Desegregation plan modifications (April 1992 plan)

Provisions of Plans or Orders the LRSD Has Failed to Fulfill Board Responsibilities The LRSD Board of Directors has committed to the following goals which it has failed to fulfill, according to the introductory section of the 1992 plan, page 1. The elimination of achievement disparity between black and white students on norm- referenced and criterion referenced tests. Promoting positive public reaction to desegregation. The effective use of interdistrict and intradistrict recruitment strategies to meet the desegregation requirements in all schools and to avoid resegregation. In addition, under the title "Leadership" on pages 2-3 of the 1992 plan, the board and superintendent have failed to assert leadership in the following areas. Clearly delineating the districts desegregation mission to the staff and the community. Utilizing the desegregation mission as a guide for the development of policies and setting expectations for the superintendent to implement the policies. Adopting a budget which will provide the resources necessary for an effective, desegregated school system. Making budgetary decisions consistent with district desegregation policies in terms of buildings, staff, materials, and equipment. The conduct of an annual self-evaluation of their commitment to a quality desegregated education. Incentive Schools Failure to reserve kindergarten and four-year-old program seats for white students and engage in documented, sustained, and vigorous recruitment to attract those students, (plan page 140, May 1992 order, page 28). Program specialists have not been hired at all incentive schools (May 1992 order, page 41). A staffing needs assessment has not been administered and analyzed (May 1992 order, page 41). Themes have not been incorporated into the core curriculum at each school (May 1992 order, page 42). Little significant progress has been made toward desegregation of the incentive schools, with the exception of Rockefeller (1992 plan, page 149). Lack of coordinated recruitment and failure to implement aU plan recruitment activities (i.e., individual brochures, marketing blitz) (1992 plan, pages 215-217). The Parent Council has not begun to monitor or report on all activities related to the incentive school program (1992 plan, page 151). Equity Issues Failure to show significant progress in the reduction of the achievement disparity between black and white students (1992 plan, page 1, 1989 Settlement Agreement, page 26). Black students (particularly black males) continue to be disciplined at a rate disproportionate to their percentage of the student population (1992 plan, pages 28, 33-34). Failure to effectively address the overrepresentation of black students (particularly black males) in special education (1992 plan, page 111). Recruitment The district has not developed a Strategic Recruitment Plan pursuant to the ODM Incentive School Recommendations (page 4) and the LRSD Marketing Plan. The Recruitment Tracking System, first requested during the March 1991 Construction Hearing, has not been implemented. Additional Items from the May 1992 Order A plan has not been submitted describing the extended activities designed to address the needs of Washington Magnet School attendance zone students (May 1992 order, page 38).tiP- IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION Ofj LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. 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 MOTION FOR APPROVAL OF FOUR-YEAR OLD PROGRAM SITES The plaintiff. Little Rock School District ("LRSD") or ("District"), for its Motion for Approval of Four-Year Old Program Sites for the 1994-95 school year, states: 1. Pursuant to the court-approved desegregation plan, the LRSD agreed to implement four-year old programs in all schools in the LRSD by the 1993-94 school year. 2. The LRSD later proposed certain modifications to the 1989 settlement plans, which modifications were heard by this Court. 3. Among the modifications proposed was the request that the Court accept the District's long-range implementation plan which was filed with the Court on October 1, 1991. Although the Court did not accept the long-range implementation plan as submitted, the Court did release the LRSD from the requirement to place a four- year old program in every elementary school in the District. Ind-ifip4 . By Order dated May 1, 1992, this Court accepted the LRSD's proposal that four-year old programs be placed in locations which would best further the goals of disparity reduction and racial balance in the District. Further, the Court permitted the District to complete implementation of the program by the 1994-95 school year. 5. In accepting the LRSD's proposed modifications, the Court continued the requirement that the four-year old programs developed by the District had to accommodate the number of children which equalled or exceeded the number which would have been accommodated had all schools in the District had a four-year old program as originally planned. 6. The LRSD added additional four-year old programs as required during the 1993-94 school year. 7. Further, the LRSD has now completed its review and has determined the number of classes necessary to accommodate the number of children which would have been accommodated had programs been placed at all elementary schools in the District. The LRSD has also determined those locations it believes will best further the goals of disparity reduction and racial balance. 8. Attached hereto as Exhibit 1 is a true and accurate listing of the sites selected by the LRSD to complete its obligations for four-year programs during the 1994-95 school year in accordance with the Order dated May 1, 1992. The sites reflected are incorporated herein by reference. lrd-*pp 29. The LRSD is now prepared to take those steps necessary to implement the hereindescribed expansion of the four-year old program for the 1994-95 school year. However, the LRSD would request expedited consideration so that it may begin the necessary preparatory arrangements. WHEREFORE, the plaintiff, Little Rock School District, moves this Court for an Order approving the locations, number of classes and other terms as outlined in the attached implementation proposal
it requests that it be awarded its costs. expenses, attorney fees incurred herein and all other legal and proper relief to which it may be entitled. FRIDAY, ELDREDGE & CLARK 2000 First Commercial Bldg. 400 West Capitol Street Little Rock, AR 72201 (501) 376-2011 Attorneys for Plaintiff LITTLE ROCK SCHOOL DISTRICT Jerry L. Malone Bar ID No. 85096 Ind'tpp 3 CERTIFICATE OF SERVICE I certify that a copy of the foregoing Motion for Approval of Four-Year Old Program Sites has been served on the following people by depositing copy of same in the United States mail on this day of April, 1994: Mr. John Walker JOHN WALKER, P.A. 1723 Broadway Little Rock, AR 72206 Mr. Richard Roachell Roachell and Streett First Federal Plaza 401 West Capitol, Suite 504 Little Rock, AR 72201 Mr. Steve Jones JACK, LYON & JONES, P.A. 3400 Capitol Towers Capitol & Broadway Streets Little Rock, AR 72201 Mr. Sam Jones WRIGHT, LINDSEY & JENNINGS 2200 Worthen Bank Bldg. 200 West Capitol Little Rock, AR 72201 Ms. Ann Brown Desegregation Monitor Heritage West Bldg., Suite 510 201 East Markham Street Little Rock, AR 72201 Jerry L. Malone Ind-tpp 4 EXHIBIT 1 LRSD'S 1994-95 FOUR-YEAR OLD PROGRAM SITE SELECTIONS Pursuant to the LRSD Desegregation Plan, as amended by subsequent court orders, the LRSD must accommodate in four-year old programs a number of children which equals or exceeds the number which would have been accommodated if all schools in the District had a four-year old program At the time the commitment was made, the LRSD had 36 elementary schools. The number of children to be served was computed by using a maximum capacity of 20 students per class. This yielded 720 students as the total number to be served. In accordance with the May 1, 1992 Order of this Court and North Central accreditation standards, the number of students per class during the 1993-94 year was based on the standard of 18 students per classroom. By virtue of this standard, the LRSD had capacity to serve 576 students in its 32 four-year old classes. Accordingly, the LRSD must add eight (8) four-year old classes during the 1994-95 year to have the capacity to serve the additional 144 children necessary to achieve the 720 children capacity as originally computed. To select the eight (8) sites, the LRSD considered the following criteria: 1. Schools which are difficult to desegregate and are racially imbalanced. Irad-tpp 52 . Areas which have a very high concentration of low income families, Based on its review, the LRSD selected the following elementary school sites: 1. Badgett - One additional class can be added by using space that is available within the building. 2. Bale - One additional class can be added by using space that is available within the building through the reassignment of classroom space (classroom space currently being used for physical education on rainy days and for psychological testing). 3. Fair Park One additional class can be added by installing a trailer, which would free up a classroom within the building. 4. Geyer Springs One additional class can be added by offering only two (2) kindergarten classes. Although a third kindergarten class was added after the start of the 1993-94 school year, the majority of the students assigned to that class were from outside the schools' attendance zones. Accordingly, other assignments consistent with the desegregation plan should be available in the event non-attendance zone kindergarten students need to be accommodated during the 1994-95 school year. 5. Mabelvale - One additional class can be added by using a room being made available due to matriculating seventh grade students. 6. Watson - One additional class can be added by using space within the building obtained through the sharing of space by the Irad-app 6Chapter I teacher (there three (3) days a week) and the G/T teacher (there two and one-half (2/1/2) days a week). 7. Woodruff - One additional class can be added by using space available within the building. 8. Stephens - One additional class can be added by using space within the building. Ind-app 7RECSa ^7^ IN THE UNITED STATES COURT OF APPEALS No. 93-3592 NO. 93-3469 NO. 93-3594 FOR THE EIGHTH CIRCUIT APR 2 0 1994 Cffico of Dcsogr LITTLE ROCK SCHOOL DISTRICT V. PULASKI COUNTY SPECIAL SCHOOL DISTRICT LORENE JOSHUA V. LITTLE ROCK SCHOOL DISTRICT LITTLE ROCK SCHOOL DISTRICT V. LORENE JOSHUA Appeals From The United States District Court For the Eastern District of Arkansas Western Division Honorable Susan Webber Wright, District Judge BRIEF FOR APPELLEE LITTLE ROCK SCHOOL DISTRICT IN NOS. 93-3469 AND 93-3594 Christopher Heller John Clayburn Fendley, Jr. FRIDAY, ELDREDGE & CLARK 2000 First Commercial Bldg. 400 West Capitol Little Rock, AR 72201 (501) 37602911 Attorneys for Little Rock School DistrictTable of Contents Statement Of The Case 1 I. The Voting Rights Act Issue 1 II. The Desegregation Plan Modification Issue 3 Summary Of Argument 11 Argument 13 I. The District Court's Finding That The Charles Plaintiffs Failed To Establish A Violation Of The Voting Rights Act, 42 U.S.C. 1973, Is Not Clearly Erroneous And Should Be Affirmed .............................................. 13 II. The District Court Properly Approved The Closing Of Ish School And The Assignment Of Ish Students To The New And Integrated King Interdistrict School 38 Conclusion 50 1STATEMENT OF THE CASE I. THE VOTING RIGHTS ACT ISSUE. A. Previous LRSD Election Zones. The district court approved seven single-member zones for the election of the Little Rock School District ("LRSD) Board of Directors on December 18, 1986. Appellant's App. p. 50. Before that time, LRSD board members were elected in at-large elections. Arkansas law requires, however, that school districts with student populations in excess of 24,000 elect board members from single- member zones. See Ark. Code Ann. 6-13-607 (Michie 1991). Pursuant to previous orders of this Court and the district court. LRSD annexed territory of the Pulaski County Special School District which increased LRSD's student population above 24,000 and was required by state law to establish single-member zones. The LRSD zone plan approved by the district court had the following populations and racial compositions according to the 1980 census: Zone 1 - 25,399 total population
81.50% black
Zone 2 - 25,295 petal population
68.90% black
Zone 3 - 25,210 total population
Zone 4 - 24,844 total population
7.83% black
2.96% black
Zone 5 - 25,016 total population
18.30% black
Zone 6 - 25,107 total population
17.30% black
Zone 7 - 25,043 total population
14.10% black. 1The district court found that the zone plan "comports with the one- man one-vote principle required by the Constitution . , [and is] in compliance with the mandate of Amended 2 of the Voting Rights Act (codified as 42 U.S.C. 1973) and does not abridge or deny the right of minorities to vote." Appellant's App., p. 50-51. The district court's December 18, 1986, order approving the LRSD zone plan was not appealed. The Charles Plaintiffs, as members of the class represented by the Joshua Intervenors, were parties to the case when the zones were established. LRSD App., p. 1. In fact, Mr. Charles was substituted as a named plaintiff when he became president of the Little Rock Chapter of the NAACP. LRSD B. The PCBE Plan. App., p. 4. The Pulaski County Board of Education ("PCBE") plan for LRSD election zones was prepared by Metroplan, a non-profit corporation whose members are local governmental entities in the central Arkansas area. LRSD App., p. 41. Metroplan was asked to determine whether the previous LRSD election zones were out of compliance with the "one-man, one-vote" principle according to 1990 census data and, if so, to prepare alternative proposals for rezoning LRSD in compliance with federal law. LRSD App., p. 42. Jim McKenzie, the Executive Director of Metroplan, was primarily responsible for preparing the proposals. LRSD App., pp. 76-77. Before preparation of alternative proposals for submission to PCBE, Mr. McKenzie contacted Jim Lynch, who became the Charles Plaintiffs' expert in this case, concerning criteria which should 2be considered in preparing election zones. Lynch provided McKenzie a written list of five criteria
(1) adhere to the one-man, one- vote doctrine
(2) avoid diluting minority political expression
(3) districts ought to be compact and contiguous
(4) district boundaries should be recognizable
