Little Rock Schools: Stephens Elementary

J d Lari JAN 2 & 1994 UNITED STATES COURT OF APPEAL FOR THE EIGHTH CIRCUIT Office oi Dassgreganon p/icniioriug NO. 93-3592 PULASKI CTY. LITTLE ROCK SCHOOL DISTRICT V. SPECIAL SCH. DIST. NO. 93-3469 LORENE JOSHUA V. LITTLE ROCK SCHOOL DIST. NO. 93-3594 LITTLE ROCK SCHOOL DIST. V. LORENE JOSHUA APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION THE HON. SUSAN WEBBER WRIGHT, DISTRICT JUDGE MOTION TO EXPAND PAGE LIMIT FOR APPELLANTS' BRIEF The Appellants Dale Charles, et al., and the Joshua Intervenors, by and through undersigned counsel. for their Motion to Expand the Page Limit for Appellants' Brief, state as follows: 1. Because the three above-referenced appeals have been consolidated, the 50-page limit may be inadequate to permit the Appellants to adequately brief the issues on appeal. 2. A maximum limit of 75 pages would be sufficient. WHEREFORE, Appellants pray that the page limit be increased to 75 pages. Respectfully submitted. r / / / r- David SchoenDAVID SCHOEN, ESQ. P.O. Box 3483 120 West Spring Fayetteville, AR (501) 444-6200 72702 JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR (501) 374-3758 72206 CERTIFICATE OF SERVICE I hereby certify that a copy postage prepaid to the counsel o of the foregoing has been mailed, f record listed below on this day of January, 1994. Steve Jones, Esq. Jack, Lyon & Jones, P.A. 3400 Capitol Towers Capitol & Broadway Streets Little Rock, AR 72201 Christopher Heller, Esq. Friday, Eldredge & Clark 2000 First Commercial Building Little Rock, AR 72201 Sam Jones, Esq. Wright, Lindsey & Jennings 2200 Worthen Bank Building Little Rock, AR 72201 Richard Roachell, Esq. #15 Hickory Creek Drive Little Rock, AR 72212 Ann Brown, Monitor Office of Desegregation Monitoring 210 East Markham Little Rock, AR 72201 / I Dav^id SchoenIN THE UNITED STATES COURT OF APPEALS APR 1 8 1994 FOR THE EIGHTH CIRCUIT Office of Desegregation Monitoring No. 93-3592 LITTLE ROCK SCHOOL DISTRICT V. PULASKI COUNTY SPECIAL SCHOOL DISTRICT No. 93-3469 LORENE JOSHUA V. LITTLE ROCK SCHOOL DISTRICT No. 93-3594 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 PULASKI COUNTY SPECIAL SCHOOL DISTRICT IN NO. 93-3592 M. SAMUEL JONES, III Wright, Lindsey & Jennings 2200 Worthen Bank Building 200 w. Capitol Avenue Little Rock, Arkansas (501) 371-0808 72201 Attorneys for Pulaski County Special School DistrictTABLE OF CONTENTS Page PRELIMINARY STATEMENT 1 ISSUE PRESENTED ON APPEAL 2 STATEMENT OF THE CASE 3 ARGUMENT 5 CONCLUSION 13 CERTIFICATE OF SERVICE 14 1SUMMARY AND REOaEST FOR ORAL ARGOTCEMT The Pulaski County Special School District is an appellee in Case No. 93-3592 only. In that matter, the District Court concluded that the present Stephens school site did not qualify under the language of the settlement plans as a potential site for a new interdistrict Stephens school. The Pulaski County Special School District does not believe that oral argument is necessary on this separate issue since the matter largely, if not entirely, involves the District Court's interpretation of the meaning of specific portions of the settlement plans previously approved by this Court. However, should the Court determine to hear argument on this issue, the Pulaski County Special School District would participate in the argument and believes that 15 minutes would be sufficient time to present its case and respond to questions from the Court. Finally, the Pulaski County Special School District is authorized to state that the North Little Rock School District joins with it in presenting the position of appellees' on this issue. 11TABLE OF AUTHORITIES gage CASES: Appeal of Little Rock School District, 949 F.2d 253, (Sth Cir.1991) .......................... 5 Little Rock School District v. Pulaski County Special School District, 921 F.2d 1371, (Sth Cir.1990) ................... 6, 11 111PRELIMINARY STATEMENT The Pulaski County Special School District does not disagree with the preliminary statement set forth by the Little Rock School District in its brief on the Stephens school site except to say that the order denies the relief sought by the Little Rock School District. 11. 2. I. ISSUE PRESENTED ON APPEAL THE DISTRICT COURT DID NOT ERR IN REJECTING THE PRESENT STEPHENS SCHOOL SITE AS A POTENTIAL INTERDISTRICT SCHOOL LOCATION BY FAILING TO CONTINUE THE HEARING INITIALLY BEGUN ON THAT ISSUE BECAUSE ITS DECISION PRIMARILY REFLECTED ITS OWN REASONED INTERPRETATION OF THE SETTLEMENT AGREEMENTS REACHED IN THIS CASE. Appeal of Little Rock School District, 949 F.2d 253, 257 (Sth Cir.1991) Little Rock School District v. Pulaski County Special School District, 921 F.2d 1371, 1383 (Sth Cir.1990) 2STATEMENT OF THE CASE Although three cases have been consolidated for appeal before this Court, the Pulaski County Special School District ("PCSSD") is appellee only in Case No. 93-3592. That appeal by the LRSD and Joshua seeks to reverse the District Court's order of September 27, 1993, ruling out the old Stephens school site as a potential location for construction of the new Stephens interdistrict school required by the settlement plans. The threshold issue confronted by the District Court was whether the old Stephens site even qualified as a potential candidate for construction of the new Stephens interdistrict school. The pertinent language of the plans interpreted by the District Court is set forth in her order of September 27, 1993, and, for the convenience of the Court, said order is reproduced in the addendum to this brief. The two provisions are that: It is proposed that the District relocate Stephens Elementary near the 1-630 corridor between 1-30 and University Avenue. Desegregation Plan, at 139. (Emphasis added.) LRSD LRSD will build a new Stephens Interdistrict School ... located near the 1-630 corridor between 1-30 and University Avenue ... The old Stephens school building will then be closed. Desegregation Plan, at 10. (Emphasis added.) Interdistrict (Ad. p. 2). The District Court, as part of her order, concluded from this language that: 1. The new school would be built at a new site and the old school closed. (Ad. p. 2). 33. 4. That the plans clearly envisioned that the new Stephens school would be near 1-630. (Ad. p. 2) . That constructing the new school at the old site would not further the goals of the desegregation plans. (Ad. p. 2). That the old site is further from 1-630 than any of the other proposed sites. (Ad. p. 3). 2. 5. 6. That to approve reconstruction at the old site would constitute a disputed modification of the Plan. (Ad. p. 3-4). That the purpose of the new interdistrict school is to promote interdistrict desegregation, not to stabilize neighborhoods. (Ad. p. 5). Before the Court's order was entered, several site selection committees were composed and recommendations made all as generally described by the LRSD at pages 4-8 of its brief. In her order declining to approve the old Stephens site, the District Court gave the parties until October 15, 1993, to reach consensus. Thereafter, on October 15, 1993, the PCSSD and NLRSD filed with the Clerk their respective preferences evaluating the sites considered by the various site selection committees. (Ad. p. 18-21). No further formal proceedings have been had regarding selection of a site for Stephens pending this appeal. 4ARGUMENT I. THE DISTRICT COURT DID NOT ERR IN REJECTING THE PRESENT STEPHENS SCHOOL SITE AS A POTENTIAL INTERDISTRICT SCHOOL LOCATION BY FAILING TO CONTINUE THE HEARING INITIALLY BEGUN ON THAT ISSUE BECAUSE ITS DECISION PRIMARILY REFLECTED ITS OWN REASONED INTERPRETATION OF THE SETTLEMENT AGREEMENTS REACHED IN THIS CASE. In 1991, in the context of articulating the deference to be accorded to and the standard of review to be applied to decisions of the District Court regarding changes in the desegregation plan, the parties were instructed by this Court that
We recognize the language of this opinion is somewhat general. It leaves a considerable degree of latitude to the District Court ... The District Court should proceed with that discretion and flexibility that characterizes courts of equity. Its decisions, whatever they are, are of course subject to review on appeal, but the review will be on an abuse of discretion basis, and we will give a healthy measure of deference to the reasoned choices made by the District Court. Appeal of Little Pock School District, 949 F.2d 253, 257 (Sth Cir.1991). This admonition was merely an extension of this Court's earlier directive issued as part of its approval of the settlement plans in 1990. At the end of that decision, this Court reiterated that
