, however, makes judgments regarding achievement for .African .American students without use of this quality indicator. [e.g. p. 104-105, .4 :'JOSHUA. OPP -8- 133, 144] 13 13. Of the pre grams that were identified in the Interim Report, reference is made by the District to a new middle school curriculum but the District has always had a specific curriculum for each grade level. A
curriculum for middle schools v/as required because the District changed from a six-three-three emto a five-three-four system in 1997 The purported new curriculum was neither developed or intended for African American students. The National Science Foundation Project was listed as a program but in the final report no reference is made to the National Science Foundation results. Theie s no showing that it has increased African .American participation in AP courses. 14. The Un, iBS Program at Hall High Schoo! is identified but it does not address African American student.. Rather it seeks to target strong students who have the capacity of doing college work. By its terms, African American students are not targeted! To be eligible for enrollment strong students
ust have either a minimum grade point average of 2.5 on half of their college preparatoiy' course / ' a minimum grade point average of 3.0
or a minimum score of at least 21 on the ACT. The 2001 * rt with the disaggregated data presented by the District shows the race of the average student with a score of 21 on the ACT to be white or .Asian. Black students are almost four numbers below that score. Moreover, the District did not present any charts which showed the number of studen' a.t Hall who made minimum grade point averages of 2.5 on at least half of their college preparatory irses nor did it enumerate in a chan the number by race of strong students who have the capacity ot doing college work. The University Studies Program, therefore. tended to favor the stronger students with the better grades, the higher test score averages with means which is another wav of sa A g that it favored white students! A:\JOSHUA.OPP -9-15. Page 15 cf the 2001 Report reflects the enrollment by race in the University Studies Program. What began as a majority Black enrollment evolved in one year to clearly a majority white enrollment taken from within a majority Black school. As is shown throughout these findings, this result could have been anticipated because of the financial costs associated with participation in the University Studies Program. Those costs constitute a barrier to panicipation. We note that now that the program includes most of Halls white children, the plan is for the course grade to be weighted. [Tr. at 110 (P. Watson)]. 2. The Evidence at the Hearing 16 Dr. Steven Ross is one of the two experts approved by the Joshua Intervenors and hired by the Little Rock School District pursuant to Section 2.1.1 of the Revised Plan. Dr. Ross is a Professor of Educational Research and Director for the Center of Research and Educational Policy at the University of Memphis. Dr. Ross is deeply involved in working with school districts, primarily urban school districts, on how to develop and to evaluate programs and how to address the needs of children at-risk. He has worked with the Memphis, Nashville, Detroit, Atlanta and Little Rock school districts. [Tr. at 538-541(Ross)] 17. Dr. Ross identified an educationally reasonable approach to promoting participation by qualified African American students in. advanced placement and other enriched courses and implementing programs to assist these students to be successful. He defined a qualified student as a student, who has a reasonable chance of benefitting, a reasonable chance of success. Identifydng such students would involve use of archival data in Little Rock that would, have shown the success rates of students in advanced placement courses, in honors courses that are at different levels of achievement on the state test, as well as the view's of principals and curriculum specialists A:^JOSHUA.OPP -10-in the District who have had experience with African American students and white students who are at lower or higher ends of the continuum on ability, with suggestions for what type of students... would have a reasonable chance of success if admitted to an advanced class. With this combination of science and reason he would try to help the school system to develop some selective cutoffs or some systematic approach for deciding which .African American students were, qualified, which were likely to benefit. For students with test scores at the lower end on state mandated standardized tests, his advice would be admit them to advanced classes on a more selective, level, that is., considering factors such as prior grades, family support, and motivation. [Tr. at 542-547 (Ross)] 18. In the context of section 2.6.2 of the Plan, addressing implement[ation] [of] programs to assist African Americans in being successful in honors and enriched courses and advanced placement courses, Dr. Ross gave the following testimony [ Tr. at 548]: My approach would be, for students who are entering a course, in advanced course or an honors course, AP course or advanced, course, to ensurethe term we use in educationalpsychology is scaffoldingmeaning support, because the history that that student who is at basic has had. is struggling to succeed in a regular course. Imagine if you struggle to run. a mile, and then all of a sudden you asked to run five miles. Chances are you are not going to do better at that five miles
you are going to struggle more. So I would, want, to provide support systems that can do everything possible to ensure that, students who we consider qualified can benefit. Examples -would be Saturday classes, -which are used, in a lot of districts, extended day, peer coaching, smaller class sizes, computer -assisted, instruction that gives exti'a support, programs with families where parents are not taught to tutor, but parents are taught hoyv to help their children get the work done at. home, courses on how to study. There's a range of support systems that can increase the chances that an at risk child or adolescent can do well, in advanced courses. 19. Dr. Ross testified that he wound not advocate placing students at the lowest levels of state test courses into advanced placement courses without the kinds of programs he described. [Tr. A:J0SffU4.0PP -11-1 at 549] 20. The approach described by Dr. Ross grows out ofthe provision in Section 2.6 of the Plan for promoting participation of qualified .African American students in advanced and enriched courses and the provision of Section 2.6.2 of the Plan which requires implementaiion of programs to assist these students in being successful in the enriched and advanced courses. The paragraphs which follow show: (a) the activities required of the LRSD to promote additional participation of African American students in advanced programing were not carried out, or, were cursory in nature. (b) LRSD has not demonstrated an increase in participation in advanced and enriched classes, comparing the totality of such programming prior to and during the Plan period, (c) LRSD adopted, during the Plan period, criteria for admission to Pre-AP and AP classes which allow any student regardless of test scores and. prior performance to select such classes., without an individualized consideration of the students ability to benefit
and (d) LRSD had, during the Plan period, clearly inadequate scaffolding to assist lower performing students in being successful in advanced and enriched classes. 21. The LRSD asserted that it fulfilled its obligation of a training program during each of the next three years designed to assist teachers and counselors in identifying and encouraging African American students participation.... in advanced placement and honors and enriched courses. [Section 2.6.1] However, there was no evidence of such a training program for teachers and counselors during of the... three years of [the Plan.]
[Tr. at 186-89 (Faucette)] 22. Ms. Patricia Watson has served as a guidance counselor in the LRSD for approximate!}' 28 years, 23 years at Central and 5 years at Hall. She was the lead counselor at Hall during the term ofthe Plan. [Tr. at 100] She did not recall any specific training program each year of the Revised A:'JOSmJA.OPP -12-t Desegregarion and Education Plan which was designed to train counselors in encouraging participation of African American students in Pre-.AP and AP classes. [Tr, at 101] Ms. Watson further testified that although the director of Guidance and Counseling for the LRSD conducted monthly in-service training sessions between 1998 and 2001, she could not recall any training relating to encouraging panicipation of African Americans in Pre-AP and AP classes. [Tr. at 103-04] 23 2j. When the subject matter of encouraging participation of African American students in advanced and enriched courses was raised by a LRSD administrator, the presentation was brief and pro forma. [Tr. at 90 (C. Norman)], [Tr. at 102 (P. Watson), [Tr. at 473, 490 (J. Carter)] 24. Prior to the advent of the Revised Plan, and continuing through the first year of the Plan, the types of advanced and enriched programming offered in the LRSD included advanced placement classes, as well as honors and enriched classes. Effective with the second year of the Plan (1999- 2000), LRSD utilized the categories ofPre-AP and AP to encompass the prior categories of AP, honors and enriched. [Tr. at. 376, 11/20/01 (Lesley)
CX. 869, p. 18, 29] An accurate determination of any progress in increasing participation of African American students in advanced and enriched programming requires consideration of this change. Merely reclassifying students who were in honors and enriched classes as advanced classes does not qualify as real progress in attaining the goal of Section 2.6. The District did not cite any actions that it had taken to promote an increase in participation of African American students in advanced programs. The Districts plan is to increase the number of AP courses and Pre-AP courses that are available and to cutout other courses so that the result would be more students would be forced to take Pre-AP and AP courses. 25. As evidenced by p. 38 of the March, 2001 Report, the greatest numerical increase of -African .American pupils in .AP courses, 154, occurred when honors and enriched courses were ended A: 'JOSHUA. OPP -13- after the 1998-99 school year. At the same time, the other numbers increased by 160, from 936 to 1096. This means that the proportion of white students enrolled in AT courses actually increased. The chart on p. 3 8 of the 2001 Report reflects that African .American students assigned to .AP courses fell from 37% in 1997-98 to 35% in 2000-01. The reality therefore is that whatever changes took place in .AP, the disparity which existed in 1998 continued at least through March, 2001. 26. .At the outset of Revised Plan implementation, the written criteria for enrollment in Pre- .AP and AP courses included multiple factors such as 1. High-level reading comprehension and writing skills as evidenced by norm-referenced test data and classroom performance and 4. B average and above in regular-level class. [CX. 719 (Reg. IHCC-R
Tr. at 49 (Norman)
Tr. at 560 (J. Mosby)] However, in approximately January 2001, the LRSD revised the criteria, so that thereafter there would be, basically, a free choice of the more rigorous advanced and enriched courses. [Tr. at 86 (Norman)
Tr. at 473, 498 (Carter)] 27. In 2000-01, 65% of the enrollment in AP courses was white [Tr. at 747 (Lesley)] roughly double the proportion of white enrollment in the LRSD. The free choice approach promoted the attendance of additional white students in classes disproportionately white 28. As indicated, Dr. Ross testified that the availability of a BROAD R.ANGE OF SUPPORT PROGRAM (SCAFFOLDING) IS .AN ESSENTIAL ELEMENT OF .AN INITIATIVE WHiCL PLACES POORLYPERFORMING STUDENTS IN ADVANCED AND ENRICHED COURSES. See par. 18. LRSD WRITTEN STANDARDS -ARE TO THE SAVIE EFFECT [CX. 719, Policy IHBD.A IHBDA-R, IHBD.A-R2]. However, LRSDs implementation fo its standards, required as to advanced and enriched courses by Section 2.6.2 falls short. (a) August 1, 2001 during the hearing conducted by Judge Wright, .Associate A:\JOSHUA.OPP -14-f Superintendent for Instruction and Bonnie Lesley and Ms. Sadie Mitchell, Associate Superintendent for School Services, could not provide concrete information on the implementation of Student Academic Improvement Plans (SALPs), or other interventions for students requiring additional assistance to satisfy learning standards. [Tr. 8-1-01, at 609, 18 to 611, 23 (Mitchell)