and, (5) use existing political boundaries. LRSD App., pp. 9, 76-77. McKenzie followed Lynch's criteria in developing four alternative proposals for rezoning the Little Rock School District. LRSD App., pp. 77-80. McKenzie was aware of the December 18, 1986, order stating that the previous LRSD election zones were in compliance with Section 2 of the Voting Rights Act. LRSD App., p. 40. II. THE DESEGREGATION PLAN MODIFICATION ISSUE The parties to this case are in the process of implementing desegregation plans agreed upon in 1989 and approved by this Court in 1990.* The Interdistrict and LRSD Desegregation Plans call for eight racially isolated incentive schools but do not require that each incentive school must remain open in perpetuity. Instead, a purpose of those plans is to move LRSD black students from racially isolated incentive schools to racially balanced interdistrict schools: 'There are four desegregation plans, district and an Interdistrict Plan. one for each school 1991. The plans were modified in For a history of the development of the desegregation plans and the 1989 settlement agreement, see Little Rock School District V. Pulaski County Special School District. 921 F.2d 1371 (8th Cir. 1990) and Appeal of Little Rock School District. 949 F.2d 253 (8th Cir. 1991). 3"As new interdistrict schools are established those seats attributable to LRSD will be available for those students who otherwise would or could have been assigned to an incentive school . . II LRSD App. , p. 3 31. Interdistrict Desegregation Plan, April 29, 1992, p. 4. The planned effort to move students from racially isolated incentive schools to racially balanced interdistrict schools is illustrated by the parties' agreement about Stephens school. Stephens is one of the eight incentive schools established under the 1989 plans. LRSD App., pp. 331, 3 34. Interdistrict Desegregation Plan, April 29, 1992, p. 4
LRSD Desegregation Plan, April 29, 1992, p. 148. The plans require the parties to quickly convert Stephens from an incentive school to an interdistrict school and to close "[t]he old Stephens school building." LRSD App., pp. 332, 334. Interdistrict Desegregation Plan, April 29, 1992, p. 10
LRSD Desegregation Plan, April 29, 1992, p. 148. Washington Elementary School provides another example of the transition from racially isolated incentive schools to racially balanced interdistrict schools. The 1989 desegregation plans list Washington among the eight incentive schools. (8 J.D.R. 1722
10 J.D.R. 2288), but the parties later agreed that Washington would become an Interdistrict Magnet School.^ 2 The district court rejected the settlement plans on June 27, 1989 and, during the pendency of the appeals of that order, approved a substitute plan known as the Tri-District Plan (Docket #1328). The Tri-District Plan was implemented for the 1990-91 #1328) . school year, and Washington operated under that plan as a racially balanced interdistrict magnet school. Following this Court's approval of the 1989 settlement plans, the parties agreed that Washington should continue to operate as a racially balanced interdistrict magnet school rather that resume operation as racially isolated incentive school. - - as Docket #1434. a 4The plans and agreements of the parties to date will reduce the number of incentive schools from eight to six by moving incentive school students to racially balanced interdistrict schools. The assignment of Ish attendance zone students to King Interdistrict School is the first movement of students from a segregated to an integrated school which has been opposed by any party. LRSD committed to build a new King Interdistrict School "in downtown Little Rock ... in the general area along 1-630 between 1-30 and University Avenue." LRSD App., P. 334 . LRSD Desegregation Plan, April 29, 1992, p. 148. That area is populated primarily by students who are enrolled or are entitled to be enrolled in an incentive school. The specific site within that area was approved by the district court on March 17, 1992 (LRSD App., p. 227. Docket #1576) and no appeal was taken from that order. Each LRSD school. including each incentive school. has an attendance zone. LRSD App., pp. 310-313. The zone established for each new elementary school required by the desegregation plans must be superimposed upon the existing zone plan and will necessarily ^Counsel for the Joshua Intervenors told the district court: "I'm suggesting that integration by itself is just unacceptable to black people at this time. It has to be something that is much more substantive than merely being in the same environment with white students." LRSD App., p. 292. 5usurp some or all of the attendance zone of one or more of the existing elementary schools. LRSD hired Dr. Leonard Thalmueller to design an attendance zone for King Interdistrict School. LRSD App. , p. 301. Dr. Thalmueller is a former employee of LRSD who has been involved in the preparation of LRSD attendance zones for seventeen years (LRSD App., p. 301) and who prepared the attendance zones for the 1989 LRSD Desegregation Plan. (LRSD App., p. 283). In drawing the King attendance zone, Thalmueller engaged in an effort "to minimize the impact of the attendance zone on other students in the district. try to keep the domino effect down to the smallest possible factor . . [and] to reduce busing to whatever extent we could". LRSD App., p. 303. Thalmueller also tried to draw the King zones so that students whose assignments were changed as a result of the establishment of that zone would not have to endure a second change of assignment when zones were later established for the Stephens Interdistrict School. LRSD App., p. 303. Thalmueller prepared three plans. reviewed them with the Office of Desegregation Monitoring and presented them to LRSD. LRSD App., pp. 303-304. In the plan adopted by the LRSD Board of Education, Dr. Thalmueller placed the entire Ish zone, consisting of six zone blocks, in the King attendance zone. LRSD App., pp. 335-336. The only schools whose attendance zones were changedby the Thalmueller plan are Ish, Jefferson, Rightsell and Washington. LRSD App., pp. 335, 336. 6One hundred eighty-three students were enrolled at Ish for the 1992-93 school year. Ninety of those students were from outside the Ish attendance zone. LRSD App. , p. 308. There were 229 students in the Ish attendance zone. June 8, 1993 LRSD App., p. 307. Only 93 of those students attended Ish school. LRSD App., p. 307. The others attended schools throughout LRSD. Dr. Thalmueller and LRSD Associate Superintendent Marie Parker prepared a report on the impact of the King attendance zone (LRSD App., p. 321) which was presented to the LRSD board, shared with all counsel on March 12, 1993 (LRSD App., p. 325) and presented to the District Court on June 8, 1993. The report describes the following impact upon Ish: "Ish will remain open unless fewer than one hundred students choose Ish, in which case all Ish students will be assigned to King, and Little Rock School District will work with the Ish community to determine an appropriate use for the Ish building." LRSD App., p. 321. Four community meetings, including one at Ish school, were held in March, April and May 1993 "to gather information from prospective parents and patrons to be used in consideration of attendance zones and theme selection for Martin Luther King, Jr. school". LRSD App., p. 337. Surveys were mailed to all families affected by the location of the proposed attendance zone. LRSD App., p. 320. The King attendance zone was approved by the LRSD Board of Directors on April 22, 1993. On May 5, 1993 LRSD moved for approval of the King attendance zone. LRSD App., p. 231. Docket #1820. Joshua opposed LRSD's motion. LRSD App., p. 235. Docket #1825. The North Little Rock 7School District, the Pulaski County Special School District and the Knight Intervenors did not oppose the King attendance zone. LRSD App., p. 305. The district court conducted hearings on June 8 and 9, 1993 and approved the King attendance zone as drawn by Dr. Thalmueller, but not LRSD's plan for determining whether Ish should be closed. LRSD App., pp. 285-291. The court preferred Thalmueller's plan to the ideas presented by Dr. James Jennings, another former LRSD employee, because Thalmueller's plan would impact fewer attendance zones and because his plan "left room for doubt" concerning the 4 future location of the Stephens site. The district court announced that it would order that Ish remain open if one hundred or more students chose to attend Ish from among the students within the Ish attendance zone whether or not presently enrolled at Ish (229 students (LRSD App., p. 307)) and all students attending Ish whether or not residing within the Ish attendance zone (90 students (LRSD App., p. 308)) LRSD App., pp. 286-287. Dr. Jennings was subpoenaed only a few days before the hearing and had not previously reviewed Thalmueller's plan. During his previous employment with LRSD, Jennings had prepared a plan to create attendance zones for King and Stephens together. p. 279. LRSD App., Jennings' testimony consisted of his recollection of the plan he had previously prepared on the assumption that King and Stephens zones would be established at the same time. and his reaction to Thalmueller' s plan which he had seen for the first time the day before. LRSD App., pp. 281-283. Jennings' proposals would impact the attendance zones of thirteen schools. 280. LRSD App. , p. Jennings worked with Thalmueller to prepare the attendance zones contained in the 1989 desegregation plan (LRSD App., p. 283) and considers Thalmueller competent to prepare attendance plans (LRSD App., 284). zone 8The court's bench ruling was followed closely by a written order (Docket #1848) which established the following process by which LRSD could attempt to "meet its burden of recruiting students to populate the King Interdistrict School" from among those attending Ish or residing in the Ish attendance zone and "proving that fewer than 100" of those students wished to attend Ish: "Within ten days from June 9, 1993 the LRSD must submit to the Court its proposed survey of these students along with its plan for executing the survey and implementing the survey results This plan must include a time schedule with deadline dates for implementing each step of the survey process, including the date by which the district will determine whether Ish is to remain open or to close. II June 11, 1993 Order, Docket #1848. The court told Joshua twice from the bench (LRSD App., pp. 293-300) and again in its written order that Joshua would "have 5 days to file their response and objections to LRSD's survey and plan". June 11, 1993 Order, p.3 LRSD filed on June 21, 1993 its proposed survey of potential Ish students and its plan for implementing the survey results^. LRSD proposed "to send the form letter, the King and Ish fact sheets, and the School Selection Form to the parents of all students described in the court's June 11, 1993 Order in accordance with the attached time line for implementing King/Ish Survey Process. I LRSD App. , p. 24 0. No one objected to the process LRSD's filing showed exactly how the survey process would be It included a time line, a form letter to parents of potential Ish students, fact sheets on both King and Ish Schools which would be sent to potential Ish students and a school implemented. selection form. LRSD App., p. 240. 5 9proposed by LRSD. The district court approved the process on June 30, 1993. Docket No. 1873. LRSD engaged in an extensive effort to inform potential Ish students about King and Ish Schools and to maximize the response to its King/Ish survey. Two hundred sixty survey forms were mailed, 173 were returned and 82 students requested Ish School. LRSD App., p. 271-272. Based upon the results of the survey, LRSD moved on July 19, 1993 to close Ish School. LRSD App., p. 268. Docket No. 1908. Joshua opposed LRSD's status report about the survey process (LRSD App., p. 265) and LRSD's Motion to close Ish School (Docket No. 1918). On August 2, 1993, the district court granted LRSD's Motion to close Ish School. SUMMARY OF ARGUMENT I. THE DISTRICT COURT'S FINDING THAT THE CHARLES PLAINTIFFS FAILED TO ESTABLISH A VIOLATION OF THE VOTING RIGHTS ACT, 42 U.S.C. 1973, IS NOT CLEARLY ERRONEOUS AND SHOULD BE AFFIRMED. The Charles Plaintiffs contend that the plan for LRSD election zones adopted by the PCBE violates Section 2 of the Voting Rights Act, 42 U.S.C. 1973. In order to establish a violation of Section 2, the Charles Plaintiff were required to establishthe LRSD conducted a series of community meetings, including two at Ish School. Fliers announcing the community meetings delivered door to door and distributed to local churches. were Ish patrons conducted a door to door campaign encouraging parents to return the survey forms. The LRSD student assignment office telephoned parents who were sent survey forms and encouraged them to complete and return the forms. LRSD App., pp. 271-272. 10following four elements: (1) that blacks are sufficiently large and geographically compact to constitute a majority in a single-member district
(2) that blacks are politically cohesive
(3) that the white majority votes sufficiently as a bloc to enable it usually to defeat blacks' preferred candidate
and, (4) that based on the "totality of the circumstances," blacks have less opportunity to participate in the political process and to elect representatives of their choice as a result of the PCBE plan for LRSD election zones. 42 U.S.C. 1973(b)
Thornburg v. Ginqles. 478 U.S. 25, 50- 51 (1986) . The district court found that the Charles Plaintiffs failed to establish each of the above elements. The PCBE plan contains two majority black zones. Therefore, the Charles Plaintiffs were reguired to prove that three majority black zones can be created. In addition, the majority black zones must have at least a 65% black majority to enable blacks to elect their preferred candidate. Smith V. Clinton. 687 F.Supp. 1361 (E.D.Ark. 1988). Each of the three majority black zones in the plan advocated by the Charles Plaintiffs has a majority black population of less than 65%. As a result, the district court found that the Charles Plaintiffs were unable to demonstrate that three majority black LRSD zones with a 65% black majority population can be created. The Charles Plaintiffs attempted to establish black political cohesiveness through statistical proof of the correlation coefficient comparing the percentage of black voting age population and the percentage of votes for the black candidate. However, the 11correlation coefficient does not establish the percentage of black support for black candidates. The Charles Plaintiffs did not undertake the additional statistical analysis necessary to establish black political cohesiveness, and therefore, the district court held that they had failed to establish this element. The Charles Plaintiffs' attempt to establish white bloc voting was infected with the same statistical flaw. In addition. persistent proportional representation of blacks on the LRSD Board of Directors makes it "virtually impossible tl for the Charles Plaintiff to establish white bloc voting. Nash V. Blunt, 797 F.Supp. 1488, 1498 (W.D.Mo. 1992). Evidence of elections between white and black candidates demonstrates that white voters do not usually vote as a block to defeat the blacks' preferred candidate. Accordingly, the district could found that LRSD did not suffer from legally significant white bloc voting. Finally, the district court held that, based on a totality of the circumstances, the Charles Plaintiffs failed to establish that blacks have less opportunity to participate in the political process and to elect representatives of their choice under the PCBE plan than they had under the previous zone plan which had been approved by the district court in 1986. The Charles Plaintiffs' expert testified that the opportunity of blacks is the same under the PCBE plan and under the previous court approved plan. The findings of the district court are not clearly erroneous and should be affirmed. 12A. ARGUMENT I. THE DISTRICT COURT'S FINDING THAT THE CHARLES PLAINTIFFS FAILED TO ESTABLISH ACT, 42 U.S.C. SHOULD BE AFFIRMED. 1973, A VIOLATION OF THE VOTING RIGHTS IS NOT CLEARLY ERRONEOUS AND Introduction. No plan for single-member election zones is immune from challenge under the Voting Rights Act. If a plan concentrates minorities into super-majority zones. the plan may be said to dilute minority voting strength through "packing." If a plan does not create the maximum number of minority black zones, it may be said to dilute minority voting strength through dispersion of minority voters. Compare Jeffers v. Clinton. 730 F.Supp. 196 (E.D.Ark. 1989), and Jeffers v. Tucker. 839 F.Supp. 612 (E.D.Ark. 1993) . PCBE adopted a Metroplan proposal for LRSD election zones which has two majority black zones. The Charles Plaintiffs advocate racial gerrymandering of LRSD election zones to create a third majority black zone. In discussing the racial gerrymandering of election zones, the Supreme Court has stated: Racial classifications of lasting harm to our society. any sort pose the risk of They reinforce the belief, held by too many for too much of history, that individuals should be judged by the color of their skin. The Charles Plaintiffs argued before the district court that the PCBE plan violated the Voting Rights Act due to "packing." this appeal, the Charles Plaintiffs raise for the first time argument based on the dispersion of black voters. In an PCBE adopted Metroplan proposal No. 4. 13Racial classifications with respect to voting carry particular dangers. Racial gerrymandering even for remedial purposes, may balkanize us into competing racial factions