The District Court is instructed to monitor closely the compliance of the parties with the settlement plans and the settlement agreement, to take whatever action is appropriate, in its discretion, to ensure compliance with the plans and the agreement, and otherwise to proceed as the law and the facts require. 5Little Rock School District v. Pulaski County Special School District, 921 F.2d 1371, 1394 (Sth Cir.1990). The District Court Correctly Interpreted the Plans. When measured against this legal backdrop, the order of the District Court refusing to approve the old Stephens site as an appropriate site for the new intradistrict school is readily sustained. In the first instance, at least, the District Court was required to interpret the meaning of the settlement documents. The Court interpreted the settlement agreements to preclude the use of the old Stephens site for the new interdistrict school. That reading, particularly when evaluated under the abuse of discretion standard, must be sustained. It probably startles this Court to see that both Joshua and LRSD ascribe provisional status to the new Stephens location specified by the Plans. LRSD contends that: "The relocation of Stephens school is merely 'proposed,' not required." (LRSD brief at 11) Joshua echoes this "proposition" at page 58 of its brief. "Although the Plan does use the word "relocate," relocation is merely 'proposed.' Thus, relocation is not absolutely mandated by the Plan." PCSSD has been under the impression, after the last several appeals in this case, that what was "proposed" in the Plans became what was "required" after the "proposal" was approved by this Court. That the Plans somehow retain provisional status is 6not an hallucination shared by the PCSSD and would probably likewise surprise the District Court as well. PCSSD submits that what is really being said in the Interdistrict Plan is that Stephens will be relocated, which is precisely what prompted the District Court to italicize the word relocate in her September order, now the subject of this appeal. Nor can it be argued with any reasonable degree of veracity that relocate means to move the facility 10 or 20 feet closer to the freeway on the same campus. Such a strained interpretation of the Plan is not worthy of further argument. That the old Washington school was relocated on the same campus is of no moment to the instant appeal. The Washington reconstruction was done by agreement of all the parties in a phase of the case that preceded the 1989 settlement agreement (See LRSD brief at 12) and was accomplished before the concept of the 1-630 corridor" became a guidepost for future school construction. Both the reconstruction of Washington and the construction of Carver magnet were both "done deals" before the 1989 plans were negotiated and written. They did not then, nor do they now have, anything to do with the 1-630 corridor concept.' What is perhaps more constructive to note is that the new King interdistrict school is built on Interstate 630, can be seen Accordingly, Joshua's argument presented at page 59 of its brief pointing out that Washington is approximately 8 blocks from Interstate 630 is irrelevant. Of course, what Joshua ignores. and what is more salient, is the fact that Washington is but three blocks from Interstate 30 and is visible from that freeway. 7from Interstate 630, and is a school to which PCSSD has always agreed it can successfully recruit its white students. (Ad. p. 7, par. 3). The District Court's interpretation that the Plans "clearly envision that the Stephens interdistrict school be near 1-630," and that "the current site of the Stephens school is farther from 1-630 than any of the other proposed sites that lie between 1-30 and University Avenue," is a reasonable interpretation of the corridor concept and should not be disturbed under the abuse of discretion standard. The LRSD strains mightily to patch together a sustainable issue on appeal by contending that it does not contend it has to construct the new school at the present site, but only that it ma construct a new school at the present site. First, it is clear that for various reasons, including her interpretation of the Plans, that the District Court is not going to approve the old site even should this Court be inclined, for reasons unknown to PCSSD, to add it to the list of "eligible" candidates. Thus the relief, if it were granted, would be hollow. Even LRSD recognizes that the school must be located where it can be desegregated, and where PCSSD white students will attend. (Ad. p. 7, par. 5). Second, even though the Plan states that the new Stephens would draw its Black student body largely from the students attending the old Stephens school (LRSD brief at 11), this does not translate into a requirement, and none is contained within 8the Plan, that the school must be located within the present Stephens attendance zone. As a parallel, the Plans provided that PCSSD would build the new Crystal Hill interdistrict school, which it did, and would draw its white student body from the Pine Forest and Oak Grove Elementary attendance zones. However, Crystal Hill was not located in any zone, but upon vacant land actually in the City of North Little Rock. The same scenario has been approved by the Court for the population of the new Clinton interdistrict school. which will draw most of its white student body from a combination of parts of the Sylvan Hills and Oakbrook zones, and which is being built at a site mutually agreed to by all of the parties. (App. 124) Further, there is nothing in the Plan which would prohibit the busing of Stephens students to a new Stephens school. assuming that is even required. The prospect is doubtful because LRSD requires its students to walk to school if they live within two miles of the school. As pointed out by Joshua, Stephens is "only" nine blocks from Interstate 630 (Joshua brief at 59). If the new school were located on the freeway, but otherwise in reasonable proximity to old Stephens, the attendance zone for which is 13 blocks long (App. 112), LRSD would not be obligated to bus those children anyway. At page 12 of its brief LRSD represents that "the parties" did not intend to exclude the present Stephens site as a new school site. This is not correct. PCSSD's persistent objection 9to utilizing the old site, because of its doubts concerning its ability to recruit there, belies the inclusiveness of this representation. (Ad. p. 6, par. 6, 10, 11, 12, 14-15). It is further eroded by the consistent objections of the North Little Rock School District, articulated for the same reasons. (Ad. 16-17).) The Alleged PCSSD Veto This contention is once again an example of how little the appellants have to work with on this issue. All the District Court said about the PCSSD was that it "must be satisfied with the site chosen" (LRSD brief, p. 13), not that it had any direct veto. It is probably true that none of the Plans require that "PCSSD must be satisfied with the site chosen for the new Stephens interdistrict school" (LRSD brief, p. 13), but the mere articulation of this argument suggests a revival of the kind of arrogance which some ascribe to the LRSD. (See generally App. 172-180). In endorsing the concept that consensus was desired, this Court wisely observed when it initially approved the settlement plans, that:. This may be especially true in the present context a protracted, highly divisive, even bitter litigation, any lasting solution to which necessarily depends on the good faith and cooperation of all the parties. especially the defendants. As a practical matter, a remedy that everyone agrees to is a lot more likely to succeed than one to which the defendants must be dragged kicking and screaming. 10Little Rock School District v. Pulaski County Special School District, 921 F.2d 1371, 1383 (Sth Cir.1990). There Was Wo Reason to Continue the June Hearing. Having determined that the old Stephens site was not a permitted site for the new Stephens interdistrict school, and having no other consensual sites before it, it would have been an exercise in futility for the District Court to continue a hearing devoted to whether the old site was an appropriate site. The literal terms of the order stated that the Court would conduct a hearing "regarding a site for the Stephens interdistrict school" (App. 100) [Emphasis added.] if the parties are unable to reach a consensus. The Court did not say it would conduct a further hearing regarding the old Stephens site