at 679, 18 to 684, 4 and 736, 17 to 739, 18 (Dr. Lesley)] (b) The LRSD provided no information on the actual availability of SAIPs for poorly performing students entering Pre-,AP and AP courses during the term of the Revised Plan, during the most recent hearing. (c) The support programs actually available for Pre-AP and AP students, identified at the hearing, were well, short of those identified as necessary by Dr Ross and the LRSD in regulation IHBDA-R. [Tr. at 93, 95, (C Norman)
491-92, 523, 524 (J. Carter), 563-68 (J. Mosby)
743-44 (Lesley)] C. The Obligation to Address Barriers to Participation In AP and Honors and Enriched Courses 29. During the three-year Plan period, the four Associate Superintendents served as the Districts Compliance Committee with respect to the 1998 Revised Desegregation and Education Plan. Associate Superintendent Junious Babbs coordinated their efforts. The group was to oversee the overall compliance effort with the terms of the Plan, with each associate retaining primary- responsibility for those aspects of system operations within his/her normal area of responsibility. The compliance committee had the primary responsibility for the identification and removal of barriers to participation in advanced and enriched courses (and extracurricular activities). [Tr. at 130 (Babbs)]
.4
'JOSHUA. OPP -15-1 (See also Court Ex. 544, CX. Ex. 869 (March 2000 Report) at 1-2]. 30. The LRSD described the compliance committee and the responsibilities of the associate superintendents as follows in the March 2000 Compliance Report (at 1-2, emphasis added)
The Associate Superintendents of Administrative Services, Instruction, Operations, and School Seiwices and the Special Assistant to the Superintendent comprise the "Compliance and quality Assurance Committee. The committee has responsibility for the development, implementation, oversignt, review, and revision of the compliance program. The compliance program includes any programs, policies, and/or procedures necessary to ensure that the District fillfills all of its obligations under the Revised Plan. The committee meets weekly to discuss compliance issues and to discuss plan implementation in their respective areas. The compliance philosophy is based on internalizing the Revised Plan through the performance responsibilities of the respective organizational divisions. For example, the instruction division is responsible for integrating the Revised Plan's requirements into development of the curriculum, staff development, and other similar functions of that division. Tne associate superintendent who heads the division is the responsible person for the components of the Revised Plan that are appropriate for his,'her division. Through the internalization ofthe philosophy and. the integration of the Revised Plan into the District A structure, the respective divisions proactively monitor compliance. The associate superintendents are responsiblefor taking appropriate action with respect to incidents of non-compliance and taking steps to prevent future similar incidents of non-compliance. a. The Limited Assignment of Black Teachers to .Advanced and Enriched Courses 31. The LRSD administrators who studied the existence of potential barriers to greater African .American participation in AP classes identified the paucity of .African American teachers as relevant. [Tr. at 71-72, 694-95 (Lesley)]
See also [Tr, at 184-86 (Faucette)] .Although significant progress could have been made by the manner in which teachers were assigned to courses by principals, [Tr. at 695 (Lesley)]
[Tr. at 46 (Norman)]
[Tr. at 517 (Carter)], little or nothing has been done. 32. In Central High School, the flagship school [Tr. at 612 (Daugherty)] most of the AP ArJGSHUA.OPP -16-f teachers were white. [Tr. at 291-296 (R. Horton)
Tr. at 321, 323, 324 (C. Mercer)
Tr. at 336-37, 338-339, 353,( J. Mercer)] Black teachers were excluded, almost entirely, from advanced English teaching assignments [Tr. at 175-76, 78,179-80 (Faucette)] The LRSD touts its participation in the Teacher of Color program. [Tr. at 671-72 (Lesley)] However, LRSDs evidence shows its participation in this non district sponsored program did not begin until the 2001-2002 school year. [Tr. at 736 (Lesley)] Moreover, the System could have only seven participants per year and the evidence was of high school placement of teachers only at Hall with, significantly, no participation at Central. [Tr, at 736-37 (Lesley)] [Ex. 826] b. The Hostile Treatment of African American Students in Advanced Courses 33. Black students enrolled in Pre-AP and AP classes have been subjected to a variety of forms of harassment and other hostile behaviors by white teachers. [Tr, at 57,, 70 (Norman), Tr. at 102-3, 111-112 (P Watson), Tr. at 291-93, 312 (R. Horton), Tr. at 321-22 (C Mercer)
Tr. at 336- 38 (J. Mercer), Tr. at 401-406 (C. Payne)
Tr. at 427-31 (D.J. Thames)
Tr. at 440-442 (A. Thames)] Dr. Faucette also testified that counselors intentionally did not guide African .American students into higher level classes. [Tr. at 208] 34. The impact of the harassment and hostile behavior identified in paragraph (33), supra. extends beyond the particular black student who is its victim. It is observed by other students in the class. Moreover, such incidents are a topic of discussion among students. [Tr. at 342 (J. Mercer)
at 576 (J. Mosby)] The inevitable consequence of the harassment is to identify advanced and enriched courses as a hostile environment for black students and one which they should shun. [Tr. at 70 (C. Norman)
Tr. at 632, 651-52 (Roberts)] A:'JOSHUA. OPP -17-r k c. The Multiple Barriers to Access to the University" Studies Program . The LRSD and the University of Arkansas at Little Rock jointly operate within the Hall High School facility the University Studies Program. Courses are co-taught bv Hall High School teachers and UALR personnel. [CX. 869 (March 2000 Report) at 27] [underlining added for emphasis] This program began functioning in 1999-2000. Students are informed of this option on the course selection sheets distributed by the school system Grade 11-12 students may take a variety of courses for which they receive both high and college credit. [March 2000 at 27] The program is recognized by the LRSD to provide advanced or enriched courses as described in Section 2.6 of the revised plan. [CX. 870 (March 2001 Report) at 46
[Tr. at 734 (Lesley)] [Two teachers per course represent a strong commitment to promoting the academic achievements of already high achieving students.] 36. In order to enroll in this program, a student must pay for each course taken one half of the normal tuition charged for the comparable course at UALR and for related expenses. [Tr. at 109- 110 (P, Watson)], [Tr. at 730 (Lesley)] 37, To be eligible to participate [in the University Studies Program], students must have a minimum grade point average of on at least 50% of the college preparatory courses
or a minimum overall grade average of 3.0, or a minimum score of at least 21 on the ACT. [March 2000 Report at 27] 38. The evidence cited in paragraphs 33 through 37, infra, and 39 through 44, supra, shows that the program operates in a manner which promotes racial segregation within Hall High School, due in large part to the financial barriers created by the tuition and related expenses requirement and by the ACT score requirement. A:'JOSHUA.OPP -18-< 39. The enrollment of Hall High School was approximately 80 to 90% as of 2001-2002 school year. [Tr. at 106 (P. Watson)] The racial makeup of the University studies courses was as follows in the years 1999-2000 and 2000-2001: 99-00 00-01 Total Enrollment 136 162 AA (%) 79(58%) 57(35%) Non AA(%) In Courses 57(42%) 105(65%) 40. These data show: (a) in 2000-2001 the number of .African American students participating declined by 22, 28%
(b) in 2000-2001 the number of non African American students increased by 48, 60%, (c) in 1999-2000, the percentage of white students in the program exceeded the percentage of white students in Hall High School by two times
(d) in 2000-2001, the percentage of white students in the program exceeded the percentage of white students in Hall High School by three times, (e) the. in-school segregative effect ofthe program greatly increased in the second year of its operation. [March 2001 Report at 46] 41. TheLRSDreported ACT results by race for the years 1997-1998
1998-1999
1999-2000 in the March 15, 2001 Report, [at 48] These data show that the average composite score (on the four sections of the ACT for white students for the three school years was respectively, 22.2, 22.5. and 21.5. In contrast, the average composite score for African .American students for these thre! years was 17.2, 17.2, and 17.3. These data provide some evidence the ACT of the alternative criterion for entry into the University Studies Program had significant racial impact. 42. The LRSD did not include in either the March 2000 or March 2001 Report data on grade point averages at Hall High School which would allow an analysis of the racial impact if any of the GPA standards selected for use in admission to the University Studies Program. A:JOSHVA.OPP -19-r 43. Two types of evidence in the record provide a basis for concluding that the racially segregated enrollment of the University Studies Program is attributed at least in part to the requirement that students pay partial tuition. (a) Poverty Index in LRSD - According to an exhibit offered in this case by the LRSD, in the three years of the Revised Plan, 68% of the Black students enrolled in the District and 22-24% of the white students were eliaible for free or reduced lunch. Court Ex. 731 (b) Many witnesses agreed that the tuition requirement would have a. racial impact in the LRSD in view of the pattern of family income by race. [Tr. 110 at HOP, Watson)]
[Tr. at 532(J. Carter)]
[Tr. at 602 (Strickland)]
[Tr. at 605-6lO(Daughtery)]
[Tr. at 624-627(Roberts)]
[Tr. at 732 (Lesley)] 44. The March 2001 Report (at 46) sets forth the racial makeup of the University Studies courses for 1999-2000 and 2000-2001. However, neither the March 2000 Report nor the March 2001 Report contain any indication that the LRSD considered or analyzed of or analyzed whether the admission and tuition requirements of the University Studies Program promoted segregation. This silence occurs in the face of Section 2.1 (... to ensure that no person is discriminated against on the basis of race, color or ethnicity in the operation of LRSD and to provide an equal educational opportunity for all students attending LRSD schools and Section 2.6 ... to ensure that there are no barriers to qualified .African Americans...). 45. In the instance of the University Studies Program, there is no evidence of the Compliance Committee, or Associate Superintendent Bonnie Lesley proactively monitor[ing] compliance. d. Other Barriers and Broken Promises as Shown bv the March. 