J . Office of Desegregation Monitoring United States District Court Eastern District of Arkansas One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, Arkansas 72201 (501)376-6200 Fax (501) 371-0100 November 22, 2004 Dr. Karen DeJamette, Director Department of Planning, Research, and Evaluation Little Rock School District 810 West Markham Street Little Rock, Arkansas 72201 Dear Dr. DeJamette
Thank you for sending us a copy of the revised regulation IL-R Comprehensive Program Assessment Process and for including us in some of the thinking that went into its preparation. Our observations and questions are listed below. The third paragraph on page 1 of the document uses the words spectrum and continuum of activities that review District programs and identifies summative (step 2?) evaluations as being at one end of the spectrum. The second sentence says that other activities in the continuum include formative evaluations, assessments, and snapshots. The following chart also lists these categories as apparent types of evaluations. Are these the only types of evaluations or are they representative of the activities included in the continuum? The processes described in the regulation apply to the summative (step 2) evaluations of the programs approved by the board in its annual program agenda. Are there procedures for other types of evaluations? Paragraph 3 of the procedures on page 3 obligates the district to summative (step 2) evaluations of all programs on the districts evaluation agenda. Is there a likelihood that less rigorous evaluations of programs on the agenda would be more appropriate at some point in the future? Or, is the evaluation agenda by definition concerned only with summative (step 2) evaluations? The directive in Subsection 1 of paragraph E (pg. 64) of the Compliance Remedy requires the district to include a special section in the evaluations which describes the number of teachers and administrators...who were interviewed or from whom information was received. Is this requirement included in the procedures? J it Page 2 pie Human Interaction standard for program evaluation is included in the chart on page of the regulation but is omitted from the definitions on page 1. Is this an oversight? Has the role of the associate superintendent for instruction in program evaluation been diminished or eliminated by the revised regulation? If so, why? Is the revised regulation IL-R to be presented to the LRSD Board for approval bv December 31, 2004 as required by the Courts Compliance Remedy? (Paragraph F 65) pg- These observations and questions are intended only to assist the district with meeting &e requirements of the Courts Compliance Remedy. Your responses to them may be in writing or in an informal conversation. ODM compliments you and the district on the quality of staff assembled at PRE. Please keep us informed as you proceed with your work. Sincerely, Margie Powell, Associate Monitor Gene Jones, Associate Monitor C: Dennis GlasgowCF !An Individual Approach to a World of Knowledge November 12, 2004 HAND DELIVERED Mr. Gene Jones, Associate Monitor Office of Desegregation Monitoring US District Court 1 Union National Plaza 124 West Capitol 1895 Little Rock, AR 72201 RECEIVED NOV 1' 200* Dear Mr. Jones: OFFICE OF DESEGREGATiON idONITORlNG We are pleased to deliver the final draft of the comprehensive program assessment process required of LRSD by the June 30, 2004 Memorandum Opinion of the US District Court for the Eastern District of Arkansas. Perhaps it was not clear earlier when I proposed that we meet last week. The intention of our Plaiming, Research, & Evaluation (PRE) department was a preliminary conversation with representatives of Joshua in which we were inviting you into decision-making with respect to selecting and conducting the eight step 2 evaluations that outside consultants are commencing this school year. We would still like to meetat your convenienceand anticipate useful conversations about fulfilling our responsibilities to the US District Court as well as to the students of the Little Rock School District. Sincerely yours, Karen DeJamette, Ph.D. Director, PRE xc: John W. Walker, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Chris Heller Friday Eldredge & Clark 2000 Regions Center 400 Capitol Little Rock, AR 72201 810 W Markham Little Rock, Arkansas 72201 www.lrsd.kl2.ar.us 501-324-2000 fax: 501-324-2032 LITTLE ROCK SCHOOL DISTRICT NEPNCODE: IL-R Comprehensive Program Assessment Process Purpose The purpose of these regulations is to provide guidance in the appraisal of programs and to comply with requirements of the US District Court for the Eastern District. They do not necessarily apply to grant-funded programs if the funding source requires other procedures and provides resources for a required evaluation. Criteria for Program Evaluations Policy IL specifies that the evaluations of programs approved in its Board-approved Program Evaluation Agenda will be conducted according to the standards developed by the Joint Committee on Standards for Educational Evaluation. (See Joint Committee on Standards for Educational Evaluation, James R. Sanders, Chair (1994). The Program Evaluation Standards, 2' Edition: How to Assess Evaluations of Educational Programs. Thousand Oaks, CA: Sage Publications.) nd Prospective, controlled, summative evaluations are at one end of a spectrum of activities that review District operations. Other activities in this continuum include formative and less formal and rigorous evaluations, regular and occasional assessments, and fast or brief snapshots. As rigor and formality diminish along the range of reviews, fewer standards apply. Examples of how the standards apply are found following table, adapted from The Program Evaluation Standards, pages 18 and 19: Checklist for Applying the Standards The reader should interpret the information provided in this table with reference both to the Standards (cited above) and the peculiar circumstances of given program reviews. Double plus signs (++) indicate that standards are fully addressed. Single pluses (+) mean that the standard is a concern but not necessarily fully addressed, and zeros (0) point to standards not usually applicable. Not all summative evaluation will fully satisfy every standard, and other examples may observe more standards than indicated here. Note, however, that all reviews fully observe human rights and impartial reports. 1LITTLE ROCK SCHOOL DISTRICT NEPN CODE: IL-R Checklist of Evaluation Standards for Examples of Program Reviews standard U1 Stakeholder Identification U2 Evaluator Credibility U3 Information Scope & Selection U4 Values Identification U5 Report Clarity U6 Report Timeliness & Dissemination U7 Evaluation Impact Fl Practical Procedures F2 Political Viability F3 Cost Effectiveness P1 Service Orientation P2 Formal Agreements P3 Rights of Human Subjects P4 Human Interaction P5 Complete & Fair Assessment P6 Disclosure of Findings P7 Conflict of Interest P8 Fiscal Responsibility A1 Program Documentation A2 Context Analysis A3 Described Purposes and Procedures A4 Defensible Information Sources A5 Valid Information A6 Reliable Information A7 Systematic Information A8 Analysis of Quantitative Data A9 Analysis of Qualitative Data AIO Justified Conclusions Al 1 Impartial Reporting A12 Meta-evaluation Summative evaluations Informa! Assessments ++ 0 F ++ + + + 0 + Formative Assessments (Schoo! Portfolios) 0 + + Snapshots 0 0 + + + ++ ++ ++ -t-+ H- -H- -H- -H- ++ ++ -H- -l-l- ++ + + + "o" ++ ++ -H- + + + -H- + ++ V -H- + + v + + o" T + + + V + ++ + + + + + T + + ++ V 0 + 0 + + IT ++ V + + v 0 + + + + + + + + + -H 2LITTLE ROCK SCHOOL DISTRICT NEPNCODE: IL-R Program Evaluation Procedures The following procedures are established for the evaluation of programs approved by the Board of Education in its annual Program Evaluation Agenda: 1. 2. 3. 4. 5. 6. The Planning, Research, and Evaluation (PRE) Department will recommend to the Superintendent annually, before the budget for the coming year is proposed, the curriculum/instruction programs for comprehensive program evaluation. The recommendation will include a proposed budget, a description of other required resources, and an action plan for the completion of the reports. Criteria for the proposed agenda are as follows: A. Will the results of the evaluation influence decisions about the program? B. Will the evaluation be done in time to be useful? C. Will the program be significant enough to merit evaluation? (See Joseph S. Wholey, Harry P. Hatry, and Kathryn Newcomer (1994). Handbook of Practical Program Evaluation. San Francisco, CA: Jossey-Bass Publishers. 5-7.) The Superintendent will recommend to the Board of Education for approval the proposed Program Evaluation Agendawith anticipated costs and an action plan for completion. For each curriculum/instruction program to be evaluated as per the Program Evaluation Agenda, the Director of PRE will establish a staff team with a designated leader to assume responsibility for the production of the report according to the timelines established in the action plan approved by the Board of Education. Each team will include, at a minimum, one or more specialists in the curriculum/instruction program to be evaluated, a statistician, a programmer to assist in data retrieval and disaggregation, and a technical writer. If additional expertise is required, then other staff may be added as necessary. An external consultant with expertise in program evaluation, the program area being evaluated, statistical analysis, and/or technical writing will be retained as a member of the team. The role of the external consultant may vary, depending upon the expertise required for the production of the program evaluation. The team leader will establish a calendar of regularly scheduled meetings for the production of the program evaluation. The first meetings will be devoted to the following tasks: A. Provide any necessary training on program evaluation that may be required for novice members of the team, including a review of the Boards policy IL and all of the required criteria and procedures in these regulations, IL-R. B. Assess the expertise of each team member and make recommendations to the Director of PRE related to any additional assistance that may be required. 3LITTLE ROCK SCHOOL DISTRICT NEPNCODE: IL-R 7. C. D. E. F. G. Write a clear description of the curriculum/instruction program that is to be evaluated, with information about the schedule of its implementation. Agree on any necessary research questions that need to be established in addition to the question, Has this curriculum/instruction program been effective in improving and remediating the academic achievement of African-American students Generate a list of the data required to answer each research question, and assign responsibility for its collection and production. All available and relevant student performance data should be included. (See Judge Wilsons Compliance Remedy.) Decide who will be the chief writer of the program evaluation. Plan ways to provide regular progress reports (e.g., dissemination of meeting minutes, written progress reports, oral reports to the Superintendents Cabinet) to stakeholders. (See Joellen Killion (2002). Assessing Impact: Evaluating Staff Development. Oxford, OH. National Staff Development Council (NSDC)
Robby Champion (Fall 2002). Map Out Evaluation Goals. Journal of Staff Development. 78-79
Thomas R. Guskey (2000). Evaluating Professional Development. Thousand Oaks, CA: Corwin Press
Blaine R. Worthen, James R. Sanders, and Jody L. Fitzpatrick (1997). Participant-Oriented Evaluated Approaches. Program Evaluation: Alternative Approaches and Practical Guidelines: 153-169
Beverly A. Parsons (2002). Evaluative Inquiry: Using Evaluation to Promote Student Success. Thousand Oaks, CA: Corwin Press
and Joseph S. Wholey, Harry P. Hatry, and Kathryn E. Newcomer (1994). Handbook of Practical Program Evaluation. San Francisco, CA: Jossey-Bass Publishers.) Subsequent meetings of the program evaluation team are required for the following tasks: to monitor the completion of assignments
to collaborate in the interpretation and analysis of data
to pose any necessary new questions to be answered
to review drafts and provide feedback to the writer
to formulate recommendations, as required, for program improvement, especially to decide if a recommendation is required to modify or abandon the program if the findings reveal that the program is not being successful for the improvement of African-American achievement
to assist in final proofreading
and to write a brief executive summary, highlighting the program evaluation findings and recommendations. 4LITTLE ROCK SCHOOL DISTRICT NEPNCODE
IL-R 8. A near-final copy of the program evaluation must be submitted to the Director of PRE at least one month before the deadline for placing the report on the Boards agenda for review and approval. This time is required for final approval by staff, for final editing to ensure accuracy, and for submission to the Superintendent. 9. When the program evaluation is approved for submission to the Board of Education for review and approval, copies of the Executive Summary and complete report must be made for them, for members of the Cabinet. 10. The program evaluation team will plan its presentation to the Board of Education on the findings and recommendations. II. The Director of PRE will prepare the cover memorandum to the Board of Education, including all the required background information
A. If program modifications are suggested, the steps that the staff members have taken or will take to implement those modifications. If abandonment of the program is recommended, the steps that will be taken to replace the program with another with more potential for the improvement and remediation of African-American students. B. Names of the administrators who were involved in the program evaluation. C. Name and qualifications of the external expert who served on the evaluation team. D. Grade-level descriptions of the teachers who were involved in the assessment process (e.g., all fourth-grade math teachers, all eighth grade English teachers, etc.). 12. When the program evaluation is approved by the Board of Education, the team must arrange to have the Executive Summary and the full report copied and design a plan for communicating the program evaluation findings and recommendations to other stakeholders. This plan must then be submitted to the Director of PRE for approval. 13. Each program evaluation team will meet with the Director of PRE after the completion of its work to evaluate the processes and product and to make recommendations for future program evaluations. (See Joellen Killion (2002). (( Evaluate the Evaluation. Assessing Impact
Evaluating Staff Development. Oxford, OH
National Staff Development Council. 46,123-124.) Approved