it threatens to carry us further from the goal of a political system in which race no longer mattersa goal that the Fourteenth and Fifteenth Amendments embody. and to which the Nation continues to aspire. It is for these reasons that race-based districting by our state legislatures demands close judicial scrutiny. Shaw V. Reno, 509 U.S. 113 S.Ct. ___, 125 L.Ed.2d 511, 535 (1993). B. Discussion. 1. Liability Under Section 2 Generally. The Voting Rights Act of 1965 was tl designed by Congress to banish the blight of racial discrimination in voting, which has infected the electoral process in parts of our country for nearly a century." South Carolina v. Katzenbach. 383 U.S. 301, 308 (1966). As amended in 1982, Section 2 of the Act provides that no state may impose a standard, practice or procedure "which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . II 42 U.S.C. 1973(a) (Supp. 1993). Section 2 further states: A violation of subsection (a) of this section is established if. the circumstances, based on the totality of it is shown that political processes leading to nomination the or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity to participate in the political process and to elect representatives of their choice. The extent to which members of the protected class have been elected to office political subdivision is which in one the State or circumstance may be considered: Provided, That nothing in this section establishes a right to 14have members of a protected class elected in numbers equal to their proportion population. in the 42 U.S.C. 1973(b) (Supp. 1993) (emphasis in original). In order to prevail on a Section 2 claim, the plaintiff bears the burden of proving both less opportunity to participate in the political process and less opportunity to elect representatives of their choice. Chisom V. Roemer, 501 U.S. Ill S.Ct. 2354, 115 L.Ed.2d 348, 364 (1991), The Supreme Court has stated that a minority group challenging single-member election zones under Section 2 must establish three "necessary preconditions": First, that [the minority group] is sufficiently large and geographically compact to constitute a majority in a single-member If it is not, as would be the district. case in a substantially integrated district, the multimember form of the district cannot be responsible for minority voters' inability to elect its candidates. [citations omitted]. Second, the minority group must be able to show that it is politically cohesive. minority group is not politically cohesive, it cannot be said that the selection of a multi-member If the electoral structure thwarts distinctive minority group interests, [citations omitted]. Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable in the absence of special circumstances, a minority candidate running such it as unopposed . . . usually to defeat the preferred [citations omitted]. In establishing this last circumstance, the minority group demonstrates that submergence in a white multi-member candidate. minority's district impedes its ability to elect representatives of its chosen representation. Ginqles. 478 U.S, at 50-51
Growe v, Emison. ___ U.S. ___, 113 S.Ct. , 122 L.Ed.2d 388, 404. Satisfaction of these three II preconditions" is necessary. but not sufficient, to establish liability under Section 2. Growe. 507 U.S. at ___, 122 L.Ed.2d at 15404
Chisom. 501 U.S. ___, 115 L.Ed.2d 348, 364
see League of United Latin American Citizens v. Clements. 999 F.2d 831, 848 (5th Cir. 1993). Therefore, in order to establish a violation of Section 2, a minority group must demonstrate that (1) the group is sufficiently large and geographically compact to constitute a majority in a single-member district
(2) it is politically cohesive
(3) the white majority votes sufficiently as a bloc to enable it usually to defeat the minority's preferred candidate
and. (4) based on the "totality of the circumstances," the group has less opportunity to participate in the political process and to elect representatives of their choice as a result of the challenged electoral device. 42 U.S.C. 1973(b)
Gingles. 478 U.S. at 50-51. 2. Sufficiently Large and Geographically Compact. The plan for LRSD election zones adopted by PCBE contains two majority-minority zones. LRSD App., p. 8. Thus, in the context of the present case, the first Gingles precondition requires that the Charles Plaintiffs establish that the black population of LRSD is sufficiently large and geographically compact to constitute a "majority" in three LRSD election zones. Gingles, 478 U.S. at 50. More than mere numerical superiority must be considered in determining whether the Charles Plaintiffs constitute a sufficient II majority" in single-member zone to elect representatives of their choice. . As the court explained in Smith v. Clinton. 687 a F.Supp. 1361 (E.D.Ark. 1988): A guideline of 65% frequently used. of total population is and is derived by 16supplementing simple majority with an additional 5% to offset the fact that minority population tends to be younger than that of whites, 5% for the well-documented pattern of low voter registration, and 5% for low voter turnout among minorities. Smith. 687 F.Supp at 1363. See also Fletcher v. Golder. 959 F.2d 106, 110 (Sth Cir. 1992). Therefore, the Charles Plaintiffs must demonstrate that the black population in LRSD is sufficiently large and geographically compact to permit creation of three zones with at least 65% minority population. Otherwise, the PCBE plan for a LRSD election zones "cannot be responsible for minority voters inability to elect its candidates." Singles. 478 U.S. at 50. Each of the purported "majority" black zones proposed by the Charles Plaintiffs falls below the 65% guideline. Under the Charles Plaintiffs' plan, 81% of the blacks who live within the boundaries of the LRSD would be packed into zones 1, 2 and 6 resulting in percentage black populations in those zones of 64.7%, 64.0% and 61.7%, respectively. The remaining black population is dispersed among the remaining four zones. Appellant's App., p. 55. 9 Therefore, the plan for LRSD election zones advocated by the Charles Plaintiffs demonstrates that the black population in LRSD is not sufficiently large and geographically compact to constitute Charles Plaintiffs' Zone 1 has percentage population variance of negative 4.5%, and therefore, will in all probability be the first zone to fall out of compliance with the II requirement. LRSD App., p. 74. one-man. one-vote" Metroplan proposal No. 4 adopted by PCBE took into account present demographics trends by placing more persons in zones with declining population and by placing fewer persons in zones with increasing population. within the limits prescribed by the law and with a lesser degree of This was done population variance than provided in the Charles plaintiffs' plan. LRSD App., pp. 78-80. 17a sufficient "majority" in three LRSD election zones. Appellant's App., p. 155. Furthermore, McKenzie testified that the Charles' Plaintiffs plan did not present compact zones. LRSD App., P. 61. Accordingly, the district court found, "The plan proposed by the Charles plaintiffs does not conform to the standard proposed by their expert, Mr. Lynch, that the zones be compact and contiguous." Memorandum Opinion and Order, p. 7. The district court's finding that the black population of LRSD is not sufficiently large and geographically compact to constitute a majority in three LRSD election zones is not clearly erroneous. Political Cohesiveness. In an effort to establish black political cohesiveness, Lynch computed the correlation coefficient (the "r" statistic) and the r- square value for all 65 voting precincts in LRSD. Lynch compared the percentage of black voting age population within the precinct and the percentage of votes for the black candidate for ten elections involving a black candidate and a white candidate. summary of Lynch's calculations was presented as Charles 3. A Plaintiffs' Exhibit 32. Appellant's App., p. 157. Relying only on Charles Plaintiffs' Exhibit 32, Lynch concluded that blacks were politically cohesive. Appellant's App., P. 160. Charles Plaintiffs' Exhibit 32 does not support Lynch's conclusion. The correlation coefficients calculated by Lynch and summarized in Charles Plaintiffs' Exhibit 32 provide no proof that 18blacks are politically cohesive. 10 The correlation coefficient is a measure of consistency. LRSD App., p. 134. See Citizens for a Better Gretna v. City of Gretna. 834 F.2d 496, 499 n.7 (Sth Cir. 1987)
s^. generally, Richard Engstrom & Micheal McDonald, "Quantitive Evidence in Vote Dilution Litigation: Political Participation and Polarized Voting," 17 Urban Lawyer 369 (1985). A perfect positive correlation (i.e., a correlation coefficient of one) between the percentage of black voting age population and the percentage of votes for the black candidate results where, for example, the same percentage of blacks and the same percentage of white voters support the black candidate in each precinct.'* If 25% of the black voters and 20% of the white voters in each precinct support the black candidate. perfect positive correlation exists. The correlation coefficient provides no evidence of the actual percentage of black voters who supported the black candidate. Thus, Charles Plaintiffs' Exhibit 32 indicates only that approximately the same percentage of blacks supported the black candidate in each precinct. Lynch conceded that the correlation coefficients shown on Charles Plaintiffs' Exhibit 32 provide no information about the 'it is nevertheless important to note that the only LRSD zone election analyzed by Lynch produced no significant correlation between black voting age population and support for the black candidate. Appellant's App., p. 157. "Lynch's feeble understanding of the correlation coefficient was demonstrated when on cross-examination Lynch was unable to describe circumstances which would produce a perfect positive correlation. Lynch testified that he merely entered the data into a computer equipped with software to calculate the correlation coefficient. LRSD App., p. 165. 19 apercentage of black support for the black candidate. LRSD App., p. 158. Lynch admitted that nothing in his analysis excluded the possibility that only 25% of the black voters supported the black candidate in the elections shown on Charles Plaintiffs' Exhibit 32. LRSD App., p. 161. Lynch acknowledged that, if only 25% of the blacks supported a black candidate, blacks could not be considered politically cohesive. LRSD App., p. 159. In order for the correlation coefficient or r-square value to demonstrate political cohesiveness. they must be used in conjunction with homogeneous precinct analysis or regression analysis. S^, e.q. . Whitfield v. Democratic Party of the State of Arkansas. 686 F.Supp. 1365, 1383 (E.D.Ark. 1988)
Citizens for a Better Gretna. 834 F.2d 496, 499 (5th Cir. 1987). Homogeneous precinct analysis is the examination of a precinct which is overwhelmingly populated by a discrete group to determine what percentage of voters in that group support a particular candidate. See Campos v. City of Baytown. 840 F.Supp. 1240, 1246 n.lO (5th Cir. 1988). For example, if a precinct is 100% black and the black candidate gets 90% of the votes in that precinct, then 90% of the black voters preferred the black candidate. If there is also a high correlation coefficient among all the precincts (meaning that approximately the same percentage of blacks supported the black candidate in each precinct), it may be appropriate to conclude that approximately 90% of black voters in each precinct supported the black candidate. See Engstrom & McDonald, p. 371-72. 20Regression analysis involves the calculation of the regression coefficient, commonly reported as "b". It is the regression coefficient "that illuminates the degree to which voting patterns are racially differentiated." Engstrom & McDonald, P- 375. Whereas the correlation coefficient measures how consistently the electoral support for the black candidate changes with the percentage of black voting age population, the regression coefficient estimates how closely the change in percentage of votes for the black candidate tracks the change in percentage black voting age population. For example, where voting is completely racially polarized, the percentage of votes for the black candidate would track perfectly the increase in black voting age population.^ See Engstrom & McDonald, p. 375. Therefore, homogeneous precinct analysis or regression analysis are necessary to establish racially polarized voting. Lynch testified that he did not conduct homogeneous precinct analysis. LRSD App., p. 164. With regard to regression analysis, Lynch testified, "I'm not familiar with that term." LRSD App., p. 163 . As a result. Lynch's conclusion that LRSD elections are racially polarized IS without foundation. The correlation coefficients shown on Charles Plaintiffs' Exhibit 32 demonstrate *^The regression coefficient is to be distinguished from the square value calculated by Lynch. The r-square value is merely the square of the correlation coefficient. The regression coefficient ("b") represents the slope of the regression line. __ regression line is the line which minimizes the deviations among samples. The correlation coefficient is a measure of the samples' deviation fiom the regression line. With a perfect correlation, either positive or negative, the samples fall perfectly along the regression line. See Engstrom & McDonald, p. 374-76. samples. The The See Engstrom & McDonald, p. 374-76. 