Unitary status

r IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. received DEFENDANTS MRS. LORENE JOSHUA, ET AL. MAY 3 0 2002 INTERVENORS KATHERINE KNIGHT, ET AL. OFRCEOF DESEGREGATION MONITORING INTERVENORS The Joshua Intervenors' Opposition to the LRSD's Motion for an Immediate Declaration of Unitary Status This memorandum responds to the LRSD's "Motion for an Immediate Declaration of Unitary Status," filed on March 15, 2001. Introduction During the 1997-98 school year, representatives of the Joshua Intervenors and the LRSD completed the proposed "[LRSD] Revised Desegregation and Education Plan." They then filed a joint motion seeking its approval by the court on January 21, 1998. On April 10, 1998, the court (Judge Susan Webber Wright) approved the revised plan. The plan provided for three-year term assuming a substantial_and good faith compliance with its terms. [Sections 2.1, 9, and 11] The plan further provided for "[t]he 1997-98 school year and the first semester of the 199899 school year [to] E^, 977 Ark E.^, Sturgis v. Skosos, ,977 S.W.2d 217, 223 (Ark. 1998) (interpret contract not by emphasizing one clause to the exclusion of others, "but from the entire context of the agreement"). 1 ibe a transition period in preparation for implementation of [the] Revised plan." [Section 10] Section 11 of the revised plan provides, in part: "In anticipation of release, LRSD shall issue a report on March 15, 2001 indicating_the state of LRSD's compliance with the Revised Plan" (emphasis added). The LRSD submitted an Interim Compliance Report on March 15, 2000 (cited as March 2000 report at ) and a Compliance Report on March 15, 2001 (cited as March 2001 report at ), On June 25, 2001, the Joshua Intervenors filed n an [OJpposition to [the] Little Rock School District's Compliance Report. II The court (Judge Wright) conducted 5 1-2 days of hearings concerning the LRSD's effort to secure release from court supervision [i.e. . on July 5-6, 2001, August 1-2, 2001, and November 19-20, 2001). Thereafter, on March 15, 2002, the LRSD filed its motion for an immediate declaration of unitary status. This memorandum responds to the LRSD motion, with regard to the subjects addressed in the hearings conducted by Judge Wright: Revised Plan Sections 2.1 (general requirement of good faith compliance)
2.5-2.5.4 (student discipline)
2.7 (academic achievement)
2.7.1 (program evaluation)
2.12.2 (general 3 2 See Tr., 8-2-01, at 890, 3-9 (comment by Judge Wright on the limited information on student discipline set forth in the March 2001 report). 3 While Section 2.7.1 refers to program assessment. assessment and evaluation the terms at times, used interchangeably. [Tr. , 11-19-01, 13-17 (Associate Superintendent Bonnie Lesley)] This memorandum shows, in detail, that LRSD acted on the premise that Section 2.7.1 addressed program evaluation. until. at 242, are, in 2requirement of activities "for investigating the cause of racial disparities in programs and activities and developing remedies where appropriate")
to 6.7 (generally applicable LRSD 6.0 Compliance program). This memorandum also addresses the obligation of the LRSD to narrow the racial achievement gap, as required by the "Pulaski County School Desegregation Case Settlement Agreement as revised on September 28, 1989." See revised plan, Section l(a.)
Tr., 7-6-01, at 378, 21-24 (recognition of obligation by former Superintendent Les Gamine)
Tr. , 11-20-01, at 564, 1-4 (recognition of obligation by Associate Superintendent Leslie). It is necessary to consider in connection with the LRSD motion and this response that the Joshua Intervenors' have the opportunity to submit some additional evidence. See Order by Judge William R. Wilson, May 9, 2002 at 13 (30 minutes of rebuttal), at 14 (during additional hearings, Joshua Intervenors may offer certain evidence bearing upon "good faith obligations" and "the academic achievement of African-American students"). Subsequent to the filing of the LRSD motion. this court scheduled a hearing in July 2002 on several issues. Order, May 9, 2002, at 14. Intervenors, therefore. do not respond to LRSD's argument that as to issues other than those addressed here, "the LRSD should be granted unitary status and released from court supervision without further evidentiary hearings." [LRSD Mem.- the hearings, it faced the task of defending its performance in this sphere. See, e^^, Sturgis v. Skokos, supra. 977 S.W.2d at 223 ("If there is an ambiguity, a court will accord considerable weight to the construction the parties themselves give to it, evidenced by subsequent statements, acts and conduct." [citation omitted]) 3Brief, at 34] This memorandum begins with a summary of the evidence. The summary, in the form of proposed findings of fact, encompasses the issues addressed here by the Joshua Intervenors: Student Discipline (at 4-19), Improving and Remediating Academic Achievement of African-American Students (at 19-36), Racial Disparities in Achievement (at 37-40), and Program Evaluation (at 40-46). An argument relying upon the factual summaries follows (at 47). The argument is not lengthy, the court's principal task seemingly being the examination of the facts in the light of concept of "substantial compliance. Intervenors' factual presentation shows in each instance why substantial compliance is lacking, in the light of the concept of substantial compliance advanced. Results on the Arkansas Benchmark Examinations are set forth as an appendix. Summary of the Evidence I Student Discipline A- The Relevant Provisions of the Revised Plan (1.) The provisions of the revised plan relevant to the matter of student discipline are the following. 2.5. LRSD shall implement programs, procedures designed to ensure that there is discrimination with regard to school discipline. policies and \or no racial a 2.5.1. The LRSD shall strictly adhere to the policies set 4 Intervenors dispute, in the argument, suggestion [e.,^, Mem.-Brief at 2, 34] that termination of jurisdiction would be appropriate if this court found substantial noncompliance, but somehow also was without doubt as to the system's intent to comply with the Constitution absent court supervision. Substantial compliance and future fealty to the Constitution are, in fact, separate components of the exit formula. 2, LRSD's repetitive termination as 4forth in the Student Rights and responsibilities Handbook to ensure that all equitable manner. students are disciplined in fair and 2.5.2. LRSD shall purge students' discipline records after the fifth and eighth grades of all offenses, except weapons offenses, arson and robbery, unless LRSD finds that to do so would not be in the best interest of the student. 2.5.3. LRSD shall establish the position of "ombudsman" the job description for which shall include the following responsibilities: ensuring that students are aware of their rights pursuant to the Student rights and Responsibilities Handbook, acting as an advocate on behalf of students involved in discipline process, investigating parent and student complaints of race based mistreatment achieve equitable solutions. and attempting to 2.5.4 LRSD shall work with students and their parents to develop behavior modification plans for students who exhibit frequent misbehavior. 2.12.2. LRSD shall implement policies and procedures for investigating the cause of racial disparities in programs and activities and developing remedies where appropriate. SECTION 6: LRSD Compliance Program. LRSD shall implement a desegregation compliance program which shall include the following components: 6.1. Compliance standards and procedures reasonably capable of reducing the prospect of noncompliance
6.2. Oversight of compliance with such standards and procedures by the superintendent
a * * * * * 6.3. Communication of compliance standards and procedures to employees
6.4. Utilization of monitoring and auditing systems reasonably designed to detect noncompliance
.... 6.6. Enforcement of compliance standards and procedures through appropriate- disciplinary mechanisms, including the discipline of individuals responsible for compliance and individuals responsible for any failure to report noncompliance
and for compliance failure to 5 I&.1. After has been detected, implementation of all reasonable steps to correct past noncompliance and to prevent further noncompliance, including modification of the compliance program as necessary to prevent and detect further similar noncompliance. noncompliance B. The LRSD Interim Compliance Report (March 15, 20001 (2.) The LRSD "Interim Compliance Report" (March 15, 2000) discusses the five sections of the revised plan, which focus on student discipline, at pages 13-17. (a) The text concerning Section 2.5 addresses: adoption of policies (a general policy on non-discrimination and policies on discipline records)
revision of student handbooks
creation of "an online student discipline reporting system for each school building . . ."