indeed, its September 27, 1993, order specifically excluded the old Stephens site. Accordingly, there was then no present reason for a hearing and LRSD and Joshua were therefore deprived of nothing. On October 15, 1993, PCSSD and NLRSD submitted their preferred sites in rank order and those are pending before the District Court. (Ad. p. 18-21). The Court will undoubtedly conduct a hearing on alternative sites either during the pendency of this appeal, or, if the District Court believes it has been temporarily divested of jurisdiction on this issue, after return Ik of this Court's mandate. 11The Deference Argument is Misplaced. LRSD's and Joshua's reliance on cases such as Milliken, Swann and Liddell, and others cited at pages 14 and 15 of LRSD's brief, avail them nothing in the special circumstance of interdistrict schools. After all, it is clear from the Plans, and well known to this Court, that interdistrict schools are joint undertakings between the school districts and, except for the day-to-day operations of the schools, all other significant matters are to be jointly determined by the host and sending districts. (App. 124) Therefore, LRSD's and Joshua's reliance on these cases is pertinent only to the extent that the parties are in agreement on issues such as an appropriate school site. Only then would the teachings and instructions of these cases be apropos, and only if disagreements developed between the agreeing districts and the District Court, a prospect which has not yet emerged on this issue and is unlikely to occur. Stated another way, the holdings of these cases apply with equal force to the reasoned determinations and positions of the PCSSD as the sending district. Accordingly, PCSSD's consistent and well based opposition to the old Stephens site was appropriately given deference by the District Court and reinforces both her order and its underpinnings. 12CONCLUSION The order should be affirmed and this issue returned to the District Court so that a decision regarding an appropriate new site for Stephens near the 1-630 corridor can be made. Respectfully submitted: WRIGHT, LINDSEY & JENNINGS 2200 Worthen Bank Building 200 West Capitol Avenue Little Rock, Arkansas 72201-3699 (501) 371-0808 By__ _ M. S Atto Special
uel\ Jones, 111 (76060) neys/ for Pulasky County chool Di ct 13 On CERTIFICATE OF SERVICE April . 1994, a copy of the foregoing was served on: Christopher Heller Friday, Eldredge & Clark 2000 First Commercial Building 400 West Capitol Avenue Little Rock, Arkansas 72201 Mr. John Walker John Walker, P.A. 1723 Broadway Little Rock, Arkansas 72206 Mr. Steve Jones Jack, Lyon & Jones, P.A. 3400 Capitol Towers Capitol & Broadway Streets Little Rock, Arkansas 72201 Mr. Richard Roachell Roachell & Streett First Federal Plaza 401 West Capitol Avenue, Suite 504 Little Rock, Arkansas 72201 Ms. Ann Brown Desegregation Monitor Heritage West Building, Suite 510 201 East Markham Street Little Rock, Arkansas 72201 Ms. Elizabeth Boyter Arkansas Department of Education 4 State Capitol Mall Little Rock, Arkansas 72201-1071 G:ac31083.030 14 M. S. luel Jones, II ADDENDUMFILED U.S, OtSTRCT COURT EASTERN DISTRICT ARKANSAS SEP 2 7 b'95 IN THE UNITED STATES DISTRICT COURT CAaRrLl Rr.. BbRrI^T
T^S,. CcLiERh EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION By. 6/ OcP.Ct LITTLE ROCK SCHOOL DISTRICT PLAINTIFF vs. No. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT No. 1, ET AL DEFENDANTS MRS. LORENE JOSHUA, ET AL INTERVENORS KATHERINE KNIGHT, ET AL INTERVENORS 2BCB By Order dated July 1, 1993, this Court granted the parties' request for an extension of ninety days in which to attempt to reach a consensus on a site for the new Stephens Interdistrict School [doc.#1878]. The Court further ordered the parties to submit an alternative site proposal for the new Stephens Interdistrict School by September 15, 1993, if they were unable to reach a consensus. Unfortunately, the parties have not been able to reach a consensus. The Little Rock School District ("LRSD"), pursuant to a recommendation of the Stephens Site Selection Committee and subsequent approval by the LRSD Board of Directors, recommends that the new Stephens Interdistrict School be built in the immediate vicinity of the old Stephens school. The Pulaski County Special School District ("PCSSD") and the North Little Rock School District ("NLRSD") both object to the LRSD's recommendation.* Neither the Joshua Intervenors nor the Knight * The LRSD contends that the recommendation of the Stephens Site Selection Committee, as approved by the Board of Directon of the LRSD, constitutes s consensus of the represcntAbvei of the parties. Considering the pleadings filed by the PCSSD and the NLRSD regarding the new Stephens Interdistrict School, the Court does not consider the Coomittee's recommendation u constituting a consensus. Intervenors have responded, and the parties have failed to submit an alternative proposal on site for the new Stephens a Interdistrict School. Having carefully considered the matter, the Court hereby rejects the old Stephens school site as the location for the new Stephens Interdistrict School. Both the LRSD and Interdistrict desegregation plans, to which all parties agreed, anticipate that a new Stephens Interdistrict School will be built at a new site and that the old school will be closed: It is proposed that the District relocate Stephens Elementary near the 1-630 corridor between 1-30 and University Avenue. (Emphasis added.) LRSD Desegregation Plan, at 139. LRSD will build a new Stephens Interdistrict School ... located near the 1-630 corridor between 1-30 and University Avenue ... The old Stephens school building will then be closed. Desegregation Plan, at 10. (Emphasis added.) Interdistrict Constructing the new Stephens Interdistrict School at the site of the old Stephens School will not further the goals of the desegregation plans. The Court recognizes that the plans say Stephens will be built "near the 1-630 corridor," and that there is no set definition of what that phrase means. Although PCSSD has stated previously in Court and in filings that "near the 1-630 corridor" means within "eye-shot" of the interstate highway, there is no plan provision or other record that defines the geographic boundary that specifically. In any event, the plans clearly envision that the Stephens Interdistrict School be near 1-630. The current site of -2-the Stephens school is farther from 1-630 than any of the other proposed sites that lie between 1-30 and University Avenue. In addition, the Court stresses that the success of the desegregation plans depends greatly upon voluntary interdistrict desegregation. The primary purpose of the interdistrict schools is to promote voluntary movement between the school districts to achiave desegregation and fulfill the plan commitments. Interdistrict schools must be given every chance for success by assuring that each school is as appealing as possible by virtue of such important variables as academic programs, location, accessibility, staff, facility and grounds, and safety. Because the PCSSD will bear the burden of recruiting white PCSSD students to Stephens (indeed, almost half the entire student body), PCSSD must be satisfied with the site chosen for the new Stephens Interdistrict School. Likewise, the NLRSD, while not presently to send students to the new Interdistrict school by virtue of the current racial makeup of the NLRSD's student population, is a party to the case and. as such, is committed to the plan's success, is responsible for helping to uphold the provisions of the agreements, and may eventually be able to send students to the new interdistrict school. NLRSD's objections therefore may not be dismissed. Because the plans clearly envision that the Stephens Interdistrict School be rebuilt near 1-630, and in light of the objections filed by the PCSSD and the NLRSD, locating the Stephens Interdistrict School