[date] 5LITTLE ROCK SCHOOL DISTRICT NEPN CODE: IL-R Evaluation Standards Criteria for Program Evaluations Policy IL specifies that the evaluations of programs approved in its Board-approved Program Evaluation Agenda will be conducted according to the standards developed by the Joint Committee on Standards for Educational Evaluation. (See Joint Committee on Standards for Educational Evaluation, James R. Sanders, Chair (1994). The Program Evaluation Standards. 2' Edition: How to Assess Evaluations of Educational Programs. Thousand Oaks, CA: Sage Publications.) They are as follows: ,nd Utility Standards The utility standards are intended to ensure that an evaluation will serve the information needs of intended users. These standards are as follows: Stakeholder identification. People involved in or affected by the evaluation should be identified so that their needs can be addressed. Evaluator credibility. The people conducting the evaluation should be both trustworthy and competent to perform the evaluation so that the evaluation findings achieve maximum credibility and acceptance. Information scope and sequence. Information collected should be broadly selected to address pertinent questions about the program and should be responsive to the needs and interests of clients and other specified stakeholders. Values identification. The perspectives, procedures, and rationale used to interpret the findings should be described carefully so that the bases for value judgements are clear. Report clarity. Evaluation reports should describe clearly the program being evaluated, including its context and the purposes, procedures, and findings of the evaluation, so that essential information is provided and understood easily. Report timeliness and dissemination. Significant interim findings and evaluation reports should be disseminated to intended users so that they can be used in a timely fashion. Evaluation impact. Evaluations should be planned, conducted, and reported in ways that encourage follow-through by stakeholders, so that the likelihood that the evaluation will be used is increased. Feasibility Standards Feasibility standards are intended to ensure that an evaluation will be realistic, prudent, diplomatic, and frugal. Practical procedures. Evaluation procedures should be practical so that the disruption is kept to a minimum while needed information is obtained. Political viability. The evaluation should be planned and conducted with anticipation of the different positions of various interest groups so that their cooperation may be obtained, and so that possible attempts by any of these groups to curtail evaluation operations or to vias or misapply the results can be averted or counteracted. Cost-effectiveness. The evaluation should be efficient and produce information of sufficient value so that the resources expended can be justified. 6LITTLE ROCK SCHOOL DISTRICT NEPNCODE: IL-R Propriety Standards The propriety standards are intended to ensure that an evaluation will be conducted legally, ethically, and with due regard for the welfare of those involved in the evaluation, as well as those affected by its results. Service orientation. Evaluations should be designed to assist organizations to address and effectively serve the needs of the full range of targeted participants. Formal agreements. Obligations of the formal parties to an evaluation (what is to be done, how, by whom, and when) should be agreed to in writing so that these parties are obligated to adhere to all conditions of the agreement or to formally renegotiate it. Rights of human subjects. Evaluations should respect human dignity and worth in their interactions with other people associated with an evaluation so that participants are not threatened or harmed. Complete and fair assessments. The evaluation should be complete and fair in its examination and recording of strengths and weaknesses of the program being evaluated so that strengths can be built upon and problem areas addressed. Disclosure of findings. The formal parties to an evaluation should ensure that the full set of evaluation findings, along with pertinent limitations, are made accessible to the people affected by the evaluation, as well as any others with expressed legal rights to receive the results. Conflict of interest. Conflict of interest should be dealt with openly and honestly so that it does not compromise the evaluation processes and results. Fiscal responsibility. The evaluators allocation and expenditure of resources should reflect sound accountability procedures and be prudent and ethically responsible so that expenditures are accounted for and appropriate. Accuracy Standards Accuracy standards are intended to ensure that an evaluation will reveal and convey technically adequate information about the features that determine the worth of merit of the program being evaluated. Program documentation. The program being evaluated should be described and documented clearly and accurately so that it programs is identified clearly. Context analysis. The context in which the program exists should be examined in enough detail so that its likely influences on the program can be identified. Described purposes and procedures. The purposes and procedure of the evaluation should be monitored and described in enough detail so that they can be identified and assessed. Defensible information sources. The sources of information used in a program evaluation should be described in enough detail so that the adequacy of the information can be assessed. Valid information. The information-gathering procedures should be chosen or developed and then implemented in a manner that will ensure that the interpretation arrived at is valid for the intended use. 7LITTLE ROCK SCHOOL DISTRICT NEPNCODE: IL-R Reliable information. The information-gathering procedures should be chosen or developed and then implemented in a manner that will ensure that the information obtained is sufficiently reliable for the intended use. Systematic information. The information collected, processed, and reported in an evaluation should be review systematically so that the evaluation questions are answered effectively. Analysis of quantitative information. Quantitative information in an evaluation should be analyzed appropriately and systematically so that the evaluation questions are answered effectively. Analysis of qualitative information. Qualitative information in an evaluation should be analyzed appropriately and systematically so that the evaluation questions are answered effectively. Justified conclusions. The conclusions reached in an evaluation should be justified explicitly so that stakeholders can assess them. Impartial reporting. Reporting procedures should guard against distortion caused by personal feelings and biases of any party so the evaluation reports reflect the evaluation findings fairly. Metaevaluation. The evaluation itself should be evaluated formatively and summatively against these and other pertinent standards so that its conduct is appropriately guided, and on completion, stakeholders can closely examine its strengths and weaknesses. 8RECEIVED November 23, 2004 Mr. Gene Jones, Associate Monitor Office of Desegregation Monitoring US District Court 1 Union National Plaza 124 West Capitol 1895 Little Rock, AR 72201 DEC 1 6 2004 nror.n OFHCEOF desegregation LiONITOHING Dear Mr. Jones
Thank you for your careful review and comments regarding the Comprehensive Program Assessment Process delivered to you November 12. Responses to each point are below in the same order as in your letter. The words spectrum and continuum are synonymous in that document, and the formative evaluations, assessments, and snapshots are examples of efforts over that range. They are not the only types of assessments or evaluations. While others might give the most rigorous such effort a name other than summative evaluation, it is the familiar term we have chosen. The comprehensive process we are introducing anticipates using these and additional examples to measure academic achievement (including disparities among groups) in practical, timely, and appropriately accurate ways according to circumstances and demands. Summative (step 2) evaluations, the most rigorously designed and conducted, will address all the standards and follow all the procedures as much as possible. Other program appraisals will follow them less rigorously. The degree of fidelity to all the standards will depend on the time and resources permitted for them. There are not separate procedures (or standards) for various types of reviews. The District will oversee eight summative evaluations, as required by the Court. Thereafter, the District will conduct the most appropriate types of evaluations, assessments, appraisals, reviews, or other similar activities of other names most apt to fit the Districts needs for this kind of information and its ability to do so. The full panoply will continue indefinitely as a permanent, imbedded activity of the District, but we anticipate practical trade-offs between the greater expense and longer time period, on one hand, usually required for summative evaluations, and limits of resources and time demanded for timely decisions based on data on the other hand The first sentence of the revised regulation states that it complies with the Courts requirements. Thus, it encompasses all actions desired by the Court, including the number of LRSD employees who provide data for evaluations. The summary of the human interaction standard was combined with the summary of the standard for human rights, which precedes it in the table. The Associate Superintendents is no longer responsible for program evaluation. Rather, the Director of Planning, Research, and Evaluation, who reports directly to the Superintendent, oversees the comprehensive program assessment process, as indicated in the current organizational chart found in an appendix of the update that is due December 1. The reason for the change is to give more independence to the assessment process. The revised IL-R, entitled Comprehensive Program Assessment Process meets one of the Courts requirements. Accordingly, it was delivered to ODM and to Joshua a month prior to its presentation before the LRSD Board of Directors for approval. We appreciate your detailed attention to IL-R and hope these comments satisfactorily respond to your excellent questions. Please let us know if we may supply any more information or clarification. Sincerely yours, Karen DeJamette, Ph.D. Director, PRE xc: John W. Walker, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Chris Heller Friday Eldredge & Clark 2000 Regions Center 400 Capitol Little Rock, AR 72201Jeanne P. Dreyfus 5118 Maytime Lane Culver City, CA 90230 (310) 559-9563 jpdrey@aol.com EDUCATION: 09/90 - 06/94 University of California, Los Angeles EdO - Curriculum Studies Received 09/88 - 06/90 University of California, Los Angeles MA " Educational Psychology DEC 1 6 200^ 09/79-12/80 Loyola Marymount University, Los Angeles CA Teaching Credential, K -12 DESEGREGAnOKMNirOflfNG 09/62 - 06/65 University of San Diego, CA BA " Sociology/English EMPLOYMENT: 01/95 - Present Independent Evaluator - Education External Evaluator for the Teaching American History Project, Los Angeles Unified School District, Chern-Tech Program, L.A. Trade Tech Community College, Federal Magnet Schools Assistance Program (8 years). Long Beach Unified School District
the Galef Institutes Capacity Building Grant and its Different Ways of Knowing Comprehensive School Reform program
Technology/Literacy Program
Tree Peoples Environmental Education Program 08/91 -12/94 Galef Institute, Los Angeles, CA Research and Evaluation Coordinator
Research Associate Designed/coordinated research & evaluation studies - included formulating budgets, supervising research assistants, designing research instruments, analyzing data, writing reports and presenting findings to school boards 07/89 - 07/91 Center for the Study of Evaluation, UCLA Graduate Student Researcher Collected and analyzed data and co-authored technical reports for U.S. Government Agencies and the Los Angeles Unified School District 09/71 - 06/89 SKILLS: Assistant Principal, Teacher Involved in the daily operation of a school including conducting faculty meetings and supervising the computer lab
English and U.S. History teacher Research and Evaluation: design studies and evaluation tools, collect/analyze data, supervise assistants, author evaluation reports and academic publications Administration: five years as an assistant principal Teaching: English and History - elementary, middle and senior high schools REFERENCES: Available upon requestJeanne P. Dreyfus, Ed.D. Jeanne Dreyfus is an independent evaluator of educational programs. Currently, she is the external evaluator for the Los Angeles Unified School District 6s Teaching American History grant. This three year program focuses on raising student achievement in U.S. History by providing teachers of at-risk children with quality professional development in innovative instruction and content. In addition, Dr. Dreyfus is in her third year as program evaluator for the High School Chemical Technology program at Los Angeles Trade Tech Community College. Working with at-risk students, she is part of a team which has created a program that provides participants with hands-on chemistry and industry based laboratories in areas such as forensics and waste water management. In addition, the program includes site-visits and career education and preparation. From 1995-2003, Dr. Dreyfus was the external evaluator for the federally-funded Magnet Schools Assistance Program for the Long Beach Unified School District (LBUSD), a multi-year program dedicated to alleviating minority-group isolation in schools and raising student achievement. During that time she worked with 15 magnet schools at all grade levels providing school leaders with formative and summative input and evaluation. As the outside evaluator, she worked with the program director, principals, teachers, curriculum teams and site liaisons providing insights into the status of their magnet programs, their successes and challenges. Additionally, she was the external evaluator often LBUSD middle schools that participated in the California Technology Literacy Program, a program created to expand the use of technology across core curriculum. Dr. Dreyfus has also evaluated educational programs for TreePeople, a California non-profit environmental organization, the California State Parks Foundation, the National Park Service, the YWCA and Wilmington Community Health Clinic. From 2001-2003, Dr. Dreyfus acted as the third party formative evaluator to the Galef Institute under a Comprehensive School Reform Capacity Building Grant. In this work, she conducted educational research to help the Institute improve and expand their Different Ways of Knowing program which uses the arts to enhance core content learning. At that time, the Institute was working with low-achieving schools across the nation which were participating in the federal Comprehensive School Reform effort. In the early 199Os, Dr. Dreyfus was affiliated with the Galef Institute designing and coordinating research and evaluation studies, creating evaluation instruments, formulating and overseeing budgets, and presenting study findings to school boards and non-profit organizations. Dr. Dreyfus has a B.A. in Sociology and English from the University of San Diego, an M.A. in Educational Psychology and an Ed.D. from UCLA. Prior to receiving her advanced degrees, she taught Language Arts/Engiish, and History/Social Studies in elementary, middle and secondary schools for fifteen years and served as a K-8 assistant principal for five years. Dr. Dreyfus has extensive experience with diverse racial and ethnic groups and the realistic viewpoint of a former school administrator and classroom teacher. Over the years, she has conducted both qualitative and quantitative research, authored many program evaluations and provided significant on-going input into a number of multi-year educational programs.Summary of the Case and Request for Oral Argument This appeal is in the longstanding Little Rock school desegregation case, in which the parties' agreements have emphasized steps to address the lagging achievement of African American students. Appeal of LRSD. 949 F.2d. 253, 256 (Sth Cir.1991). On April 10, 1998, the district court approved a Revised Desegregation and Education Plan proposed by the parties. Its duration was three years, assuming substantial compliance with its terms. On September 13, 2002, the district court granted LRSD partial unitary status, finding that LRSD had complied with all aspects of the Revised Plan challenged by Joshua Intervenors, except for Plan Sec. 2.7.1, concerning assessment of academic programs. LRSD v. PCSSD, 237 F.Supp.2d 988, 1086 (E.D.Ark.2002). Based upon considerable evidence, the court construed Sec. 2,7.1 to require program evaluations of the key academic programs designed to build African American achievement. Id. at 1077-78. The court found that LRSD had not completed these evaluations and imposed a Sec. 2.7.1 Compliance Remedy. Id. at 1087-88. The LRSD did not appeal the Section rulings (fipdingg of fact, conclusions of law, or remedy). On appeal by Joshua Intervenors, this court affirmed the judgment as to issues raised unsuccessfully below by Intervenors. Armstrong. 