staff development
a decrease in suspensions and expulsions in the LRSD
the sampling of parent, student, community and teacher attitudes on safety and order in the schools
and expansion of the number of alternative learning sites, [at 13-15] (b) The text concerning Section 2.5.1 (on the Student Rights and Responsibilities Handbook) addresses: the adoption of general district standards on racial disparities in programs and activities and student rights and responsibilities
directing principals to comply with the handbook
informing students and parents of standards
and employing the ombudsman, [at 15] (c) The text concerning Section 2.5.2 (purging students' discipline records) addresses: adoption of standards
in-service training
and implementation by the Assistant Superintendent for School Discipline (Dr. Linda Watson), [at 15] (d) the text concerning Section 2.5.3 (the ombudsman) 6addresses: the filling of the position in February 1999 (half-way through the first year of the plan)
establishment of goals for the ombudsman's work, including "[i]nvestigat[ing] parent and student complaints of alleged race-based mistreatment and . . . work[ing] to achieve equitable solutions"
increasing community awareness of the ombudsman and monthly reports on his work, [at 15-16] (e) the text concerning Section 2.5.4 (behavior modification plans for students) addresses: the general process for developing such plans and an exit process for students eligible to return to a home school from the ft Alternative Learning Center." [at 16-17] The totality of the text on behavior modification plans is follows: as Students who exhibit frequent misbehavior have their cases refereed to the schools' Pupil Services Team. The team is comprised of the building administration, the students' teacher, the counselor, the parents and any specialists deemed necessary. The team develops a behavior modification plan warranted, [at 16] as (3.) The March 2000 Interim Compliance Report omits coverage of Section 2.12.2 (investigating causes of racial disparities in programs and activities and developing remedies). [See report at 82-86] (4.) The portion of the March 2000 Interim Compliance Report concerning Plan Sections 6.0 through 6.7 (general desegregation compliance program) does not discuss school discipline, [at 127-29] C. The LRSD "Compliance Report" (March 15, 2001] (5.) The LRSD "Compliance Report" (March 15, 2001) discusses the five sections of the revised plan, discipline, at pages 24-26. which focus on school 7(a) The text concerning Section 2.5 addresses: decreases in the numbers of suspensions and expulsion system-wide and for black and white students
the decrease in the number of students committing offenses
the sampling of community and teacher attitudes on school issues (positive views on safety and pupils' feelings on "belonging at schools"), [at 24-25] The report also includes this text [at 24]: The number of African-American students suspended decreased 20 percent consistent with the overall reduction in disciplinary sanctions. The proportion of suspensions issued to African- American students remained in the neighborhood of 85 percent. The Report describes no particular action directed at the continuing racial disparity. (b) The text concerning Section 2.5.1 (on the Student Rights and Responsibilities Handbook) addresses: school board approval of general district standards on racial disparities in programs and activities and student rights and responsibilities. [at 25] (c) The text concerning Section 2.5.2 (purging students' discipline records) addresses: asserted compliance with this provision by school principals and the "Student Hearing Office." [at 25] (d) The text concerning Section 2.5.3 (the ombudsman) addresses [at 25-26]: training received by the ombudsman
steps taken to increase public awareness of the ombudsman's services
a and description of the ombudsman's activities, which reads as follows: Efforts to raise public awareness of the ombudsman appear to have been successful. In the last year, the ombudsman has been contacted by over 250 parents or students and provided 8services related to over 450 incidents. the In addition, ombudsman has implemented intervention activities at Badgett Elementary and McClellan High School designed to assist African-American males who demonstrate unacceptable behavior. Efforts are underway to expand these activities to include other schools. (e) The text concerning Section 2.5.4 (behavior modification plans for students) contains only a general description of the asserted process for developing such plans. Contrary to other instances, there is no reference to a school board policy or the numbers of students and schools involved, [at 26] (6.) The part of the March 2001 Compliance Report addressing Section 2.12.2 (investigating causes of racial disparities in programs and activities and developing needed remedies) contains only six lines of text. This text cites the school board's adoption of the general policy on racial disparities in programs and activities and then provides in part: "In implementing its obligations under the revised plan, the District has addressed racial disparities in . . . discipline (Section 2.5) . . 165] (7.) The March 2001 Compliance Report omits mention of Plan . " [at Sections 6.0 through 6.7 (general desegregation compliance program), which had been discussed in only a cursory fashion in the March 2000 report (see paragraph 4 above), [at i-iii] 5 Section 11 of the revised plan for the LRSD provided for release of court jurisdiction "provided that LRSD has substantially complied with its obligations set forth in [the] Revised plan, added: "In anticipation of release, LRSD shall issue a report on March 15, 2001 indicating the state of LRSD's compliance with Fthel It It [thel Revised Plan" (emphasis added). 9D. The Evidence Presented to the Court (8.) The LRSD March 2000 and March 2001 reports and Dr. Linda Watson's testimony stressed reduction in the overall number of suspensions and expulsions. [March 2000, at 13-14
March 2001, at 24
Tr., 11-19-01, at 48, 13-21
at 55, 22 to 56, 15
at 83, 14-21 (Dr. Watson)] 6 However, the data set forth in CX 743, introduced by LRSD, revealed that in 2000-2001, the third year of the plan, while white student suspensions\expulsions continued to drop (69 fewer. 11.2 percent lower than 1999-2000), black student suspensions\expulsions increased in that school year (496 more. 12.3 percent higher than 1999-2000). [CX 743 ("Discipline Suspension Index by Year")] (9.) While asserting that suspensions and expulsions decreased in number, the LRSD acknowledged that racial disparity continued. [March 2001 report, at 24)
Watson testimony, 11-19-01, at 83, 21
at 113, 14 to 114, 1