21only that approximately the same percentage of blacks supported the black candidate in each precinct. Charles Plaintiffs' Exhibit 32 provides no indication of the actual percentage of black voters who supported the black candidate. Because the Charles Plaintiffs failed to establish that blacks are politically cohesive, their Section 2 claim must fail."* 4. White Bloc Vote. a. Persistent Proportional Representation. Justice Brennan, joined by Justice White, noted in Gincles that "persistent proportional representation is inconsistent with [the] allegation that the ability of black voters ... to elect representatives of their choice is not equal to that enjoyed by the white majority." Ginoles. 478 U.S. at 77. With regard to this statement by Justice Brennan, Justice O'Conner, joined by Chief Justice Burger, Justice Powell and Justice Renquist, wrote. "I *The conclusion that blacks are politically cohesive can be drawn based on Charles Plaintiffs' Exhibit 32 only if it is assumed that black voters preferred the black candidate. However, the Supreme Court has stated that minority support for the minority candidate "never can be assumed, but must be proved in each case in order to establish that a redistricting plan dilutes minority voting strength in violation of 2." Shaw v. Reno. 509 U.S. at ___, 125 L.Ed.2d at 532 . V. There is one other notable limitation on the value of the correlation coefficients shown on Charles Plaintiffs' Exhibit 32. A strong correlation between percentage of black voting age population and percentage of votes for the black candidate does not preclude the possibility of an equally strong correlation between percentage of black voting age population and any of the other factors which Lynch testified often determine the outcome of elections. For example, the correlation coefficient between the percentage of black voting age population and the percentage of votes for the democratic candidate may be as strong or stronger, in any given election, the correlation coefficients shown on as Charles Plaintiffs' Exhibit 32. LRSD App., pp. 170-171. 22agree with Justice Brennan that consistent and sustained success by candidates preferred by minority voters IS presumptively inconsistent with the existence of a 2 violation." Ginqles. 478 U.S. at 102 (O'Conner, J., concurring). After considering the above quoted language in Ginqles. the court in Nash v. Blunt. 797 F.Supp. 1488, 1498 (W.D.Mo. 1992), concluded, "If defendants can prove prior persistent proportional representation, it would be virtually impossible for the plaintiffs to prove white voters usually vote together to defeat minority-preferred candidates." Recognizing that Ginqles provides that "proof that some minority candidates have been elected does not foreclose a 2 claim," Ginqles, 478 U.S. at 75, the court in Nash reasoned that persistent proportional representation would constitute a defense* to a Section 2 claim only where. in addition to a history of proportional representation, there exists a substantial likelihood that proportional representation would continue in the future. Na^, 797 F.Supp. at 14 98. For example, the plaintiffs in Na^ challenged the Missouri legislative redistricting plan as it applied to Jackson County, Missouri. The court noted that "during the past decade, the proportion of black legislators for Jackson County has been in almost exactly equal proportion to the The court in Nash describes representation as an "affirmative defense." persistent proportional This is a misnomer. A true affirmative defense relieves a defendant of liability even though the plaintiff has established each element of his claim. The classic example is the statute of limitations. However, persistent proportional representation, in effect, makes it "virtually impossible" to prove a necessary element of a Section 2 claim, legally significant white bloc voting. in effect, 1498. Nash, 797 F.Supp. at 23proportion of black citizens living in Jackson County. Na^, 797 F.Supp. at 1500. The court found that the proportion of majority black districts created under the challenged plan was roughly equal to the proportion of black population and concluded: Thus, we conclude that there has been at least a ten-year history of proportional representation, as well as a near certain likelihood that there will be proportional representation for the next decade. Therefore, we find the defendants have successfully proved the elements of this affirmative defense. Nash. 797 F.Supp. at 1500. The facts of the present case are remarkably similar to the facts before the court in Nash. Blacks constitute 29.1% of the voting age population of LRSD. LRSD App., p. 6. There are seven members of the LRSD Board of Directors. Thus, proportional representation would be two of the seven board members or 28.6% of the board. Since 1983, the racial composition of the LRSD Board of Directors has been as follows: 1983 to March 1987 - two blacks. five whites
March 1987 to June 1988 three blacks, four whites
and, June 1988 to present - two blacks, five whites. Therefore, since 1983, the proportion of black members of the LRSD Board of Directors has been equal to or greater than the proportion of black members of the electorate. Moreover, under the plan for LRSD election zones adopted by the PCBE, blacks are virtually certain to be proportionally represented in the future. The PCBE plan contains two black majority zones. PCBE Zones 1 and 2 have percentages of black population of 79.82% and 59.39%, respectively. LRSD App., p. 8. Although PCBE Zone 2 falls below the 65% guideline discussed in 24Smith V. Clinton, supra, Lynch testified that blacks would be able to elect representatives of their choice with a black majority of 60%. LRSD App., p. 104. Lynch specifically referred to North Little Rock election zones with percentage black populations of 59.4% and 58.8% in which black candidates have been successful. LRSD App., P- 11. Therefore, blacks will continue to be proportionally represented on the LRSD Board of Directors under the PCBE plan. The consistent and sustained past, along with the certain future, of proportional representation on the LRSD Board of Directors makes it "virtually impossible" for the Charles Plaintiffs to establish legally significant white bloc voting. Na^, 797 F.Supp. 1500. b. Charles Plaintiffs' Exhibit 33. The Charles Plaintiffs substantially relied on the testimony of Lynch in an attempt to establish white bloc voting. Lynch calculated the correlation coefficient and the r-square value comparing the percentage of white voting age population to the percentage of votes for the white candidate for same ten elections analyzed on Charles Plaintiffs' Exhibit 32. A summary of Lynch's calculations was presented as Charles Plaintiffs' Exhibit 33. Appellant's App., P. 158. Based only on Charles Plaintiffs' Exhibit 33, Lynch concluded that the white majority voted sufficiently as a bloc to enable it to usually defeat the candidate 25preferred by blacks. 16 LRSD App., p. 149. Again, the record does not support this conclusion. As with Lynch's reliance on Charles Plaintiffs' Exhibit 32 to establish black political cohesiveness, the correlation coefficients and r-sguare values shown on Charles Plaintiffs' Exhibit 33 demonstrate only that approximately the same percentage of whites preferred the white candidate in each precinct. Charles Plaintiffs' Exhibit 33 provides no information concerning the actual percentage of white voters who preferred the white candidate. Lynch failed to conduct the concomitant homogeneous precinct analysis or regression analysis necessary to make Charles Plaintiffs' Exhibit 33 meaningful. c. Legally Significant White Bloc Voting. Black electoral success in LRSD and the City of Little Rock supports the district courts's finding that LRSD does not suffer from legally significant white bloc voting. To establish legally significant white bloc voting under Gingles. the minority group "must be able to demonstrate that the white majority votes sufficiently as a block to enable itin the absence of special circumstances such as a minority candidate running unopposed usually to defeat the minorities preferred candidate." Gingles, 405 U.S. at 51 (emphasis supplied). Stated another way, "a white bloc vote that normally will defeat the combined strength of 'In his deposition taken the day before his trial testimony. Lynch stated that he had undertaken no study, and therefore could offer no opinion, on the issue of whether white bloc voting worked to usually defeat the candidate preferred by blacks. Lynch changed his testimony at trial. LRSD App., pp. 148-151. 26minority support plus white 'crossover' votes rises to the level of legally significant white bloc voting." Ginqles. 478 U.S. at 56 (emphasis supplied). It is the "usual predictability of the majority success [that] distinguishes structural dilution from the mere loss of an occasional election." Ginqles, 478 U.S. at 51 (emphasis supplied). See Whitcomb v. Chavis. 403 U.S. 124, 153. The Charles' Plaintiffs failed to establish the "usual predictability" of white candidate success necessary to establish white bloc voting. As discussed above, blacks have enjoyed proportional representation on the LRSD Board of Directors since 1983. Likewise, blacks have been proportionally represented on the City of Little Rock Board of Directors since 1979. Appellant's App., p. 161-62. See Leadership Roundtable v. Citv of Little Rock. 499 F.Supp. 579, 590 (E.D. Ark. 1980). In sum, white voters do not sufficiently vote as a bloc to "usually to defeat the minorities preferred candidate." Ginqles. 405 U.S. at 51 (emphasis supplied). In 1966, Dr. T.E. Patterson was elected at-large against white opposition to become the first black member of the LRSD Board of Directors. In 1983, Bill Hamilton, a black. defeated a white opponent by winning 70% of the vote in an at-large election. LRSD App., p. 12. In 1986, Thomas Broughton, a black and current PCBE member, garnered 74% of the at-large vote in LRSD to defeat a white opponent. LRSD App., p. 20. In a 1989 Zone 2 election, Hamilton 27received 84% of the vote to defeat a white opponent.* LRSD App., p. 36. Charles Plaintiffs' Exhibits 32 and 33 also reveal significant black electoral success in LRSD. Those exhibits examined ten races in the City of Little Rock which pitted a black against a white opponent. The black candidate won six of the ten races, including the only two LRSD elections shown on those exhibits. LRSD App., p. 152. Moreover, the two LRSD elections had the lowest correlation coefficients of the ten elections shown on Charles Plaintiffs' Exhibit 32. Appellant's App., p. 157. In fact. Lynch testified that the correlation coefficient for the 1989 election of Hamilton was not statistically significant. LRSD App., p. 142. This was the only election analyzed by Lynch under the previous singlemember election zones. Evidence of exogenous elections in the City of Little Rock further demonstrates the considerable success of black candidates. Blacks won four of the eight races analyzed on Charles Plaintiffs' Exhibits 32 and 33 which did not involve LRSD. Appellant's App., pp. 110-11, 157, 161. Similarly, the black candidate prevailed over white opposition in nine of the twenty-three contests for the City of Little Rock Board of Directors shown on Charles Plaintiffs' Exhibit 35. Appellant's App., p. 161-162. As noted above, blacks In the only other LRSD election involving a black and a white since the implementation of election zones, Charles Young, a white, defeated Lawrence Hampton, a black. The race was to represent Zone 6 which at the time was 72.7% white. Even so, Young defeated Hampton by only 32 votes. Even so. This race was excluded from Charles Plaintiff's Exhibits 32 and 33. LRSD App., p. 35. 28have been proportionally represented on the City of Little Rock Board of Directors since 1979. More importantly, the success of black candidates in LRSD and the City of Little Rock cannot be attributed solely to "special circumstances." See Ginqles. 478 U.S. at 47. The Charles Plaintiffs state, "All of the black electoral successes in the LRSD and Little Rock City Board elections were won under 'special circumstances' II Brief of Appellant's, p. 34. However, as the Charles Plaintiffs define "special circumstances," it is equally true that all of the black electoral failures in LRSD and City of Little Rock elections were the result of "special circumstances." For example, the Charles Plaintiffs describe the black majorities in LRSD Zones 1 and 2 as "special circumstances." It follows then that the failure of a black candidates in a white majority zone would also be attributable to "special circumstances. it is worth noting that another tl special circumstance" referred to by the Charles Plaintiffs was support by the "white power structure. II Lynch testified that black candidates Charles Bussey, H.D. Stewart and Jesse Mason were supported by the "white power structure" in races for City Board positions. Lynch testified that the only white candidate who was strongly supported by the "white power structure" was Gary Barket in the 1992 City by the II Board race. in 1992 City Barket lost the race and, in fact, received only 300 more votes (7299 to 6999) than Gloria Wilson, a black, whom Lynch described as antithetical to the "white power structure." _ >(___________1_ . ... . _ -- Thus, the "white power structure" described by Lynch has been able to elect its candidate only when that candidate is black. And, if the Court testimony regarding the correlation coefficients shown on Charles Plaintiffs' Exhibit 32, Bussey, Stewart and Mason were also the preferred candidates of African Americans. LRSD App. pp. 186-191. accepts Lynch's Exhibit 32, Bussey 29Lynch acknowledged that many factors other than race determine the outcome of elections. LRSD App., p. 129. These other factors "would suggest that another candidate, equally preferred by the minority group, might be able to attract greater white support in future elections. II Gingles. 478 U.S. at 100 (O'Connor, J. , concurring). The Charles Plaintiffs should be required to prove that its asserted reasons for any alleged failure by blacks to elect representatives of their choice cannot be characterized as a "mere euphemism for political defeat at the polls," Whitcomb. 403 U.S. at 153