359 F.3d 957 (Sth Cir.2004). LRSD V. LRSD appeals challenging: [i] the court's June 30, 2004 ruling that LRSD did not provide the evaluations required by the first Compliance Remedy [Add.3758] and [ii] the content of the revised Compliance Remedy, designed to secure the requisite evaluations. [Add.61-67] Oral argument is warranted. RECEIVED 1 DEC 1 6 2004 OFFICE OF DESEGREGATION I.iONlTORlNGTable of Contents Page No. Summary of the Case and Request for Oral Argument 1 Table of Contents ii Table of Authorities iv Statement of Issues 1 Procedural History 1 Statement of the Case 2 A. The Revised Plan of 1998 and Its Relevant Text 2 B. The LRSD's Recognition of the Ambiguity of the Term "Assessment" in the Context of The Revised Plan 4 C. The LRSD Repeatedly Interprets Plan Section 2.7.1 to Call for Program Evaluations of the Key Section 2.7 Programs 5 D. The LRSD Seeks in March 2001 a Declaration of Unitary Status and Its Release from Court Supervision 7 E. The Basis for the Court's Ruling in September 2002 of Non-compliance with Plan Section 2.7.1 Due to the Absence of Any Completed Program Evaluations 8 F. The District Court's Entry of a Compliance Remedy in September 2002 and the Lack of an Appeal by LRSD 12 G. Faced with the Court-ordered Compliance Remedy, the LRSD Again Fails to Provide the Requisite Program Evaluations, Resulting in the Court's Imposition on June 30, 2004 of a More Detailed Compliance Remedy 12 H. The Basis for the District Court's June 30, 2004 Ruling and Revised "Compliance Remedy" 13 Standard of Review 22 Summary of Argument 23 Argument 24 A. The District Court, Faced with a Second LRSD Failure to Provide the Requisite Program Evaluations, Has Sought, in a Manner Consistent with this Court's Guidance, to Provide Joshua Intervenors the Benefit of their 11 1 ISection 2.7.1 Bargain 25 1. The LRSD's Initial Failure to Provide the Requisite Program Evaluations and the court's First Compliance Remedy of Sept. 2002 26 2. The LRSD's Second failure to Provide the Program Evaluations and the Court's More Detailed Compliance Remedy of June 30, 2004 29 a. Introduction 29 b. The Basis for Imposing a Revised Compliance Remedy 30 c. The Dist. Court's Second Compliance Remedy 32 B. The LRSD Argument Ignores the Elements of the Governing Standards of Review and Is Otherwise Without Merit 33 1. The Assertion that the Term 'Assessment" Is Unambiguous 34 2. The Request for De Novo Review of the Parties' Agreement 34 3. The Asserted "Volunteering" and Its Impact 35 4. The "Importing" of an Evaluation Obligation into the Plan 35 5. The Asserted Imposition of New Obligations 36 6. The Contention that LRSD Assessed Academic Programs 37 7. The Contention that LRSD Evaluated Academic Programs 38 8. LRSD's Argument Regarding the Burden of Proof and Contempt 39 Conclusion 41 Certification 42 Addendum After page 42 iiiTable of Authorities P^g-Np, Anderson v. City of Bessemer City, 470 U.S. 564 (1985) 22 Appeal of LRSD, 949 F.2d 253 (8thCir.l991) 4, 25, 41 E.E.O.C. V. New York Times Co., 196 F.3d 72 (2ndCir.1999) 28 Foundation Telecommunications, Inc. v. Moe Studio, 16 S.W.3d 531 (Ark.2000) 34 Grand State Marketing v. Eastern Poultry Distribs., 975 S.W.2d 429 (Ark.App.1998) 35 Keyes v. School Dist. No. 1, 413 U.S. 189 (1973) 29 Knight v. PCSSD, 112 F.3d 953 (8thCir.l997) 35 LRSD V. Armstrong, 359 F.3d 957 (Sth Cir.2004) 22, 36 LRSD V. PCSSD, 83 F.3d 1013 (8thCir.l996) 34 LRSD V. PCSSD, 971 F.2d 160 (Sth Cir.1992) 1, 22, 29, 34 LRSD V. PCSSD, 921 F.2d 1371 (SthCir. 990) 1, 13, 22, 25, 27, 37 LRSD V. PCSSD, 237 F.Supp. 988 (E.D.Ark. 2002) passim Mears v. Nationwide Insurance Co., 91 F.3d 1118 (8thCir.l996) 27 Nash Finch Co. v. Rublioff Hastings, L.L.C., 341 F.3d 846 (8thCir.2003) 22 Rufo V. Inmates of the Suffolk Cty. Jail, 502 U.S. 367 (1992) 27 Sturgis v. Skokos, 977 S.W.2d 217 (Ark.1998) 35 Swann v. Charlotte-Meckelenberg Bd. of Educ., 402 U.S. 1 (1971) 23, 26 United States v. City of Miami, Fla., 664 F.2d 435 (5thCir.1981) 28 United States v. ITT 420 U.S. 233 (1975) :ontinental Baking Co., 34 iv -statement of Issues (1.) Whether the LRSD establishes any basis for a departure from the law of the case with regard to the relevant parts of the district court's September 2002 ruling (findings of fact, conclusions of law, Compliance Remedy), which it did not appeal? * Little Rock Sch, Dist, v, Pulaski County Special Sch. Pist.. 971 F.2d 160, 165 (SthCir.1992) (2.) Whether the LRSD establishes that any of the findings of fact in the June 30, 2004 ruling are clearly erroneous? * LRSD V. Armstrong. 359 F.3d 957, 963 (SthCir.2004) (3.) Whether in the light of the LRSD's second failure to provide any adequate program evaluations, the district court's second, more-detailed Compliance Remedy, designed to secure preparation of the requisite evaluations, was an abuse of discretion? LRSD V. PCSSD. 921 F.2d 1371, 1394 (paras. 8-9) (SthCir. 1990) Procedural History This appeal is in the longstanding Little Rock school desegregation case. See LRSD V. PCSSD. 921 F.2d 1371, 1376-83 (SthCir.1990) (history of case). On April 10, 1998, the district court approved a Revised Desegregation and Education Plan proposed by the parties. [J.Add.5,7] Its duration was three years, assuming substantial compliance with its terms. [Add.95 (Sec. 11)] On September 13, 2002, the district court held, in part, that the LRSD had failed to substantially comply with Revised Plan Sec. 2.7.1, concerning assessment of academic programs. LRSD v. PCSSD. 237 F.Supp.2d 988, 1086 (E.D.Ark.2002). Based upon considerable 1I I I I evidence, including LRSD admissions, the court construed Sec. 2.7.1 to require program evaluations of the key academic programs designed to build African American achievement and implemented I I I pursuant to Plan Sec. 2.7. 1^. at 1077-78. The court found that LRSD had not prepared the requisite evaluations, refused to release the LRSD from court supervision regarding Plan Section 2.7.1, and imposed a Compliance Remedy to secure the promised evaluations and. thereby, substantial compliance with Section 2.7.1. Xd. at 1079-80, I 1087-88. The LRSD did not appeal the Section 2.7.1 rulings (findI ings of fact, conclusions of law, or remedy1. In March 2004, the LRSD again sought a release from court supervision, contending that it had substantially complied with the Section 2.7.1 Compliance Remedy. [Add.3] Joshua Intervenors opposed the LRSD request
the court heard the matter in June 2004. [Add.3] I LRSD's appeal challenges: [i] the court's June 30, 2004 ruling that the LRSD did not provide the program evaluations required by the first Compliance Remedy [Add. 37-58] and [ii] the content of the revised Compliance Remedy, designed to secure the promised evaluations, thereby avoiding another LRSD default. [Add. 61-67] Statement of the Case I I I A. The Revised Plan of 1998 and Its Relevant Text In 1998, the Joshua Intervenors^ and the Little Rock School See Add. 3, n.3 ("The Joshua Intervenors are a group of African-American school children, some of whom are enrolled in each of the three Pulaski County school districts. Thus, Joshua serves as the class representative for all African-American students enrolled in LRSD, the Pulaski County Special School District, and the North Little Rock School District.") 2District [LRSD], two of the parties in this case, agreed upon and submitted to the district court for approval. "Revised a Desegregation and Education Plan." [Add.67
Add.72-95 (CX 871)] On April 10, 1998, the district court (then Hon. Susan Webber Wright) approved the Revised Plan, characterizing it as "an entirely new consent decree or settlement agreement" "binding on the parties." [J.Add.3,5,7] While the Revised Plan in Section 9 provided for implementation through "the last day of classes of the 2000-01 school year" [Add.94], Section 11 of the plan also addressed, implicitly. the duration of the Plan. That Section provides [Add.95, emphasis added]: At the conclusion of the 2001-02 school year, the district court shall enter an order releasing LRSD from court year supervision and finding LRSD unitary with regard to all aspects of school operations orovided that -LRSD has substantially complied with its obligations set forth in this Revised Plan, In anticipation of release, LRSD shall issue a report on March 15, 2001 indicating the state of UiSD's compliance with this Revised Plan. Any party challenging LRSD's compliance bears the burden of proof. If no party shallenqas LRSD's compliance, the above-described order shall be entered without further proceedings. As can be seen from this text, the Revised Plan did not address, explicitly: [i] the duration of the Plan, if a party contested substantial compliance and prevailed on this challenge (as later occurred here regarding Section 2.7.1 of the Plan)
[ii] the range of remedies available to the court in the event of non-compliance
and [iii] allocation of the burden of later establishing compliance with any such remedy. See Add.36-37 (district court's discussion of "Burden of Proof"). 3Section 2 of the Revised Plan set forth a series of LRSD "Obligations." [Add.73-78] Among these, Sections 2.7 and 2.7.1 read as follows [Add.76-77, emphasis added]: 2.7. LRSD shall implement programs. policies and/or procedures designed to improve and remediate the academic achievement of African-American students, including but not limited to Section 5 of this Revised Plan. 2.7.1. LRSD shall assess the academic programs implemented pursuant to Section 2.7 after each year in order to determine the effectiveness of the academic programs in improving African-American achievement. If this assessment reveals that a program has not and likely will not improve African-American achievement. LRSD shall take appropriate action in the form of either modifying how the program is implemented or replacing the program. These sections evidenced the parties' continuing recognition that attention to the lagging achievement of African-American students was an important part of the remedial process in the LRSD. See, for example, Appeal of LRSD. 949 F.2d 253, 256 (SthCir.1991) . B. The LRSD's Recognition of the Ambiguity of the Term tt Assessment" in the Context of The Revised Plan Various elements of the record establish the need to reach beyond the text of Section 2.7.1 to determine the obligation which the LRSD voluntarily assumed by agreeing to its terms. First. The term "assessment" is most often used to refer to the program of standardized testing of students imposed by state law or a school district's policy
it is frequently used in this manner in Arkansas and the LRSD. 2 However, Section 2.7.1 addresses the "assessment" 2 See J.Add.24 (Tr., 11-19-01, at 243) (state-mandated system in Arkansas)
CX 869 at 56-57 (LRSD Interim Compliance Report refers to the District's "Assessment Plan, K-12")
CX 870 at 55-56 (LRSD Compliance Report discusses six tests under heading "Assessments")
LRX 1 (memorandum regarding "Revisions to the LRSD Assessment Plan" deals with standardized tests). 4of programs. not students. Second. During the hearing in 2001 before Judge Wright on Joshua Intervenor's challenge to LRSD's compliance with certain features of the Revised Plan, Dr. Bonnie Lesley, Associate Superintendent for Curriculum and Instruction testified that "part of the confusion 11 in identifying the scope of Section 2.7.1. is due to the fact that "we have sometimes used [the] terms [assessment and evaluation] interchangeably. . It [J.Add.24 (Tr.,11-19-01, 242)] Third. Later, in a memorandum discussing the requirements of the "Compliance Remedy," imposed by Judge William Wilson on September 13, 2002, LRSD administrators referred back to the hearings conducted by Judge Wright in 2001. [LRX 2 at 3] LRSD staff wrote [id. 3]: "The ambiguity of this term ["assessment"] was the subject of testimony at the hearing." C. The LRSD Repeatedly Interpreted Plan Section 2.7.1 to Call For Program Evaluations of the Key Section 2.7 Programs_ The record is clear that until Joshua Intervenors challenged compliance with Section 2.7.1, the LRSD repeatedly construed Section 2.7.1 of the Revised Plan to require program evaluations of programs implemented to fulfill the requirements of Section 2.7 of the Revised Plan. See Add. 76 (Sec. 2.7.1) and LR^, 237 F.Supp. 2d at 1078 (para. 10).] A summary of this evidence follows. (a) After approval of the Revised Plan, the LRSD formed a "Compliance and Quality Assurance Committee" consisting of the Associate Superintendents of Administrative Services, Instruction, Operations, and School Services, and the Special Assistant to the superintendent." [CX 869 at 1] "The committee [had] responsibility for the development, implementation, oversight, review and revision 5of the compliance program. rid.1 The Committee developed a "Compliance Plan for the LRSD Revised Desegregation and Education Plan" dated June 10, 1999. [CX 544] The text concerning Section 2.7.1. identified relevant "Board Policies" to include those on "Testing Programs" and "Program Evaluation." [ id. at 12] The text on "Procedures (Regulations, Administrative Directives, Handbooks, etc.") relevant to Section 2.7.1 provides as follows [id. at 11-12, emphasis added]: 1. Program Evaluation Agenda - in progress 2. Title I Restructuring Plan provides for Title I evaluation 3. National Science Foundation Project provides for program evaluation 4. Application for waiver includes an evaluation design from State or District rules 5. In progress: second-year evaluation of Success for All Thus, as seen, every sub-paragraph referred to "evaluation." (b) In a June 1999 position paper. on the LRSD's PreK-3 literacy program, staff wrote: Er.eK-3 Literacy_Program evaluation. In keeping with the obligations in the Revised Desegregation and Education Plan, the District shall employ with Title I funding a program gyaluatpr, who shall annually report on the level of effectiveness of the innovations in this PreK-3 Literacy Plan. [CX 703, Doc. 1, at 44
emphasis added] See also J.Add.25 (Tr., 11-19-01, at 278) (Dr. Lesley) ("[W]e noted the importance of a program evaluation, as a part of the commitment that we were making.") (c) The LRSD's Interim Compliance Report of March 15, 2000 described steps said to be underway to comply with the Revised Plan. The material addressing Section 2.7,1 refers to If [i]mprove- 6I I I I rnents in the assessment of academic programs. II [CX 869 at 51] It also cites, inter alia, the "Program Evaluation Plan" [at 51], a draft policy on "Curriculum Evaluation" [at 52], and "[t]he 1999- 2000 program evaluation agenda . . . approved by the Board of I Education in August 1999." [At 53] In sum, there are repeated references to evaluations. (d) The LRSD submitted on March 12, 2001, "Compliance a Report" designed to provide a predicate for the district's release from court supervision. See CX 870 and Add. 95, para. 11. The material in this Report addressing Section 2.7.1 is headed "Program Evaluation" a title which is repeated at a later point in the I discussion. The text (page 148 of the report) includes at least nine other references to "evaluation." (e) During her testimony before Judge Wright on August 1, > 2001, Assoc. Superintendent Lesley agreed that LRSD had interpreted 2.7.1, which does not use the word evaluation, as nevertheless I I raising the topic of program evaluation. [J.Add.19-21 (Tr., 8-1-01, at 705, 24 to 707, 12)