CX 743] 14- (10.) The LRSD reports in March of 2000 [at 13-15] and 2001 [at 24-25] presented no data showing discipline by school. The 6 In LRSD's affirmative presentation in presentation, LRSD identified Dr. Linda Watson as responsible for implementation of Sections 2.5, 2.5.1, 2.5.2, 2.5.3, and 2.5.4 of the revised plan. [Tr. at 25, 16-19] 11-19-01, 2000, the Office of Desegregation Monitoring (ODM) issued a report titled Disciplinary Sanctions in the Little Rock School District, it sets forth data by school, by sex and race, on the students subjected to one or suspensions. This allowed the LRSD to identify the extent of representation of black students in discipline in a meaningful manner, and to single out schools with atypical disparities. See Appendix at 5. The LRSD chose to ignore the ODM report. See para. 19, infra. On June 14, number of more over- 10reports set forth no data by sex and race [id.], with the omission of data on disciplining of black males being particularly significant [Tr., 8-2-01, at 892, 5-9 (Associate Superintendent Sadie Mitchell)
Tr., 11-19-01, at 124, 4-14
at 132, 12-24 (Dr. Watson)
CX 583, at 125 (ODM report noting black males' being suspended "at significantly higher rates than any other subgroup")
see also Tr., 8-2-01, at 890, 23 to 891, 13 (Judge Wright)] (11.) The discipline process at the school level involves referrals of students by teachers and imposition of sanctions by administrators. [Tr., 11-19-01, at 151, 155] (12.) The March 2000 and 2001 LRSD reports show no evidence of the development of criteria to identify schools, teachers or administrators involved in atypical racial disparities in discipline [e^^, departing from system averages, or in the case of a teacher or administrator in a particular school, departing from the pattern for colleagues in that school). [March 2000 report, at 13-15
March 2001 report, at 24-25] Assistant Superintendent Watson identified no such criteria in her testimony on November 19, 2001. (13.) The LRSD has the ability, by computer, to identify particular teachers, vice principals, and principals. whose referrals or sanctions evidence atypical racial disparities. This has not been done systematically, if at all. [Tr. , 11-19-01, at 123, 7-16
128, 6-18
149, 10 to 150, 25
155, 7-12
161, 4-13]] (14.) After acknowledging the absence of such disaggregation of data. Dr. Linda Watson testified as follows: Q Okay. So, it wouldn't be possible to correct it, if it was not disaggregated and in writing, would it? 11A. I guess not sir. [Tr., 11-19-01, at 149, 23-25] (15.) Dr. Watson testified as follows: that are helping Q. All right. Is there a group within the District or made up teachers, administrators, support staff, liiaL aj-t
iifcij.pj.ng to identify and to be responsible for correcting the disparate impact, discipline in the District? A. Not to my knowledge. [Tr. 11-19-01, at 162, 18-23] (16. ) Dr. Watson agreed that she "[has] not prepared a monitoring report with respect to disparities in discipline." [Tr., 11-19-01, at 114, 4-7] Asked "[d]id you make a written analysis of discipline data to reveal any potentially systemic problems," Dr. Watson testified, "No sir." [Tr. , 11-19-01, at 142, 8-10] Asked whether former Superintendent Les Carnine or Associate Superintendent Junious Babbs had II prepare[d] a causation analysis of discipline disparities," Dr. Watson testified. II Not to my knowledge no, sir." [Tr., 11-19-01, at 130, 1-4] Faced with the question, "[s]o, there are no plans by which to reduce disparate impact of black students?," Dr. Watson, the person responsible for implementation of the discipline sections of the revised plan, testified: "Not, to my knowledge." [Tr., 11-19-01, 135, 6-8
see also id. at 112, 9-17] (17.) Dr. Watson testified as follows: Q. Have you made any recommendations regarding how to address the gross over representation of black boys, in the disciplinary process? A. No, I have not. Q. Have you not publicly stated that there needs to be some because more attention devoted to dealing with this problem, apparently there is a fear factor associated with black boys? A. Yes. [Tr., 11-19-01, at 132, 12-20] 12(18.) The following testimony of Dr. Watson is particularly significant in view of LRSD's acknowledgement of continuing racial disparities in school discipline and her own recognition of the particular issue regarding black male students. Q. Other than what you have told me, what is the Little Rock School district doing to and what you told Mr. Walker, what is the Little Rock School District doing, in addition, to correct the disparity based upon race? A. I can't say that we are looking at it based on race. We are looking at the number of suspensions. We are trying to offer programs that African-American students, as well as other students, to participate in. [Tr., 11-19-01, at 163, emphasis added] 16-25
(19.) The Office of Desegregation Monitoring distributed on June 14, 2000 a report titled Disciplinary Sanctions in the Little Rock School District. [CX 583] This report set forth discipline statistics by race, by school, for the school years 1993-94 through 1998-99, including the numbers of student in each school receiving one or more sanctions. The report also contained seven recommendations. [CX 583, at 127] Dr. Watson testified as follows regarding the ODM report. Q. Now, did you ever meet with the ODM after the ODM issued its report for the purpose of either better understanding their recommendations or for seeking ways to implement their recommendations? A. No, I did not, but I sure wanted to. Q. Why didn't you? 8 The data by student, by race, allows a comparison of the proportions of black and white students in a school receiving suspension or expulsion as a form of discipline. The comparisons in the individual schools can then be compared to those of other schools, allowing identification of schools with atypical disparities. of 13we A- Because I took once the report came out, we discussed it in the cabinet, and it was the decision at that time that would not respond or do anything. Q. That's right. Dr. Carnine told you not to meet with them didn't he. A. At that time, yes he did. Q. I see. A. That was the decision that came from cabinet, going to address the issues. we were not emphasis added] [Tr., 11-19-01, at 177, 11-25
(20. ) Dr. Watson testified as follows regarding behavior modification plans. Q. [Y]ou have indicated that you have responsibility under 2.5.4 for creating Behavior Modification Plans, is that correct? 2.5.4 is A. Yes, I did say that. Q. How many such plans did you develop each year? A. I couldn't say how many I developed. Q. You never had you do not have a report, which documents the number you have developed? A. No sir, I do not. Q. What is the evidence to show that it was actually done? A. In cases that I heard in student hearings, when we needed to do Behavior Modification Plans, there were times that we stopped and did the plans there in the office. Q. I see. A. There were times that I referred them back to the schools. Pupil Services Team, to do Behavior Modification Plans. Q. I see. Do you agree with this statement? The district does not have any document compiling the total number of Behavior Modification Plans or the race or gender of students for whom Behavior Modification Plans have been prepared? A. I agree. I do not have the numbers. 14Q. All right. Do you agree with this statement? The District does not have nay document entitled, "Monitoring Report of Behavior Modification Plans." A. I would agree.[Tr., 11-19-01, at 135, 9 to 136, 12] (21.) The testimony revealed that Dr. Watson had a vast array of responsibilities, more than one person could reasonably be expected to accomplish. The evidence also reveals that Dr. Watson, an "assistant superintendent," sought additional personnel, that her plea did not bear fruit, and that additional personnel were needed to address racial disparity in discipline in individual schools. [Tr., 11-19-01, at 114, 4 to 119, 8