at the site of the old Stephens school would 3-constitute a disputed modification of the plan. The Court finds that locating the stephens Interdistrict School at the current Stephens school site would not satisfy the standard for reviewing disputed modifications as set forth by the Eighth Circuit Court of Appeals in Appeal of Little Rock School District, supra, 949 F.2d 253. There, the Court stated: 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 has proven it less effective [or] disadvantageous, or because circumstances and conditions either effective have changed which warrant fine-tuning the decree, 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. A Id. at 258, quoting vith approval Heath v. De Courcy, 888 F.2d 1105, 1110 (6th Cir. 1989). Here, the Court does not find a defect or deficiency in the plan which impedes the goals set forth therein, either because experience has proven it less effective or disadvantageous, or because circumstances and conditions have changed which warrant 11 fine-tuning" the plan. The Court praises the work of the site selection committee for their efforts. and commends the Stephens community for their in the site selection process, for their interest in preserving and improving their neighborhood, and for supporting 2 Had there been a eonsenstu, the Court arguably could apply a leas itringent standard of review than that requited for disputed modiCcations. However, because the parties have been unable to reach a consensus, the Court need not address that iuue. -4-their neighborhood school. The Coxirt acknowledges the importance of community input, and has stressed that importance on many occasions, but points out that the purpose of the new interdistrict school is to promote interdistrict desegregation, not to help stabilize a neighborhood. While neighborhood preservation is certainly desirable and may be a worthy goal that can be fostered by a new school, it is not the primary goal that interdistrict schools are designed to achieve. In its July 1, 1993 Order, the Court directed the parties to submit alternative site proposals for the new Stephens Interdistrict School by September 15, 1993 if they were unable to reach a consensus, and set a hearing date of 30, 1993. Because the parties have not submitted an alternative proposal as ordered. the hearing scheduled for September 30, 1993, is cancelled. The parties are hereby given until and including October 15, 1993, in which to reach a consensus on an alternative site for the Stephens Interdistrict School. The LRSD may not leave the old Stephens school building permanently vacant, but either must find a use for the building that benefits the community or ultimately demolish the facility if no community service can be found for it. The Court requires the LRSD to report to the ODM its plans for the building's use. IT IS so ORDERED this _7^ay of September 1993. ___________ UNITED STATES DISTRICT JUDGE -5- ~'S DOCUME>r ,vr ?s?SO ON DOCKET SHEET IN jLE 58 AND/OR 73(a) FRCPFILED S.3-"-CCCC" i-x/a'SAS IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION JUN 2 3 1993 JAFL R. 3REi'j S LITTLE ROCK SCHOOL DISTRICT ^?laintieW" V. NO. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL DEFENDANTS MRS. LORENE JOSHUA, ET AL DEFENDANTS KATHERINE KNIGHT, ET AL INTERVENORS 1. MOTION TO RESCHEDULE CONSTRUCTION OF STEPHENS INTERDISTRTCT SCHOOL motion, the Little Rock School District (LRSD) states: In their original settlement agreement. the parties agreed that two new interdistrict schools would be constructed in LRSD and that the second school would be constructed two years after the first school "or as soon as reasonably practicable". J.D.R. 01731-34. The first interdistrict school. then called SK Stephens Elementary School, was to have been "ready by the 1990-91 school year or as soon as reasonably practicable". J.D.R. 1731-32. The second interdistrict school, then called King Elementary School, was supposed to have been constructed "by the 1992-93 school year or as soon as reasonably practicable". J.D.R. 1733-34. The Interdistrict Desegregation Plan, which required that the second interdistrict school be constructed two years following the first interdistrict school tt or as soon as reasonably practicable" was approved by the Eighth Circuit Court of Appeals. LRSD V. PCSSD, 921 F.2d 1371 (Sth Cir. 1990). Ad. 6 8 6 0 2. The Interdistrict Desegregation Plan district approved by the court on May 1, 1992 requires that both Stephens Interdistrict School and King Interdistrict School be constructed by "a date approved by the Court". Interdistrict Desegregation Plan, pp. 10, 11. In their May 1, 1991 submission to the district court. the parties proposed that King Interdistrict School be constructed in time for the 1993-94 school year and that Stephens Interdistrict School be constructed in time for the 1994-95 school year. Mr. Bowles has testified on behalf of PCSSD that he believes that sufficient PCSSD white students can be recruited to King Interdistrict School in order to make that school desegregation success, but that he is unsure about how many years it will take before that happens. The court has directed PCSSD to 3. a prepare a recruitment plan for King Interdistrict 4. School. The recruitment of PCSSD students to Romine Interdistrict School has not yet been successful. The court has heard testimony that only eight PCSSD students attended Romine Interdistrict School during the 1992-93 school year. 5. The plan to desegregate the interdistrict schools located in LRSD depends upon the recruitment of PCSSD white students. In the absence of a reasonable likelihood that sufficient PCSSD students can be recruited to Stephens Interdistrict School in accordance with the desegregation plans agreed upon by the parties. the parties would either have to devise new plan for the a integration of the proposed Stephens Interdistrict School or face Ad. 7the prospect of constructing the school which could identifiable. remain racially 6. PCSSD has expressed concern about whether it can successfully recruit PCSSD students to Stephens Interdistrict School and has raised the issue of whether the construction of Stephens Interdistrict School should be rescheduled. Brief of PCSSD for Hearing Scheduled j
une 8 , 1993 . Although PCSSD did not specifically address the problem of simultaneous recruitment for both Stephens and King, the recruitment issue should be resolved and a recruitment plan should be established before LRSD is required to invest millions of dollars in the construction of Stephens Interdistrict School. 7. The desegregation plans require that King and Stephens be constructed in generally the same area of the city of Little Rock. Until King is established as successful, desegregated interdistrict school, it will be difficult to recruit PCSSD students to Stephens. Moreover, any successful recruitment of a PCSSD students to Stephens could delay the desegregation of King. It makes better sense to firmly establish the first LRSD interdistrict school before placing in competition with it. a second interdistrict school 8. The prospects for successfully establishing two new interdistrict schools in LRSD will be better if the original idea of establishing the second school two years following the first 1) or as soon as reasonably practicable" is reinstated. The practicability of building the second interdistrict school should Ad. 8depend upon the degree to which the other interdistrict schools in LRSD are desegregated. Stephens Interdist'rict School should be constructed when King Interdistrict School achieves the racial balance contemplated by the desegregation plan or when there exists some other evidence that sufficient PCSSD both Stephens and King can be recruited. students to desegregate WHEREFORE, LRSD prays that the "date approved by the Court" for the construction of Stephens Interdistrict School in accordance with the Interdistrict Desegregation Plan be established as August, 1995 or as soon as reasonably practicable and that the parties be required to revisit the issue of practicability as soon as the results of the recruitment of PCSSD students to King Interdistrict School for the 1993-94 school year become known. Respectfully submitted. LITTLE ROCK SCHOOL DISTRICT FRIDAY, ELDREDGE & CLARK 2000 First Commercial Bldg. 400 West Capitol Street Little Rock, AR 72201 (501) 376-2011 By Christopher Heller < Bar No. 81083 Ad. 9____ / EDWARD L WRICHT 9O3-I9T7' ROBERT S LiNOSE* 93 I99> RQNAuO a may SAAC A SCOTT WRIGHT. LINDSEY -rlyer e m.y ATTORNEYS AT lIW I tRN DISTRICT ARKANS.4fi