see also J.Add.22-23 (Tr., 8-2-01, at 842- 43, 7-15) (Judge Wright noting that LRSD "voluntarily undertook . . obligation to have program evaluations of the programs that are designed to enhance African-American achievement")] D. The LRSD Seeks in March 2001 a Declaration of Unitary Status and Its Release from Court Supervision_____ On March 15, 2001, acting pursuant to Section 11 of the Revised Plan [Add. 95] , the LRSD filed the above-mentioned Compliance Report, as a predicate for a finding of unitary status and a termination of court jurisdiction. [CX 870] Thereafter, on 7June 25, 2001, the Joshua Intervenors filed an [0]pposition to [the LRSD's] Compliance Report. 11 [LRSD App. 38] The district court ultimately conducted hearings on 9 days, concerning Joshua Intervenors' contention that the LRSD had not substantially complied with certain sections of the Revised Plan, including Sections 2.7 and 2.7.1. Judge Wilson ruled on all issues 3 raised by Joshua Intervenors on September 13, 2002. 237 F.Supp. 2d 988 (E.D.Ark. 2002). The court held that Intervenors had failed to establish a lack of substantial compliance in each area addressed, with one exception, implementation of Plan Section 2.7.1. LESfi, 237 F.Supp. 2d 1086. The court set forth findings of fact and conclusions of law, supporting its ruling, as well as a "Compliance Remedy," geared to the specific problems identified in Section 2.7.1 compliance. LESD, 237 F.Supp. 2d at 1076-82, 1087-88. E. The Basis for the Court's Ruling in Sept. 2002 of Non- Compliance with Plan Section 2.7.1 Due to the Absence of Any Completed Program Evaluations_____________________ Based upon the hearing record. including the evidence summarized suora at 5-7, the district court made a series of findings showing the LRSD's lack of substantial compliance with Section 2.7.1, as the LRSD had construed it. These findings, part of the law of the case, include the following: In Secs. 2.7 and 5.1 through 5.4 of the Interim Compliance Report, LRSD identified almost 100 programs that it had implemented to 'improve and remediate the academic Prior to her withdrawal from the case [LRSD App. 51], Judge Wright heard the matter on July 5-6, 2001, August 1-2, 2001, and November 19-20, 2001. [LRSD App. 38-39, 40, 49] Judge Wilson completed the hearings on July 22-25, 2002. [LRSD App. 61] 3 8achievement of African-American students.' At certain grade levels, it appears students were exposed to multiple programs aimed at improving their literacy and math skills. F.Supp. 2d at 1076 n. 135 (para. 3)] [237 Under Sec. 2.7.1 of the Interim Compliance Report, LRSD discussed at length its plan for 'assessing' the programs implemented under Sec. 2.7. [footnote omitted] This plan consisted entirely of administering numerous tests to students in various grades levels and then comparing those tests scores with past test results to gauge how the programs were working to improve African-American achievement, [footnote omitted] see Interim Compliance report at 56-58. In addition to this 'Assessment Plan,' Sec. 2.7.1 of the Interim Compliance Report noted that LRSD was preparing ^evaluations' on some key programs designed to improve African-American achievement, in order to provide a more in-depth look at the effectiveness of those programs. . . . See Interim Compliance report at 53-54. Thus in order to comply with its obligations under Sec. 2.7.1, LRSD acknowledged in the Interim Compliance Report that it was required: (a) to use both the testing data and the 'program evaluations' to determine the effectiveness of the key academic programs implemented pursuant to Sec. 2.7
and (b) to modify or eliminate those programs which the testing data and evaluations revealed were not effective in improving African- American achievement. [237 F.Supp. 2d at 1076-77, para, emphasis in original] 3
. . . . Dr. Lesley admitted that, even though Sec. 2.7.1 of the Revised Plan does not use the phrase 'program evaluation,' LRSD interpreted that section of the Revised Plan to include an obligation to perform program evaluations. Tr. August 1, 2001, at 706-07. [237 F.Supp. 2d at 1077, para. 4] . . . . Thus, at least as early as March 15, 2000, LRSD went on record as recognizing that effective and timely written evaluations of the key programs implemented under Sec. 2.7 were essential in order for LRSD to accurately assess the effectiveness of those programs and to make the determinations required under Sec. 2.7.1 regarding whether the programs should be changed or eliminated.[237 F.Supp.2d atl078, para.6] During the hearings on unitary status, LRSD took the position that Sec. 2.7.1 only obligated it to perform 'assessments' and that it was not required to perform aCY program 'evaluations.' Dr. Lesley testified that preparing program evaluations was ' very expensive.'Tr. November 20, 2001, at 339. Based upon the amount of time, effort, and money 9that LRSD expended on preparing program evaluations.an<3 its efforts to document the preparation__ofthoseprogram evaluations in both the Interim and Final Compliance reports the record is clear that LRSD viewed those program evaluations as an integral part of the assessment process describee^, -in [237 F.Supp. 2d at 1078, para. 10
emphasis Section 2.7.1. added in part] I I I I . I find that the much more in-depth and analytical program evaluations, which LRSD agreed to prepare on certain key remediation programs identified in the Interim Compliance Report, were an integral and essential part of LRSD's obligation under Sec. 2.7.1. [237 F.Supp. 2d at 1079, para. 13] > In February of 2001, only one month before March 15, 2001 deadline for filing LRSD's Final Compliance Report, the Board enacted Policy IL (evaluation of instructional programs). [footnote 138: 'To the extent that LRSD was required to prepare evaluations on various programs designed to improve the academic achievement of African-American students as part of its obligation under Sec. 2.7.1, it was a little late in the day for the Board to be getting around to enacting a policy on how those evaluations should be prepared."[Policy IL recognized the crucial importance of program evaluations in providing 'valuable insights into how programs are operating, the extent to which they are serving the intended purpose of increasing student achievement, the strengths and weaknesses, the cost effectiveness, and directions for the future.' [CX 719] [237 F.Supp. 2d at 1078, para. 7] 'more . . . . Dr- Lesley defined a 'program evaluation' as long term, [it] may consider observations or measurements in addition to test scores, and is guided by a set of research questions that are usually provided by whoever the consumer is of that report. Tr. November 19, 2001, at 242-43. [237 F.Supp. 2d at 1077, para. 4] . . . .Dr. Lesley testified that, by the end of November 2000, it was her opinion that no one in PRE had the expertise to prepare program evaluations. Tr. August 1, 2001, at 710. [237 F.Supp. 2d at 1077, para. 5] The evidence introduced during the unitary status as of March 15, hearings overwhelmingly established that, 2001, the date the Final Compliance report was filed with the court: (1) PRE had prepared only draft evaluations of some of the programs in question
(2) none of those evaluations had 10been approved by the Board
(3) in the fall of 2000, LRSD presented the Board with evaluations of the Pre-K-3 Literacy Program, the National Foundation Project, and the implementation of the middle school curriculum, but the Board LRSD tabled approval of each of those evaluations because of serious problems with their form and content
and (4) february of 2001, only a few weeks before the deadline for in filing the Final Compliance Report, LRSD formed a new research Committee and charged it with the responsibility of preparing and finalizing the evaluations on at least some of the programs listed on page 148 of the Final Compliance Report. The Final compliance Report's discussion of 'Program Evaluations" 148 fails to disclose anv of the Compliance of on page any of foregoing facts. 'When one has to eat crow, one should take big bites.' it would have been far better for LRSD to candidly set forth in the Final Compliance Report that it had dropped the ball in preparing the program evaluations outlined in the Interim Compliance report, rather than presenting a misleading picture of the actual status of those program evaluations. [237 F.Supp. 2d at 1079-80, para. 15
emphasis added in part] After discovering the serious problems with LRSD's incomplete and inadequate draft evaluations. Dr. Lesley sent several e-mails to other top administrators making it quite clear that LRSD had failed to carry out its obligation to prepare timely and reliable evaluations to assist in determining the effectiveness of the key remediation programs implemented by LRSD to improve the academic achievement of African-American students. para. 16] . . [237 F.Supp. 2d at 1080, These findings may be summarized as follows: [i] LRSD interpreted Sec. 2.7.1 consistently to obligate the district to prepare program evaluations of the key Section 2.7 programs, which by the text of that Section were not limited to the programs in Plan Section 5. [ii] The School Board adopted a policy on evaluation belatedly, i,e^, in February 2001, only in the month before it filed its Compliance Report (at the time specified in the 1998 plan), seeking a complete release from court supervision. [iii] LRSD lacked the personnel needed to prepare adequate evaluations, [iv] LRSD's March 2001 Compliance Report was marked by 11a lack of candor, exaggerating the extent of completion of evaluations
none were complete. [v] In view of its earlier consistent position that Sec. 2.7.1 required the preparation of evaluations of key Section 2.7 programs, URSD's contrary position in the hearing also evidenced a lack of candor. F. The District Court's Entry of a Compliance Remedy in September 2002 and the Lack of An Appeal by the LRSD In response to the default of the LRSD regarding Section 2.7.1, the district court set forth in its September 13, 2002 ruling a "Compliance Remedy." 237 F.Supp 2d at 1087-88. The LRSD did not file an appeal or cross appeal challenging any aspect of the Compliance Remedy, a point noted in the district court's subsequent decision of June 30, 2004 from which this appeal is taken. [Add. 55] The lower court also observed there that "LRSD did not seek clarification of any terms used in the Compliance Remedy or any of its compliance obligations." [Add. 9] G. Faced with the Court-ordered Compliance Remedy, the LRSD Again Fails to Provide the Requisite Program Evaluations Resulting in the Court's Imposition on June 30, 2004 of a More Detailed Compliance Remedy The Compliance Remedy established a series of steps necessary to fulfill the requirements of Section 2.7.1. As authorized by Paragraph F of the Remedy, the LRSD filed on March 12, 2004 a "Compliance Report" maintaining that it had substantially complied with the "Compliance Remedy," warranting a release from court supervision. [Add. 19] Thereafter, on April 15, 2004, the Joshua Intervenors opposed LRSD's request. [App. 29
see also Add. 29-32 {district court's summary of Intervenors' objections)] 12The district court heard the matter on June 14-15, 2004. The LRSD presented witnesses, who were cross-examined [Add. 35], and the court received each parties' exhibits." Intervenors' exhibits included an office of Desegregation Monitoring (ODM) report of March 30, 2004, titled "The [LRSD's] Implementation of the Court's Compliance Remedy. II [JX 11] The report addresses relevant staffing in the LRSD, as well as ODM discussions with LRSD officials concerning their efforts (or lack thereof) during the period in which LRSD was to implement the initial compliance Remedy. [JX 11 at 2-3, 5-6, 16, 23] (This court directed the creation of ODM. IRSD, 921 F.2d at 1388, 1394.) On June 15, 2004, at the close of the LRSD's evidence, the district court granted, in part, the Joshua Intervenors' motion for judgment as a matter of law pursuant to Rule 52(c), Fed.R.Civ.Pro. [Add. 35] The court granted the motion as to Parts A and B of the Compliance Remedy, but not Part C. [1^. ] On June 30, 2004, the court filed a 69-page Memorandum Opinion. In substance, the court concluded in detailed findings that in the face of the "Compliance Remedy," the LRSD had again defaulted. The court therefore restated the "Compliance Remedy" in more detailed terms. [Add. 61-67] H. The Basis for the District Court's June 30, 2004 Ruling and Revised "Compliance Remedy"------- A summary of the district court's June 30, 2004 findings of fact and conclusions of law follows. A footnote at the end of each " Intervenors' witnesses did not testify due to the court's granting Intervenors' motion for judgment pursuant to Rule 52(c), Fed.R.Civ.Pro., after the LRSD rested. [Add. 35
Tr. at 297-304] 13paragraph sets forth support in the record for the court's ruling. On October 10, 2002, Board") adopted a "Compliance Plan LRSD's Board of Directors ("the It that was specifically designed to satisfy the Court's Compliance Remedy. . Compliance Plan recognized that, in order for LRSD to meet its obligations under the Compliance Remedy, it would have to satisfy three core obligations: (1) 'develop a written procedure for evaluating the programs implemented pursuant to Sec. academic 2.7 to determine their effectiveness in improving the achievement of African-American students"
(2) 'maintain written records of the criteria used to evaluate each [sec. 2.7] program"
and f3]'fplrepare a comprehensive program evaluation of each academic program__Linpl emen ted pursuant to . . . Sec. 2.7 to determine..its effectiveness in improving the academic achievement of African-American students and to decide whether to modify or replace_the program." Id. at 3-5 (emphasis added). [Add. 11-12
54] . The & The Compliance Plan also included a detailed 'Action Plan Time Line' that: (1) identified the LRSD employees who were responsible for implementing each 'activity' necessary to satisfy the Compliance Remedy
and (2) provided a schedule for completing each of these activities. Dr. Bonnie Lesley, the Associate Superintendent for Curriculum and Instruction, and Dr. Ken James, LRSD's Superintendent of Schools, were assigned personal responsibility for each of the twenty-eight (28) activities identified by the "Action Plan Time Line." Id. at 7-10. Thus, it was up to Dr. Lesley and Dr. James to spearhead the timely implementation of all twenty-eight activities' necessary to satisfy the Compliance remedy. [Add. 12] Finally, at the same time it approved the compliance Plan, the Board also adopted Regulation 'IL-Rl,' which set forth 'the written procedures for evaluating the programs implemented effectiveness pursuant to in African-American improving students.' Sec. r the 2.7 to academic determine achievement their According to of the Compliance Plan, regulation Il-Rl established the criteria for preparing the program evaluations necessary to satisfy LRSD's obligations under subparts an of the Compliance A B 5 See J.Add.11-13 ("[Final] Compliance Plan"). 6 See J.Add. 15-18
Tr. at 116-18 (Lesley). 14Remedy.[Add. 12-13] the Board approved a 'Program On October 24, 2002, tii= i-t---- - ---=>--- Evaluation Agenda' for the 2002-03 school year that authorized n . j J 2 X. V. .M. o A ** *> V* A e* t T 1 On October 2 4, the preparation of evaluations in (1) Elementary literacy
(2) Secondary literacy
and (3) the National Science Foundation ('NSF') K-12 Math and Science Elementary literacy
three broad areas
Project, [citations to record] LRSD subsequently construed the 2002-03 Program Evaluation Agenda as requiring it to prepare only two Sec. 2.7.1 evaluations in order to satisfy its obligations under subpart A of the Compliance Remedy: comprehensive 'Literacy Evaluation"
and (2) a comprehensive Math and Science Evaluation."[Add. 13
see also at Add. 23-24 (1) a (identifying the two "evaluations" submitted)] Of course 'Literacy' and 'Math and Science' are not they are broad academic areas that roughly tn the orouDino of collecie courses into 'Arts' or 'programs' correspond to grouping college 'Sciences.' Because LRSD administrators, such as Dr. Lesley, had always construed Sec. 2.7.1 of the Revised Plan as 2.7.1 requiring LRSD to prepare evaluations of the key Sec. programs implemented to improve African-American achievement, the Board should have been aware that they were being too general in dividing the universe into 'Literacy' and 'Math/Science' and then preparing a global evaluation of each of those areas. Nevertheless, in its March 12, 2004 Compliance in 'Literacy' Report . . . , LRSD contends that these two Sec. 2.7.1 evaluations fully satisfy all of its obligations under subpart A of the Compliance Remedy, [footnote omitted] [Add.13-14
55 The district court found, as detailed in the ODM report and See JX 2 (Reg. IL-Rl)
J.Add. 12. Also noteworthy are the following: [i] JX 1 (LRSD evaluation policy states: "All program evaluations will follow standards established by the National Joint Committee on Standards for Education Evaluation.")