see Clements. 999 F.2d at 859. Indeed, one of these other factors explains the 1983 loss by Dr. Mitchell, black current member of the LRSD Board of a Directors, to a white opponent, Frank Mackey, in her first attempt to gain election to the board. Mitchell testified that name recognition had a "great deal" to do with her 1983 loss to Mackey. LRSD App., p. 210-211. Mackey's father, after whom Mackey was named, had been twice elected to Pulaski County Sheriff and twice elected County Judge for Pulaski County. LRSD App., p. 211. All of LRSD is within Pulaski County. However, in the same election in which Dr. Mitchell lost to Mackey, Hamilton, a black. was elected to the LRSD Board of Directors with 70% of the vote over a white opponent. LRSD Appendix, p. 12. Both Hamilton and Dr. Mitchell competed districtwide for at-large positions on the LRSD Board. Hence, many of the same voters, black and white alike, voted for Hamilton, but not for Dr. Mitchell. Under such circumstances, it cannot be said that 30whites "usually" vote as a bloc to defeat the preferred candidate of blacks. 19 Similarly, Lynch testified that the election of Dr. Hamp Roy to the City of Little Rock Board of Directors over black opposition was due to large amount of money spent by Dr. Roy to win election. In Lynch's own words, "Dr. Roy just spent an unbelievable amount of money to get that job." Lynch agreed that Dr. Roy's election was a "special situation." LRSD Supp., p. 188. Thus, black electoral defeat in LRSD and the City of Little Rock has resulted from the same "special circumstances" which the Charles Plaintiffs argue account for black electoral success. The district court's finding that LRSD does not suffer from legally significant white bloc voting should be affirmed. 5. Opportunity to Participate and to Elect. a. Less Opportunity: The Benchmark. As the final element of their Section 2 claim, the Charles Plaintiffs were reguired to establish that, based on the "totality of the circumstances," blacks have less opportunity than other Hamilton testified that it takes only about 300 votes to win an election within the current LRSD election zones. Hamilton's testimony is borne out by LRSD Exhibits 4 and 5 which show the results for the 1987 and 1989 LRSD elections. In the 1987 Zone 6 election, Charles Young defeated Lawrence Hampton 250 votes to 218 votes. In the 1987 Zone 7 election, Oma Jacovelli defeated Doug Harden 293 votes to 257 votes. ' In the 1989 Zone 1 election, Katherine Mitchell defeated Kenyon K. Lowe, Sr. 322 votes to 59 votes. In the 1989 Zone election. Frederick Lee 230 votes to 49 votes. Bill Hamilton defeated There are at five zones in the PCBE plan with black population greater that 4,600. The minimum black population in a LRSD zone under the PCBE plan is 1,112. LRSD App., p. 8. Thus, a black candidate has at least the "opportunity" to be elected in every LRSD zone, even without receiving a single white vote. App. , 8 . 31 2members of the electorate to participate in the political process and to elect representatives of their choice. 42 U.S.C. 1973
Chisom. 501 U.S. 115 L.Ed.2d at 364. The Charles Plaintiffs argue that the district court erroneously used the 1986 plan approved by the district court as the benchmark for determining whether blacks have "less opportunity." The Charles Plaintiffs state, "The comparison of minority's 'opportunity' a under a historic scheme and the challenged scheme compares the minority's opportunity to itself, not to 'other members of the electorate. t II Brief of Appellants, p.l9.^ This statement would be true but for the fact that the "historic scheme" in this case was specifically found by the district court to comply with the Voting Rights Act. Appellant's Appendix, p. 50-51. In finding that the previous plan complied with the Voting Rights Act, the district court implicitly found that blacks had the same opportunity as other members of the electorate to participate in the political process and to elect representatives of their choice. As a result. it makes no difference whether one is comparing the PCBE plan to the "opportunity" of other members of the electorate or to the "opportunity" of blacks under the previous plan when adopted in 1986 because they are the same. Therefore, The Charles Plaintiff's also argue that the PCBE plan should not be granted deference because it is retrogressive. LILI__^1, retrogressiveness may constitute a violation of Section 5 of the Although Voting Rights Act, it does not constitute a violation of Section 2. Na^, 797 F.Supp. 1498. Thus, the plan adopted by the PCBE should be granted deference unless it is found to be in violation of Section 2. Voinovich v. Quilter. ___ U.S. , , 122 L.Ed.2d 500, 513 (1993). --- 32the "opportunity" of blacks under the previous plan when approved by the district court in 1986 is an appropriate benchmark to judge the PCBE plan. See Turner v. State of Arkansas. 784 F.Supp 553, 573 (E.D.Ark 1991), aff 'd U.S. 112 S.Ct. 2296, 119 L.Ed.2d 220 (1992) b. Less Opportunity to Participate in the Political Process. Using the previous plan as a benchmark, the Charles Plaintiffs were required to establish, based on the "totality of the circumstances," that the PCBE plan for LRSD election zones results in blacks having less opportunity to participate in the political process than under the previous plan when approved by the district court. 42 U.S.C. 1973(b) (Supp. 1993)
Chisom. 115 L.Ed.2d at 3 64
Turner. 784 F. Supp. at 573. In an effort to meet this burden. the Charles Plaintiffs presented socioeconomic data concerning the residual effects of past discrimination. As the court stated in Whitfield. "Because there are no legal barriers remaining to the opportunity for blacks to participate in the ^Turner, is distinguished from Jeffers. 730 F.Supp. at 196, because Turner involves a Section 2 challenge to a zone plan which revised a court approved plan to conform to the 1990 census. See Doulin V. White. 535 F.Supp. 450 (E.D.Ark. 1982). 7 _ zone plan based on the 1990 census, the Arkansas legislature preference to plans that departed as little as possible from the remedy implemented in Doulin" ...... It In revising the II gave as a starting point . . and "obviously used the Doulin plan Thus, the court in Turner concluded Turner. 784 F.Supp. at 556, 558. "'Less opportunity' by any fair interpretation means 'less opportunity' than such black voters had immediately before the imposition or application of the challenged standard practice or procedure
not 'less opportunity' than they would have, had the legislature seized the opportunity to help them by maximizing their political influence." 473 . Turner. 284 F.Supp. at 33political process, plaintiffs have naturally emphasized the 'socioeconomic' factors." Whitfield. 686 F.Supp. at 1384.^ The socioeconomic data indicates that blacks are poorer, less educated. have fewer vehicles and have a higher percentage of households headed by single females than the general population. Even so, consideration of the socioeconomic factors provides no insight into the issue of whether the PCBE plan for LRSD election zones "results" in blacks having less opportunity to participate in the political process than under the 1986 plan. Regardless of where the zone lines are drawn, blacks have the same socioeconomic status. It is not the line drawing by the PCBE which "results" in the blacks having less opportunity to participate in the political process. but rather. it is their diminished socioeconomic status. Section 2 does not purport to provide a remedy on the latter basis. See Jeffers. 730 F.Supp. at 237, 238 (Eisele, J., dissenting and concurring). Therefore, the Charles plaintiffs have not proved that they have less opportunity to participate in the political process under the districting plan adopted by PCBE, and consequently, their Voting Rights Act claim must fail. See Chisom. 115 L.Ed.2d at 364. ^^S^ Turner. 784 F.Supp. at 577, quoting Jeffers. 730 F.Supp. at 204 ("There are no presently existing legal barriers to voting by black citizens in Arkansas, and therefore they have just as much opportunity to participate in the political process as anyone else.")
Leadership Roundtable v. Citv of Little Rock. 499 F.Supp. 579, 584 (E.D.Ark. 1980) ("Since 1965, there has been no legal impediment in Arkansas to voting by blacks."). See Turner. 784 F.Supp. at 577, quoting Jeffers 34c. Less Opportunity to Elect Representatives of Their Choice. In proceedings before the district court, the Charles Plaintiffs alleged vote dilution due to "packing" of blacks into zones with unnecessarily large black majorities. A comparison of the PCBE plan for LRSD election zones and the previous plan, however, reveals that both when it was adopted in 1986^ using 1980 census data and when analyzed by Metroplan using 1990 census data. 24 the previous plan exhibited more "packing" than the PCBE plan. Consequently, if the Charles Plaintiffs concern is "packing, they are better off under the plan adopted by the PCBE than they have ever been since LRSD Board members have been elected from single-member zones. Lynch testified that the opportunity of blacks to elect representatives of their choice is the same under the PCBE plan as it was under the 1986 plan. LRSD App., p. 148. Moreover, the Charles Plaintiffs' claim of packing is barred by the doctrine of law of the case. As noted above, the plan adopted by the County Board has less "packing" than the 1986 plan when approved by the district court, which was expressly found to comport with the Voting Rights Act. The law of the case doctrine provides that when a court decides an issue of law that decision continues to govern the same issues at subsequent stages of the ^^The plan adopted by Judge Woods in December of 1986 had two majority black zones with 81.50% and 68.90% black population, compared with 79.82% and 59.39% in the PCBE plan. ^Under the prior districting scheme, the two majority black districts had 84.35% and 74.97% black population according to the 1990 census. Under the plan adopted by the County Board, the Lwu majority black districts have 79.82% and 59.39% black population. two 35same case. Morris v. American National Can Corporation, 988 F.2d 50, 52 (8th Cir. 1993) . The doctrine was created to prevent relitigation of settled issues in a case and to protect the settled expectations of the parties, ensuring uniformity of decisions and promoting judicial efficiency. Id. Furthermore, "[t]he law of the case doctrine applies to issues implicitly decided in earlier stages of the same case." Little Earth of United Tribes v. Dept. of Housing. 807 F.2d 1433, 1438 (8th Cir. 1986). The district court explicitly stated in its December 18, 1986 order that the previous LRSD election zones complied with the Voting Rights Act, and therefore, implicitly found that the percentage of black population in the zones did not dilute black voting strength through "packing. Consequently, it is the law of H this case that the percentages of black population in the majority black zones in the plan adopted by the PCBE, which are lower than in the previous plan, cannot be said to violate the Voting Rights Act. d. The Senate Factors. In determining whether, based on the totality of the circumstances, a challenged electoral device results in a minority group having less opportunity to participate in the political process and to elect representatives of their choice, the legislative history of Section 2 identifies a number of factors which "may be relevant. 25 Senate Report, p. 28-29, reprinted in ^The Senate Report recognizes that the factors contained in the report may not be relevant in all Section 2 cases. 478 U.S. at 45. Gingles. Consideration of the Senate Factors in determining 36 H1982 U.S.C.C.A.N. at 206-07
Ginqles. 478 U.S, at 44-45 (1986). Although the district court made findings with respect each of these factors, the Charles Plaintiffs address only select factors in their Brief. LRSD assumes that the Charles Plaintiffs accept the district court's findings with regard to those factors not addressed. LRSD will respond to the Charles Plaintiffs' argument that LRSD used discriminatory electoral devices and that the policy underlying the PCBE plan is tenuous on the factors they discuss. There are presently no electoral devices being used in LRSD elections which enhance the opportunity to discriminate against blacks. In 1987 the State of Arkansas adopted a majority vote requirement which applies to LRSD elections. See Ark. Code Ann. 6-14-121 (Michie 1991). Since 1986 members of the LRSD Board of Directors have been elected from single-member zones, two of which have a majority black population. As a result, the majority vote requirement enhances the opportunity of black candidates to win election in these zones by preventing a candidate supported by the white minority from being elected by a plurality. With regard to the policy underlying the PCBE plan. PCBE instructed Metroplan to prepare alternative plans for LRSD election whether a violation of Section 2 exists has been criticized because the factors more logically support proof of "intent, It Whitfield V. Democratic Party of Arkansas. 686 F.Supp. 1365, 1382 (E.D.Ark. 1988), aff'd 902 F.2d 15 (8th Cir. 1990), and as a result, often takes attention away from the real issue. Whitfield. 686 F.Supp. at 1386-87 ("It should be apparent by now that most of the positive findings with the respect to the Senate Report factors have no tendency to prove, or disprove, that proposition. The truth is that focusing on some of those factors serves more as a distraction than a useful tool for evaluating the cause and effect operation of the challenged runoff laws."). 37zones which preserve existing zones to the extent possible consistent with federal law. LRSD App., p. 41. The overriding policy underlying the PCBE's instructions was stability. LRSD Ms. Pat Gee testified extensively regarding the importance of stability of the LRSD Board of Directors. LRSD App., pp. 215-218. Stability has been recognized as a legitimate policy in redistricting. See Jeffers. 730 F.Supp. at 214. This is especially true where, as in the present case, the plan being App. , p. 4 6. revised was court approved and was specifically found to comply with the Constitution and the Voting Rights Act. Thus, the policy underlying the PCBE plan for LRSD elections cannot be described as tenuous. II. THE DISTRICT COURT PROPERLY APPROVED THE CLOSING OF ISH SCHOOL AND THE ASSIGNMENT OF ISH STUDENTS TO THE NEW AND INTEGRATED KING INTERDISTRICT SCHOOL. This Court's review of district court decisions concerning disputed modifications to a settlement agreement is subject to an abuse-of-discretion standard. ADoeal of Little Rock School District. 949 F.2d 253, 258 (8th Cir. 1991). This Court should also "give a healthy measure to deference to the reasoned choices made by the District Court". Id. at 257. The last time proposed modifications to the desegregation plans were before this Court, this Court described "the standard to be used by the District Court for reviewing proposed modifications to the plan (if any are submitted in the future) to which all the parties have not agreed. II Id. at 258. While "disputed 38modifications are governed by a stricter standard than agreed-to modifications", Id., the party requesting modification of a school desegregation plan need not prove "a grievous wrong evoked by new and unforseen conditions". Id., quoting United States v. Swift & Co. . 286 U.S. 106, 119 (1932). This Court adopted the Sixth Circuit standard for reviewing disputed modifications: To modify [a] consent decree [], the court need only identify a defect or deficiency in its original decree which impedes achieving its goal. either ] because experience proven less effective [or] disadvantageous, or because circumstances and conditions has it have changed which warrant fine tuning of the decree. A modification will be upheld if it furthers the original purpose of the decree in a more efficient way, without upsetting the basic agreement of the parties. Id. at 258, quoting Heath v. De Courcv. 888 F.2d 1105, 1110 (6th Cir. 1989). The standard adopted by this Court is in harmony with the later decision of the United States Supreme Court in Rufo v. Inmates of Suffolk County Jail. 502 U.S. 116 L.Ed.2d 867 (1992) See Lorain NAACP v, Lorain Bd. of Educ., 979 F.2d 1141, 1149 (6th Cir. 1992) (treating the Rufo and Heath standards as harmonious and holding that school desegregation consent decrees ^Under Rufo, "a party seeking modification of a consent decree bears the burden of establishing that a significant change in circumstances warrants revision of the decree. tt 116 L.Ed.2d at 886. 502 U.S. at should If the moving party meets that standard, the court "consider the proposed modification suitably tailored to the changed circumstance." Id. "Modification whether is It of a consent decree may warranted when changed factual conditions make compliance with the decree substantially be more onerous . . [