" -------- "l.TER E MAY .AMES M A JOHN G L GORDON S -e .R RR* L maTwewS CaviO m pOwCLl ROGER A GLASGOW C DOUGLAS BUFORD wR PATRICK J GOSS ALSTON ..ENNiNGS -R .,0HN R TISOAUE kathltn GRAVES M SAMUEL .ONES III .OhN WILLIAM SRIVEV KI uEC J MULDROW WENDELL L GRIFFEN N M NORTON JR EDGAR J TYLER CHARLES C PRICE CHARLES T COLEMAN JAMES J GLOVER EDWIN L LOWTHER jR BEVERLY BASSETT SCHAFFER CHARLES L SCHLUMeERGER SAMMYE L TAYLOR Re: 2200 WORTHEN SANK SUILDING 200 WEST CAPITOL AVENUE i little rock. ARKANSAS 72201-3699 JUN a 7 1993 - <Er :gov t joncs MOBBISON "HOMAS C COUR'WAV 9ETT:ha z BROwnstE'N WALTER McSPACOEN ROGER 0 ROWE (501) 371-1 Z\a M nancy SELlhOUSE oa^RL R. BRENTS, CLERl^~?=v^" r30 376 94. aS/-- OF COUNSEL ALSTON JENNINGS GEORGE E LUSK jR June 7, 1993 LRSD V. PCSSD Exhibit List for June 8, 1993 Hearing The Honorable Susan Webber Wright U.S. District Court Judge U.S. District Courthouse Little Rock, Arkansas 77201 Dear Judge Wright: WAV lOV SIMMONS MCNffV DE?. JtfARK u PRYOR CLEA I?*' J" VI.C.-l>k,AI>RY S MUBR tlckcr lARRY S HUBST Ov A RR'Ce JR TRlClA SIEVERS LEWALLEN JAMES M MOODY JB KATHBYN t. PRYOR J MARK DAVIS KEVIN W KENNEDY KAREN J GARNETT M TODO WOOD R GREGORY ACLIN FRED M PERKINS III WILLIAM STUART JACKSON MICHAEL O BARNES STEPHEN R LANCASTER The only PCSSD exhibits of which I am aware consist of two letters written during the last year which evidenced the PCSSD's concerns regarding locating the new Stephens Elementary School at the old Stephens Elementary School site. One of the letters was written by Mr. Bowles to the Little Rock School District. The second was a letter to Chris Heller from me which also expressed this concern. We will bring multiple copies of these two letters to the hearing tomorrow. Cordially yours, WRIGHT, LINDSEY & JENNINGS Jones III tB*i dasoN I MSJ:drl cc: All Counsel Office of Desegregation Monitoring J:drll073.030 Ad. 10 PCSSl March 9, 1993 PULASKI COUNTY SPECIAL SCHOOL DISTRICT 1500 Dixon Road/P.O. Box 8601 Little Rock. Arkansas 72216 (501) 490-2000 Dr. Mac Bernd Superintendent Little Rock School District 810 West Markham Little Rock, AR 72201 Dear Dr. Bernd: As you know, the Site Selection Committee formed to evaluate sites for construction of the new Stephens Elementary Interdistrict School has voted to recommend the old Stephen's site. When this was discussed as one of the options, PCSSD went on record at that hearing as having serious reservations concerning that site, particularly regarding student access and PCSSD's ability to recruit the necessary number of white students for a new school at that location. Unfortunately, nothing has occurred since that hearing which modifies our concerns. We trust our concerns will be expressed to your Board when they review the Site Selection Committee's recommendation. I recommend you seek Federal Court approval for Stephens and King elementary schools to be listed as interdistrict magnets. In my opinion, this would be excellent for recruitment purposes. Thank you very much. Sincerely Billy u. Bowles Assistant Superintendent for Desegregation ch c Mr. Bobby Lester Mr. Sam Jones Mrs. Ann Brown Ms. Marie Parker Ad. 11EDWARD L WRIGHT '1903 19771 ROBERT 9 LINDSEY . 19 AONAL SAAC - WRIGHT. LINDSEY & JENNINGS ATTORNEYS AT UAW AMCS M JOHN G Lite jOV GOFOON S AATK.es JR. ERA* u MAThCwS OAViO M AOWCUU AOGEA A GLASGOW C DOUGLASSUFOAO JA ATAlCA J GOSS ALSTON .eSNiNGS .
A jOMN TISOALt aatmlvn CAavcs M SAMUEL .ONES III JOHN wiLL:am SAIVET >li LEE J MULOAOW WENDELL L GAtFFEN N M NOA7ON jA EDGAA J TVLEA CHAALES C AAlOE CKAALES T COLEMAN .AMES J GLOVEA EDWIN L LOWTHEA jA BEVEALY BASSETT SCHAFFER Charles l Schlumberger 2200 WORTMEN BANK BUIUOING 200 WEST CAPITOL AVENUE LITTLE ROCK. ARKANSAS 722013699 (501) 371-0808 FAX iSOn 378 9442 OF COUNSCL ALSTON GCOWQt t UUSK jif March 25, 1993 SAMMVf u avlOA aaltEA MAy ANNA MiRAt Gibson Gregory t .,cnes M XEITW MOAA'SON NOMAS C COUATWA* BETTINA E BROWNSTEN WALTER MeSAAOOEN 0 AOWE nancy bellhouse may NATE COULTER JOHN O OAVlS JUDY Simmons henry ombeRly wood tucker MARK L RRYOA F COX jR HARRY S hurst JR TROY A RRtCE RATRiciA SIEVERS LEWALLEN JAMES M MOODY JR KATHRYN A J MARK DAVIS tamwcra Rankin harrclson KEVIN W KENNEDY KAREN J GARNETT M TODO wood GREGORY ACLIN FRED M REAKINS UI WILLIAM STUAAT JACKSON Re: LRSD V. PCSSD r Mr. Christopher Heller Friday, Eldredge fc Clark 2000 First Commercial Building Little Rock, Arkansas 72201 L Dear Chris: It is my understanding that your District Site Selection Committee will recommend to the LRSD Board of Directors that the old Stephens Elementary School site be construction of the new Stephens Interdistrict Elementary School. I wanted to reiterate that the PCSSD continues to have grave concerns regarding thia site, primarily associated with the PCSSD's belief that recruitment of white that school would be most difficult. tonight approved for PCSSD students to Further, the District does not believe that this site literally comports with the 1-630 corridor concept, x:_____L___ to understand how a school site this remote from Interstate could be regarded as within that corridor. We are hard-pressed 630 While I understand that any action your board takes this evening will be subject to review by the parties to the school desegregation case and cannot become final until submitted the court, we thought it appropriate to remind LRSD of the District's concerns in this matter. to Ad. 12WRIGHT, LINDSEY & JENNINGS istopher 5, 1993 . Mr. Marc Page 2 Heller Thank you very much. Cordially yours, WRIGHT, LINDSEY & JENNINGS --M. Sa: el Jones III MSJ:drl 54981 (iC. Ad. 13 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT plaintiffs VS NO. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT No. 1, ET AL DEFENDANTS LORENE JOSHUA, ET AL. INTERVENORS KATHERINE W. KNIGHT, ET AL. INTERVENORS PULASKI COUNTY SPECIAL SCHOOL DISTRICT POSITION REGARDING STEPHENS INTERDISTRICT SCHOOL 1. The PCSSD reaffirms the position it has previously taken regarding the siting of this school, which positions have been made in writing and stated on the record in recent hearings. 2. The PCSSD continues o believe that, as a matter of 3
law, the Stephens School must be relocated to comport with the provisions of the desegregation plans approved by the United States Court of Appeals for the Eighth Circuit. PCSSD believes that to justify retention of the present Stephens site reguires showing of substantially changed circumstances as reguired by a Rufo V. Inmates of The Suffolk County Jail 90-954, slip of. (U.S. January 15, 1992) (please see legal discussion of Rufo in PCSSD brief filed February 6, 1992). To date, PCSSD contends that no such showing has been made and it is unaware of any facts which would support such a showing. 3. The PCSSD continues to believe that retention of the present site will not promote voluntary recruiting to the school Ad. 14and that, as a result, prospects for assembling a desegregated student body are diminished and that revenues generated by M to M transfers will not be maximized. 4. The PCSSD is prepared to address these issues further should a hearing be required on this issue. Respectfully submitted: WRIGHT, LINDSEY & JENNINGS 2200 Worthen Bank Building 200 West Capitol Avenue Little Rock, Arkansas 72201-3699 (501) 371-0808 By. M^S*nuel VTones, (76060) attorneys Ifor Pula^i County /Special S/hool Dirict luel rict Ad. 15 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION 4 LITTLE ROCK SCHOOL DISTRICT, ET AL. FFS V. NO. LR-C-82-866 S. -v?o PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. DEFENDANTS MRS. LORENE JOSHUA, ET AL. INTERVENORS KATHERINE W. KNIGHT, ET AL. INTERVENORS NORTH LITTLE ROCK SCHOOL DISTRICT POSITION REGARDING STEPHENS INTERDISTRICT SCHOOL 1. The North Little Rock School District endorses the position previously taken by the Pulaski County Special School District opposing the location of the Stephens Interdistrict School at the current location of the Stephens School in Little Rock. i 2. The NLRSD concurs with the PCSSD that, as a matter of law. the current Stephens School site does not comply with the provisions of the desegregation plans in that it lies outside the 1-630 corridor described in the plana. 3. Likewise, the NLRSD agrees that the current Stephens location will not be conducive to the voluntary recruitment of students from the PCSSD. 4. The position of the NLRSD is, and has been, that the recruitment of PCSSD students to the Stephens Interdistrict School xs a condition precedent to the consideration of any other site selection factor. Unfortunately, this does not appear to have occurred. Ad. 16 SEP i 7 13935. As the attached letter of September 7, 1993 reflects, there were several alternative sites which would have been acceptable to the North Little Rock School District but on information and belief none of these locations was chosen. Respectfully Submitted, JACK, LYON & JONES, P.A. 3400 TOBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 (50JU 375-1122 47 S?-. September 16, 1993 By