2000 and A:^JOSHUA.OPP -20-i 2001 Reports 46, The 2000 Report addressed the Talent Development Plan as a program to ensure the enrollment high performing students in advanced classes, [Tr, at 28-30] There is no reference made in the final report of the Talent Development Plan. The Talent Development Plan has not been demonstrated to be in existence in practice. The principal of Franklin School. Ethel Dunbar, [Tr, at 588] and Pat Watson, Counselor at Hall High School [Tr, at 104-105], were unaware of this program. This is likely because the Talent Development Plan was repudiated by Dr. Lesley. It involved a commitment to a project called A,VID. Project AVID which was encompassed with the Talent Development Plan but has never been implemented because of its purported high costs and because the District did not get a grant, to fund it, [Tr, at 747 (Lesley)] The 2001 report makes no reference to either the Talent Development Plan or Project AVID, The 2000 Interim Report, in lamenting the fact that it did not get an AVID grant said, these, programs would have assisted the District in its goal of increasing minority participation in higher level courses, including the Pre-AP courses at the middle school level," (p, 30) 47, The Interim Report also promised implementation of an .Accelerated Academic Student Academic Program, (AS.AP), a primary purpose of which was to radically narrow the achievement gap between .African .American and white students, (p. 31), The 2001 Report makes no reference to the ASAP program, however, ASAP vanished. On p, 33 of the Interim Report, there is a note that all program components are incorporated in this dr^. Later on the page, the plan was identified as being tentative and dependent upon submitting a proposal for funding from the federal government. On p, 34, it is clear that it is simply a proposal: the District will also investigate other possible sources of funds for the other four middle schools, A:'JOSHUA.OPP -21-( 48. The 2000 Report proposed an English LTI Pre-.AR Workshop on a voluntary basis for teachers. This proposal did not focus upon -African American students in panicular. It allowed high schools the option, for two years, of offering double period English program at both the regular and Pre-AP levels. The 2001 report indicates that the workshop was instituted at several schools during 2000-01 and that as of January, 2001, the optional program would continue at one of the schools through the next school year. Principal Carter of McClellan indicated that his teachers chose not to participate in this program. This was not a required program and cannot be said as a district initiative designed to promote and increase participation in AP and Pre-AP programs. The District presented no data which reflected the benefits of this workshop to African American Students. [Tr. at 525-526 (J. Carter)] 49. The 2001 Report makes reference to a International Baccalaureate Programme at Cloverdale Middle and McClellan High Schools, [p. 34J The IBP was proffered as a program for increasing .African American participation in AP and Pre-.AP courses. According to Principal Carter, the program was designed to promote enrollment of African American children into a more rigorous curriculum and to attract white students to the school. It was dependent upon non district fu.nds for its creation and operation. The District wrote that If this grant is funded . . the International Baccalaureate Programme courses will be another category' of advanced and challenging courses available to students and their enrollment will be tracked and analyzed along with the .AP and Pre-AP and University courses, (p. 34). 50. The IBP program does not operate and was not funded!!. Principal Carter testified that Dr. Bonnie Lesley opposed the program because she thought it was not a good mix for the McClellan student body. [Tr. at 529. 30] Dr. Lesley did not contradict Mr. Carters statement! A:^JOSHUA.OPPi 51. The Districts support for the University Studies Program which favors white students is to be compared the EBP program which in design gave some favor to Black children. The administration strongly supported one with District funds and local college support but it did not support the other one, the IBM, with financial or administrative level support. 52. In the 2001 Report, the District notes that in the 2000-2001 school year it added two -UP courses, Human Geography and Economics in order to promote African American participation in AP course, (p. 33) The Human Geography program which was offered began as a majority white program, nine whites, five Blacks (see p. 38). The Economics program apparently did not make in 2000-2001 because there were no students reported as being in the class. Justin Mercer attempted during the 2000-20001 school term to take the course and was refiised because there was no one to teach it. [Tr. at 352, 357] (See p. 33) When one reviews the .AP courses added, World History, Physics II, Science Pre-AP and Advanced Science/Theoretical II. Moreover, Advanced Science Theoretical II, it is clear they were not being added so as attract and benefit more African American students. These appear college focused, i.e., Central College. [Tr. at 365-66 (J. Mercer)] 53. The LRSD asserted that it. had fLilftUed its obligation of Section 2.6.2 by implementing programs to assist African American students to be successfiil in and advanced placement courses. The Interim Report, (Page 39-40) does not identify any policies that, it developed to assist African American students in being successful. The section speaks only to programs. The programs which are listed are College Preparatory Enrichment Program (CPEP)
Academic Enricliment and Gifted in Summer (AEGIS)
South East Consortium for Minorities in Engineering (SECME)
SMART, a summer program for about 200 students
School Based Student Support Teams
and English I and II Workshop - Pre-AP, CPEP and AEGIS are not held out as being for the A:VOSHUA.OPP -23-I purpose of assisting African Americans in being successful in advanced courses. SECME was a grant program for the purpose of preparing and motivating students in technical fields. It had a goal of increasing the pool of minorities who were qualified for college studies in engineering, math and science. SIVLART does not identify the students who will be served. The English Pre-AP workshops were optional. The school based support teams had the purpose of monitoring student achievement and providing support and necessary interventions to students at-risk of failure. The District did not present any monitoring reports are results of achievement regarding the school based support teams. 54. The March 15, 2001 Report did not address any of the programs identified in the Interim Report. Instead, it talks about gifted and talented programs specialists and facilitators. These programs are for the teachers who are provided opportunities for professional growth, and receive a publication known as Shcning the Good News. Because of their outlined training those teachers are expected to become resources for other teachers 55. Other possible programs presented in the 2001 Report: are briefly discussed again under this subsection: a) Two courses, Human Geography and Economics were added to the curriculum for 2000-2001, World Historj' and Physics II were added to the curriculum for 2002. Advanced Science/Theortical Research II was added to the curriculum for 2001. There is no showing of how these courses are. directed toward the success in them for AA students. [CX. 870, p. 33] b) The proposed International Baccalaureate Programme (IBP) was contingent upon finding which did not occur between 1998-2001 [e.g. pp. 33-34] (c) Middle School research and writing Pre-AP are not held out as programs to assist A:'JOSHUA.OPP -24-I i .African American students. (d) High School Reading and Writing Workshop I is an optional program which Fair, Hall and McClellan opted to include in their schedules. There is no representation that the workshop was intended to assist .African American students at being successful in advanced courses. (e) Teachers and counselor training has a goal to provide teachers with training to ensure that all students are successful in upper level courses. The funds for this program are provided by the State of Arkansas. This in-service training is required by the Arkansas Department of Education . (0 The 2001 Report refers to revision of Policy IKF/General Ed Graduation Requirements. This policy raised the recommended number of units for graduation to 28" including at least 8" Pre-AP or .AP courses. There is no showing ofhow this will benefit African American students in being successful in .AP courses, [e. p.30] (g) The policies, programs and procedures in both the 2000 and 2001 Reports represent recitation of normal school activities, raising the bar for graduation and creating courses that will favor students in advanced courses who are already high achievers. The courses added may substitute for college courses (h) .There are no programs identified in either which are specifically designed to African American students in being successful in advanced placement during the regular school year. (i) The SECME Program operated for one year. [Tr. at 105 (P. Watson)] 0) The other programs either were not implemented or were not supported by use of any A:UOSHUA.OPP -25-i data in either report, [e.g. CX 69, pp. 40-41, CX 870, pp. 31-50] (k) The summer programs CPEP, SMART and .AEGIS have limited enrolled. [Tr. at 738, 747 (Lesley)] (1) The District did not identify and present data which delineated participation in any scaffolding or support programs such as those described by Dr. Ross as being necessary to assist .African .American students in being successful in advanced courses. [Tr. at 548, 549 (Ross)] [See also Tr. at 465, 480, 490, 492, 499, 523, 529 (Carter)
Tr. at 88, 93, 95 (Norman), Tr. at 564, 566, 576 (Mosby)
Tr. at 585 (Dunbar), Tr. at 747 (Lesley)] D. The Obligations to Promote Participation of Qualified African .Americans in Extracurricular Activities 56. With respect to Section 2.6, the March 15, 2001 Report purports to show an increase in African American extracurricular participation between 1997-98 and 1999-00, p. 27. The figures are not broken down by school, activity, race or gender. The general increase represents 122% for African .Americans and 129% for non .African .American students. With respect to the Districts chart on p. 28 regarding co-curricular activity participation, the aggregated data show an African American increase from 2579 to 3988. That reflects a 54.6% increase. Non black participation, however. increased from 1222 to 1864, a percentage increase of 52.5%. The extracurricular activity and co- curricular activity general participation therefore remained steady. 57. By LRSD presenting aggregated data, [ir. at 740 (Lesley)
CX. 747 [Babbs] the Court is not in a position to effectively determine whether the data reflect actual improvement in African .American participation in the respective schools. Accordingly, the anecdotal testimony of wdtnesses A:\JOSHUA.OPP -26-becomes more relevant with respect to dererminins whether the policies, programs or procedures which the District developed are working. The policies which the LRSD developed purportedly to meet the requirements of the Plan represent either revision of existing purported policies or codification of practices long in force. The policies which are applicable to the instant proceeding are: a) Policy JJR - Student Co-Curricular Extracurriculai- Activities [CX. Ex. 719] This policy requires that when disparities are identified in co-curricular activities, the principal will work with the school staff to develop a plan for improvement where possible. b) Policy JJIB -R 1- High School Interscholastic Athletics Cheerleading Drill Team/Pep Club [CX. Ex. 719] This policy also requires that when racial disparities are identified in interscholastic athletic or spirit groups, the principal will work with the school staff to develop a plan for improvement where appropriate. It is also requires (5) that transportation will be provided to all students participating in athletic and spirit group activities. [Policy JJTB -R2 applies to the middle schools and essentially repeats the provision in JJIB-Rl] c) Policy JBA-R NonDicrimination in Programs and Activities [CX. Ex. 719] This policy requires each school to develop strategies to promote student participation in programs and activities and to ensure that there are no barriers to participation. It also requires the development and implementation of a plan for nondiscrimination in programs and activities at each school This policy does not include the required improvement plan notes in policies JJR and JJIB-Rl and R-2] d) Policy DFD-R2 Athletic Gate Receipts and Admissions [CX. Ex. 719] .4. JOSHUA.OPP -27- 'oI This policy requires that in cooperation with the Activities Advisory Board (AAB), there will be a comprehensive athletic and activities plan developed by the District to address the needs of the students... The steering committee will serve as staff providing technical assistance and support to the AAB. 58. The District staff determined that there were disparities which they identified in co- curricular and extracurricular activities.^ The District staff who addressed the subject include the .Associate Superintendent for Student Services, Sadie Mitchell, the zAssistant Superintendent for Secondary Schools, Dr. Marian Lacey, Jodie Carter, Principal of McClellan High School, Ms. Cassandra Norman, Principal of Fair High School, and Mr. Junious Babbs, Associate Superintendent for Administrative Services. These staff members acknowledged an awareness of racially identifiable activities and of disparities: Ms. Mitchell [Tr. at 261, 262, 268, 269]