[ii] LRSD's Proposed Compliance Plan states: "Proposed Reg. IL-Rl combines generally accepted principles of program evaluation with practices that have been in place in the LRSD for the past two years." See LRX 14 at 3-4
LRX 3 at 3-4
JX 11 at 4. See evidence discussed supra at 5-7
CX 870 at 148 (planned evaluations of parts of the curriculum)
J.Add.11 (para.4) (Compliance Plan refers to preparing evaluation of "each [Sec. 2.7] program")
Tr. at 195 (Ross) ("every school and every district has many subprograms" which can be and should be evaluated)
LRX 14 at 3-4. 15I I I I I the testimony, that the problem of inadequate staffing persisted. Dr. Bonnie Lesley and Dr. Ken James, whom the "time line" in the Compliance Plan identified as having "personal responsibility for each of the twenty-eight (28) activities identified" as necessary "to satisfy the Compliance Remedy," resigned in March and May, 2003, respectively. [Add. 12, 17] The district court found that no document identified a successor. [Add. 18-19] The court noted that the LRSD originally envisioned its Department of planning, Research, and Evaluation ('PRE') preparing evaluations. [Add. 17 n. 17] The court found that after the Assistant superintendent in charge of PRE resigned "in early 2001," she was not replaced until a "statistician" was designated "acting head" in November 2003. [Id.] "As a result, since Dr. Lease's departure in early 2001, LRSD has essentially functioned without a meaningful Department of Planning, Research and Evaluation. See ODM's Compliance Report [JX 11] at 6. If [Id
see also Add. 39-40 (paras. 6-7)] lO LRSD Regulation IL-Rl contained the following procedures that were to be followed in preparing all future Sec. 2.7.1 evaluations [Add. 21]: (1) Write a clear description of the curriculum/instruction program that is to be evaluated, with information about the schedule of its implementation. [Add. 22] (2) Agree on the necessary research questions that need to be established in addition to the question: 'Has this curriculum/instruction program been effective in improving and lO 269 (Glasgow). Tr. at 116-18 (Dr. Lesley)
JX 11 at 2-3, 5-6, 16
Tr. at 11 The LRSD policy on "Evaluation of Instructional Programs" . . program evaluations can provide valuable states in part: " insights into how programs are operating . . ." [JX 1] 16remediating the academic achievement of African-American students?' [Add. 22] . . . . (4) Plan ways to provide regular progress reports fe.q.. dissemination of meeting minutes, written progress reports, oral reports to Superintendent, Cabinet and\or Compliance Team) to stakeholder, including the Associate Superintendent for Instruction, The Superintendent of Schools, the ODM (until Unitary Status is achieved) and the Joshua Intervenors (until Unitary Status is achieved). [Add. 22] (5) The team preparing the program evaluations had to meet 'to monitor the completion of assignments'
'to review drafts and provide feedback to the writer'
and to 'formulate recommendations . . . for program improvement, especially to decide if a recommendation is required to modify or abandon the program if the findings reveal that the program is not being successful for the improvement of African-American achievement.' [Add. 22-23] . . 12 The district court's summary of the ODM report on compliance included the following content: (2) The ODM had difficulty getting LRSD administrators to identify the specific Sec. evaluated under Sec. 2.7.1 2.7 of programs the Revised that would be Plan. administrators finally acknowledged to the ODM that LRSD 'the program evaluation agenda for the 2002-03 school year would include only elementary literacy, secondary literacy, and the NSF math and science project.' LRSD administrators never explained to the ODM which Sec. 2.7 programs would be covered in the literacy and math science evaluations. 1^. at 12. [Add. 24-25] 13 While developing its Compliance Plan, the LRSD prepared a proposed regulation, I1-R2. "'Proposed Regulation IL-R2' was 12 See JX 2. 13 JX 11 at 23. On this topic, ODM wrote: "Over the course of our monitoring, we have repeatedly asked district employees which programs the district viewed as subject to the program assessment requirement. For the most part, responses have been evasive, but in January 2004, an ODM monitor again asked a senior-level administrator if the district had ever identified the programs subject to the assessment requirement. additional comment." Id. His reply was 'no,' without 17intended to govern the preparation and content of ' Informal program Evaluation.' The stated purpose of this regulation was 'to ensure that a written record exists explaining a decision to significantly modify an academic program.' [citations omitted] / II [Add. 33] "Proposed Regulation IL-R2 clearly was intended to meet certain of the obligations imposed on LRSD under subpart B of the Compliance Remedy. LED, 237 F.Supp. 2d at 1087-88." [Add. 34] The School Board failed to adopt Regulation I1-R2. rid.1 The district court found that "LRSD'S Literacy Program Evaluation fails to substantially comply with subparts A and B of the Compliance remedy" due to many "significant deficiencies." [Add 42-45] [i] It did "not evaluate each Sec. 2.7 academic program" "much less analyze 'whether to modify or replace' any of those programs." [Add. 42-43] [ii] The "research question[s]" addressed did not include the key question identified as necessary in LRSD's Regulation IL-Rl, "based on: 'Policy IL, Sec. 2.7.1 of the [Revised Plan] and Judge Wilson's Compliance remedy." [Add. 43] [iii] It did not satisfy the fundamental requirement of Regulation IL-Rl that there be "a clear description of the curriculum/instruction program that is to be evaluated, with information about the schedule for its implementation." [Add. 43] The descriptions of the middle school and high school programs were particularly deficient. [Add. 44] The court noted the concession of LRSD expert Dr. Ross that X4 LRX 2 at 6
J.Add. 12-13 ("[Final] Compliance Plan"]). 18these program descriptions were "amorphous." [Add 44] 15 [iv] The court also wrote: "During the evidentiary hearing, the testimony established that LRSD failed to provide the ODM and Joshua with any 'progress reports' on the Literacy Program Evaluation as required 16 by Regulation IL-Rl." [Add. 45] The district court found that the "LRSD's Math and Science Evaluation also falls short of substantial compliance with subparts A and B of the Compliance Remedy." [Add. 45] "[MJore obvious deficiencies" include: "In violation of its own Compliance Plan, LRSD prepared a comprehensive Math and Science Evaluation that examined 'areas of knowledge' not specific Sec. 2.7 programs." [Add. 46] Furthermore, the document does not address modification or replacement of programs. [IXJ. ] The evaluation covers curriculum chances made to LRSD's math and science programs not the specific Sec. 2.7 programs that were designed and implemented to improve the academic achievement of African-American students in math and science. II [Add. 47] The evaluation, as conceded by an LRSD witness, was II primarily an analysis of test scores." [Add. 47-48] Moreover, the evaluation included an unsound analysis of test 15 Dr. Ross earlier prepared "guidelines" for LRSD emphasizing the importance of program descriptions. [LRX 8 at 2, 3, 4] 16 Compare LRX 14F at 8 (Exhs. 2195) (research questions focus on analysis of student test scores) with Tr. at 195 (Dr. Ross testifies that every district and school had sub-programs which can be and should be evaluated)
compare JX 2 at 5 (para. D) with LRX 14F at 8 (Exhs. 2195) (key research question omitted)
compare JX 2 at 3 (clear description of program needed) with LRX 14F at 10-11 (Exhs. 2197-98) (little or no description of programs)
Tr. at 192 ("amorphous" program descriptions)
Tr. at 197-98 and 279-80 (lack of progress reports). 19scores. [Add. 49-50] The evaluation did not address implementation of the program at each school. [Add 48] "[T]he LRSD failed to provide regular 'progress reports' on the Math and Science Evaluation to the ODM and Joshua, as required by Regulation IL-Rl." [Add. 50]" The LRSD's witness. Dr. Ross, testified that it is now necessary to "perform program evaluations to determine the effectiveness of the specific Sec. 2.7 literacy programs as they have been implemented at each of the schools in the district in order to fulfill the purposes of Section 2.7.1. [Add. 50-51] The LRSD's witness, Mr. Glasgow, the Interim Superintendent of Curriculum and Curriculum, "testified that the single best way to improve the academic achievement of African-American students was to evaluate, on a school-by-school basis. the effectiveness of specific Sec. 2.7 programs, as they have been implemented at the classroom level. II [Add. 53] la At the hearing, the LRSD again argued, by the testimony of Dr. Lesley, whose credibility the district court faulted [Add.54], that to satisfy Section 2.7.1 the district was "required to perform only annual informal assessments." [Add. 52 emphasis in original]. The district court noted the testimony of LRSD witness Dr. Ross, 2236-2354) (math-science " See generally LRX 14G (Exhs. evaluation)
Tr. at 241 (primarily a test score analysis)
Tr. at 244-47 (unsound anlysis of test scores)
Tr. at 240-43 (lack of data on implementation at each school)
Tr. at 197-98 and^279-80 (lack of progress reports)
Tr. 241-43 (evaluation deficient in light of standards articulated by Dr. Ross in LRX 5). xa Tr. at 195 (Dr. Ross)
Tr. at 273-74 (Glasgow). 20Id rejecting the adequacy of such informal steps. [Add.52-53] Dr. Ross testified that a district the size of the LRSD could reasonably be expected to perform four or five program evaluations of individual programs. [Add. 56] The district court found Dr. Ross to be It well-qualified expert in preparing program evaluations a [and a person with] extensive knowledge about programs and strategies that schools can implement to improve the academic achievement of African American students." [Add. 53] The court "further [found] Dr. Ross's testimony was both informative and credible regarding the Literacy Evaluation that he prepared." [Id-] "Subpart B of the Compliance Remedy required LRSD to maintain written records of its assessment of each Sec. 2.7 program. These written records were required to include the following: (a) the criteria that LRSD used to assess each Sec. 2.7 program during the 2002-03 school year and the first semester of the 2003-04 school year
and (b) the 'results of the annual assessment of each program. including whether the assessments resulted in program modifications or elimination of any programs.' 237 F.Supp. 2d at 1088. Proposed Regulation IL-R2, which was never approved by the Board, appears to have been designed to satisfy the requirements of subpart B of the Compliance Remedy." [Add.56-57, emphasis in original] 21 "The evidence established that LRSD failed to maintain any of Id Tr. at 151-55 (Dr. Lesley)
Tr. at 177, 203 (Dr. Ross). 20 Tr. at 158-59, 210. 21 LRX 2 at 6
J.Add. 12-13. 21the separate written records on each of the Sec. 2.7 programs that were required by subpart B of the 1 attached to its Compliance Report Compliance remedy. Instead, three documents that LRSD contain a confusing compilation of random changes in various described academic vaguely programs during the 2001-02, 2002-03, and 2003- 04 school years, [citations omitted]" The district court described additional shortcomings in this area. [Add.57-58] The district court concluded that the LRSD complied with Subpart C of the substantially Compliance Remedy. [Add. 58-61] Standard of Review The LRSD having failed to seek the court's rulings of September 13, reconsideration of or to appeal 2002, regarding Section 2.7.1 of the Plan, those rulings are the law of the showing of clear case, absent "a error and manifest injustice" subsequent change in the facts of the or a substantial. case. LRSD v. PCSSD. 971 F.2d 160, 165 (Sth Cir. 1992). In XB.SD V. Armstrong J court wrote: 359 F.3d 957, 963 (Sth Cir. 2004), this We review the District Court' error. See Nash Finch Co. F.3d 846, 850 (8th Cir. V ^^ndings of fact for clear I Rublioff Hastings. L.L.C r.OU 04b, 850 (Sth Cir. 2003). Thus, we must 2^ findings are, in our opinion, clea^ir that we must have a 'definite n H f 4 > District Court a was permissible views of the between them cannot be Anderson v. defini-i-o a /I erroneous, which means definite and firm conviction' mistaken. Ibid. If 'there > evidence. that the If 'there are two factfinder's choice clearly erroneous.' 14. at 851 (quoting ------ 470 U.S. 564, 574 (1985)). Xisid. City of Bessemer City. The district court' review by the abuse of discretion s second Compliance Remedy is subject to standard. LRSD PCSSD. supra. 23 LRX 14C-E (Exhs.2174-86). 22 921 r.2d at 1394, paras. 8-9
compare Swann v. Charlotte-HecRlen- hfirg Board of Educ. . 402 U.S. 1, 15-16 (1971) (remedial authority of federal district court when local school authority defaults) . Summary of Argument The LRSD has twice failed to provide any adequate program evaluations of its key programs designed to build African-American achievement, despite its voluntary promise to do so in Plan Section 2.7.1. Its appeal challenges the court's second, more-detailed Compliance Remedy, designed to prevent a third such default. LRSD pledged not only to implement programs "to improve and remediate the academic achievement of African-American students ." (Sec. 2.7), but also "assessment" of the Sec. 2.7 programs after each year for effectiveness. allowing informed decisions about the need for modification and program replacement (Sec. 2.7.1). When Intervenors challenged LRSD's compliance, the evidence revealed the ambiguity of the term "assessment." Based upon consid- erable evidence. including LRSD admissions, the district court construed Sec. 2.7.1 to require program evaluations of the key academic programs designed to build African American achievement. Drawing upon its residual authority in the absence of relevant provisions in the parties' plan (LESE, 921 F.2d at 1394 [paras. 8- 9]), the court set forth a Compliance Remedy to secure the requisite evaluations and cure other deficiencies in LRSD's performance. LRSD did not appeal. In 2004, when LRSD sought release from court supervision. Intervenors contended that LRSD had not adequately implemented the 23Compliance Remedy and again failed to provide the requisite program evaluations. The court agreed, in detailed findings and rulings which LRSD essentially ignores. The court found again that LRSD had construed its obligation to encompass preparation of program evaluations, not the less rigorous study it proffered as adequate at the hearing. The lower court, as noted, set forth a revised more detailed Compliance Remedy. LRSD's arguments also ignore the governing standards of review. In particular, LRSD ignores the import, under the law of the case doctrine, of its failure to appeal from those parts of the lower court's Sept. 13, 2002 decision concerning failure to implement Plan Sec. 2.7.1 (findings, conclusions. Compliance Remedy). LRSD, 971 F.2d at 165. Generally, LRSD's arguments lack substance, when viewed in the light of the court's findings and the record. Argument In keeping with the parties' historic emphasis in this case. the LRSD promised in Plan Section 2.7.1 to undertake a program evaluation of each key Section 2.7 program to judge effectiveness in building African American achievement and to identify any needed program changes. The first Compliance Remedy rested on LRSD's default in this regard