see also id. at 142, 25 to 146, 23 (example of type of effort needed to work with one school)]. E. Findings Concerning Overall Compliance with the Plan (22. ) Section 2.5 of the revised plan is devoid of any statement that the reguisite "programs, policies and\or procedures" to be "implement[ed]" pursuant to this section are limited to those set forth in Sections 2.5.1, 2.5.2, 2.5.3, and 2.5.4. of the plan. Ms. Linda Watson's affirmative testimony presented by LRSD was not limited to the subject matter of these four sections. [jELSi, Tr. , 11-19-01, at 27-30] The text of Sections 2.12.2, 6.1, 6.2, 6.3, 6.4, 6.6, and 6.7 of the revised plan show that these sections are relevant to the subject of racial disparities in school discipline. Moreover, the text of these sections contains no indication that their content as to the discipline sphere can be satisfied merely by the fulfillment of the reguirements of Sections 2.5.1, 2.5.2, 2.5.3 , and 2.5.4. of the plan (assuming that LRSD substantially 15complied with each of these sections). (23.) There is no predicate for the court to find a lack of substantial compliance with Sections 2.5.1, 2.5.2, and 2.5.3 of the revised plan. However, the record does establish lack of a substantial compliance with Sections 2.5 and 2.5.4. (24.) The record establishes a lack of substantial compliance with Section 2.5 for the following reasons. (a) The LRSD report of March 2000 [at 13, 15] and the testimony of Dr. Linda Watson [Tr., 11-91-01, at 27-28] identified LRSD Policies AC, ACB, JB and JBA as steps implementing Section 2.5 of the revised plan. [CX 719 (cited standards)] However, these standards merely restate the LRSD's existing obligation to comply with the Egual Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000d- d(4)(a) (barring racial discrimination in programs receiving federal financial assistance). Moreover, these standards do not even mention disciplining of students. [CX 719] (b) Dr. Watson's outlines for training of principals omitted the matter of disparate discipline generally and discipline of black males [CX 672-76
Tr. , 11-19-01 at 122, 14 to 123, 6], despite awareness of these issues. See paras. 9, 10. (c) The LRSD was aware of continuing racial disparities in the imposition of school discipline generally and in particular with LRSD regulation JBA-R implements policy JBA. It is noteworthy that this regulation addresses explicitly each school's obligations to insure nondiscrimination in "programs and activities," ..... JBA. __ with three required strategies, but does not mention discipline. [CX 719] 16regard to black male students. See paras. 9, 10. The system had the capability by computer of identifying schools with atypical racial disparities in discipline
the system also had the capability of identifying teachers whose referrals and administrators whose discipline actions were marked by atypical racial disparity. See paras. 9 & n. 6, 13. The LRSD did not implement any programs, policies and\or procedures geared specifically to such schools personnel. See paras. 12-18. or (25.) The LRSD's discussions of "behavior modification plans for students who exhibit frequent misbehavior" [Section 2.5.4], and other evidence on this topic, show mere lip service to the concept, rather than "work[ing] with students and their parents to develop" such plans. See paras. 2(e), 5(e), 20
compare paras. 5(d) and 5(e) (in the March 2001 report, discussion of the ombudsman contains statistics on parent contacts and matters worked on, while coverage of behavior modification plans is limited to general description of process for developing plans). (26.) LRSD's failure to comply with Section 2.12.2 as applied to discipline is obvious. The system was aware of racial disparity and had the capability of isolating schools and staff with atypical problems. The system did not investigate the matter
and, therefore, could not develop remedies. The system did not commit sufficient personnel to the issue. See paras. 9, 10, 12-18. Indeed, Dr. Linda Watson, the official responsible for compliance with the discipline sections of the plan [Tr., 11-19-01, at 25, the system's major witness on the topic, testified: ' 16-19], and "I can't say 17 that we are looking at it [discipline issue] based on race." [Tr., 11-19-01 at 163, 21-25] (27.) Similarly, LRSD's failure to comply with Part 6 of the revised plan ("LRSD Compliance Program"), as applied to discipline. is obvious. Again, LRSD was aware of the general pattern of discipline disparity, and the particular issue about black male students. The system did not adopt standards to identify schools and staff with atypical discipline patterns. It did not analyze available data based upon such standards. It did not inform staff of such standards and procedures. It did not enforce such standards, or require remedial actions to address problems identified. Neither the superintendent, nor his designees oversaw compliance with any such standards and procedures. See Sections 6.1, 6.2, 6.3, 6.4, 6.6, and 6.7 and paras. 9, 10, 12-18, 21. (28.) Finally, LRSD's performance with respect to student discipline does not evidence substantial compliance with its agreement to "in good faith exercise its best efforts . . to ensure that no person is discriminated against on the basis of race, color or ethnicity in the operation of the LRSD. . It [Section 2.1] The evidence supporting this conclusion includes the following, [i] The district did not commit adequate personnel to the issue of discipline. See para. 21. [ii] Despite knowledge of the continuing racial disparity in discipline, the system, did not study the causes, or identify and follow-up on schools and personnel with atypical disparate patterns. See paras. 9, 10, 12- 18. [iii] Dr. Watson testified, as noted, that "I can't say that we 18 Iare looking at it [discipline issue] based on race." See para. 18. [iv] Upon receipt of the Office of Desegregation Monitoring report on school discipline in June 2000, the decision of the superintendent and his cabinet was "at that time . . . we would not respond or do anything"
" . . we were not going to address the issues. II See para. 19. II. Improving and Remediating Academic Achievement of African- American Students_________ A. The Relevant Provisions of the Revised Plan (29.) The provisions of the revised plan relevant to the subject of improving and remediating the academic achievement of African-American students are the following. 2.7. LRSD shall implement programs, policies and\or procedures designed to improve and remediate the academic achievement of African-American students, including but not limited to Section 5 of this revised plan. 2.7.1. LRSD shall assess the academic programs implemented pursuant to section 2.7 after each year in order to determine the effectiveness of the academic programs in improving African-American achievement. If this assessment reveals that a program has not and likely will not improve AfricanAmerican achievement, LRSD shall take appropriate action in the form of either modifying how the implemented or replacing the program. program is * * * 2.12.2. LRSD shall implement policies and procedures for investigating the cause of racial disparities in programs and activities and developing remedies where appropriate. ft ft ft SECTION 6: LRSD Compliance Program. LRSD shall implement a desegregation compliance which shall include the following components: program 196.1. Compliance and procedures capable of reducing the prospect of noncompliance