Dr. Lacey [Tr. at 790, 791]
Principal Carter [Tr. at 474, 492, 493, 502, 503], Principal Norman [Tr. at 71, 72]
Mr. Babbs [Tr at 13 3 ]. Other witnesses who testified that there were racial disparities with respect to curricular and extracurricular activities were Ramona Horton [Tr. at 312, 313]
Michael Faucette, [Tr. at 199, 200, 201,203-206]
Crystal Mercer, a student at Central High School [Tr at 322,323]
Justin Mercer [Tr. at 386, 387, 388] 59. The March 15, 2001 Report contains (at 28) under the heading Activities Advisory' Board, the following content: "At. the time of the District's Interim Compliance Report, a steering committee had been formed to organize an Activities Advisory Board. ("AAB") for the purpose of Hhe activities identified included, inter alia, baseball, cheerleaders, debate, future problem solvers, odyssey of the mind, student newspaper, mock trial, orchestra, quiz bowl, soccer, swim team, tennis, volleyball and yearbook staff. [Tr. at 136, 133-35 (Babbs)
Tr. at 199-200, 203 (Faucette)
Tr. at 261-262 (Mitchell), Tr. at 358-360, 362-364 (Mercer)] A:'JOSHUA.OPP -28-J 5 promoting, supporting and enhancing extracurricular activities and co-curricular activities at all schools. The AAB, comprised of District staff, parents, student and community' representatives, began monthly meetings in April of2000. Specific areas related to activities have been targeted for discussion and implementation. The focus of these discussion has been on a disproportinate number of African American students -who do not hcre the financial resources to participate in activities. Other areas of discussion and implementation include... funding, accessibility.. Each area has been discussed, in connection with increasing student participation with emphasis on assuring Afi'i can American participation, [underlining added for emphasis] 60. Despite the finding of the AAB, there was no system budget account to assist a student for whom family finances was a barrier for participation in extracurricular activities. [Tr. at 802 (Dr. Lacey).] The system addressed the acknowledged program by a patchwork, of activities, not represented to function in all schools
moreover, Dr. Lacey testified that there was no systematic effort to publicize the availability of these funds. Associate Superintendent Babbs, who coordinated the efforts of the Compliance Committee, could identify no substantial activity undertaken by that body. [Tr at 144, 146 (Babbs) - 3 to 5] 61 The District is obliged to address barriers to participation of qualified African Americans in extracurricular activities. Despite the LRSDs consistent emphasis on the differences between family incomes in the systems white and African families , Poverty Income information CX 731], the record reveals a lack of any systematic effort to address financial barriers within the meaning of Section 2.6. 62. Ms. Sadie Mitchell, .Associate Superintendent for School Services, never developed a plan for remedying disparities or imbalances in participation in extra or co-curricular activities. [Tr. at 262] She left this to the discretion of the principals. But she excused their inaction by blaming the victim. They have choice she said. [Tr. at 268] 63. Sadie Mitchell was responsible for proactively monitoring compliance and taking A-VOSHUA.OPP -29-I I appropriate action with respect to incidents of non-compliance. [Tr. at 136, 138 (Babbs)] Ms. Mitchell testified to her shirking this responsibility [Tr. at 262-263, emphasis added]: Q- A. You are aware. Letsjust talk about the reality. You were aware -you ha\e not heard the testimony. But you are aware, for instance, quiz bowl and debate, Odyssey of the Mind, various activitieswere all white, were you not?] Yes. Q- I see. Did you develop a pleat for changing that? A. 1 did twt develop a plan. The building principal did. Q. Well, in the three years that the plan was in operation before the report seeking release fi'om unitary status, did you have any occasion to prepare any writing reflecting that wa.s shared, with the Joshua Intervenors or the public reflecting what actions you would, take to change those patterns? A. I did not, because Joshua did not request a report through the formal compliance complaint. Q- You. are suggesting that you only prepare requests or reports at Joshua's request, are you? A. I only respond to comolaints from patrons, community, Joshua. ODMs. and anybody else, through formal complaints. Q- So you never made an evaluation or assessment even of those things io determine the extent to which black participation was being minimized? A. 1 did not personally. Staff members did. Q- I see. Was there a plan of action developed by the Compliance Committee for dealing with the lack of black participation in activities like cheerleader and things like that? A. There was no plan developed by the Compliance Committee. The principals developed plans, along with the sponsors. 64. The LRSD presented as part of its case no such plan by a principal or a sponsor. This included testimony that the myriad activities at Central High School had racially disparate A.DOSffDAOPF -30-i 1 participation, a problem not discussed at faculty meetings. [Tr. at 199-200, 207 (Faucette)] 65. The LRSD reported that 90% of African American parents that expressed an opinion reported that they had activities available to their students. [Tr. at 773 (Lacey)] This answer does not address parental views regarding whether racial barriers to participation in school activities exist. African American school board member Mike Daugherty who has disassociated liimself from the petition before the Court was uncomfortable with information being given strictly in percentages rather than in actual numbers regarding the survey. [Tr. at 614] 66. No District witness testified that there was a specific plan, which the District through any representative, developed for addressing the disparities in extracurricular and co-curricular activities. Some ofthe disparities were not the result of financial resources or the lack thereon by students. At McClellan and Fair many activities were not offered because of the lack of teacher sponsors and lack of staff member encouragement to students to participate. [Tr. a.t 477. 478, 492, 533 (Carter)] [Tr, at 74, 92 (Norman)] 67. The District obviously did not follow policies JJR, JJIV and JBA-R because after disparities were identified, it did not develop an improvement plan in any area nor did it. develop strategies to promote student participation in programs and activdties to ensure that there were no barriers to participation. The school district plan commits the District to developing remedies and to promote participation. The school district delegates these responsibilities to the principals. This is contraiy' to the Plan in that compliance is a district administrative obligation. 68. Ray Gillespie, Athletic Director during the 1998-2001 school years addressed the problems which African American students experienced in extracurricular activities. 69. He investigated an incident where a white coach acknowledged that he choked a black A:-JOSHUA.OPP -31-t I student at SW Middle School. [Tr. at 5 73-576 (Mosby) (See also CX 771)]. Ms. Sadie Mitchell, Gillespies supervisor, downplayed the incident saying she didnt think it was a real choking incident, but the coach admitted that he choked the child after he lost his temper. [Tr. at 274-275] Mitchells testimony reveals the attitude of the LR administration regarding compliance She and the Compliance Committee would have profited by use of the experts, especially Dr. Terrence Roberts in addressing plan commitments. See paragraphs 126(a), (b) and (c). 70. Gillespie testified that it was a ven,' severe offense. This occurred during football practice when other students were present. [Pp. 7-11, Deposition ofR. Gillespie] 71 Gillespie cited similar incidents including a coach fighting an .African .American student (pp. 15-17, Deposition of Gillespie) at Hall
and. a white coach slapping an African American student at. Mann Middle School [Pp. 26-28, Deposition ofR. Gillespie] 72. The same coach involved in the chokina incident at SW Middle Schoo.1 also called an -African American female student a bitch. [ Pp. 11-13, Deposition ofR. Gillespie] 73. Gillespie also testified that parents were upset at the middle school regarding Quiz Bowl, Band, Science Clubs and 9' grade athletics at the Middle Schools. (See CX. 770/772, p. 21, Deposition ofR. Gillespie] 74. Several of the students explained their lack of encouragement with respect to participation in extracurricular activities. D.T Thames, a student at Fair High School, was discouraged by the repeated use of profanity by his Coach, Randy Rutherford [Tr. at 419-20] He also testified about the racially preferential treatment which Rutherford provided to white team players. [Tr. at 421-423, 432] /o. Chris Payne, a student at Fair High School, testified that he was discouraged from A:'JOSHUA.OPPI ( participating in Quiz Bowl by Ms. Pickering, a white teacher, who told him that he could not be on the A team [Tr. at 403-04]. 76. Payne stated that his white Calculus Teacher, Mr. Wilder, refused to write a recommendation for him because he didnt think Payne was smart enough to attend Governors School [ Tr. at 404] 77. Payne also explained that Ms. Klais gave him a recommendation to a college which she wrote on a piece of notebook paper for him. He was aware that she had written recommendations for white students on school letterhead. [Tr. at 407] 78. Payne also testified that he was aware that Coach Rutherford cursed African American players but not white players. [Tr. at 414] 79. Crystal and Justin Mercer testified that they sought to participate in mock trial. They were discouraged from participation. [Tr at 322-23, 386-389] Justin was also discouraged from participating in debate [Tr. at 3 61 -62] and from starting a club, the purpose of which was to promote interracial diversity at Centra! High School by a white teacher named Mr. Meadows. [Tr. at 3 96-3 97] 80. Dr. Faucette sought to receive support for his creating writing club, but did not receive it from the principal. The club had a. previous history of racial diversity. [Tr. at 192-96, 19-30] E. The Obligations to Promote Participation of Qualified African American Students in Extracurricular Activities and to Ensure That There are No Barriers to Such Participation 81. In Section 2.6 of the Revised Plan, the LRSD promised to implement programs, policies and/or procedures designed to promote participation and to ensure that there are no barriers to participation by qualified Mrican Americans in extracurricular activities. . . . The LRSD adopted several regulations identifying activities to promote compliance with Section 2.6 of the Revised Plan A:'JOSHUA.OPP -J j-1 regarding extracurricular activities. 82. There were segregated acrivities and apparent barriers to .African .Americans participation in them. Section 2.6, implementing regulations, and the compliance structure created pursuant to Sections 2.13, 2.13.1, and Section 6 of the Plan called for a practical response to these problems. The system defaulted. F. The Obligation to Provide Transportation to Students for Participation in After School Activities 83. Section 2.6.3 provides that the LRSD shall provide transportation to students. . . to allow those students to participate in after school activities . [CX. 870, p. 29] The 2000 Report does not address this provision. 84. The 2001 Report simply recites the number of extracurricular activity Rins per day for high and middle schools with a notation that no eligible student has been denied, [p. 29] The District does not define eligible. 85. The witnesses who addressed the transportation obligation included Ramona Horton [Tr, at 312-313], Justin Mercer [Tr. at 358], Pam Mercer [ Tr. at 450]