LRSD did not appeal. The second, more detailed Compliance Remedy rests on well-supported findings that LRSD again defaulted and failed to fulfill this vitally important pledge. The district judge need not allow the LRSD to outlast him. The LRSD, in substance, seeks a de novo review. LRSD errs. Pursuant to each element of the applicable standard of review, the 24I ft ft ft ft ft ft ft ft ft ft ft ft ft ft ft proper focus is wrong. whether the district court's As LRSD did not appeal from or action is clearly otherwise challenge the relevant findings, conclusions, and remedy set forth on September 13, 2002, they are the law of the case, absent a showing which LRSD does not undertake. The district court's must be accepted if they rest evidence." LRSD must abuse of discretion. on June 2004 findings of fact "permissible [view] of the show that the second "Compliance Remedy" is an This argument first shows that the court, faced with a second LRSD failure to provide the promised program evaluations. has sought, in an appropriate manner, to benefit of their Section 2.7.1 bargain. provide Intervenors the Intervenors then address a particular flaws in the LRSD argument. > A. The District Court, Faced With A Second LRSD Failure to^ Provide the Requisite Program Evaluations, Has Sought, in a Manner Consistent with this Court's Guidance, to Provide Intervenors the Benefit of Their gectjon 2.7.1 Bargain The quest for "the equal and integrated education of black children" in the LRSD (LESfi, 921 F.2d at 1380) has been governed by agreements of the parties since 1990. The parties have emphasized steps to address the lagging achievement of African American students. The district court recognized the relationship and the 33 importance of Sections 2.7 and 2.7.1 of the "Revised Desegregation > and Education" Plan. [Add.4,68] The LRSD pledged not only to At an earlier time, when LRSD pledged actions to reduce the this court cited "the agreed effort to racial achievement gap, eliminate achievement disparity between the races" elements of the . . . plan that we consider crucial, and with respect to which no retreat should be approved." 949 F.2d 253, 256 (Sth Cir. 1991). as one of "those . . plan that Appeal of LRSD. 25 23implement programs "to improve and remediate the academic achievement of African-American students . . It [2.7], but also to study the Section 2.7 programs after each year for effectiveness, allowing informed decisions about the need for modification and program replacement [2.7.1] 1. The LRSD's Initial Failure to Provide the Requisite Program Evaluations and the Court's First Compjli9ng$ ReiPgcb: When Intervenors opposed release of court jurisdiction as to Section 2.7.1, addressing this core educational concern, the court in September 2002 found (and ruled), based upon considerable evidence, including an admission by Dr. Lesley, that the "assessment" of "academic programs " to which Section 2.7.1 referred envisioned "program evaluations" "of the key programs implemented under Sec. 2.7 . . ." LRSD, 237 F.Supp. 2d at 1078- As noted, Dr. Lesley also testified to a tendency to use the terms "assessment" and "evalauation" interchangeably. 24 The court found that the LRSD had prepared only draft, unapproved evaluations "of some of the programs in guestion" a fact which the LRSD had not disclosed in its Compliance Report. 237 F.Supp. at 1079-80. The court also found that the School Board adopted a policy on evaluation belatedly and, in any event, noted Dr. Lesley's acknowledgement of a lack of the staff necessary to do evaluations. 237 F.Supp. at 1077-78. Viewed objectively, the court determined that in this sphere, the LRSD had "defaulted" (compare Swann v. Charlotte-Mecklenberg, supra 401 U.S. at 15-16), and then sought to mask this fact by advancing a diluted 24 See supra at 4-5 (need to reach beyond Section 2.7.1 text to construe word "assessment" as used there). 26version of its obligation at the hearing. 237 F.Supp. at 1078. The parties' plan indicated, implicitly, that the implementation period could be extended, if Intervenors' demonstrated a lack of substantial compliance. "[C]ontract terms are interpreted with strong consideration for what is reasonable." Mears__3L Nationwide Mutual Insur. Co.. 91 F.3d 1118, 1122 (8thCir.1996). It would be senseless to allow the challenge on which Intervenors succeeded, if no substantive relief followed. On the other hand, the parties' agreement did not address the content or duration of a compliance remedy, or which party would have the burden of later establishing compliance (or a lack thereof). Supra at 3-4. In this setting, the court followed guidance from this court in this case in 1990 and kindred precedent. In 1990, also in the context of an agreed upon plan, this court addressed the district court's responsibilities regarding compliance with the agreements. This court "instructed" the district court "to take whatever action is appropriate. in its discretion, to ensure compliance with the agreements and otherwise to proceed as the law and the facts require." LRSD V. PCSSD. 921 F.2d at 1394 (para. 8). This court added that should the parties be unable to agree upon a transition from operation under court order to their agreements "the District Court is authorized to take such action as may be just." Id. at para. 9. 3S 25 See also Rufo v. Inmates of the Suffolk Cty. Jail. 502 U.S. 367, 378 (1992) ("A consent decree no doubt embodies an agreement of the parties and thus in some respects is contractual in nature. But it is an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is 27I I I I I ) ) ) I I I I The district court's action following LRSD's initial default mirrors precisely this court's 1990 road map. In brief, the first "Compliance Remedy" (237 F.Supp. 2d at 1087-88) is designed "to ensure compliance with [Section 2.7.1 of the Revised Plan]" as construed by the court (based upon its text and the LRSD's acknowledgement of its obligations). A key provision of the first "Compliance Remedy" provides: to . . [LRSD] must remain under court supervision with regard [Section 2.7.1] of the Revised Plan mtil it Xal demonstrates that a program assessment procedure is in place that an accurately measure the effectiveness of each program implemented under Section 2.7 in improving the academic achievement of African-American students
. . . [237 F.Supp. 2d at 1087, emphasis added] This language portends the court's later decision placing on the LRSD the burden of proof on the issue of compliance with the first "Compliance Remedy." [LRSD App. 100-01 (hearing on 4-22-04)] On burden, the lower court "proceed[ed] as the law and the facts require" and in a manner which was "just." The parties' agreement did not address the burden issue in the context of a Compliance Remedy. The court chose to allocate the burden as is normal in a desegregation setting, as its citation to precedent shows. [Add.36-37] This placed the burden on the party (LRSD) which created the need for the additional proceeding by its default. It is also germane that the LRSD was best positioned to have the information demonstrating compliance (if any there was). Compare subject to the rules generally applicable to other judgments and decrees.")
E,E.0.C v. New York Times Co. . 196 F.3d 72, 79 (2ndCir. 1999) (". . . courts have equitable powers to enforce consent decrees . . .")
U.S, v. City of Miami. Fla.. 664 F.2d 435, 440 n.8 (Sthcir.1981) (en banc) (opinion for five judges). V. Miami, Fla. 28Kg-Ve^-V-.-. school Dist. No. 1. 413 U.S. 189, 209-10 (1973) (role of considerations of policy and fairness in allocating burden of proof). As noted, the LRSD did not appeal from the court's ruling. It did not cross appeal, after the appeal by Intervenors. The district court's findings, conclusions, and remedy thereby became a part of the law of the case. LRSD, 971 F.2d at 165. Moreover, the LRSD did not, as the district court noted, seek reconsideration or clarification of any aspect of the September 2002 decision. [Add.9] 2. LRSD's Second Failure to Provide the Program Evaluations and the court's Second More Detailed Compliance Remedy a. Introduction The court's detailed findings of fact establish that faced with the Compliance Remedy the LRSD again defaulted. The district court responded appropriately and justly, namely, with a more specific remedy designed to give class members the benefit of the vitally important Section 2.7.1 bargain (evaluations of key programs) and to minimize the possibility of a third default. In describing LRSD's remedial obligation in the first "Compliance Remedy," the district court employed the words "assess" and "assessments" not evaluate or evaluation. 237 F.Supp. 2d at 1987-88. The court determined to use the words used by the parties, which LRSD understood to encompass program evaluations. [Add.8] The court's June 2004 findings show that the LRSD understood its obligation under the Compliance Remedy. First, in its "Compliance Plan" adopted on October 10, 2002, LRSD recognized that it was obligated [i] to develop a written 29procedure to evaluate the Sec. 2.7 programs, [ii] to maintain written records of the criteria used for these evaluations. and [iii] to (3)Ifplrepare a comprehensive program evaluation of each agademiccrograinimplemented pursuant to . . Sec. to 2^ determine its pffectivengss in improving the academic achievement a Africsn-Aweripan students and to decide whether to notify or fgplacs 'Vhs prpgraro." Jd. at 3-5 (emphasis added). [Add.11-12
also Add.5 and J.Add.11-13] see Second, the written procedure developed by the LRSD is set forth in its Regulation IL-Rl, also adopted on October 10, 2002. [JX 2] The court found: "According to the Compliance Plan, Regulation Il-Rl established the criteria for preparing the program evaluations necessary to satisfy LRSD's obligations under subparts A and B of the Compliance Remedy." [Add.12-13] Basis for Imposing a Revised Compliance Remedy The district court's articulation of a predicate for imposing a second Compliance Remedy is by no means limited to showing that at the outset LRSD recognized its obligation. Personnel problems persisted and LRSD again sought in the hearing to dilute its obligation. Supra at 15, 20. in the latter regard, the court noted that Dr. Ross specifically rejected as inadequate the tact on which LRSD relied ("annual informal assessments"). Supra at 20. LRSD staff could not articulate for ODM staff the programs subject to assessment. S.Upra at 17. LRSD did not provide Intervenors promised progress reports. [Tr. 197-98, 279-80] The court rejected the notion that LRSD had fulfilled its 30I I I > obligation II by providing for only "global evaluation[s]" of Literacy" and "math/science." [Add.13-14] While some LSD witnesses argued that the system had only a area, single uniform program in each and could not do more [Tr. debunked this notion. at 87-88, 253-54], Dr. Ross [Tr. at 195] Dr. Ross also made it clear that LSD could comply. Individual programs could be identified
LSD should be able to so undertake multiple evaluations each year
doing would be valuable. [Tr. 195, 198, 210-11] The court These found multiple shortcomings in each "evaluation. included in each case program evaluated and in the schools, professional an inadequate description of the lack of information on actual implementation areas recognized as important by LSD and the standards which LSD voluntarily chose to draw upon. Supra at 18-19, 19-20. In the absence of such data. possible to attribute any progress it is not made to the program, or to judge whether better implementation in one or more schools would yield more progress . Also noteworthy is that under Section 2.7.1, possible result of the required study program is implemented. . . ." [Add. 77] was 2fi one "modifying how the Earlier, Dr. Ross prepared for the LSD guidelines for use in completing the "Page 148 evaluations." See LRX 5 and Add. 15-17 (describing these evaluations). He wrote in part (LRX 5 at 1 2): program evaluations that focus predominately on achievement outcomes while lacking sufficient implementation data have reduced value due to inability to determine the nature of the BLenchmark-- T es t r- esults for , bl, a, ck students in math revealed that there is great room for additiional progress. 26 [Tr. at 237-39 (Ms. Cleaver)]] 31 'treatment.' The study will also fail to inform policymakers about the practicality of the program, how it was used and reacted to by the stakeholders, or whether and/or how it needs to be improved to impact at-risk learners. . The The suggested plan for the third-party evaluators is presented below followed by a brief review of each evaluation. . . . B. The supplement should begin with an expanded description of the program, its goals, and its history in LRSD. . . . This text serves to illuminate the problems with LRSD's two global evaluations. They lack anything like adequate program descriptions and implementation data. The testimony and their content show that they focus on analyzing student test scores. not 27 the effectiveness of particular programs. a c. The District Court's Second .Compliance RemodV. The district court again turned to the question of a remedy in context where the parties' agreement did not address the subject. The second Compliance Remedy is grounded in this court's guidance in 1990 and like precedent (supra at 26-27), applied in the light of the shortcoming identified in the court's findings. Outside a court hearing context, the LRSD had repetitively recognized an obligation to provide program evaluations of the key (or each) Sec. 2.7 program. Faced with a second default and ng such evaluations resulting from its first remedy, the court which had trusted LRSD to work out the details [Add. 39, 41], was no longer willing to do so. It crafted a Second Compliance remedy, detailing 27 Literacy evaluation: see LRX 14F at 8-9, 24 42, 44 46 (Exhs. 2195-96, 22111 -2293,, 2231-33) and Tr. at 163-65, 186, 194, 199-200, Ross)