] when a decree proves to be unworkable because of unforseen obstacles. [
] or when enforcement of the decree without modification would be detrimental to the public interest." Id. at ___, 116 L.Ed.2d at 886-87. 39"are subject to the same standards as enunciated in Rufo and Heath.") The district court found "that the insufficient number of Ish students (fewer than 100) is changed circumstance which a constitutes a defect or deficiency in the plan and impedes the goals set forth therein". August 2, 1993 Order, p. 5 (Docket No. 1926) . This finding is supported by record evidence, including the results of a survey process which was approved by the district court without objection. LRSD App., p. 263-264. The primary goal of the plan is desegregation, and the district court properly found that that goal would be impeded by the continued operation of a racially isolated school whose attendance zone residents, for the most part, elected not to go there. The district court also found that "[t]he closing of Ish, when considered in light of the opening of the desegregated King Interdistrict School, furthers the purpose of the plan in a more efficient way without upsetting the basic agreement of the parties." August 2, 1993 Order, p. 5. The plan seeks to achieve its purpose. desegregation party by movement of students from racially isolated schools to desegregated schools. LRSD App., p. 331. The modification approved by the district court "gave the parents of Ish Incentive School students the choice of removing their children from a racially-isolated setting by electing to send them to King, a new, desegregated Interdistrict School in the same general neighborhood." August 2, 1993 Order, P- The 4. replacement of an older, inefficient and racially isolated school 40 not favored by even a majority of the attendance zone residents with a new desegregated school in the same neighborhood furthers the purpose of the desegregation plans in a more efficient way and does not upset the basic agreement of the parties. The district court's findings are sufficient, under the standard established by this Court in Appeal of Little Rock School District and by the Supreme Court in Rufo, to warrant the modification approved by the district court. The approved modification, closing Ish, is "suitably tailored to the changed circumstance", insufficient interest in Ish and the election to attend King by potential Ish students. Rufo, 502 U.S. at ___, 116 L.Ed.2d at 890. The modification does not "create or perpetuate a constitutional violation"^ or rewrite the settlement "so that it conforms to the constitutional floor". Rufo, 502 U.S. at ___, 116 L.Ed.2d at 890-91. Therefore, because it stayed within the boundaries imposed by Appeal of Little Rock School District and Rufo, the district court did not abuse its discretion by accepting the plan proposed by LRSD: Within these constraints, the public interest and the "[c]onsiderations based on the allocation of powers within our federal system," Dowell, 498 US, at 112 It L Ed 2d 715, the allocation of Dowell, 498 US, at 111 S Ct 630, require that the district court defer to local government administrators, who have the "primary responsibility of elucidating, assessing and solving" the problems of institutional reform, to resolve the intricacies of implementing a decree modification. Brown v. Board of Education, 349 US, at 299, 99 L Ed 2d 1083, 75 S Ct 2749. To the contrary, the movement of black students from an older, racially isolated school building to a new, integrated school building in the same general neighborhood is a part of the remedy for past constitutional violations. To the contrary. LRSD App., p. 331. 41Rufo, 502 U.S. at ___, 116 L.Ed.2d at 891. Joshua first argues that something about the settlement plans or this Court's 1991 decision in Appeal of Little Rock School District deprives the district court of discretion to close an incentive school.^ Brief of Appellants, p. 49-50. Joshua argues that because Ish is an incentive school and incentive schools are a major component of the settlement agreement, that tl Ish must not be closed". Brief of Appellants, p. 49. That conclusion does not flow from the premises. Further, none of the desegregation plans contains an explicit or implicit statement which supports Joshua's position that incentive schools must not be closed, and Joshua has provided this Court no reference to any plan in support of its position. The district court, on the other hand, properly considered and set out in its Order the relevant language of the settlement agreement which shows the relationship between the establishment of interdistrict schools and the desegregation of incentive schools: As new interdistrict schools are established, those seats attributable to LRSD will be available for those students who otherwise would or could have been assigned to an incentive school. . . . August 2, 1993 Order, p. 3. ^Joshua does not discuss the law of modification of consent decrees or argue that the district court failed to follow the standards enunciated in Appeal of Little Rock School District and Rufo. 42Joshua seems to equate the commitment to double fund the incentive schools with a commitment to perpetuate them. This Court emphasized the importance of double funding because double funding was designed to soften the impact of racial isolation at the incentive schools (LRSD App., p. 331), not because this Court endorsed the perpetuation of racial isolation. Little Rock School District v. Pulaski County Special School District. 921 F.2d at 1385. Without the commitment of double funding, this Court would have found the settlement plans unconstitutional er se because of racial isolation. Id. The District Court properly considered and quoted the plan language which explains the reason for double funding incentive schools: Funding for the incentive schools shall be set at two times the level for the elementary area schools to insure that the children who are in racially-isolated settings are provided meaningful opportunities for desegregated experiences/activities. ~ .... ... shall utilize the To meet that goal, the parties services of consultant who has demonstrable experience in developing and successfully such programs in a majority-black implementing educational setting. a August 2, 1993 Order, p. 4, quoting Interdistrict Plan, April 29, 1992, p. 4. Joshua's argument that an incentive school must not be closed even when fewer than 100 students wish to enroll there and when the alternative is a new integrated school "in the same ^Double funding of incentive schools is important because that funding compensates for racial isolation. That does not mean that racial isolation is a good thing which must be preserved at its present level. The purpose of the desegregation plan is to end racial isolation, not to perpetuate it in order that double funding will be continued. 43general neighborhood" which II offers many program enhancements, including four curriculum specialists, a 56-station computer lab. electronic-assisted instruction, and an automated media center," is not supported by the settlement desegregation plans or the law. August 2, 1993 Order, P- This Court has emphasized the 4. importance of double funding for the incentive schools (Little Rock School District v. Pulaski County Special School District. 921 F.2d 1371, 1385 (1990)
Appeal of Little Rock School District. 949 F.2d 253, 256 (8th Cir. 1991)), but it has never found in the plans a requirement that each incentive school building must remain open regardless of the circumstances. Joshua next argues without any legal citation that LRSD is improperly "attempting to avoid its double funding obligations". Brief of Appellants, p. 51. This argument, which is merely a restatement of its previous argument. seems to be based on the false premise that King is a racially identifiable school
Thus, the Ish students have been placed in the unfair position of attending a racially-identifiable school, but have been and will be deprived of attendant benefits they were promised. Brief of Appellants, p. 53. Joshua provides no record support for the statement that the Ish students will attend II racially- a identifiable school", and cannot do so because it is not true. is in Joshua's argument that no incentive school should be closed direct conflict with the Desegregation which requires incentive school and the transfer Plan terms of the Interdistrict interdistrict school. of the closing of Stephens its students to a new LRSD App., p. 332. 1982, p. 10. Interdistrict Desegregation Plan, April 29, 44The district court found that "the parents of Ish Incentive School students . . elect[ed] to send them to King, new, desegregated Interdistrict School in the same general a neighborhood." August 2, 1993 Order, p. 4 (emphasis supplied). Joshua's unsupported argument that the former Ish students are being deprived of incentive school "benefits" while being moved from one racially isolated setting to another is simply wrong. Joshua's next argument is that LRSD failed to recruit white students for Ish Incentive School. For this reason, Joshua argues. without citation of authority, the district court should not have "reward[ed] the district for failing to meet its obligations by granting its motion to close Ish." Brief of Appellants, p. 54. The district court did express concern about LRSD's recruitment of white students to incentive schools, but it also had before it evidence of relative merits of King and Ish schools. LRSD Associate Superintendent Marie Parker testified that a primary purpose of the LRSD desegregation plan is to eliminate racially- identifiable schools (LRSD App., p. 316) and that King is better located than Ish to attract white students. LRSD App., p. 314. Ms. Parker believes that students at King will receive as good an education as they would have received at Ish, and testified that LRSD is committed to see that that happens. LRSD App., p. 317. Mr. Doug Eaton, LRSD's Director of Plant Services, testified that If Joshua's argument is that the Ish students should remain in a racially-identifiable school so that they can receive benefits promised to students who attend such schools, that argument ignores the basic purpose of the plan, which is to reduce racial isolation. 45Ish is in a good state of repair and has not been neglected. LRSD App., pp. 318, 319. Finally, Billy Bowles, PCSSD Assistant Superintendent for Desegregation, testified that it is difficult to recruit white parents to incentive schools: There are perceptions about incentive schools, parents look at them as 85% to 90% black and Many and recruiting white parents, just to be perfectly honest with you. it's real difficult to those schools. It doesn't mean that we don't try to recruit them. But just like Little Rock whites, they've just chosen not to go. LRSD App., p. 278. The district court, although concerned about recruitment of whites to Ish, determined from this and other evidence that the future of Ish should be decided by giving "the parents of Ish Incentive School students the choice of removing their children from a racially-isolated setting by electing to send them to King, a new, desegregated Interdistrict School in the same general neighborhood." August 2, 1993 Order. Joshua's final argument is that the district court should have conducted further hearings with respect to LRSD's survey of potential Ish students. It was not necessary for the district court to do so. A two-day hearing preceded the district court's decision to approve the King attendance zone and to require LRSD to file with the court and serve upon the parties the process by which it would determine whether fewer than 100 students from among the groups selected by the district court wished to attend Ish. LRSD filed and served a detailed survey process. Even though the district court warned Joshua twice from the bench (LRSD App., pp. ^^See. Note 5, supra. 46293-300.) and again in its written order that Joshua would "have 5 days to file their response and objections to LRSD's survey and plan" (June 11, 1993 Order, p. 3, Docket #1848), Joshua did not object to the survey process. Following the survey, LRSD filed a status report (LRSD App., p. 260) and a motion to close Ish School (LRSD App., p. 2 68). Joshua's only response was to file an "opposition to status report" on July 23, 1993 (LRSD App., p. 265) which was refiled on July 28, 1993 (Docket No. 1917) in response to the district court order requiring that responses to LRSD's motion to close Ish School be filed no later than July 28, 1993 (Docket No. 1916). Before the district court approved the closing of Ish School, Joshua raised only three issues with respect to the survey: (1) "Although the Court may have approved the survey form and process, there was no effort made, on information and belief, to reach pre-school children which may or may not have included kindergarten children"
(2) "The process was designed to fail"