St^hen W. J^es #78083 Ad. 17! EOWARO L WR'GHT 903 1977) ROBERT S LiNOSE* I9I3-I99I) RONALD A MAY SAAC A SCOTT JAMES M MOODY .OKN G uiLE GORDON S RATHER jR ERRV L MATHEWS CAV'D M POWELL ROGER A GLASGOW C DOUGLAS aurORO jR PATRICK J GOSS ALSTON jENNINGS jR ..OHN R TISOALE KATHLYN graves M SAMUEL JONES >11 wOHN WILLIAM SPIVEY III LEE J MULDROW WENDELL L GRIFFEN N M NORTON jR EDGAR J TYLER CHARLES C PRICE Charles t coleman JAMES J GLOVER EDWIN L LOWTHER JR BEVERLY BASSETT SCHAFFER CHARLES L. SCHLUMBERGER SAMMYE L. TAYLOR WRIGHT. LINDSEY & JENNINGS ATTORNEYS AT LAW 2200 WORTHEN BANK BUILDING 200 WEST CAPITOL avenue LITTLE ROCK. ARKANSAS 72201-3699 (501) 371-0808 PAX (501) 378-9442 or COUNSEL ALSTON JENNINGS GEORGE LUSK. jR October 15, 1993 t WALTER E MAY ANNA MIRAI Gibson GREGORY T jONES H KEITH MORRISON BETTINA E BROWNSTE'N - WALTER McSPAOOEN ROGER O ROWE nancy BELLHOUSE MAY jOhn 0 DAVIS JUDY SIMMONS HENRY KIMBERLY WOOD TUCKER MARK L, PRYOR f COX jR HARRY S hurst JR TROY A PRICE PATRICIA SIEVERS LEWALLEN JAMES M MOODY JR KATHRYN A PRYOR J MARK DAVIS KEVIN W KENNEDY KAREN J. GARNETT M TODO WOOD R GREGORY ACLIN FRED M PERKINS (I WILLIAM STUART JACKSON MICHAEL 0 BARNES STEPHEN R LANCASTER FRED ANDREW WOOD JUDY M ROBINSON Re: Stephens Interdistrict School Site The Honorable Susan Webber Wright Judge, U.S. District Court Eastern District of Arkansas P.O. Box 3316 Little Rock, Arkansas 72203 Dear Judge Wright: The PCSSD prefers the following locations for the construction of Stephens Interdistrict Elementary School in the order shown below: 1. The Freeway Medical Towers site expanded to the east to Fairpark Boulevard. 2. The University Park site bounded by Rodney Parham to the west and the freeway to the north. 3. The Monarch Mill site. 4. The site behind Ricks Armory on the fringe of the UAMS campus. 5. The old Lee site which the PCSSD does not believe actually qualifies. Ad. 18 y^OSEY S JENNINGS Honorable Susan Webber Wright October 15, 1993 Page 2 we understand that the LRSD is seeking an additional 30 day Iio am/4 __1. . . gytpncinn ___ .--- an aaaizionai 30 dav tSr^eSeH! " objecnon to Cordially yours, WRIGHT, LINDSEY & JENNINGS < Samui Jones, III cc: Mr. Christopher Heller Mr. Stephen Jones Mr. John W. Walker Mr. Richard Roachell Ms. Ann Brown MSJ:jdt j:lul30.Q30 Ad. 19 JACK. I VOX & Jones. ? ATTORNEYS AT LAW 3400 TCSY TOWER 42S WEST CAPITOL AVE.NUE LITTLE ROCK. ARKANSAS 72201-3472 a- ?0 1)375-1 122 TELECOPIER (501) 375-1027 OMea 11 Muse J.'c e Souff NasnviM* J<*2C3 61*. 2! e'ecocie' o'
3-i66* 5. 2S9-46M October 15, 1993 The Honorable Susan Webber Wright United States District Judge Eastern District of Arkansas P.O. Box 3316 Little Rock, AR 72203 RE: NLRSD V. PCSSD - Alternative Stephens School Location Dear Judge Wright: In response to your Order of September 27, 1993, the North Little Rock School District would propose the following alternative sites for the location of the Stephens Interdistrict Elementary School in the order presented: 1. The Arkansas Health Department site located north of Ricks Armory and east of the University of Arkansas Medical Center. 2. The site located south of 1-630 and north of 10th Street in the general area of the Freeway Medical - Tower. 3. The Hughes Street site located south of 1-630, north of 12th Street, east of Rodney Parham and west of Hughes Street. 4. The site of the former Monarch Mill. As a preliminary matter, however, we would suggest that it would be appropriate to reconsider whether a new interdistrict school should be built in light of the recent loss of students in the school districts. It may well be that circumstances have changed to such an extent that a new interdistrict school would be ill-advised at this time. As a result. it may be that the construction of such a school should be deleted from the Plan, or, alternatively, delayed for some period of time. Additionally, we would also suggest that it might be appropriate to build a new Stephens School on its current site to replace the present Stephens and Garland schools but to not designate that school as a interdistrict school. that the Desegregation Plan does require We would note the upgrading of facilities at incentive school sites
thus, such a construction effort would be consistent with that aspect of the Plan. While this would require a Plan modification, it is a possibility that the parties might consider. Ad. 20 Jack. Lyon & Jones. ?,a. Honorable Susan Webber Wright October 15, 1993 Page 2 We have been advised by counsel for the Little HQVC ijeen aavisec Dy counsel for Little Rock School seek an extension of time in which the oarties could further explore reaching ----- School issue. an extension. _ consensus regarding the Stephens The North Little Rock School District supports such SWJ/tr cc: Mr. James Smith All Counsel of Record Ms. Ann Brown Very truly yours, 60 Stephen W. Jones Ad. 21Jack, Lyon & Jones, p..a. ATTORNEYS AT LAW. 3400 TOBY TOWER 425 WEST CAPITOL AVENUE LITTLE ROCK. ARKANSAS 72201-3472 (501) 375-1 122 TELECOPIER (501) 375-1027 Nashville Office <11 Music Circle South Nashville. Tennessee 37203 (615) 259-4664 Telecopier (615) 259-4668 April 19, 1994 received APR 2 0 1994 Mr. Michael Gans, Clerk United States Court and Custom House 1114 Market Street St. Louis, MO 63101 Office of Desegregation Monitoring RE
Little Rock School District v. Pulaski County Special School District, No. 93-3592 Dear Michael: This letter is to advise the Court that it was the intention of the North Little Rock School District to join in the Brief for Appellee, Pulaski County Special School District. The PCSSD, in the Summary and Request for Oral Argument, does reflect that the NLRSD joins with it in presenting the position of Appellees. However, I wanted to ensure that the Court understood that the NLRSD joined PCSSD with respect to its entire Brief and not solely with respect to its position on oral argument. Your attention to this matter is very much appreciated. Very truly yours. Stephen W. Jones SWJ:le cc: Christopher Heller John Walker M. Samuel Jones III Richard Roachell Ann Brown Elizabeth Boyter> '/ -9 sr? V - NO. JAN s. .-994 UNITED STATES COURT OF APPEAL FOR THE EIGHTH CIRCUIT 93-3592 OifiC3 of Dasegrsgaiicn fvlonitoring LITTLE ROCK SCHOOL DISTRICT V. PULASKI CTY. SPECIAL SCH. DIST. NO. 93-3469 LORENE JOSHUA V. LITTLE ROCK >i ' /acij SCHOOL DIST. NO. 93-3594 LITTLE ROCK SCHOOL DIST. V. LORENE JOSHUA APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION THE HON. SUSAN WEBBER WRIGHT, DISTRICT JUDGE SECOND MOTION FOR APPELLANTS FOR EXTENSION OP TIME TO FILE THEIR BRIEFS The Appellants Dale Charles, et al., and the Joshua Intervenors, for their Motion for an Extension of Time to File Their Briefs, stated that: 1. The Appellants' Briefs in the above referenced consolidated appeals are due on January 27, 1994 . 2. Due to the press of business in counsels' office. an additional extension of time of two weeks is necessary in which to file the briefs for the Appellants. WHEREFORE, Appellants Dale Charles and the Joshua Intervenors request an extension of time to and through February 10, Respectfully submitted. 1994.I \ I c^- David Schoen DAVID SCHOEN, ESQ. P.O. Box 3483 120 West Spring Fayetteville, AR (501) 444-6200 72702 JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR (501) 374-3758 72206 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been mailed, postage prepaid to the counsel of record listed below on this _Y_ day of January, 1994. Steve Jones, Esq. Jack, Lyon & Jones, 3400 Capitol Towers P.A. Capitol & Broadway Streets Little Rock, AR 72201 Christopher Heller, Esq. Friday, Eldredge & Clark 2000 First Commercial Building Little Rock, AR 72201 Sam Jones, Esq. Wright, Lindsey & Jennings 2200 Worthen Bank Building Little Rock, AR 72201 Richard Roachell, Esq. #15 Hickory Creek Drive Little Rock, AR 72212 Ann Brown, Monitor Office of Desegregation Monitoring 210 East Markham Little Rock, AR 72201 / ( / \. David Schoenr 2 2 1994 i