[Tr. at 532 (J. Carter)] [Tr. at 75 (C. Norman)] They testified that the District did not provide transportation for a number of activities. G. The Obligations to Ensure that There is No Racial Discrimination In the Provision of Guidance and Counseling Services and (H.) To Provide More Equirt in Academic Honors. .Awards and Scholarships 86. The 2000 Report (at pages 81-82) promises that the LRSD will implement programs, policies, and procedures designed to ensure that there will be no racial discrimination in the provision of guidance and counseling services. The report promises at page 81 to continue monitoring of school district equity issues with respect to honors, aw'ards and scholarships. The report states that A:^JOSHUA.OPP -34-I J continued strategies are addressed to increase the number of African Americans who pursue more rigorous academic course work and receive scholarships." 87. The report further refers to Section 2.11.1 by referring back to 2.11 88. The 2001 Report (at p. 160) simply recites the scholarships awarded at the high schools by number, at p. 160 and by dollar value, at p. 161. The District does not recite any activities or programs that it engaged in to meet the provisions of Section 2.11 at page 160, other than a survey which purported represented the opinion of 94% of all parents that help and guidance was available to their child." There has been no dispute that counseling sendees were available for they have always been. The District did not present any testimony regarding how it planned to modify the delivery of policies or procedures as provided by, and to meet the objectives of, Section 2.11. Nor did it delineate the work that, it did in an effort to provide more equity for African .American students in academic honors, awards and scholarships. Indeed, the District did not present the data which delineated scholarships awarded to African American and non .African American students on an academic basis. 89. With respect to honor graduates, .African American students constitute 66% of the high school enrollment. In 1999-2000, they received 32% of the honors. The only strategy' to improve the number of .African .American honor graduates is to have them elect to take more .AP courses. 90. The Hall High School counselor, Ms. Pat Watson, agreed that counseling sendees were utilized in the 1999-2000 school term in an attempt by school district administrators to place two white students ahead of a Black student with respect to the schools valedictorian position. [Tr. at 115-119 (Watson)] Joshua was instrumental in preventing this intentional racial practice from occurring. A:'JOSHVA.OPP1 91, Junious Babbs, the Associate Superintendent responsible for counseling services, made no findings regarding student access to higher education opportunity being improved by either guidance services or by ,AP courses. He did not review or monitor the annual guidance counselors reports. [Tr. at 148-49] 92. Ramona Horton, an involved parent in the District, testified, that her children did not get help from the counselors. [Tr. at 306] In her opinion, the deliver^' of counseling services was poor. [Tr. at 314] She did not participate in any survey regarding the delivery of counseling services in the District. [Tr. at 314] 93. Crystal Mercer stated that she received no assistance from her counselors nor any encouragement about enrolling or remaining, after being enrolled., in AP classes. [Tr. at 319-320, 324] 94. Justin Mercer stated his counselor suggested that he should not take AP Economics rvhen he wanted to improve his GPA [Tr. at 352] His counselor told, him that he could, not take AP Economics because there was no teacher qualified to teach it and there was not enough student interest for it. He later learned that white students had not been similarly discouraged when he received his next class assignment from a white friend had .AP Economics on his schedule. [Tr. at 352-353] Mercers counselor told him that he could not enroll in .AP Physics because he did not meet the requirements to take it. [Tr. at 354] Mercers counselor was white. [Tr. at 371] 95. The counselors at. Central told Justin Mercer when he arrived at Central that he should not take AP and Pre-AP courses. The reason given was that he had been in regular courses in Junior High School and that the teachers w^ere familiar with his transcript. [Tr. at 377] Mercers counselor also discouraged him from taking AP Physics II because of his background. [Tr. at 384] A:^JOSHUA.OPP -36-I 96. Chris Payne, a student at Fair High School, testified that his counselor informed him that one of his teachers was prejudiced, [Tr. at 403] 97. D.J. Thames, a student at Fair High School, testified that his counselor did not assist him in getting into the College of Wooster. [Tr. at 418] Thames counselor discouraged him from taking zAP English. [Tr. at 426] His counselor also advised him to drop Ms. Pickering after having been in her class. [Tr. at 429] 98. During the 1998-99 and 99-2000 school years, McClellan had larger numbers of African American students than Central High School enrolled in AP courses. Between the 1997-98 and 1998-99 school years, McClellan had the same number of black honors graduates as Central. The dollar value of scholarships for African American students was more than twice as much as the Central students. During the 1999-2000 school year, when the African American numbers favored Central by 2 to 1, the scholarship amounts favored Centra) students by more than 5 to 1. This reflects the second class status/perception of McClellan .High School in comparison to Central. CENTRAL HIGH SCHOOL 98a. When African American parents filed the class action lawsuit seeking to desegregate the Little Rock public schools, the school district offered Central High School as the point at which to begin a plan of gradual school desegregation. Aarov v. Coover, 143 F. Supp. 855 (E.D. Ark 1956). The plan was designed to delay the process for as long as possible pursuant to Brown v Board of Education o f Topeka. Kansas, 347 U.S. 483, (1954), and to involve as few minority race students as possible. The Court of Appeals affirmed 243 F2d 361 (8 Cir. 1956). The District was select in choosing the first 17 Black students chosen by the District to attend Central, only nine (the Little Rock Nine) of whom braved the adversity of the opposition and attended Central. A5JOSHUA.OPP -37-1 I 98b, In 1972, fifteen years after Central High School had become a symbol of public resistance to the principle of school desegregation, Michael Faucette, an African .American began his high school education at the school. He completed grades 10 through 12 at the school and graduated in 1975. During his tenure, students were ability grouped for academic purposes into three tracks. There were other academic groupings as well. Michael Faucette was placed in track one, the track for those students said to be the strongest academically.[Tr. at 166 (Facuette}] 99. During Michael Faucettes three years in the school, he was the only .African American male student in his classes. He was often the only African .American in his class. The total enrollment of the school at that time was approximately 65 to 70% African American. There were only eight black faculty members in Central during the period of Michael Faucettes attendance at the school. he had only one black teacher during his three years. There was only one black cheerleader durin
ig Faucettes attendance at Central. [Tr. at 166-67, 204-05 (Faucette)] 100. The school system did not recognize the academic achievements of its black, high school graduates in this period. .After graduating from Central High School, Mr. Faucette entered the University of California at Berkeley. .After one of his classes, during his freshman year, his professor told Faucette it was an honor to have a student in his class who had earned a test score as high as Mr. Faucette had earned on one standardized test. No one from Central High School or the LRSD had complimented Faucette on this achievement prior to his leaving the District, [Tr. at 167-68 (Faucette)] 101. During the course of his post-secondary education, Michael Faucette earned two Bachelors degrees, a Masters degree, and a PhD. He taught at the college level at the University of Washington and the University of Georgia. \ATiile at the University of Washington, he developed a A:^JOSHUA.OPP -38-1 I program designed to help high school students succeed at the higher education level. [ Tr. at 169 (Faucette)] 102. By 1998, the 40* anniversary of the Central High School "crisis, Dr. Faucette had determined to return to Little Rock to teach in the community in which he had secured his education. As part of his application process in the LRSD, he visited Central High School in February, 1998. The then principal, Rudolph Howard, accompanied Dr. Faucette to visits to four classrooms in the school. He visited two AP classes in which the students were all white, he visited an honors class in which the students were two-thirds white
he visited a regular English class in which there were, in contrast, only two white students. The three all white or identifiably white classes had white teachers and the class with only two white students had an .African .American teacher. Dr. Faucette commented to Principal Howard about the makeup of the classes., observing that the presence of two-all white classes surprised him
Mr. Howard did not reply. [Tr. 169-71 (Faucette)] 103. Dr. Faucette began teaching at Central High School at the start of the 1998-99 school year. He was assigned to teach one remedial class and regular English sections in the 12* grade. In that year, in the 12* grade, there were nineteen (19) English sections, some advanced placement sections, some regular English sections and two sections with a remedial designation. Dr. Faucette obserx'ed that the advanced classes - tracks - were composed almost entirely of white students and. as to location, concentrated on the third floor of the building. In contrast, the regular and remedial sections - tracks - were primarily black in student makeup and located on the second floor of the building. This pattern of the racial make-up of the various categories of sections and their locations continued virtually unchanged during the next two school years (the second and third years of the RevisedPlan). [Tr. at 172-/5, (Faucette)] Other evidence revealed that there were few black students A:^JOSHUA.OPP -39-1 in advanced placement classes during the period of the plan. [Tr, at 303 (R. Horton)
at 319 (C. Mercer)
at 330 (J. Mercer)] 104, During the three years of the Plan, the makeup of the cadre of English teachers in the school was eight (8) white and eight (8) .African American persons, however, African .American teachers taught no (98-99) or few (99-00, 00-01) advanced sections of English in the school as shown by the following chart: Total Eng sections Total advanced secs 98-99 99-00 2000-01 69 88 84 36 37 Adv sec taught by Blacks 4 0 9 English teachers 8W/8B 8W/8B 8w/8B [Tr, 175-76, 178, 179-80, (Faucette)] 105. Dr. Faucette, a teacher whose excellent qualifications were obvious, did not teach even one advanced section of English during the three years of the Plan, despite the fact that these sections numbered 23 to 37 during this period. This is not explained by any neutral factor, (a) Dr. Faucette taught. 12" grade sections in 1998-99
9" grade sections in 1999-00
and 12 sections again in 2000- 01. He was assigned to the respective grade levels by the English department chairperson and the Central High School principal, (b) It is the practice in the LRSD for principals to assign teachers to particular subject areas. [Tr. at 90 (C. Norman)