and (3) LRSD and the district court should have assumed "that an equal percentage of the students who did not return the forms would 1. e. , have opted for Ish to that percentage which actually did so, 55.4%" and therefore should have presumed that the actual number of students preferring Ish would be 145. Joshua Intervenor's Opposition to Status Report (LRSD App., 265) Docket No. 1915) also attached to Joshua's response to order (Docket No. 1917). Joshua now contends that it "objected not only to the survey format, but also to the fairness of the manner in which it was carried out. and whether it was done correctly even under the survey guidelines proposed by LRSD." Brief of Appellants, p. 56- 57. Joshua also contends that it "raised issues about the validity 47of the survey which came to light only after it was done." Brief of Appellants, p. 57. The district court fairly viewed Joshua's objections as untimely objections to the survey process. August 2, 1993 Order, p. 2. The court's bench ruling makes it clear that LRSD was required to survey then current LRSD students. not families who might potentially enroll their students in LRSD schools the following year. The court said, for example, that LRSD would be required to survey the group of students "attending Ish who live inside the zone" which was "about 93 students", and an additional 90 students "who attend Ish who live outside the zone". LRSD App., 287. These were the numbers of students actually attending LRSD for the 1992- 93 school year. LRSD App., pp. 308-309. The survey process filed by LRSD contains no plan to identify and to survey students other than those enrolled in the LRSD system for the 1992-1993 school year. Had Joshua considered this to be a flaw in the survey process, it could have filed a timely objection. This is not an issue of whether the survey "was done correctly even under the survey guidelines proposed by LRSD", or an issue "which came to light only after [the survey] was done". Brief of Appellants, p. 57. The next issue raised by Joshua after the survey was completed was that "[t]he process was designed to fail". This is. on its face. an objection to the process which could have been timely filed. 48Joshua's final objection to the survey, that LRSD should have been required to extrapolate the actual survey results and keep Ish open if the number derived from that extrapolation exceeded one hundred, is also an objection to the survey process which could have been timely filed. It was clear from the survey process filed by LRSD that LRSD would count only those students who affirmatively selected Ish School. In its form letter to parents of potential Ish students which was filed as a part of the survey process, LRSD said: If fewer than 100 students choose to attend Ish Incentive School, Ish will be closed and those students who reside in the present Ish attendance zone will be assigned to King Interdistrict School. LRSD App., p. 240. The district court gave Joshua an ample opportunity to object to the survey process and plenty of warning about the time frame for doing so. Even if the issues raised by Joshua had been timely filed. the court could have properly decided them without a hearing. The court could have concluded without a hearing that if fewer than one hundred of those students residing in the Ish attendance zone and those outside the zone attending Ish for the 1992-93 school year failed to declare an interest in attending Ish, that there was insufficient support for Ish to justify keeping it open, even assuming that a new class of kindergarten students would arrive and even assuming that those who failed to respond to the 49survey would choose Ish in the same proportion as those who did respond to the survey. Each finding made by the district court is supported by the record, and Joshua does not argue that the district court's findings ar unsubstantiated. The district court carefully applied the standard for modification of consent decrees set out by this court in Appeal of Little Rock School District. 949 F.2d 253, 258 (Sth Cir. 1991), and Joshua does not argue that the district court misapplied that standard or should have applied some other standard. In fact, Joshua makes no argument at all concerning the appropriate standard for modification of a consent decree. The district court's factual determinations are supported by the record and its legal conclusions are the result of careful application of the appropriate standard for modification of consent decrees. There was no abuse of discretion. CONCLUSION The district court's finding that the Charles Plaintiffs failed to establish a violation of the Voting Rights Act, 42 U.S.C. 1973, is not clearly erroneous. The district court did not abuse its discretion in modifying LRSD's desegregation plan. The district court's orders on these issues should be affirmed. /// /// The form letter to parents made it clear that failure to respond to the survey was, in effect, a vote against Ish School. The parents were notified that Ish would be closed if fewer than 100 students chose to attend Ish. LRSD App., p. 240. 50Respectfully submitted, LITTLE ROCK SCHOOL DISTRICT FRIDAY, ELDREDGE & CLARK 2000 First Commercial Bldg. 400 West Capitol Little Rock, AR 72201 (501) 376-2011 Attorneys for Little Rock School District By: Christopher He er State Bar No. 81083 CERTIFICATE OF SERVICE I caused a copy of the foregoing Brief for Appellant Little Rock School District to be served on the following people by hand delivery on April 19, 1994, addressed as follows: Mr. John Walker JOHN WALKER, P.A. 1723 Broadway Little Rock, AR 72206 Mr. Sam Jones WRIGHT, LINDSEY & JENNINGS 2200 Worthen Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON & JONES, P.A. 3400 Capitol Towers Capitol & Broadway Streets Little Rock, AR 72201 Mr. Richard Roachell Roachell and Streett First Federal Plaza 401 West Capitol, Suite 504 Little Rock, AR 72201 51Ms. Ann Brown Desegregation Monitor Heritage West Bldg., Suite 510 201 East Markham Street Little Rock, AR 72201 Ms. Elizabeth Boyter Arkansas Dept, of Education 4 State Capitol Mall Little Rock, AR 72201-1071 Christopher He 52 V rbcbivsd ^PR 2 2 1994 Oiiice oi Desegregation Monitofinfl U n DIG'irflCTCuU."T EASTERN D:GTniCTAr.
i:
:/s IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSA^i
^ 2 Q WESTERN DIVISION JAMES W. McCCSMAC:
, CLERK LITTLE ROCK SCHOOL DISTRICT Ey.' I>ISINTIFF V. 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 BRIEF IN SUPPORT OF MOTION FOR MODIFICATION OF DESEGREGATION PLAN Introduction This brief traces some of the history of the development of the present LRSD and Interdistrict desegregation plans in support of the argument that the parties intended, and now have in place. three interdistrict schools within the Little Rock School District. Some of the documents which were submitted by the parties to Special Master Aubrey McCutcheon do not appear on the docket. For the convenience of the Court and the parties. documents are referred to throughout this brief by their location in the Joint Designated Record which was used for the 1989 and 1990 appeals and subsequently by the district court. Those documents not contained in the Joint Designated Record are referenced by date and docket number.statement of the Case A. Desegregation Plans Aubrey McCutcheon filed his "Interim Report and Recommendations of the Special Master" on February 16, 1988. 4 J.D.R. 714. Special Master McCutcheon approved and recommended for immediate adoption certain "Proposed Stipulations For Little Rock School District Desegregation Plan" which had been agreed upon by the parties to this case. The Stipulations contained an interim plan as well as a planning process which was to result in a final plan to be submitted to the Special Master by September 30, 1988. The Little Rock School District submitted its proposed desegregation plan on October 3, 1988. 5 J.D.R. 1040. The October 3, 1988 Proposed LRSD Desegregation Plan contained the following language about Washington school: "The new Washington will function as an interdistrict magnet school. A tri-district survey will be conducted in October 1988 to determine a theme. The Washington students who were temporarily reassigned for the 1988-89 school years will be assigned to the new Washington school. Washington's location is expected to be a major asset to its ability to attract white students. In particular, it is easily accessible to downtown office workers from both North Little Rock, Pulaski County and Southwest Little Rock. Also, Washington's proximity to 1-30 is expected to attract students who live outside of 2Pulaski County. The Little Rock School District is interested in opening the magnet and M-M programs to students who live outside of Pulaski County. 5 J.D.R. 1045-46. The October 1988 plan also recommended Stephens as an interdistrict magnet: "The recommendations in this section are based on current demographics and geography which identify a need for new construction. It is proposed that the District relocate Stephens Elementary due west of and adjoining the Capitol Hill Complex. The new Stephens will house pre-kindergarten through sixth grades. The new Stephens will be similar to the new Washington in that it will have a capacity of six hundred students and serve as an interdistrict magnet. The magnet theme will be based on the results of the tri-district survey. In addition to being located on the 1-630 corridor, the new Stephens will be easily accessible to downtown office workers, state department employees and University Medical Center personnel." 5 J.D.R. 1047-48 (emphasis supplied). The third interdistrict magnet school proposed in the October 1988 plan was King: "The Little Rock School District also proposes to build a new King Elementary School in downtown Little Rock. The facility would be located in the general area bounded by 1-630, Chester Street, Seventh Street and Center Street. In addition to being an interdistrict 3magnet, the big attraction for this school will be its early childhood program and child care facilities. This location is expected to serve as a natural magnet for individuals who work within governmental and business centers of Little Rock." 5 J.D.R. 1048. Working with the parties and the Special Master, LRSD prepared a long term desegregation plan. The plan was submitted in two parts on January 31, 1989. Volume I does not address student assignment issues. Volume II, which was modified slightly and resubmitted on March 23, 1989, describes "student assignments" and "facilities". An Interdistrict desegregation plan was submitted to the Special Master on February 15, 1989. The March 1989 LRSD plan lists Washington among the incentive schools (10 J.D.R. 2288) and provides the following description of Washington school (10 J.D.R. 2231-33): "Washington school is closed for the 1988-89 school year. A new Washington school is being built at the same site with a projected capacity of 1,050 students. The students who were originally assigned to Washington for the 1988-89 school year have been reassigned to Ish, Mitchell, Rockefeller and Rightsell. These students (166) will have a preference to return to the new Washington in the 1989-90 school year." The March 1989 LRSD plan contains the following language about Stephens and King schools: 4"It is proposed that the District relocate Stephens Elementary near the 1-630 corridor between 1-30 and University Avenue. The new Stephens will house prekindergarten through sixth grades and will have a capacity of 600 students. It serves as an Interdistrict school. The new Stephens will be easily accessible to downtown office workers, state department employees and University Medical Center personnel. The Little Rock School District also proposes to build a new King Elementary School in downtown Little Rock. The facility would be located in the general area along 1-630 between 1-30 and University Avenue. In addition to being an Interdistrict school, an attraction for this school will be its Early Childhood Program and childcare facilities. This location is expected to serve as a natural magnet for individuals who work within governmental and business centers of Little Rock. 10 J.D.R. 3232. According to the March 1989 plan, the non-magnet enrollment in LRSD for the 1988-89 school year was 8,327 black students and 3,835 non-black students for a total of 12,162 students. The projected enrollment for the 1989-90 school year was 8,500 black students and 3,850 non-black students for a total of 12,350 students. 10 J.D.R. 2229. The March 1989 plan listed 22 elementary schools with a total capacity of 9,501 seats and a projected enrollment of 8,187 students. 10 J.D.R. 2227-28. The eight incentive schools. 5Including 1050 seats at Washington, would have a total capacity of 3800 seats. 10 J.D.R. 2228. Romine was to be established as an interdistrict school for the 1989-90 school year with a capacity of 490 seats, up to 49% of which would be allocated to PCSSD and at least 51% of which would be allocated to LRSD. 10 J.D.R. 2229. The February 1989 Interdistrict Desegregation Plan lists Washington as an incentive school (8 J.D.R. 1722), proposes the conversion of Romine into an interdistrict school (8 J.D.R. 1731- 32), and requires LRSD to construct two new interdistrict schools. King and Stephens. Stephens is described as follows in the February 1989 Interdistrict Plan: "LRSD will build new Stephens Elementary School a operating at grades pre-K through 6 to be located near the 1-630 corridor between 1-30 and University Avenue. This school will be ready by the 1990-91 school year or as soon as reasonably practicable. These parties propose that this elementary center be constructed, owned, and operated by the LRSD and draw its black student body largely from the students then attending the old Stephens school and its white student population, to the extent feasible, from both dependents of state government employees and PCSSD students. This school will have an early childhood program. The old Stephens school building will then be closed." 8 J.D.R. 1732. The February 1989 Interdistrict Plan contains the following language about King school: bU]y\Dewt-n.Bri 6"LRSD will construct a new King Elementary School as a downtown Interdistrict School by the 1992-93 school year or as soon as reasonably practicable. These parties propose that this facility be located in the general area bounded by Interdistrict 630 between 1-30 and University Avenue. These parties believe that this location would serve as a natural attractor for individuals who work within the governmental and business centers of Little Rock." 8 J.D.R. 1734. The 1989 LRSD and Interdistrict Plans were among the plans the Special Master recommended for rejection on May 10, 1989 (Docket #1182) . The district court accepted the Special Master's recommendation and rejected the 1989 desegregation plans on June 27, 1989 (Docket #1200). All three school districts and the Joshua Intervenors appealed from the June 27, 1989 order. Following the June 27, 1989 order of the district court. metropolitan supervisor Eugene Reville relocated to Little Rock and commenced the task of preparing new desegregation recommendations for the three districts. On January 2, 1990 Mr. Reville filed his proposal, the "Tri-District Plan", with the district court. Docket #1291. Under the Tri-District Plan, Washington became an interdistrict magnet school for basic skills/math/science which was described as follows: "This school will open in 1990-91 for students who learn well in a highly-structured setting
who are motivated by btlqr\OMe|*n.Bri 7academic, physical, and social competition