standards reasonably 6.2. Oversight of compliance with such standards procedures by the superintendent
and 6.3. Communication of compliance standards and procedures to employees
6.4. Utilization of monitoring and auditing systems reasonably designed to detect noncompliance
.... 6.6. Enforcement of compliance standards and procedures through appropriate disciplinary mechanisms, including the individuals responsible for compliance individuals responsible for any failure to report noncompliance
and discipline of any to and 6.7. After has been detected, implementation of all reasonable steps to correct past noncompliance and to prevent further noncompliance, including modification of the compliance program as necessary to prevent and detect further similar noncompliance. noncompliance been to B. The Shortcomings in the Educations Afforded Black Students and the Standards Adopted to Address the Problem______ (30.) Two aspects of Section 2.7 of the revised plan are particularly noteworthy. First. The LRSD obligation is not limited to "design[ing]" programs and other initiatives
rather, the initiatives must also be implementPed." [See Tr., 8-1-01, at 686- 87 (Leslie)] Second. The programs and other initiatives "[include] but [are] not limited to [those in] Section 5 of [the] revised plan." (31.) Dr. Leslie Carnine became Superintendent of the LRSD effective with the 1997-98 school year. [Tr., 11-19-01, at 341-42] During testimony on November 19, 2001, when he had served for four years. Dr. Carnine provided the following overview. if you and Mr. Walker, when we put the new plan together, if will_remember, and in fact if i can find the document, L.d I think we might be able to present it, but I said at the time 20that it was my statement to you that I firmly believed that if we remediated the education of black students and made a real effort,where I_felt that it had been missing, that by that very remediation effort of increasing their achievement, we would help to, in fact minimize the disparity between black and white achievement. Now, that statement is the one that I have made continuously over the past four years, I have said nothing f erent, not that I am not I am certainly concerned about that disparity issue. It has been my life's work. But my point is the only way you can do it is not worry about the disparity, but let's just teach kids. And I didn't feel that we were doing that good a job. I think we are doing a better job now. Are we where we need to be? Not absolutely, but we are getting there. . 51
emphasis added] . . [At 450- (32.) During the 1998-99 school year, year one of the new plan, LRSD staff under the direction of Associate Superintendent Bonnie Lesley, who joined the staff at the end of June 1998 [Tr. 8- 1-01, at 670, 18-19], undertook a comprehensive review of the educational program, including students' test scores. This review yielded, ultimately, the view that the curriculum for grades K-12 in language arts (including literacy), mathematics, science and social studies needed to be replaced. [March 2000 report, Tr., 11-20-01, at 550, 10-14] at 45
(33. ) The review of programs during 1998-99 examined the development of early literacy skills in the light of results for LRSD students on the Arkansas Grade 4 Benchmark Examination (Spring 1998 and Spring 1999)^ and the Stanford Achievement Test (SAT 9) 10 Arkansas has adopted curriculum frameworks for language arts, mathematics and other subjects. For each framework, there are benchmarks, identifying, in grade level bands, knowledge and skills which it is hoped students will master. districts mathematics to give benchmark in grades four and examinations The State requires local eight. in These literacy and instruments are 21(Grade 3, Fall 1998). 11 On the state-mandated examination, 42 percent of LRSD students performed at the lowest level ("Below Basic") and only 30 percent of students at the levels deemed acceptable. Significantly, "[f]ifty-three percent of African- American grade 4 students performed at the 'Below Basic' level, compared to 20 percent of white students." The results for grade 3 on the nationally normed SAT 9 reading test were consistent. "In both cases only approximately 30 percent of LRSD students performed at the 'Proficient' or 'Advanced' levels . . , again indicating that far too few students are becoming good readers by grade 3." [CX 703, Doc. 1 at 12-13] (34.) The federal educational program known as tl Title I" originated in the Elementary and Secondary Education Act of 1965. It provides financial assistance to local school districts to support help for low achieving students. The March 2000 report noted LRSD's receipt of $4.2 million in Title I funds, annually. designed to show a student's level of mastery of benchmarks appropriate to the students' grade level. The results are reported in terms of four levels (below basic, basic, proficient, and advanced). The State's goal is that all students reach at least the level of proficient. [March 2001 report, at 56
Tr. , 8-1-01, at 692, 18 to 694, 9
"[LRSD] Memorandum Brief in Support of Motion for an Immediate Declaration of Unitary Status, Tab 5, at 9] basic, proficient II March 15, 2002, at 56. For a description of the SAT 9, see the March 2001 report. The exhibit did not discuss SAT 9 scores by race. The record contains SAT 9 reading scores by race for grade 5 for 1998-99 (but not grade 3 scores). On "total reading" the average percentile score for black LRSD fifth grade students was 27 and that for LRSD white students 69. [CX 741] 22Almost all LRSD schools received some Title I funds in recent years. "The goal of Title I is to provide supports so that all children can achieve the rigorous curriculum content standards established by the State and the [local] District." [March 2000 report at 47, 68
see 20 U.S.C. Sec. 2701] (35.) The review of instructional programs during 1998-99 encompassed Title programs. The March 2000 interim report I described some of the findings as follows: An analysis of performance data found that most Title I schools had not been meeting their improvement goals. The stafffound_that part of the problem was the absence of or lack of consistent delivery of District-established literacy and math curriculum. These problems were corrected through the new Pre-K Literacy Plan and the new NSF mathematics curriculum. Another part of the problem was the lack of alignmentbetween the Title I programs and the regular curricula in literacy and mathematics. [At 68