at 512 (J. Carter) ] (c) When there was a vacancy in a tenth grade Pre-AP English course at the start of the 1999-2000 school year at Centra! High School, the administration initially assigned a new white teacher to this position rather than assigning one ofthe experienced black staff members. [Tr. at 180 (Faucette)] A:'JOSHUA.OPP -40-I I 106. During Dr. Faucette's first three years of teaching at Central High School which corresponded with the three years of the Revised Plan, there were a total of ten black English teachers in the school (taking account of turnover). Only two of these ten black faculty members taught any advanced sections of English during the period of the Plan. [Tr. at 180 (Faucette)] [This communicates the idea to students and staff alike that Central has racial staff assignment criteria and practices, just as it has for students.] 107. The virtual nonexistence of African American faculty in advanced placement classes was a barrier to the participation of African American students in these programs. See Section 2.6 (... .ensure that there are no barriers to participation by qualified African .Americans in advanced placement courses...). When Dr. Faucette attended, with the encouragement of the school system, a workshop on advanced placement classes, the program staff emphasized that having more teachers of color in advanced placement classes was important to attracting more students of color to these classes. [Tr. at 184(Faucette)] Similarly, Dr. Lesley testified that when LRSD staff considered the problem of low African American participation in advanced placement classes, the lack of African American faculty was recognized to be a barrier to the participation of African .American students in those programs. [ Tr. at 672] 108. The Central High School administration conducted monthly school-wide faculty meetings during the three years of the plan, which Dr. Faucette attended. There was no discussion during those meetings regarding activities to implement Sections 2.6, 2.6.1, and 2.6.2 of the Revised Plan. [Tr. at 186 (Faucette)] During the three years of the Plan, two white females served at various times as the chair of the schools English department. They did not organize any activity designed to implement Sections 2.6. 2.6.1, and 2.6.2 of the Plan. [Tr. at 187-88 (Faucette)] No individual A:''JOSHUA.OPP I 1 came to Central High School from the Systems central ofEceto conduct activities to implement these sections of rhe Plan. [Tr. at 189 (Faucette)] 109. The inaction described in the previous paragraph was in the face of obvious need for a proactive response to the terms of the Plan. As indicated, supra, few or no black staff were assigned to teach sections of advanced students and students were segregated within the school by the tracks or levels of their sections and, therefore, by race. In addition, as evidenced by the Systems data , there was very limited participation of African American students in .AP classes in Central High School. See [Tr. at 705-06 (Lesley)] System Report, Court Exhibit 705, revealed that there were more black .AP students in McClellan High School during 1998-2000. Tliis is so despite the fact that McClellan had fewer black students than Central, and the fact that Centrals black students were, on the average, somewhat stronger academically as evidenced by SAT9 test results for grade 10 for the three years of the Plan. [See Court Ex. 741] 110. Guidance counselors and teachers at Central High School were deficient in terms of encouraging qualified African American students to enroll in AP courses. [Tr. at 207-08 (M. Faucette)
Tr. at 319 (C. Mercer)
Tr at 330-334, 352-354 (J. Mercer)]
Tr. at 299, 307-8,314 (R. Horton)] 111. Tarick Horton entered Central High School during the first year of the Revised Plan, after earning As and Bs in his acadmic subjects and some SAT 9 test scores in the 98' and 99' percentiles. The adverse atmosphere in Pre-AP and .AP classes for black students at Central is evidenced by the fact that Tarick experienced a decline in his academic coursework making Cs, Ds and Fs while enrolled in. Pre-AP and .AP courses. Despite parental involvement and intervention by the administration and counselors, his grades continued to decline in these courses. Tarick went from -4: 'JOSHUA.OPP -42-4 an honor roll student while in elementary' and middle school to a student who graduated with marginal grades. [Tr, at 289-310 (R. Horton)] If Tarick could not be academically successful at Central with grades and test scores more typical of white students, clearly the Districr could not in good faith expect less accomplished Black students to be. 112. Dr. Faucette testified that he received several Black Pre-AP students who move from Pre-AP classes to his regular class during the year. He found these students to be capable of good academic work and by implication that they should have been encouraged to remain in AP. [Tr. at 191-192 (Faucette)] 113. The record contains much evidence of the adverse atmosphere in .AP classes for African American students beyond the disproportionate white faculty in AP courses (a) Falon Horton. Falon Horton, Ramona Hortons daughter., was a cheerleader. .An AP teacher embarassed her by referring to her as a cheerleader when she answered questions. Falons mother complained to Principal Howard who provided no remedy for the situation. [Tr. at 312 (R. Horton)] (b) Tarick Horton. A teacher reported to Tarick Hortons mother that his failing grades were due to missing assignments. Ms. Horton provided personally for submission of the missing work but was told that the work was still missing and he received a failing grade in the class. At times the staff reported that they had lost Taricks homework. In addition, Ms. Horton complained to Principal Howard about Taricks Pre-AP History' teacher is removing Tarick from her class because he raised his hand to ask a question. [Tr. at 291-93 (R. Horton)] Howard took no action regarding the matter and Secondary Assistant Lacey could not believe that would happen. [Tr. at A:JOSffUA.OPP -43-I 804 (Lacey)] (c) Crystal Mercer. In an AP .An History class, a white teacher showed favoritism to white female students, who knew her son, by inviting them to her house to study for scheduled tests. Crystal Mercer did not receive an invitation, which was extended the white students during class time. [Tr. at 321-22 (C. Mercer)] (d) Justin Mercer. In an .AP English class, a white teacher requested the class to choose a discussion leader for a discussion of a book by Ralph Waldo Emerson. The class selected Justin. Mercer. The teacher then ignored the selection by the class and chose a. wliite female student to be the discussion leader. The next day the teacher simply did. not provide for the class to select a discussion leader [Tr. at 336-37 (J. Mercer)] During the discussion about Emerson, Justin Mercer stated that Emersons position was contradictory. The teacher excluded Justin from the class for his comment involving the subject matter of the lesson. His mother had to intervene with the school Principal Howard in order to gain Justins re-entiy into the class. [Tr. at 337- 38 (J. Mercer)] 114. Dr. Faucette participated in. an effort to provide an enrichment opportunity for the Central High School student body by providing an internationally renowned authority from Ireland as speaker at a school-wide assembly about Robert Louis Stevenson. However, when the program occurred, only .AP English students were at first permitted to attend. WTien the number of students in attendance was embarrassingly small, additional students were invited. However, the second group of invitees was limited to .AP Science students who were almost all white. The result w'as that regular English students and the membership of Dr. Faucettes Creative Writing club, which was racially A:'JOSHUA.OPP -44-t 1 diverse, were excluded from the program unless the club members also happened to be in AP programs. [Tr. at 192-96, 229-30 (Faucette)] 115. The assembly incident had a racial impact. AP students who were admitted were disproportionately white
the regular English sections and the Creative Writing club which were well represented by black students, were excluded. The incident also evidenced the practice in the school of treating .AP students as elite and thus superior and other students as inferior and of lesser importance. 116 Dr. Faucette complained to the English department chairperson, a white female, about the exclusionary' impact and method for admitting students to the assembly and the message that the exclusion evidenced. He received no response from her. Principal Howard, however, chastised Dr. Faucette for his written protest to the English department chair, telling him that he had no right to upset other teachers. [Tr. at 194-95 (Faucette)] Howards action recognized and reinforced the superior status of white teachers. [CX. 763] 117. The Central High School guidance staff also handled enrollment for Dr. Faucettes Creative writing course in a manner that advantaged white students and disadvantaged African .American students. He found that the staff assigned to the course white students who had not followed the established procedure for seeking admission, wdth the result that AA student who had followed the procedure, were excluded. [Tr. at 196-97 (Faucette)] 118. There were many extracurricular and co-curricular activities at Central High School which were racially identifiable, taking into account the overall racial makeup of the school. Disproportionately white activities included, inter alia, quiz bowl, mock trial, future problem solvers. the cheerleaders, the swim team, tennis, soccer, the Yearbook staff, orchestra, and the schools A:^JOSHUA.OPP -45-t I Newspaper staff. [Tr. at 199-200, 203, (Faucette)
Tr. at 261-62 (Mitchell)
Tr. at 356-58, 360, 362, 364 (J. Mercer)] Zero numbers and relative low numbers over time of-Mrican American participants in programs at Central surely convey an impression to students about race. It is likewise with one race programs in which Black students dominate. See testimony of J. Mercer [Tr. at 396-98] who was referred by the white student council sponsor to a Black oriented program in order to achieve a desegregated activity purpose. 119 Crystal and Justin Mercer each sought to panicipatein the mock trial program at Central High School, an activity which has been historically populated by white students. They each were met by unwelcoming conduct by the white sponsors of the program. [Tr. at 322-23 (C. Mercer), Tr. at 386-88 (J. Mercer)] This response was at odds with Section 2.6 of the Plan calling for actions to promote participation by qualified African Americans in extracurricular activities and LRSD Regulation JJ-R (Para. 5) addressing: strategies [in each school] ... to encourage participation in cocurricular activities. [CX 719] See also Tr. at 361-62 (J. Mercer) (discouraged from participating in debate program). 120. The content of the yearbook illustrated a problem which resulting from its staff being overwhelmingly white. Its content tended to focus on the activities of white to the exclusion of black. students who were the majority of the Central's enrollment. [Tr. at 203 (Faucette)] 121. There was considerable evidence of barriers (Section 2.6) which contributed to the identifiably white makeup of extracurricular and co-curricular activities at Central. These included finances (the considerable cost of cheerleader camp, (see Tr. at 312-313 (R. Horton) Tr. at 790 (Lacey)]), a fee to participate in the troubadors, the cost of purchasing an instrument for the orchestra,), the lack of transportation for an early morning activity (orchestra), the lack of A:'JOSHUA.OPP -46-t t transportation for debate team comperirions, the lack of transponation for cheerleaders to travel to games, and the tradition of an activity long being disproponionately populated by white (yearbook staff). [Tr. at 200-01, 203-06 (Faucette)
Tr. at 312-13(R. Honon)
Tr. at 313, 358 (J. Mercer)] 122. The tradition at Central has been for the football homecoming queen to be a white female and the basketball homecoming queen to be a black female. [Tr. at 205-06 (Faucette)] We note that basketball is a Black sport at Central while football is mixed. 123. Despite the provisions ofthe Revised Plan (Sections 2.1 and 2.6), the problem of racially identifiable activities was not a subject of discussion at any of the monthly faculty meetings at the school. (Tr. at 199-00, 207(Faucette)] This inaction was contrary' to District Regulation JJ-R, which the LRSD cited as evidence ofirs substantial compliance. [(CX 719, March 2000 Report at 17] The regulation reads in paragraph ten: When racial disparities are identified in co-curricular activities, the principal will work with staff to develop a plan for improvement, where appropriate. [CX 719, Reg. JJ-R] 124. No focused effort to address barriers to participation in extracurricular activities at Central High School is shown by the March 2000 Report [p. 17], the March 2001 Report 9[p. 27-29], or the LRSDs testimony. The LRSD did not call former Principal Howard to show such an effort (or to rebut any evidence.) 125. Another indication of the favoritism directed to white persons within Central High School involves the treatment of white teachers compared to black teachers. As indicated, white teachers are assigned disproportionately to teach advanced sections. White teachers favored position is also evidenced by' the assignment of preparation time, and the principals approval or condonation in matters such as leaving the building, being absent from class without a substitute, nap time, being A:''JOSHUA.OPP -47-t J late to class, and dealing with personal matters during the school day [Tr. at 210 (Faucette)] 126. Dr. Faucettes Creative Writing class produced a magazine, The Labyrinth, which won a national award. Thereafter, the LRSD gifted programs office claimed credit for the award in its newsletter without mentioning him. [Tr. at 212 (Faucette)] This insensitivity to a black faculty member was akin to the situation in 1975 when Faucette had to wait until he left the school system to receive a plaudit for his exemplar} standardized test score. [This also diminishes the accomplishments of regular class students] See also Tr. at 234 (Faucette