Cuica o: >^1 n IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSASrlvi: WESTERN DIVISION ' 2 G 1594 LITTLE ROCK SCHOOL DISTRICT 'A?. 5 ' 'PLfflNTIFF Ev: V. :Ri< 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 MODIFICATION OF DESEGREGATION PLAN For its motion, plaintiff. Little Rock School District (LRSD) states: 1. The LRSD and Interdistrict Desegregation Plans require the establishment within LRSD of three interdistrict schools Romine, King and Stephens. The plans require that two of those schools. King and Stephens, be located in the downtown Little Rock area. Romine and King schools have been established as interdistrict schools. 2. Since the parties agreed that LRSD would establish the King and Stephens Interdistrict Schools in the downtown Little Rock area. there have been significant changes in factual conditions which warrant modification of that agreement. First, Washington Elementary School, which the parties agreed would be an incentive school. presently operates as an interdistrict school in the downtown Little Rock area. Second, there has been a significant movement of population out of the area in which the parties plannedto locate interdistrict schools. The schools in that area are experiencing low enrollment. There are many empty seats, including seats at the King and Washington Interdistrict Schools. 3. The modification of the desegregation plans which is most suitably tailored to the changed circumstances is to recognize Washington in place of Stephens as the second required interdistrict school in the downtown Little Rock area. This modification is in compliance with the standards for modification of consent decrees set out in Rufo v. Inmates of Suffolk County Jail, 502 U.S. ___, 116 L.Ed.2d 867 (1992) and Appeal of Little Rock School District. 949 F.2d 253, 258 (8th Cir. 1991). WHEREFORE, for the reasons set out above and in the accompanying brief, LRSD prays for modification of the LRSD and Interdistrict Desegregation Plans to recognize Washington as the second required interdistrict school in the downtown Little Rock area and to delete the requirement that LRSD construct a new Stephens Interdistrict School. Respectfully submitted. LITTLE ROCK SCHOOL DISTRICT FRIDAY, ELDREDGE & CLARK 2000 First Commercial Bldg. 400 West Capitol Street Little Rock, AR 72201 (501) 376-2011 B' Christopher He Bar No. 81083 er 2CERTIFICATE OF SERVICE I certify that a copy of the foregoing Motion For Modification of Desegregation Plan has been served on the following people by depositing copy of same in the United States mail on this 20th day of April, 1994. 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 Ms. 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 Hellec**^ 3 1. 2. 3. 4. LitUe Rock School Dislricl Stephens School Relocation Timeline Task File motion with Court to relocate students from Stephens School File revisions to current filings relating to Stephens which are before the courts________________________________________________________ Business Case presented to the LRSD Board of Directors & approved Contact the principals of surrounding schools who may be affected 5. Develop a list of key people in the community who should be contacted 6. Notify finance person to include this as a budget reduction strategy 7. Inventory building____________________________________________ 8. Hold public meeting with Stephens community 9. Plan and schedule second public meeting with the Stephens community 10. Develop notice of relocation and date of community information meeting for a) community groups and churches
b) media c) door-to-door delivery in the neighborhood_________________________ 11. Develop letter to parents and students with announcement of relocation and choices asking for a response by a deadline. Deadline must be after community meeting on June 21._________________________________ 12. Make contact with key people in the community who should be contacted immediately and solicit support for getting people to community information meetings. Include PTA president and ministers.____________________ 13. Design follow-up plan for students who do not choose a school. (D/scuss with Sterling Ingram)____________________________________ 14. Conduct informational meeting with the principal, faculty, and staff________ 15. Compile mailing labels of all students scheduled to attend Stephen School for 1994-95.__________________________________________________ 16. Court approval granted________________________________________ 17. Mail notice of relocation and date of community information meeting to: a) community groups and churches
b) Media___________________________________________________ 18. Mail letter to parents and students with announcement and choices asking for a response by a deadline. Deadline must be after community meeting of June 21. Include invite to community information meeting at Stephens School to answer questions about choices and the relocation. ____________ 19. Deliver fliers, door-to-door, announcing relocation and information meeting 20. Implement follow-up plan for students who do not respond to request for their choice of school_______________________________ 21. Mail assignment notices _______________________________ 22. Mail letter to parents and students (who have not responded to the first letter) with announcement and choices asking for a response with a deadline._______________________________________ 23. Remove materials and equipment from school 24. Reroute transportation of students 25. Secure building ___________________________________ 26. Reassign staff 27. Mail assignment notices to those responding late * Date 5/18/94 5/18/94 5/26/94 5/27/94 5/27/94 5/27/94 5/30/94 6/6/94 6/6/94 6/6/94 6/6/94 6/6/94 6/6/94 6/6/94 6/6/94 6/7/94 6/13/94* 6/13/94* 6/16/94* 7/6/94 7/15/94* 7/15/94* 7/31/94 7/31/94 7/31/94 7/31/94 8/1/94 Deadline is absolute. Timely notice is required because of promises made in court. Person Williams Williams Williams Ingram Modeste Williams Neal Modeste Wagner Wagner Wiedower Modeste Wiedower Modeste, Mayo Lee Williams Wagner Lee Wagner Ingram Lee Lee Neal Montgomery Eaton Hurley Lee r1 iiaa a
IN THE UNITED STATES COURT OF APPEALS No. 93-3592 NO. 93-3469 NO. 93-3594 FOR THE EIGHTH CIRCUIT APR 2 0 1994 Offico of Ocsegri UCil iVr 'J 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 1STATEMEKT 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 total population
68.90% black
Zone 3 - 25,210 total population
7.83% black
Zone 4 - 24,844 total population
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 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 1991. 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 incentive school . . an It LRSD App., p. 331. Interdistrict Desegregation Plan, April 29, 1992, p. 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, 334 . 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 4 . 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 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 interdistrict magnet school rather that resume operation as racially isolated incentive school. - - as racially balanced Docket #1434. a 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 LRSD App., P- LRSD Avenue." 334. 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 changed by 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. 3 08. 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 i-f 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. 4< 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. Jennings' proposals would impact the attendance zones of thirteen schools. 281-283. 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 zone plans (LRSD App., 284). 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." 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." LRSD App., p. 240. 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. to potential students LRSD App., p. 240. 