emphasis added] Dr. Leslie provided consistent testimony about the findings of the review. [Tr. , 81-01-01, at 700-02 (noting use of "pull out programs" which "even result in the child missing the instruction on the things that are going to be tested")] (36.) Testimony by Dr. Lesley revealed the consequences for Title I participants, disproportionately black youth [Tr., 8-1-01, at 702], of the lack of alignment of the content of the Title I program "and the regular curricula in literacy and mathematics." are . . . Alignment is absolutely critical, particularly in an urban school district, because alignment means that you are going to test kids over, that you have given them a chance to learn that, that you have got that included in the curriculum. And so without alignment, poor kids in particular suffer the most, because there may not be an opportunity for them to get that knowledge and skill anywhere else. . . . [Tr. 11-19-01 at 199-200] ' (37.) The perverse and ironic impact of the content of the 23 ITitle I program on LRSD's black students has been substantial. The program is longstanding f i.e . . originated in 1965) and in the relevant time frame has supported activities in almost all Little Rock schools. The low scores of LRSD's black middle school and high school students on the state benchmark and the SAT 9 tests are no doubt due, in part, to their isolation from important parts of the curriculum by Title I programs (which were supposed to help them attain the knowledge and skills which LRSD identified as important for all students). (38.) Dr. Lesley also identified general problems in the math curriculum, prior to its revision. "The old curriculum really focused on two strands of the [State] standards, and now we have a curriculum that encompasses all six strands, which include such things like statistics and problem solving and geometry and algebra, even for young children. So, that has been a big change for teachers." [Tr., 11-19-01, at 272, 6-11] (39.) The information gleaned about the content of the educational program and student outcomes on standardized tests led the LRSD leadership to conclude that a complete overhaul of the educational program was necessary. [CX 703, Doc.l at 12-13] This overhaul involved many areas. For example, the March 2000 report described the changes needed to implement the PreK-3 literacy plan. alone, as follows: "The plan required restructured schools and school days, alignment of special programs with general education, new standards-based curriculum, appropriate pedagogy (instruction) , materials, and assessments, high-quality and intensive professional 24development, effective interventions, and parent involvement." [At 97] The restructuring also involved mathematics, science and social studies curricula. See para. 32
see also Dr. Leslie's testimony regarding the magnitude of the attempt to completely overhaul the educational program. [Tr., 11-19-01, at 198, 23 to 207,12] (40.) In the March 2000 and March 2001 reports, the LRSD identified many policies, practices and procedures. some general and some specific, as designed to fulfill the obligation which it assumed in Section 2.7 of the revised plan. Sub-paragraphs (a)-(e) describe central elements of the LRSD commitments. (a) "The District developed in 1997-98 and 1998-99 comprehensive curriculum content standards, plus grade-level and course benchmarks in K-12 English language arts. mathematics, science, and social studies. In addition. curriculum maps were constructed for each area to ensure that the LRSD standards were aligned with the state's curriculum frameworks and assessments." [March 2000 report, at 45
Tr., 11-20-01, at 513, 17-21] (b) Staff members developed during 1998-99 and the directors approved in June 1999 a PreK-3 literacy plan. Board of The March 2000 report stated that II PreK-3 literacy is a major, if not the major priority of LRSD." "The plan required restructured schools and school days, alignment of special programs with general education, new standard based curriculum, appropriate pedagogy (instruction), materials, and assessments, high-quality and intensive professional development. effective interventions, and parent involvement. [March 2000 report, at 96-99
see also id. at 2590 [assessment to "[identify] [students] for early interventions"] (c) The March 2001 report states: ..... Implementation of standards-based, instruction in mathematics and science, intensive and sustained professional development for teachers, and multiple assessment measures have been put in place to ensure improvement. New standards-based curricula in mathematics in grades K-8 and in science for grades 1-9 have been adopted. The curricula for other grade levels are being adapted locally to reflect a standards-based, inquiry-centered approach. The number of K-12 mathematics teachers who received training and materials to fully implement the new mathematics program increased from 215 teachers in the 1999-2000 school year to 515 teachers during the 2000-2001 school year. The number of K-12 science teachers who received training and materials to fully implement the new science program increased from 50 teachers in the 1999-2000 school year to 243 teachers during the 2000-2001 school year. Another 108 mathematics teachers inquiry-based intensive and 453 science teachers began implementing part of the standards-based program during 2000-2001. All teachers in mathematics and science are scheduled to fully implement the standards-based program during the 2001-02 school year. [At 115] 453 (d) Dr. Leslie testified that "interventions" for students whose achievement is not at the standards deemed desirable is vitally important part of the new literacy proqram. [Tr., 8-1-01, at 679,14 to 681, 15] Interventions (and remediation) are a point of emphasis in the LRSD reports of March 2000 and 2001 and in policies adopted by the LRSD Board of Directors to which they refer (summarized in next paragraph). This emphasis is in keeping with Section 2.7 of the revised plan which requires designing and implementing actions "to improve and remediate the academic a achievement of African-American students. . . " (emphasis added). (e) The LRSD adopted the following relevant standards. X3 See March 2000 report at 43, report at 51-52, 62, 64, 125-26. 44, 47, 48, 49
March 2001 26(i) The Board of Education adopted Policy IHBDA ("Remedial Instruction") on July 22, 1999, after year one of the plan. It requires "the district and each school" to make "comprehensive and aggressive early intervention efforts, especially in PreK-3 reading and mathematics, with continuing support through complementary remediation efforts on an as-needed basis to promote and sustain the standard levels of achievement." "Intervention\remediation efforts of the Little Rock School District will be comprised of a broad range of alternatives . . I* [CX 719, Policy IHBA] ( ii) The Board approved Regulation IHBDA-R tl Intervention\remediation") on October 21, 1999, after the start of year two of the plan. It provides, in part: Assistance will be provided for any student who is performing below the standard levels of achievement in the areas of mathematics and reading\language arts. Intervention\remedial programs include reteaching, tutoring, extended-day programs, Saturday programs, summer school, and special courses offered within the school day in addition to the core instruction. Program designs may differ from school to school, depending upon funding sources, needs of students, and decisions made by the Campus Leadership Team. [CX 719, Reg. IHBDA-R] (iii) The School Board approved Regulation IHBDA-R2 ("Student Academic Improvement Plan" (SAIP)) on August 24, 2000, after year two of the plan, in compliance with Act 999 of 1999. It requires teachers tl of English language arts and mathematics" at each level to prepare individual SAIPs for "each student who [i] is not performing on grade level (K-4)