his classroom which was used for the large, racially diverse Creative Writing club was taken by the administration for use by another class without notice to him). 127. During his Junior year, Justin Mercer wanted to start a club that promoted diversity because one could observe at Central segregation between whites and blacks not only in classes but also during lunch and other activities. The club would have leaders from different races. Mercer approached Principal Howard about starting an organization. Mr. Howard replied that a sponsor would be needed and suggested a white male who was the sponsor of the Student Council. The individual responded that it would not be good for the student council to take on the burden of having another organization with it. The sponsor suggested that Mercer approach the Black Culture Society, an idea which Mercer rejected because that organization promoted separation to some extent, the problem, to which he was trying to combat. At this point, Justin Mercer returned to Principal Howard but the second approach did not yield a successful outcome to his efforts either. Justin viewed his idea, an excellent one given the extent to which Central, at the turn of the century. mirrored the segregated and discriminator}' patterns of the past, as having been shot down. [Tr. at 396-98 (J. Mercer)] A:-'JOSHUA.OPP -48-t I 127a. Testimony of Dr. Terrence Roberts 1) Section 2.1.1. of the Revised Plan called for the retaining of an expert, in part to assist LRSD in devising remedies to problems concerning desegregation or racial discrimination which adversely effect African- American students (emphasis added). However, the LRSD utilized Dr. Roberts almost exclusively to comment on plans that have been develop, to offer suggestions, change, that sort of thing. [Tr, at 620 (Roberts)] 2) In the course of his many contacts with the system, Dr. Roberts concluded that the objective of LRSD efforts was not helping the intended beneficiaries of the Plan, but to be released from Court supervision. And it seemed to be a matter of whatever it took to achieve that goal, and it didnt really have an3n:hing to do with the students or the plan. [Tr. at 629 (Roberts)] 3) Compliance with Section 2.1 of the Revised Plan requires consideration of attitudes toward people who are diflferent [Tr. at 631 (Roberts)], here the .African American students, and whether there are peer relationship(s) between . . [students], and [whether] you have a relationship between all those students and the teacher where there are no differentiations based on race. [Tr. at 632 (Roberts)] the evidence reveals many attitudinal problems and differentiations based on race, in the context of advanced courses, extracurricular activities and guidance services. 128. Dr. Faucette testified that Central enjoys a reputation of being a beacon, being a A:-JOSHUA.OPP -49-t standard bearer for integration and serving all students but thats not the truth within the walls of our school. [Tr. at 208-09 ] The basis of this conclusion is apparenx from his testimony summarized above. 129. Justin Mercer gave the following parallel testimony [ Tr. at 365-66]: Q- Now, Mt. Mercer, did yon have cm occasion to form an opinion as whether Central was one or h-vo schools? A. Yes. Personal observation, experience, and yon Icnow, just being there period, you can see that Central is two schools in itself. You have an upper echelon school comprised of mostly AP classes and majority where it is kind of elitist. And you have another Central, where it is relegated to majority blacks and. minorities, where the teachers don 't seem to have a good vibe with the students, and it is not really about the education aspect. Its two different schools, like a term that some of my friends use, . . . you have Central. College and Central. High School. The AP students are like, you are in Central. College and its rigorous, and it. is basically majority white. And you have Central High School, where it is play, not necessarily fun, but its not really an. education. " [See also CX. 789] 130. In terms of overall, compliance with the Plan, the seriousness of the compliance problems at Central is of heightened or significance because it has come to be known as the flagship school for the District. [Tr. at 612 (Daughtery)] GOOD FAITH AGAIN 131. The Good Faith ofthe District is placed into perspective by the above findings. The failings of the school district began with the Districts conscious effort to develop compliance activities without the legitimate involvement of the Joshua Intervenors or with the experts rather the District sought to present a posture of technical compliance with plan provisions. [Roberts, Tr. at 49, supra. 132. The lack of good faith is further shown by the District Plan to reinforce rather than A:'JOSHUA.OPP -50-t I dismantle programs which have disparate racial effect, by presenting programs that it did not intend to implement, by changing the data that it promised to present, (recall use of proficient rather advanced and aggregated rather than disaggregated data), by passing the buck to lower level administrators, by promising serious evaluations similar to the ESL evaluation and not performing them, by falsifying the existence of evaluation reports, by misrepresenting the role of ODM in preparing reports, and by creating programs which it knew had means tests associated with them which had disparate racial impact 133. The staff recognized the many barriers to assignment and participation of qualified African American students in activities and AP courses but did not develop a plan at the district level by which to address those barriers." 134. Bad faith involves misrepresentation and deceit which are evident in this case. (See facts states above) The result ofthe Districts implementation of the Revised Desegregation and Education Plan has been to effectively reintroduce freedom of Choice and thus racially segregated classroom assignment practices in such a way as to ensure that racially identifiable tracts will exist for years to come in this District. The original resistence of LR reflected by prolonged delay which involves as The barriers include, inter alia, a. (1) too few teachers of color, (2) insufficient backgrounds of,African American students for them to be successful in AP classes, (3) no scholarship monies for University Studies pupils
(4) lack of parental understanding of advantages of AP class participation and not all AP classes being offered at each school. (Testimony ofLesley, Tr. 672, 695, 728, 735, 736, 732, 747)
b. (1) relatively low achievement of African American [ Tr. at 51-52 (Norman)
Tr. at 472, 490, 492, 493, 496, 498-99, 512, 524 (Carter)]
(2) failure to follow through on the International Baccalaureate Programme [r. At 529-30 (Carter)], (3) elimination of SECME [Tr. at 104 (Watson)], and (4) hostility of sponsors for racially inclusive clubs and activities [Tr. at 492 (Carter), Tr. at 57, 70 (Norman)
Tr. at 111-112 (Watson)] .4: JOSHUA.OPP -51-t I few .African .Ajuerican students as possible is continued. The idea of racial superiority and racial inferiority remain alive in the manner in which the District has implemented the 1998 agreement. CONCLUSIONS OF LAW 1. The Revised Desegregation and Education Plan contemplated is valid when the terms and expectations are mutually understood. There is no showing that the parties mutually understood the terms of the Plan with respect to the panicipation of Joshuas involvement in the developmem of policies, programs and procedures on the front end or of the role of the experts regarding that subject. This material misunderstanding led the parties unnecessarily to their adversary status unless it can be determined that the decisions to exclude Joshua from the process were intentional and thus in bad faith. 2. Bad faith is a basis for reviewing and for rejecting facts presented in support
of compliance. Good faith takes into account the Districts cooperation and conduct in its interactions with the Office of Desegregation Monitoring, the Court and the parties. Good faith also is to be measured by the Districts instituting practices which the District reasonably should have known would result in racial impact, such as programs where means tests had to be met in order for student participation to occur. Good faith is contradicted where raising the bar of student achievement doesnot fully take into account the disparate circumstances ofthe majority group whose educational attainments lag far behind those of their minority counterparts. Good faith is absent when programs are promised and represented as occurring when in fact they are not being delivered nor are they occurring. Good faith is measured by the support - scaffolding, - essential to African American success in .AP courses which the District has not provided. It is measured by competent, timely written annual evaluations of all programs which it committed to perform and make use of in AyJOSHUA.OPP -52-t * The Revised Desegregation and Education Plan. Good faith is measured funher by an analysis of whether planned programs or remedy reinstitute and/or reinforce practices which tend to segregate rather than integrate programs and activities in the LRSD schools. Good faith recognizes the import of the law of the case concept which includes the desegregation objective of the Revised Desegregation and Education Plan. For the schools which are undeniably racially identifiable, good faith requires that they be provided the necessary support to enable them to provide their students with equal educational opportunities, despite their racial composition, as contemplated by Brown v Board of Education, supra. The text of the relevant sections of the Revised Desegregation and Education Plan involved in the current hearing, rather than constitutional standards, provides the benchmark for determining whether the Court, should terminate its involvement regarding these sections. In Sections . . . of the Revised. Plan, the LRSD voluntarily assumed obligations which require adequate implementation of the identified activity, independent of the intent of the representative(s) of the LRSD involved. The performance of the LRSD with regard to extracurricular activities (Section 2.6) did not approach substantial compliance. Rather, the evidence shows default
there w^as a shirking or ignoring of the obligations assumed in Section 2.6 of the Revised Plan, as reinforced in th epolicies adopted by the School Board and the creation of the Compliance and Quality Assurance Committee and the specifying of its duties. The Supreme Court has expressly rejected the notion that a person can not be found to be discriminated against his/her own minority group. Each of the two Court Opinions in support of the judgment in the case recognize that a person functioning in a discriminatory context may A:'JOSHUA.OPP -53-* judgmem in the case recognize that a person functioning in a discriminatory context may accommodate himself or herself to it. Castaneda v. Partida, 430 U.S. 482, 499-500, 503-04 (1977.) Therefore, the presence of an African American, principal at Central High School in recent years is of no moment in view of Intervenors' evidence, largely unrebutted, regarding that school. Based upon the foregoing findings of fact and conclusions of law, the petition of the LRSD to be declared unitary and therefore released from Court supervision shall be and is hereby denied. Ui kobert Pressman,* Mass Bar No. 405900 A 22 Locust Avenue Lexington, MA 02421 (781) 862-1955 / A.JOSffCM.OP? Respectfullv submitted? 1723 Broadway Little Rock, Arkansas 72206 (501) 374-3758 (501) 374-4187 (Fax) 'kickey Hie] I / Attorney^ L