Math/Science: LRX 14G at 23-72, 90-103 (Exhs. 2333-46 and Tr. at 241, 243-44 (Cleaver). 205-07 (Dr. 2267-2315, 32 the components and steps needed to guarantee Intervenors the benefit of their bargain (adequate program evaluations). The remedy identifies a two year implementation period to allow for meaningful preparatory steps and evaluations, [Add. 61] Given the personnel problems, it addresses this topic from multiple perspectives (PRE staff, outside consultants, and use of Dr. Ross). [Add. 61, 63, 64] An assessment process must be approved. [Add. 62] Given past problems, the court requires identification of the particular programs to be evaluated [Add. 63], and requires four such evaluations each year [Add. 63], a number identified as feasible. Given past problems, the court requires inclusion of the core research question and study of actual implementation of programs in the schools. [Add. 63-64] The court sets time lines for preparation, approval and dissemination of evaluations. [Add. 65, 66] It addresses ODM assistance to the LRSD [Add. 65-66] and Intervenors' monitoring. [Add. 66] B. The LRSD Argument Ignores the Elements of the Governing Standards of Review and Is Otherwise Without Merit______________________________ As shown, the court faced with two defaults crafted a remedy rooted in the law of the case (established in its September 13, 2002 ruling), its detailed June 30, 2004 findings, and its remedial authority, as previously articulated by this and other courts. LRSD ffoJ^ts had twice yielded no adequate program evaluation responsive to the Sec. 2.7.1 mandate. The court has acted in a restrained manner, while seeking to provide Intervenors' the promised 2.7.1 evaluations. For example, it did not invoke the remedy of contempt, 33which LRSD nevertheless discusses at length. Intervenors next show that each LRSD contention lacks merit. 1. Itlg Aaa^rtjpn that the Term "Assessment is Unambiguous A considerable part of the LRSD brief is rooted in the contention that the term "assessment" in Section 2.7.1 is unambiguous. [Brf. 31-33, 38-39] This brief has demonstrated the contrary and the need, therefore, to reach outside of that Section to define its parameters. Supra at 4-5. 2. She.Reguest for De Novo Review of the Parties^ Agreement In seeking to avoid the requirement for evaluations. LRSD notes precedent in this court that interpretation of the Parties' agreement is subject to de novo review. [Brf. 31] However, LRSD ignores the law of the case, established by the district's court's rulings of September 13, 2002, which LRSD did not appeal. See LRSD. 971 F.2d at 165. The court's interpretation was correct in any event. The term "assessment" was ambiguous. The court found twice. based on considerable evidence. that LRSD interpreted Section 2.7.1 to require program evaluations of key Sec. 2.7.1 programs. 237 F.Supp.2d at 1076-79
Add.5,11-12. Findings bearing on contract interpretation are reviewed for "clear error." LRSD v. PCSSD. 83 F.3d 1013, 1017 {8thCir.l996) ]
LRSD shows no such error. In this light, the court's interpretation is correct. as 28 Continental Bakina Co.. 420 U.S. 233, 238 (1975) (reliance on "any technical meaning words used may have had J:" parties")
.f:pundation.Telecommunications. Inc, v. Moe S.W.3d 531, 538 (Ark.2000) (reliance on "acts practical construction placed upon a contract by the parties" 233, 238 S.W.3d Inc. on of to 343. The Asserted "Volunteering and Its Impact LRSD argues that it has been subjected to additional obligations because it volunteered to perform some program evaluations, which were not required by the Revised Plan. [Brf. 33 & n.5, 38-39] However, the district court found twice based upon LRSD writings and testimony that LRSD interpreted Section 2.7.1 to require program evaluations of the key (or all) Section 2.7 programs
and the first such findings are the law of the case. The volunteering gambit has no support in the record below, another reason to reject this "after-thought." Knight v. PCSSD. 112 F.3d 953, 955 (SthCir.1997). 4. The "Importinq"of an Evaluation Obligation into the Plan The same argument responds to another of LRSD's complaints, namely, that "the district court imported a 'program evaluation' requirement into the Revised Plan. . ." [Brf. 35] LRSD is again inattentive to the evidence, findings, rulings, and law of the case. Indeed, each of LRSD quotations from the June 2004 opinion includes the lower court's reliance on LRSD's construction of its Section 2.7.1 obligation. [Brf. 35-36] LRSD complains as to the court's finding of an admission by Dr. Lesley, supporting an evaluation obligation. [See Brf. 36 & n. 6 and J.Add. 19-21] Particularly in view of other evidence that LRSD recognized an resolve uncertainty)
Sturgis v. Skokos. 977 S.W.2d 217, 223 (Ark.1998) (ambiguity resolved by reliance on parties' "subsequent statements, acts, and conduct")
Grand State Marketing v. Eastern PoultryDistribs^, 975 S.W.2d 429, 442 (Ark.App.1998) ("In particular, when a technical term is used, the trier of fact may determine in what sense the term was used.") Skokos 35 217, (Ark.App.1998)I I I evaluation obligation [supra at 5-7], LRSD does not show "clear [factual] error." LBSE, 359 F.3d at 963. I I I 5. The Asserted Imposition of New Obligations LRSD's contention that the court has imposed new obligations [Brf. 37-38] is wrong in substance. Faced with two defaults, the court has simply spelled out those actions inherent in and necessary for fulfillment of LRSD's voluntary Section 2.7.1 commitment. Generally, the district court's second remedy simply mirrored LRSD's wholly, or partially unfulfilled plans and policies. Regarding the staffing and reinvigoration of the Department of Planning, Research and Evaluation (PRE), LRSD first intended for PRE to prepare evaluations [Add.17]
thereafter, it identified an active in-house role in this work [JX 2 at 4-7], which did not occur. [LRX 14F (no LRSD employee listed as involved in literacy evaluation) (Exhs. 2187)
Tr. 279] LRSD had long allowed PRE to function without adequate staff [JX 11 at 2-6, 16], a problem which Interim Associate Superintendent Glasgow testified he had rec- I ommended be addressed. [Tr. at 269] LRSD argues that the Plan did not provide for hiring the evaluation personnel. [Brf.37] True, it assumed their presence. Words on a page are not self-imlementing. I The hiring requirement responds to continued personnel shortcomings, which, in part. caused noncompliance with the I I original Section 2.7.1 commitment and then the first Compliance Remedy. The requirement in the second Compliance Remedy is grounded in the court's reserved authority and its responsibility "to take whatever action is appropriate, in its discretion. to ensure 36 Ii I compliance with the . . LRSD adopted an . agreement. ..." LESU, 921 F.2d at 1394. evaluation policy [JX 1] and detailed regulation governing the content of evaluations. [JX 2] LRSD adopts annual plans of programs to be evaluated. [LRX 3, 21] These LRSD documents manifest an intent to embed an evaluation process in the system's operation and this is stated expressly. See LRX 18 at 2, LRX 21 at 2 ("Program evaluation is embedded in the job expecta- tions of staff
consequently this is an ongoing commitment for our staff.") LRSD recognized an obligation to provide program evaluations of key Section 2.7 programs, but failed to do so. [Add.5,38] The staff's proposed program evaluation plan for 2004-05 included six evaluations and suggested use of "external consultants." [LRX 21] LRSD witness Dr . Ross testified that it was feasible and desirable for the district to perform four or five evaluations a year. [Tr. 210] In this light, LRSD's complaint about being required to a provide for eight evaluations in the two year remedy period, utilizing consultants, lacks any substance. 6. The Contention that LRSD Assessed Academig Programs LRSD contends that it "substantially complied with any reasonable interpretation of the Revised Plan and the 2002 Compliance Remedy" by assessment activities short of program evaluations. [Brf. 44-46] This argument lacks merit. As to the Revised Plan, the court found in Sept. 2002 that LRSD construed Sec. 2.7.1 to require program pvaluatipps of key Sec. 2.7 programs
the court adopted this interpretation of LRSD's 37obligation. tESD, 237 F.Supp. 2d. 1077-78. These rulings, not appealed, are the law of the case, a point not addressed by LRSD. Given evidence as to ambiguity of the term "assessment," LRSD does not justify departure from the law of the case by simply asserting that Sec. 2.7.1 contains "plain language." [Brf.44] LRSD asserts the adequacy of "informal evaluations." [Brf. 46] However, the district court found them an inadequate substitute based upon the testimony of LRSD witness. Dr. Ross. [Add. 52-53] The adequate assessment gambit fares no better in the context of the Compliance Remedy. The evidence in the June 2004 hearing again supported findings that LRSD interpreted its Sec. 2.7.1 obligation as encompassing program evaluations. [Add. 11-13,54 ] LRSD does not show the findings to constitute "clear error." [Brf.44-46] The court repeated its interpretation of LRSD's obligation.[Add.56] Dr. Ross's criticism of informal evaluations also applies here. 7. The Contention that LRSD Evaluated Academic Programs LRSD contends that any evaluation requirement under Sec. 2.7.1 was satisfied. [Brf. 46-49] The court found that LRSD advanced its literacy and math/science evaluations as its effort to comply with the first Compliance Remedy. [Add.13,23-24
LRX 14 at 3-4, para.8] LRSD does not challenge, as "clearly erroneous," this finding, or the many findings [Add.42-50] showing the inadequacy of those two evaluations, other arguments lack merit. Preliminarily, LRSD does not show that it advanced below the argument made at pages 46-49. LRSD writes that the court did not "[make] any findings about what particular academic programs 38implemented pursuant to Sec. 2.7 must be evaluated under Sec. 2.7.1," [Brf. 47] However, the court noted that LRSD failed to present such information to the court. [Add.44 n. 35] Moreover, LRSD administrators could not identify such a list for ODM. [JX 11 at 23] LRSD cites as evidence of compliance 14 evaluations, which it claimed, erroneously, to have completed prior to its March 2001 Compliance Report. LRSD, 237 F.Supp. at 1079-80. The court required their completion for a different part of the remedy. Jd- at 1088 (para, c)
see Add.58-61. LRSD is silent as to important facts about these evaluations. Four programs had been discontinued before the September 2002 decision. [Add.60] Based upon his review. Dr. Ross viewed eight of these studies as worthless. [LRX 16 at 1] Lastly, LRSD does not show that other evaluations mentioned were done to implement the annual assessment cycles [Add. 76 (Sec. 2.7.1)] relevant to compliance with the first Compliance Remedy. 8- LRSD's Argument Regacfling the Burden of Proof and Contempt LRSD contends that the lower court improperly allocated to it the burden of proof regarding compliance with Sec. 2.7.1. [Brf. 49 54] This argument lacks merit, in part misstating events below. LRSD writes: This case concerns LRSD's substantial compliance with contract (the Revised Plan) l..! _ __ Compliance Remedy). The burden of proof should be on the party alleging the breach. [Brf. 49] i and a court order (the 2002 The district court was wrong to assign LRSD the burden of proving its compliance with the consent decree and the 2002 Compliance Order. . . . [Brf. 52] Insofar as LRSD alludes to compliance with the Revised Plan (or a "consent decree"), LRSD misstates events below. Intervenors had and 39satisfied the burden of proving Sec.2.7.1. non-compliance. [Add.36] As noted (supra at 3), the Revised Plan did not address the steps to be followed in the event Intervenors proved a lack of substantial compliance with a Plan provision. Allocation of the burden of proving compliance with any further remedy was not addressed. In this setting, the court drew upon its residual authority and estab- lished law to allocate the burden of proof to LRSD. See Add.36-37 and supra at 27-29. LRSD did not appeal
it shows neither a basis to depart from the law of the case, nor an abuse of discretion. II as LRSD states that this court "may" treat the proceeding below if [the district court's second 'Compliance Remedy'] were a sanction imposed on an order of contempt." LRSD argues that in this scenario, Intervenors would have to establish LRSD agents in contempt by clear and convincing evidence, in order to support a remedy like the one ordered in June 2004. [Brf. 50-54] There are multiple reasons for rejecting this approach. First. LRSD was fore-warned. The text of the Compliance Remedy (note 29) allocated the burden of proof to LRSD, which did not appeal. Second. The district court's choice in 2002 regarding burden of proof was grounded in precedent. Supra at 28-29. Third. There is not a "substantial supplemental remedy," but instead a spelling out of the steps needed to fulfill LRSD's Sec. 2.7.1 promise, an action The first paragraph of the first Compliance Remedy provided for continued "court supervision" "until fLRSDI(ajdsjnongtEatgs that a program assessment procedure is in place that can accurately measure the effectiveness of each program implemented under Sec. in improving the academic achievement of African-American ." [Add.6
emphasis added] 2.7 29 students