[ii] is not 'proficient' on any part of the state's benchmark examinations - primary (grade 4), intermediate (grade 6), middle school (grade 8)
and [iii] is not scoring 'proficient' on End-of-Course examinations in literacy. 27geometry, and\or algebra." IV School and individual teachers are encouraged to develop plans for additional students who, in their judgment, reguire remediation or intervention." The regulation further provides: student's The Student Academic Improvement Plan (SAIP) will document a student's achievement through District-adopted assessment tools, consideration of personalized education services (special education, English-as a- Second language. Title I, gifted_ programs, etc.) identification of areas of need^ specific skills to improve, strategies that will be implemented (see IHBDA-R), and progress. [CX 719, Reg. IHBDA-R] etc. ) C. Deficiencies in Implementation Establishing a Lack of Substantial Compliance with Secs. 2.7.1, 2.12.2 & Part 6.0 (41.) The content of paragraphs (42) through (57) supra shows that the deficiencies in implementation of the Section 2.7 activities identified by the LRSD are such that a finding of substantial compliance with Section 2.7 is not warranted. The LRSD's failure to substantially comply with Section 2.12.2 and Part 6 of the revised plan, as to the area of academic achievement, also apparent. is (42.) The LRSD Board of Directors approved the PreK-3 Literacy plan in June 1999, after year one of the revised plan. [March 2000 report, at 99] (43.) Teachers did not receive "their copies of the new curriculum documents" until "August 1999" the start of the school year (and the start of the second year of the revised plan). [March 2000 report at 45] "All teachers did not begin the [1999- 2000] year with the training to implement the new curriculum, teaching strategies, and materials. Training occurred throughout 28 the year, and some teachers were not trained at all in 1999-2000." [March 2001 report, at 91] (44.) LRSD has emphasized that the training and retaining of teachers is a vitally important component of the new educational programs. (a) Dr. Leslie testified as follows: It [professional development] is probably the most important thing that we have done, and we've spent all of our treasury on that. A great deal of time, a great deal of energy, a great deal of money, trying to be sure that every teacher has at least a minimum level of training in several areas, because one of the things that was overwhelming about the plan and its implementation is that particularly for elementary teachers, is that they had to learn new curriculum, they had to learn new materials, they had to learn new instructional strategies, and many of them had to change some belief systems, in order to make it work. over, much. And so, it takes more than a one workshop approach to get 311 that done. It has to be followed up over and over and And so, that is one reason we have emphasized it so The Board has allocated every dime they could to that effort over the last three years. [Tr., 11-19-01, at 207 13 to 208, 8] (b) The importance of teacher training was described as follows in the "Year 2 Evaluation: The Effectiveness of the PreK-2 Literacy Program in the Little Rock School District 1999-2000 and 2000-2001" (October 2001) by Dr. Lesley and other LRSD staff. The most expensive - and the most important - piece of the cost of any program implementation designed to improve student achievement is always the cost of professional development. . . . 'In study after study, it is the quality o: . , it is the quality of the teacher not variation in curriculum materials that is identified as the critical factor in effective instruction. That is not to say that materials are wholly unimportant, but that investing in teacher development has a better result than 14 This document appears at Tab 4 of the "[LRSD] Memorandum Brief in Support of Motion for an Immediate Declaration of Unitarv Status." 29investing in curriculum materials.'. . . [At 96] (45.) Nevertheless, the II Year 2 Evaluation" above identified serious shortcomings in the teacher training needed to implement the Pre-K-3 literacy program. The report states that 12 days of "Ella training"have been offered to K-2 teachers during the last two years. [At 97] It then sets forth a table, by school, showing the amounts of training for K-2 teachers. The average number of days per school is 4.65 across all levels. Moreover, in 15 of the 35 schools listed, the average number of days is 2.4 or fewer days. [At 98] The report states: From the table above, one can infer that implementation is, in general still at a low level since the number of days of ELLA training experienced by teachers is 4.65 of the 12 possible days available. Kindergarten teachers have the highest level participation, then grade 1 and then grade 2. Kindergarten, probably not coincidentally, is the highest performing grade level. [At 98] (46.) The LRSD employed lead teachers in the areas of math and science to promote the change from the traditional math and science curriculum to the new curriculum. Among other things, the lead teachers used an observation form to assess "the implementation level and quality of implementation of the teachers\schools in their cluster." LRSD reported the survey results for 1999-2000 in the March 2001 report. The report explains implementation codes as follows: "3 - fully implementing standards-based
2 - partially implementing standards based
1 - minimally implementing standards based, 0 - not implementing standards based." The average score for 33 sites was 2.2. However, there were 10 scores of 1.8 or lower. The report explains scores for quality of implementation as 30follows: II 4 - excellent
3 - good
2 - fair
1 - poor." The average score for quality of implementation was 2.6 for 3 2 sites. The report characterizes the results as follows: The District's average implementation score was 2.2, which represents a beginning shift from partial implementation to full implementation of a standards-based curriculum. The District's average quality score was 2.6, which represents trend toward quality instruction in math and science. Based on a the data provided, the District is in an active transition and the quality from the traditional curriculum to standards-based curriculum in both quality of implementation and the quality of implementation. See March 15, 2001 report at 122-24 (reports for elementary schools and middle schools only). (47.) The LRSD has also reported on the implementation of the new math and science curricula for the 2000-01 school year. Based upon reports by lead teachers, the average implementation score was 2.4 (on a scale of 0 to 3) and the average quality of implementation score 2.7 (on a scale of 1 to 4). Unlike 1999-2000, in 2000 01 LRSD reported only district averages and not scores by school. [ See "Little Rock Comprehensive Partnerships for Mathematics and Science Achievement - Annual Progress Report for 2000-2001," Tab 5 to LRSD memorandum brief previously cited] (48.) The LRSD did not implement the new social studies curriculum until 2001-02, after year three of the plan. [Tr., 11-20-01, at 427, 2-3