.aw Evergreen Place 1100 North University, Suite 240 Little Rock, Arkansas 72207-6358 -54- CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been sent by fax arid U.S. Mail, postage prepaid to the following counsel of record, on this /%:^day of 2002: Mr. Chris Heller FRIDAY, ELDREDGE & CLARK 400 W. Capitol, Suite 2200 Little Rock, Arkansas 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Mr. Steve Jones JACK, LYON & JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 72201-3472 Mr. Sam Jones WRIGHT, LINDSEY & JENNINGS 2200 Worthen Bank Building 200 West Capitol Little Rock, Arkansas 72201 Mr. Richard Roachell ROACHELL LAW FIRM 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 A T' Jbhn W, Walker A .4.CCSffC-i.(W -55-CtA.Cu/t^^ IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION Q'f: \i\/ i Q 2SU2 LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866 WRW/JTR plS^ts^ PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. LET AL RECEIVED DEFENDANTS MRS. LORENE JOSHUA, ET AL AUG 1 9 2002 INTERVENORS KATHERINE KNIGHT, ET AL OFFICE OF DESEGREGATION MONITORING INTERVENORS MOTION FOR ADDITIONAL TIME TO FILE RESPONSE The Joshua Intervenors respectfolly request an extension until August 26, 2002 to file their Proposed Findings of Fact and Argument in Opposition to the LRSDs Request for Unitary Status Regarding the Plan Sections addressed in the hearings conducted from July 22 to July 24,2002. The grounds for this motion are as follows: 1) Under the schedule established by the Court, the parties had from July 25,2002 until August 19, 2002 (26 days) to file their responses. 2) The Joshua Intervenors did not receive the transcript of the hearing until the 13'*' day of this period, on August 6,2002, at approximately 5:30 p.m. The transcript contains almost all of the evidence offered during the hearings. 3) In view of the timing of receipt of the transcript, additional time is necessary to address the issues presented in this matter, issues of the highest importance for the City of Little Rock and its residents. 4) The requested extension would cause no apparent harm to the LRSD and theDistricts counsel have stated that they do not object to the Courts granting the requested extension. WHEREFORE, the Joshua Intervenors respectfully request that tire Court extend the time for their submission in this matter until not later than August 26, 2002. 7 Respectfully submitted, / // C' Robert Pressm^, Mass Bar No. 405900 22 Locust Avenue Lexington, MA 02421 (781) 862-1955 Joflh'W. Walker, AR Bar No. 64046 / z ,4ohn w. walker, p.a. 1723 Broadway Little Rock, Arkansas 72206 (501) 374-3758 (501) 374-4187 (Fax) 1 ! rCERTIFICATE OF SERVICE ,2002: I hereby certify that a copy of the foregoing has been sentj?y fax and U.S. Mail, postage prepaid to the following counsel of record, on this 2^day of
Mr. Chris Heller FRIDAY, ELDREDGE & CLARK 400 W. Capitol, Suite 2200 Little Rock, Arkansas 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Mr. Steve Jones JACK, LYON & JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 72201-3472 Mr. Sam Jones WRIGHT, LINDSEY & JENNINGS 2200 Worthen Bank Building 200 West Capitol Little Rock, Arkansas 72201 Mr. Richard Roachell ROACHELL LAW FIRM 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 I y // 7./ Joj0''W. Walker i 4C<- RECEIVED AUG 2 0 2002 FILED S. DISTRICT COUI U.COURT OFRCEOF desegregation monitoring IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION EASTERN DISTRICT ARKANSAS AUG 1 9 2002 JAMES By: LITTLE ROCK SCHOOL DISTRICT PLAINTIFF vs. 4:82CV00866-WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. Let al DEFENDANTS MRS. LORENE JOSHUA, et al INTERVENORS KATHERINE KNIGHT, et al INTERVENORS ORDER Joshuas motion for an extension of time to file proposed findings of fact and conclusions of law (filed today, August 16) is denied. While a short post-trial brief is certainly acceptable, I did not ask the parties for briefs. So that the preparation of a brief will not interfere with the timely filing of proposed findings of fact and conclusions of law, the brief can be filed by 11:00 a.m. on Monday, August 26, 2002. I feel certain that I made it quite clear, that absent highly unusual circumstances, the August 19 deadline would not be extended. In fact, I believe I backed up the deadline from 5:00 p.m. on August 19 to 11:00 a.m. I hate to ruin this weekend for counsel, but this is my ruling-request denied, except as it pertains to a post-trial brief. IT IS SO ORDERED this 16"' day of August, 2002. THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE UNITED STATES DISTRICT JUDGE WiTH/RULE 53 AND/OR 79 FRCP ON 6 6 0filed IN THE UNITED STATES DISTRICT COURT ^tern district wkansa.s EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION 1 9 2002 LITTLE ROCK SCHOOL DISTRICT JAMES W. McCO.-.....clerk ----------------PLAINTIFF____ Dtp ClERK V. LR-C-82-866 RECEIVED PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL AUG 2 0 2002 OFRCEOF DESEGREGATION MONITORING DEFENDANTS INTERVENORS INTERVENORS PLAINTIFFS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. Introduction. The issue before the Court is whether the Little Rock School District ( LRSD ) has substantially complied with its Revised Desegregation and Education Plan dated January 16, 1998 (Revised Plan) and should be declared unitary and released from federal court supervision. This Court approved the Revised Plan on April 10,1998 on the joint motion ofthe LRSD and the Joshua Intervenors (Joshua). See Docket Nos. 3107, 3136 and 3144. Section 11 ofthe Revised Plan provided: At the conclusion ofthe 2000-01 school year, the district court shall enter an order releasing LRSD from court supervision and finding LRSD unitary with reg^d to all aspects of school operations provided that LRSD has subst^tially complied with Its obligations set forth in this Revised Plan. In anticipation of release. Willi llo UUllKttVlVllO ovv XVA W1 I* i X 'DCnc LRSD shall issue a report on March 15,2001 indicating the state of LRSD s comphX S thilevised Plan. Any party challenging LRSDs compliance T/*_______*... T "DCT^c tnft anOV bears the burden of proof. If no party challenges LRSDs compliance, the abovedescribed order shall be entered without further proceedings. The LRSD reported on March 15, 2001, that it had substantially complied with the Revised Plan. See Docket No. 3410. Joshua challenged the LRSDs compliance with a limited number of Revised Plan sections and bore the burden of proof. See Docket No. 3447. For the reasons set forth below, the Court finds that the LRSD substantially complied with the Revised Plan.Accordingly, the LRSD is hereby granted unitary status and released from federal court supervision. n. History. A. 1954 Through 1972. On May 20, 1954, three days after the Supreme Court's landmark decision in Brown v. Board of Education. 347 U.S. 483 (1954), the LRSD released a public statement declaring its intent to comply with the Constitution and to integrate the LRSD. See Aaron v. Coopgr, 156 F. Supp. 220, 222-23 (E.D. Ark. 1957). The first LRSD desegregation plan was adopted in 1956 and was approved by the Court of Appeals for the Eighth Circuit in 1957. See Cooper v. Aaron, 243 F.2d 361 (8th Cir. 1957). That plan called for gradual desegregation based on geographic attendance zones and was to be fully implemented by 1963. Id. Governor Orval Faubus' attempt to block implementation of this plan resulted in the infamous "crisis" at Central High School in 1957. However, as noted by the Supreme Court in Cooper v, Aaron. 358 U.S. 1, 9 (1958), "the Governor's action had not been requested by the school authorities, and was entirely unheralded. In 1966, the Eighth Circuit approved, with two minor modifications, a "freedom of choice" desegregation plan for the LRSD. See Clark v. Little Rock School District, 369 F.2d 661 (Sth Cir. 1966). The Eighth Circuit noted the LRSDs good faith commitment to desegregation: Many of the problems encountered are not of the Board's making or choosing and, we believe, the Board has evidenced a genuine desire to follow the commands of the Brown case to ultimately place into effect a non-racially operated school system. Id., at 666. The freedom of choice plan was in effect through the 1968-69 school year. In 1968, the Supreme Court held that "freedom of choice" plans, standing alone, failed to satisfy the constitutional obligation of school districts formerly segregated by law. See Green v. County Sch. Bd. of New Kent County. 391 U.S. 430,439-440 (1968). Accordingly, the LRSD developed a new desegregation plan based on geographic attendance zones for the 1969-70 school year. See Clark v. Little Rock School District. 426 F.2d 1035 (8th Cir. 1970). Due to segregated housing patterns within Little Rock, however, a number of racially identifiable 2schools remained under this plan, and the Eighth Circuit found this plan to be "constitutionally infirm." Clark. 426 F.2d at 1044. The LRSD began crosstown busing of students to achieve racial balance in grades 6 through 12 in the 1971-72 school year. See Clark v. Little Rock School District. 328 F. Supp. 1205, 1209 and 1214 (E.D. Ark. 1971). Racial balance was achieved in grades 4 and 5 by means of crosstown busing in the 1972-73 school year. See Clark v. Little Rock School District. 465 F.2d. 1044, 1046 (8th Cir. 1972). By the 1973-74 school year, all LRSD schools and all LRSD grade levels were racially balanced. See Clark v. Little Rock School District, Memorandum and Order filed July 9, 1982, p. 16. B. 1973 Through 1982. The LRSD maintained almost perfect racial balance in its schools from 1973 through 1982 by way of voluntary periodic adjustments of attendance zones. The district court in ClaA noted that "the Little Rock School District has operated in compliance with court decrees for nine years as a completely unitary desegregated school system . . . ." See Clark v. Little Rock School District. Memorandum and Order filed July 9, 1982, p. 16. Despite nine years of successful desegregation, however, the LRSD was on its way to becoming a one race school district. In the fall of 1971, the LRSD was 42% black. In each year from 1971 through 1981, the number of black students increased while the number of white students decreased. In the fall of 1981, 76% of elementary students were black and 55% of high school students were black. See Little Rock School District v. Pulaski County Special School District. 584 F. Supp. 328, 335 (E.D. Ark. 1984)("LRSD v. PCSSD"). If existing trends continued, it was expected that 90% of the students entering the first grade in the LRSD in the fall of 1989 would be black. See LRSD V. PCSSD. 584 F. Supp. 328, 351 (E.D. Ark. 1984)("The Little Rock School District in spite of its good faith efforts to comply with orders of this court and to establish a unitary school system will become a segregated all-black district in a few years if present trends continue, which appears highly likely."). 3In early 1981, the LRSD commissioned a study of desegregation in the LRSD by the Desegregation Assistance Team from Stephen F. Austin University (the "Austin Study"). The Austin Study concluded that the demographic trends which accounted for the decrease in white enrollment in the LRSD were "long-term" and "deeply rooted," and as a result, "[tjhey are not likely to be fundamentally altered by any change in the desegregation plan within the city.... The changes are rooted in migration patterns, housing segregation practices, changing birth rates, factors that determine the location of new private market housing, and decisions on the location of new subsidized housing." Austin Study, p. 28. The "fundamental" problem, according to the study, "has been the school board's inability to expand its boundaries in pace with a very rapidly expanding urban area." Austin Study, p. 28. Thus, the Austin Study concluded that the LRSD had done all it could do within its borders to desegregate its schools and that, if the LRSD's accomplishments were not to be undone by the "vast forces of demographic change," the LRSD would have to seek an interdistrict remedy. See Austin Study, p. 28. As an initial step to stem the tide of white flight, the LRSD adopted the Partial K-6 Plan on April 26,1982. Under this plan, the LRSD created twelve K-6 neighborhood schools and retained fourteen paired schools with grades K-3 at one site and
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