. 40 I designed to prevent a third default. Supra at 36-37. Fourth. LRSD's argument as to sanctions is also unpersuasive. The first asserted sanction [Brf. 52] is merely the cost of providing the program evaluations which LRSD. promised. The fact that a voluntary remedy has a cost does not render it improper. Appeal of LRSD. 949 F.2d at 256. I The second "sanction" relates to an agreement between the Ark. Department of Education and LRSD, in which Intervenors and the district court had no role. [Brf. 52-53] LRSD cites no basis for I its contention that this factor, foreign to this proceeding, should affect how compliance with the court's order is determined. Conclusion The challenged judgment and rulings should be affirmed. Respectfully submitted. B B Robert Pressman 22 Locust Avenue Lexington, MA 02421 781-862-1955 John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, AR 72206 501-374-3758 I Norman Chachkin Legal Defense Fund 99 Hudson Street New York City, NY 10013 212-965-2259 Certificate of Service B B I hereby certify that I have on December 3, 2CC4 .ualicd uwu brief to Chris Heller, Friday, Eldredge, and Clark, 400 West Capitol Ave, #2000, Little Rock, AR 72201. 2004 mailed two B 41Certificate of Attorney I hereby certify that this brief has been prepared using a word perfect 5.1 program. It contains from page 1 through the conclusion 1212 lines of text, including material that is single spaced. A provided. virus free disk containing this brief has also been 42 -0 4-TO Vr, I I > > I I > I > > I > > I > I > > > I > > I 'I J i- Joshua Intervenors' Addendum 1 > I > > > IIN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION hlsd APR 1 0 1996 LITTLE ROCK SCHOOL DISTRICT, Plaintiff, vs. * No. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al., Defendants, MRS. LORENE JOSHUA, et al., Intervenors, * KATHERINE KNIGHT, et al., Intervenors. MEMORANDTJM OPTNTQN AND ORDER Before the Court are the initial joint motion and the renewed joint motion filed by the Little Rock School District (LRSD") and the Joshua Intervenors (Joshua") requesting that this Court approve the LRSDs proposed Revised Desegregation and Education Plan dated January 16, 1998 (LRSD Proposed Revised Plan" or "proposed Plan")? L Approval of the Proposed Plan After evaluating the LRSD Proposed Revised Plan, this Court hereby grants the joint motions filed by the LRSD and Joshua and hereby approves the proposed Plan. Docket Nos. 3107 and 3136. 1 J.Add. 1 A. In 1990, the Eighth Circuit Court of Appeals approved the current version of LRSD Desegregation and Education Plan or the 1990 Plan. In 1996, after the LRSD had operated under the 1990 Plan for six (6) years, this Court scheduled a series of hearings to gather evidence upon which to evaluate the success of the 1990 Plan, along with the settlement plans of the other districts, and the desegregation remedies endorsed therein.^ At that time, even though the Court had withdrawn supervision over certain aspects of the 1990 Plan, there remained portions of that Plan which were of concern to the Court. Therefore, the Court called expert witnesses to testify, and invited the parties to call other expert witnesses to testify, regarding desegregation remedies in general in an attempt to aid the Court and the parties in evaluating the effectiveness of the 1990 3 Plan. Those evidentiary hearings were held in May of 1996. At those hearings and on several other occasions, the Court has noted that the parties themselves must develop and present for Court approval any proposed modifications to the desegregation and education plans under which they operate. In December of 1996, the LRSD requested and this Court approved a plan development period" in which the LRSD could concentrate its efforts on developing such modifications to the 1990 Plan, in an attempt to 2 3 Docket No. 2631. ' The following expert witnesses testified: (1) Herbert J. Walberg, Ph.D., then a Professor at the University of Illinois at Chicago. See Docket No. 2692. (2) David J. Armor, Ph.D., then a Research Professor at George Mason University in the Institute of Public Policy. See Docket Nos. 2693, 2694. (3) Gary Orfield, Ph.D., then a Professor of Education and Social Policy at Harvard University and the Director of The Harvard Project on School Desegregation. See Docket No. 2768. 2 J.Add. 21 I improve education and desegregation within the district.* Some time during this period, the LRSD commenced negotiations with Joshua regarding modifications to the 1990 Plan. As a result of those negotiations, the LRSD and Joshua agreed upon the provisions included in the I I I I I I t I I I I I I I ) I I I I I I I 1 I 1 I ) 1 I 1 I 1 1 1 1 1 LRSD Proposed Revised Plan currently before the Court. B. The LRSD and Joshua have agreed that, if approved, the proposed Plan. shall supersede and extinguish all prior agreements and orders in the Lill/e Tiock School District v. Pulaski County Special School District^ U.S.D.C. No. LR-C-82-866, and all consolidated cases related to the desegregation of the Little Rock School District (LRSD) with the following exceptions
a. The Pulaski County School Desegregation Case Settlement Agreement as revised on September 28, 1989 (Settlement Agreement)
b. The Magnet School Stipulation dated February 27, 1987
c. d. Order dated September 3, 1986, pertaining to the Magnet Review Committee
The M-to-M Stipulation dated August 26, 1986
and. e. Orders of the district court and court of appeals interpreting and enforcing sections a. through d. above to the extent not inconsistent with this Revised Plan. Based upon this provision, this Court considers the LRSD Proposed Revised Plan an entirely new consent decree or settlement agreement between the LRSD and Joshua. The Eighth Circuit Court of Appeals has determined that because the law strongly favors settlements, courts should hospitably receive them, especially in cases such as this in which the parties have engaged in protracted, highly divisive litigation and in which any lasting solution necessarily depends upon the good faith and cooperation of all of the parties. Little Rock Sch. Dist. V. Pulaski County Spec. Sch. Dist., 921 F.2d 1371, 1383 (8* Cir. 1990). When evaluating a settlement agreement, [jjudges should not substitute their own * Docket No. 2901. 5 Docket No. 3107, Exhibit A, at 1. 3 J.Add. 3judgment as to optimal settlement terms for the judgment of the litigants and their counsel. 921 F.2d at 1385 (quoting Armstrong v. Board of Sch. Dirs, of the City of Milwaukee, 616 F.2d 305, 315 (7' Cir. 1980)). The district court must consider the proposal as submitted by the parties. Of course, the district court may suggest modifications but ultimately, it must consider the proposal as a whole and as submitted. Approval must then be given or withheld. Id. at 1383 (quoting Officers for Justice v. Civil Serv. Comm 'n of the City and County of San Francisco, 688 F.2d 615, 630 (9'*' Cir. 1982), cert, denied, 459 U.S. 1217 (1983)). Although settlement agreements carry with them a presumption of acceptability, id. at 1385, a district court need not automatically approve every settlement agreement the parties submit, id at 1383. A court has a strong interest in not involving itself, along with the prestige of the law, in an ongoing equitable decree which is either manifestly unworkable or plainly unconstitutional on its face. In addition, this is a class action, and courts are not obliged (indeed, they are not permitted) to approve settlements that are unfair to class members, or negotiated by inadequate class representatives. Id. at 1383. [Bjefore a settlement agreement may be rejected because it initiates or authorizes a clearly illegal or unconstitutional practice, prior judicial decisions must have found that practice to be illegal or unconstitutional as a general rule. Id. at 1385 (quoting Armstrong, 616 F.2d at 321). In the area of desegregation law, the Supreme Court has determined that the Constitution does not of its own force forbid all-African-American schools. Sv/ann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 26 (1971). The Constitution of its own force also does not require any particular racial percentage in various schools in the districts. Milliken v. Bradley, 418 U.S. 717, 740-41 (1974). Furthermore, the Constitution of its own force does not demand that all students 4 J.Add. 4 regardless of race satisfy national achievement norms. Missouri v, Jenkins, 515 U.S. 70, 100-01 (1995). Obviously, parties in a desegregation case may and indeed should agree to eliminate the effects of prior de jure segregation to the extent practicable. However, the details of such efforts are not specifically dictated by the Constitution. Even if the court is uncertain that the means proposed in the settlement agreement will succeed in integrating the district or concerned that the lack of sufiBcient detail in the settlement agreement may impede successful implementation, such concerns alone do not render the settlement agreement unconstitutional on its face, especially when the parties to the settlement agreement have consented to continued monitoring. 921 F.2d at 1385-86. This Court has carefully reviewed the LRSD Proposed Revised Plan as jointly submitted by the LRSD and Joshua and concludes that the Revised Plan is not manifestly unworkable or plainly unconstitutional on its face. The parties have consented to continued monitoring by this Court. Although the Court acknowledges that the Revised Plan will present new challenges in regard to monitoring, these anticipated challenges do not render the Revised Plan unworkable or plainly unconstitutional. Therefore, this Court concludes that the LRSD Proposed Revised Plan should be and hereby is approved. C. In the alternative, if this Court were to consider the proposed Plan as simply a modification of the 1990 Plan, this Court would approve the LRSD Proposed Revised Plan. A party seeking modification of a consent decree must establish that a significant change in facts or law warrants revision of the decree. Rufo v. Inmates of Suffolk County Jail, SQl U.S. 367, 393 (1992). If the moving party meets this burden, the District Court 5 J.Add. 5must then determine whether the proposed modification is suitably tailored to the changed circumstance. Id. at 391. The modification must not create or perpetuate a constitutional violation, nor strive to rewrite a consent decree so that it conforms to the constitutional floor. Id. Little RockSch. Dist. v. Pulaski County Special Sch. Dist., 56 F.3d 905, 914 (8* Cir. 1995). This Court concludes, after reviewing the circumstances of this case and the LRSD Proposed Revised Plan, that this standard for modifying a consent decree has been satisfied. Based upon the voluminous Court record generated by this case since the 1990 Plan was instituted and based upon the conclusions which may be drawn from the evidentiary hearings conducted by this Court in May of 1996, this Court concludes that circumstances and conditions have changed which warrant modifying the 1990 Plan. Specifically, there are certain aspects of I the 1990 Plan that have been successfully implemented by the LRSD. Some areas of the 1990 1 Plan have been so successfully implemented that this Court has withdrawn supervision over those I areas. However, there are other stated goals in the 1990 Plan which have not been achieved. I 1 Evidence in the record tends to indicate that the LRSD has put forth minimal effort to achieve I I certain of these stated goals. More importantly, however, there are certain goals in the 1990 Plan I I I I I I I 1 I 1 1 1 1 1 which are out of date for the current situation that exists in the LRSD* and other specific, rigid goals in the 1990 Plan which expert testimony indicates may never be met, regardless of the amount of effort and good faith put forth by the LRSD. Therefore, the 1990 Plan warrants For example, the sections of the 1990 Plan regarding Student Assignment and Facilities are out of date with regard to the current situation that exists in the LRSD. Specifically, the goals in the 1990 Plan regarding achievement disparity may never be met, regardless of the effort put forth by the LRSD. See the testimony of Dr. Walberg, Docket No. 2692, at 17-25
Dr. Armor, Docket No. 2693, at 18-39
and Dr. Orfield, Docket No. 2768, at 25-31. J.Add. 6 6 6modification. Furthennore, this Court concludes that the LRSD Proposed Revised Plan funhers the original purpose of the decree in a more efficient way, without upsetting the basic agreement between the parties. The LRSD Proposed Revised Plan is suitably tailored to the changed circumstances, does not create or perpetuate a constitutional violation, and has not been rewritten to conform only to the constitutional floor. Therefore, this Court concludes that the LRSD Proposed Revised Plan should be approved. D. Having approved the LRSD Proposed Revised Plan, this Court notes that once a modification to a consent decree or a decree itself has been approved by the Court, its terms, including the details, become binding on the parties. 921 F.2d at 1384. Although at this time the Court does not anticipate the need for further modification, the Court does wish to clarify that if progress under this Revised Plan is clearly insufficient or if certain sections of the Revised Plan should prove to be unworkable, the parties may again apply for a modification of the Revised Plan. Consent decrees partake of the nature of contracts, as well as of judicial action, and parties seeking to change them bear an extremely heavy burden. They are not, however immiifokla <* A.1. .x_____ 1 * immutable in any absolute sense, and extraordinary circumstances can arise that would enable the District Court, within its discretion, to consider modifications. Id. at 1387. n. Objections to the LRSD Proposed Revised Plan By previous Order, this Court directed the LRSD to provide notice of the LRSD Proposed Revised Plan and set March 13, 1998 as the deadline for receiving objections to the 7 J.Add. 7I I ) I 1 I I I t I 1 I I I I 1 t 1 I I I I I t I I I 1 I I I I Little Rock School District Compliance Plan Revised Plan 2.7.1 Approved by the Board on October 10. 2002 5 EXHIBIT J. Acta". 8 AThe District Courts Compliance Remedy On September 13,2002, the District Court issued its Memorandum Opinion (hereinafter Opinion) finding that the LirJe Rock School District (LRSD) had substantially complied with all areas of the Revised Desegregation and Education Plan (Revised Plan), with the exception Revised Plan 2.7.1, Section 2,7.1 provided: LRSD shall assess the academic programs implemented pursuant to Section 2.7 after each year in order to deterrnina the effectiveness of the academic programs in improving African-American achievement. If this assessment reveals that a program has not and likely will not improve Afiican-Amcrican achievement, LRSD shall take appropriate action in the form of either modifying how the program is implemented or replacing the program. The District Courts Opinion set forth a detailed Compliance Remedy to be implemented by the LRSD, The Opinion first stated
Because LRSD failed to substantially comply with the crucially important obligations contained in 2.7.1, it must remain under court supervision with regard to that section of the Revised Plan until it: (a) demonstrates that a program assessment procedure is in place that can accurately measure the eSectivencss of each program implemented under 2.7 in improving the academic achievement of Afiican-American students
and (b) prepares the program evaluations identified on page 148 of the Final Compliance Report and uses those evaluations as part of the program assessment procedure contemplated by 2.7.1 of the Revised Plan. The Opinion then outlined the details of the Compliance Remedy as follows: A. For the entire 2002-03 school year and the first semester of the 2003-04 school year, through December 31, 2003, LRSD must continue to assess each of the programs implemented under 2.7 to improve the academic achievement of African-American students. LRSD now has over three years of testing data and other information available to use in gauging the effectiveness of those programs. I expect LRSD to use aU of that available data and information
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