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 establish the *LRSD conducted a series of community meetings, including two at Ish School. Fliers announcing the community meetings were delivered door to door and distributed to local churches. 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 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 a 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" 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. Introduction. A VIOLATION OF THE VOTING RIGHTS 1973, IS NOT CLEARLY ERRONEOUS AND 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 any sort pose the risk of lasting harm to our society. They reinforce the belief, too many for too much of history, that individuals should be judged by the color of their skin. history The Charles Plaintiffs argued before the district court that the PCBE plan violated the Voting Rights Act due to "packing." _ . . ----------- -----' In this appeal, the Charles Plaintiffs raise for the first time an argument based on the dispersion of black voters. 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 If 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 . fl 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 political process and to elect the representatives of their choice. The extent to which members of the protected class have been elected to office political subdivision is in one the State or circumstance which 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 If it is not, as would be the single-member 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 bloc to enable circumstances, such it as in the absence of special a minority candidate running 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. a 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 "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 (Sth 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)
Ginqles. 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 II 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 "majority II 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." Ginqles. 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 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. This was done within the limits prescribed by the law and with a lesser degree of 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. 3. 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. A summary of Lynch's calculations was presented as Charles 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.* 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)
see. generally. Richard Engstrom Micheal McDonald, "Quantitiye 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 a 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 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. 19percentage 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^, 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. 124 0, 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 It is the regression "b". 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. 12 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. 11 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 from 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. r- 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 Ginoles 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." Ginqles. 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." -- ___, 125 L.Ed.2d at 532. Shaw V. Reno. 509 U.S. at '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 as the correlation coefficients shown on any given election, 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 guoted 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 1498. For example, the plaintiffs in Na^ challenged the Missouri legislative redistricting plan as it H 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. Na^, 797 F.Supp. at 1498. 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. Na^, 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%, 104. Lynch specifically referred to North LRSD App. , p. 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. Nash, 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 rsquare 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-square 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. City 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. 17 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 Even so. Hampton by only 32 votes. 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 "special circumstance" referred to by the Charles Plaintiffs was support by the "white power structure. tl Lynch testified that black candidates Charles Bussey, H.D. Stewart and Jesse Mason were supported by the "white in power structure" races for City Board positions. Lynch testified that the only white candidate who was strongly supported by the "white power structure" Board race. was Gary Barket in the 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 eintithetical to the "white power structure." 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 accepts Lynch's Americans. LRSD App. pp. 186-191. 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. It Ginqles. 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. ir * Opportunity to Participate and to Elect. a. Less Opportunity
The Benchmark. As the final element of their Section 2 claim, the Charles Plaintiffs were required 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 zones. 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, votes. Zone 2 election, Frederick Lee 230 votes to 49 votes. In the 1989 Sr. 322 votes to 59 Bill Hamilton defeated There are at five zones in the PCBE plan with black population t mlnimum 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 " greater that 4,600. fl LRSD App. , p. 8 . opportunity" to be elected in every LRSD zone, even without receiving a single white vote. 31members 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 a minority's 'opportunity' under a historic scheme and the challenged scheme compares the minority's opportunity to itself, not to 'other members of the electorate. / II Brief of Appellants, p.lS.^ 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, ^rhe Charles Plaintiff's also argue that the PCBE plan should not be granted deference because it is retrogressive. Although retrogressiveness may constitute a violation of Section 5 of the Voting Rights Act, it does not constitute a violation of Section 2. Nash. 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. 500, 513 (1993). Voinovich v. Quilter. U.S. ___, 122 L.Ed.2d 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 364
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. Poulin v. White. 535 F.Supp. 450 (E.D.Ark. 1982). See In revising the zone plan based on the 1990 census, the Arkansas legislature "gave preference to plans that departed as little as possible from the remedy implemented in Doulin as a starting point . . . . II It 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." II 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. ^^See 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 Leadership Roundtable v. City of Little Rock. 499 F.Supp. else. 579, 1980) ("Since 1965, there has been no legal impediment in Arkansas to voting by blacks."). 11 584 (E.D.Ark. 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. Conseguently, 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 uwu luajuxluy districts had 84.35% and 74.97% black population according to the 1990 census. Under the plan adopted by the County Board, the two majority black districts have 79.82% and 59.39% black population. the two majority black 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. II Consequently, it is the law of 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 II be relevant. 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 361982 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 II intent," 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 App., p. 46. 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 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. Appeal of Little Rock School District. 949 F.2d 253, 258 (8th Cir. 1991). This Court should also H 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
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