and who are interested in math and science." 16 J.D.R. 4329. The Tri-District Plan contains the following language regarding assignments to Washington: "Assignment to Washington will be open to students from the Pulaski County Special School District or the North Little Rock School District based on majority-to- minority provisions and on the provisions of Act 609 of 1989 (the "School Choice" law). Preference will be given to black students in the Little Rock School District who live in the attendance zone for Washington School and to white students in the Pulaski County Special School District. Next preference will be given to students who attend schools that are less than fifty-six percent black." 16 J.D.R. 4250. The Tri-District Plan does not require the construction of a new Stephens or King Interdistrict School. On March 5, 1990 (Docket #1328) the district court entered an order approving the Tri-District Plan as submitted on January 2, 1990 with only minor exceptions. Washington Elementary School was closed and rebuilt on the same site during the 1988-89 school year. The new Washington school opened for the 1989-90 school year as racially a identifiable elementary school with 519 students, ninety-eight percent of whom were black. During the pendency of the appeals of the district court's order rejecting the settlement plans and 8approving the Tri-District Plan, the Tri-District Plan was implemented for the 1990-91 school year. Washington operated during the 1990-91 school year as a racially balanced interdistrict magnet school. Fifty-seven percent of Washington's 762 students were black. One hundred thirty-two white students from outside LRSD attended Washington Interdistrict Magnet School during the 1990-91 school year. The desegregation plans presented to the Eighth Circuit Court of Appeals in the joint appeal of the three school districts and the Joshua Intervenors required only three interdistrict schools within the Little Rock School District - King, Romine and Stephens. On December 12, 1990, the Court of Appeals approved those desegregation plans but recognized that a transition from the Tri- District Plan to the settlement plans would be necessary: 'It may be necessary, in order to make smooth a transition, for the details of the settlement plans to be adjusted to produce an appropriate fit between their future application and existing circumstances. The parties should be able to agree as to whether any such adjustments are necessary, and, if so, what they should be. Absent such agreement, the district court is authorized to take such action as may be just." LRSD V. PCSSD. 921 F.2d 1371, 1394 (Sth Cir. 1990). Since certain existing schools, including Washington, were assigned different purposes under the Tri-District Plan than under the settlement plans, it became necessary for the parties to immediately resolve kMhyXDnec-n.Bri 9those differences. The parties reached the following agreement concerning Washington School: "Washington School was a racially identifiable black school during the 1989-90 school year. Washington opened for the 1990-91 school year as a racially balanced (57% black) magnet school. Washington should continue to operate as a magnet school. This agreement is recorded in a stipulation and consent order signed by all the parties and entered by the district court on February 13, 1991 (Docket #1434). On May 1, 1991, the parties jointly proposed certain revisions to their 1989 desegregation plans. Washington was removed from the list of incentive schools in the May 1, 1991 LRSD plan. 22 J.D.R. 5723, 5726, 5729. Although Washington is not listed as an interdistrict school in the May 1, 1991 interdistrict plan (see 22 J.D.R. 5864-70), the May 1991 LRSD plan describes the goals of the Washington Elementary School Basic Skills/Math - Science Magnet and explains how students will be assigned there: "All students will be assigned to Washington Schools (sic) by the Student Assignment Office. The NLRSD and PCSSD will actively recruit students who are eligible for M-to-M transfers. The target racial balance at Washington will be 60 percent black and 40 percent white." 22 J.D.R. 5698. k>tlv\DHet-n.Bri 10This court's final ruling on the May 1, 1991 desegregation plans was filed on May 1, 1992, approving "the revised plans as attached to" the May 1, 1992 order. Those are the plans under which the districts presently operate. The LRSD plan contains the following language concerning assignments to Washington Elementary School Basic Skills/Math - Science Magnet: "All students will be assigned to Washington Schools (sic) by the Student Assignment Office. The NLRSD and PCSSD will actively recruit students who are eligible for M-to-M transfers. The target racial balance at Washington will be consistent with the Interdistrict Plan, seeking to obtain a ratio of between 60 percent and 40 percent of either race with the ideal goal to be 50 percent black/white." LRSD Desegregation Plan, April 29, 1992, p. 144. The difference between the racial composition proposed by the parties in the May 1, 1991 plan (60% black and 40% white) and the racial balance contained in the plan as approved by the district court dated April 29, 1992 (between 60% and 40% of either race with the ideal goal to be 50% black/white) is significant. The racial balance prescribed for Washington by this Court is the racial balance for interdistrict schools found in the Interdistrict Desegregation Plan and described in this Court's May 1, 1992 Order: "Provisions of the interdistrict plan target the ideal racial balance for the various types of LRSD schools: Interdistrict schools at 50 percent black/white with variance of 60 to 40 percent of either race ... a H kBth|y\DMe(*n.Bri 11May 1, 1992 Order (Docket #1587), pp. 27-28. This Court would not have assigned to Washington the racial balance requirements of interdistrict schools if Washington were not, in fact, operating as an interdistrict school. The decision that Washington should be governed by the racial balance requirements for interdistrict schools set forth in the Interdistrict Plan reflects this Court's recognition of Washington as an interdistrist school. The 1989 desegregation plans approved by the Eighth Circuit Court of Appeals require the operation of three Interdistrict schools within LRSD - Romine, King and Stephens. 8 10 J.D.R. 2229- 32
J.D.R. 1721, 1731-34. LRSD presently operates three interdistrict schools - Romine, King and Washington. The LRSD and Interdistrict Desegregation Plans should be amended to reflect the fact that LRSD presently operates the number of interdistrict schools contemplated by the plans agreed upon by the parties in 1989 and approved by the Eighth Circuit Court of Appeals in 1990. In its order with respect to the modifications proposed by the parties in the May 1991 plans, the Eighth Circuit Court of Appeals said: "It may be helpful for us to state those elements of the 1989 plan that we consider crucial, and with respect no retreat should be approved. They are as follows: (3) operation of the agreed number of interdistrict schools according to the agreed timetable ... tl Appeal of Little Rock School District. 949 F.2d 253, 256 (8th Cir. 1991). In accordance with the 1989 plans approved by the Court of 12Appeals in December 1990 and the order quoted above, LRSD presently operates three interdistrict schools. B. Demographics According to the LRSD and Interdistrict Desegregation Plans as those plans were approved by the Court of Appeals in 1990, LRSD was to establish three interdistrict schools, two of which would be located in central Little Rock in the general area along 1-630 between University Avenue and 1-30. One school was to be established "near the 1-630 corridor between 1-30 and University Avenue." 10 J.D.R. 3232. The other was supposed to be "located in the general area along 1-630 between 1-30 and University Avenue." 10 J.D.R. 3232. Since those plans were written, both King and Washington schools have been established as interdistrict schools within the area described in the plans. Also since those plans were written, 1990 census information has revealed a dramatic shift of population away from the area in which the interdistrict schools were to be located. This decline in population in the area targeted for the location of interdistrict schools is illustrated by undisputed evidence which was presented to the district court concerning the issue of revised election zones for the LRSD board. When the initial LRSD board member election zones were approved by Judge Woods on December 18, 1986 (Docket # 719), zones one and two had total populations of 25,399 and 25,295 respectively. Zones one and two cover most of central and east Little Rock, which is the 13primary area in which LRSD interdistrict schools were to be located. According to the 1990 census information, the population of zone one is 20,901, which is 4,498 people lower than the previous census. The 1990 population of zone two was 20,415, which is 4,880 people lower than the previous census. The 1990 census shows an eighteen percent decline of the number of people in zone one and a nineteen percent decline of the number of people in zone two. The movement of population away from east and central Little Rock is further shown in the testimony of Jim McKenzie about the election zone issue. Mr. McKenzie is the executive director of Metroplan, governmental planning and research organization composed of local government entities in the Central Arkansas area. Mr. McKenzie testified that his organization tracks demographic changes in Little Rock and that there was a material demographic change from the 1980 census to the 1990 census. April 13, 1993, Tr. 62-63. Although the population in eastern Little Rock a declined each year since 1980 (Tr. 67), most of the movement out of that area occurred between 1985 and 1990. Tr. 62-63. Mr. McKenzie testified that the "center city" will continue to lose population. Tr. 100-01. Mr. McKenzie prepared four proposals to adjust the LRSD election zones so that they would contain relatively equal populations. He testified that his proposal number four "looks more to the future in terms of growth and shifts in population than the other proposals." See Memorandum Opinion and Order, June 21, taukorVDeaet-n.Bri 141993 (Docket #1853), p. 5. According to Mr. McKenzie's description of proposal number four, "the areas of the City of Little Rock that are projected for growth have a negative variance from the mean while the areas that are projected to lose population have a positive variance. Id. In proposal number four, which was presented to the court in PCBE Exhibit 1, the only two zones which show a positive variance from the mean, indicating a projected loss of population, are zones one and two. See Tr. 101-02. The movement of population away from the area targeted for the establishment of interdistrict schools within LRSD is also shown in information provided to the parties by the Office of Desegregation Monitoring. A document titled "Incentive School Attendance Zones and Schools Attended" shows a total population of the incentive school attendance zones (Franklin, Garland, Mitchell, Rightsell, Rockefeller and Stephens) of 1,946 for the 1993-94 school year. The incentive school attendance zones generally correspond with the area targeted for the location of interdistrict schools. In fact, the interdistrict schools were expected to draw their black student population from among "those students who otherwise would or could have been assigned to an Incentive School". 8 J.D.R. 1722. The present number of students in the incentive school zones (1,946) is dramatically lower than the capacity established for the incentive schools in the 1989 desegregation plans of 3800 students. 10 J.D.R. 2228. The parties projected in the 1989 LRSD Desegregation Plan that if 3600 LRSD black students attended kMlvMiMH-Pl.Bri 15incentive and interdistrict schools, the racial composition of the area schools would be 56% black. 10 J.D.R. 2231. According to the 1989 Interdistrict Desegregation Plan, the incentive schools alone should be "sufficient to accommodate that number of black students who, by attending these schools, make it possible to achieve a student population in the remaining Little Rock schools (elementary academies) [now area schools] of 55% black and 45% white with a variance of 5%." 8 J.D.R. 1721. That means that in 1989 the parties expected that more than 3600 black students would attend the incentive schools from the incentive school zones, but today only 1,946 students reside in the incentive school zones. The Office of Desegregation Monitoring prepared and distributed to the parties in February 1994 a study of "Enrollment In Downtown Elementary Schools". That study defines downtown elementary schools as those located "east of University, west of Adams Field, north of Fourche Creek, and south of Markham." This is generally the area targeted for the location of LRSD interdistrict schools. This study shows that the incentive schools have a capacity of 2,305 students but that the October 1, 1993 enrollment was only 1,454 students. There are 1,429 available seats in downtown elementary schools. Those schools operate at only seventy-six percent of capacity. The February 1994 ODM study also shows that the two existing downtown interdistrict schools. King and Washington, are operating at 80% and 77% of capacity, respectively. There are 139 available seats at King and 218 available seats at Washington. King kitkor\DBW(>n.Bri 16Interdistrict School has attracted 200 white students from outside the downtown area and Washington Interdistrict Magnet School has attracted 249 white students from outside the downtown area. Finally, both the Pulaski County Special School District, which was to be the primary source of white students for the interdistrict schools (8 J.D.R. 1721), and the Little Rock School District have experienced an unexpected overall decline in student population. The number of students attending PCSSD declined from 21,633 for the 1992-93 school year to 20,426 for the 1993-94 school year according to the October 1 enrollment count, a loss of 1,207 students. The number of students attending LRSD declined from 26,212 for the 1992-93 school year to 25,594 for the 1993-94 school year, a loss of 618 students. Both districts expect to lose more students for the 1994-95 school year. C. Plan Modification Process The PCSSD plan contains a desegregation plan amendment process (pp. 104-05) which this Court has found should be implied in the LRSD and NLRSD plans (Memorandum and Order, June 21, 1991, p. 17, Docket #1479). This Court has described the plan modification process as follows: "Proposed amendments may arise in multiple ways. including by agreement or consultation with the other parties. Any proposal is first submitted to the PCSSD Office of Desegregation (Office) for initial review and analysis. The Office will make a recommendation to the kMtay\Dnet*n.Bri 17superintendent who will in turn make the final recommendation to the Board. If the Board approves, the matter will be submitted to the Court, and formally submitted to the other parties to the litigation. If the Court approves, the plan shall be amended. Note that bv the Plans own terms, agreement of all parties is not required for amendment." 1^. (emphasis in original). LRSD has followed the desegregation plan amendment process with respect to its proposal to recognize Washington as an interdistrict school in place of Stephens. The proposal was first reviewed by the LRSD Desegregation Office as well as other administrators and the superintendent. Following that review. LRSD informally submitted the proposal to the other parties on November 12, 1993. LRSD proposed: "That we seek to amend the desegregation plan to acknowledge the fact that both Washington and King have been established as interdistrict schools and that the establishment of two such schools within LRSD satisfies the Eighth Circuit's requirement that LRSD operate 'the agreed number of interdistrict schools'. PCSSD would be expected to 'engage in early, rigorous and sustained recruitment efforts' to recruit students to Washington, but would be relieved of the expectation that the white student population of Washington would come primarily from PCSSD. White LRSD students presently attending Washington would be allowed to remain and LRSD would lathy \DBMg-Pl.Bri 18continue to recruit white students for Washington in the future. Letter to Counsel, November 12, 1993. LRSD further proposed: "That we delay the construction of a school at the present Stephens site so that LRSD may complete its demographic study to determine how best to meet the requirements of its student population and the desegregation plans. If LRSD determines to build a new school at the Stephens School Site, the new school will be an incentive school and the parties will s
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