compare para. 40(a) above] Indeed, Dr. Leslie seemingly testified at one point that the entire new curriculum was implemented for the first time in the "Fall of 2000" [Tr., 11-20-01, at 518, 22-25], rather than in the Fall of 1999. Compare para. 43. 31 I(49.) The October 2001 report on the Pre-K-3 literacy program after year two, previously cited, states that the study "does not include 32examination of the different forms of interventions . II [Tab 4, at 83] Paralleling this admission, Associate Superintendent for Instruction Lesley, and Ms. Sadie Mitchell, Associate Superintendent for School Services, could not provide concrete information on the implementation of SAIPs, or other interventions for students requiring additional assistance to satisfy learning standards (see para. 40(e)). [Tr., 8-1-01, at 609, 18 to 611, 23 (Mitchell)
at 679, 18 to 684, 4 and 736, 17 to 739, 18 (Dr. Lesley)] It is obvious from test results that black students are more likely to need interventions. See para. 33. (50.) As part of the new Pre-K-3 literacy curriculum. LRSD teachers have administered in the Fall and the Spring in grades K-2 the tl Developmental Reading Assessment." The results have varied sharply from school to school and even within the same school from year to year. Dr. Leslie attributed these variations to "the degree to which teachers had implemented the new curriculum." [Tr., 8-1-01, at 731, 21 to 732, 2] (51. ) LRSD staff have recognized that there has been insufficient monitoring of classrooms to evaluate whether PreK-3 literacy curriculum is actually being implemented. the new Lack of a monitoring plan through classroom observations document the level of implementation is a problem, weakness not only resulted in a late identification of implementation in some cases, but it was also a weakness in evaluating the consistency of program implementation. to This poor See Mem. Brief in Support of Motion for an Immediate Declaration of 32Unitary Status (March 15, 2002), Tab 4, at 105. (52.) As noted, the LRSD is required to administer, each year in April, state Benchmark Examinations in literacy and mathematics to fourth and eighth graders. The State's goal is that all students reach the levels of proficient or advanced on each examination. which measure mastery of knowledge and skills. identified as important for each student to master. Results by race for the school years 1998-1999, 1999-2000, and 2000-2001 appear in the appendix, infra
see also note 10, para. 33, supra (description of Benchmark Examinations). (53.) On August 1, 2001, Dr. Lesley testified, in part, about the 1998-99 benchmark results in math and literacy for black fourth graders (administered in April 1999). Only 8 percent of these black youth attained the levels of proficient\advanced in math and only 20 percent in literacy. Dr. Lesley's testimony included the following content. Q. Now, in terms of the 1998-'99 results for Little Rock black students in the fourth grade on math, proficient or advanced, is that right? eight percent were A. Let me look, check for sure. In '98-99, American students were eight proficient. yes. African- Q. Eight percent, okay, proficient. A. At or above proficient. Q. Correct. So that's basically one out of 12 of the students who have been tested, is that right, roughly? A. Eight percent, uh-huh. Q. Now, you regarded that as a serious problem, correct? A. Certainly. 33Q.-.An<^ a maior part of your explanation for that result is fcb.at thosestpdentg,__in terms of the curriculum they had received,had not_ been exposed to what you call many of the strands of the benchmarks for math, right? A. Yes. Q. For students to show mastery on a test like that, they need to be exposed to the material, right? A. Absolutely. Q. Now, in terms of black fourth graders in the literacy, percent were proficient or advanced, is that right? 20 A. I want to check and make sure I don't misrepresent. In '98- '99, yes, 20 percent. Q. Did you see that as a serious problem? A. Of course. Q, And do you think that, again, that part of the reason for that_was that the curriculum those students had coveredmany_of the strands in the state benchmarks literacy? had not for A. Yes. added] J_ [Tr., 9-1-01, at 694, 8 to 695, 21
emphasis (54.) As noted, state benchmark exam results are also available for 1999-00 and 2000-01 (year three of the new plan). The results for 1999-2000 show some improvement. However, in 2000-01 (April 2001 test), the proportions of LRSD black youth attaining the levels of proficient\advanced were 4th grade literacy 19%
4th grade math 14%
8th grade literacy 18%
and 8th grade math only 4%! See tables infra in appendix. These results are on a par with the results for 1998-99, which evidenced to Dr. Lesley that black youth had not been exposed to curricula covering all of the grade- appropriate strands in the state curriculum frameworks. To be fair to the LRSD, no child will have had five years of exposure to the 34new curricula (if it is implemented) until those children tested in 2003-04 (April 2004).^ (55.) The results on the April 2001 State Benchmark Examinations and the other evidence reveal that LRSD had not implemented for the black students tested: (a) a curriculum marked by alignment with the state benchmarks
(b) teaching by teachers with the training which LRSD identified as an essential part of its program pursuant to Section 2.7
or (c) the interventions for students experiencing difficulties, also identified by LRSD as an essential facet of its program for compliance with Section 2.7. (56.) Scores on State Benchmark Examinations as of April 1999 for African-American students evidenced a situation where they had not been exposed to the content of the curriculum. See para. 53. The longstanding, massive Title I program was organized in a manner detracting from, rather than. as required by federal law, contributing to low-achieving students (disproportionately black) mastery of system instructional goals for all pupils. See paras. 34-37. The LRSD identified the need for a complete overhaul of the K-12 educational program in core courses, with implementation not commencing until year two of the plan. See paras. 32, 39, 40(a). The overhaul required change in many aspects of system operation. There were shortcomings in teacher in-service training, a pivotal area, as well as in implementation of the new math and science curricula. See paras. 43-47. There was admittedly no systematic 15 A student in kindergarten in 1999-2000, who makes normal progress, will reach the fourth grade and take the grade four benchmark examinations in April of the 2003-04 school year. 35 review of actual implementation of interventions for those students not doing well, another area of high importance, particularly for African-American youth given their achievement levels. See para. 49. Results of State Benchmark Examinations administered in April 2001 again established the lack of delivery of curriculum to African-American students. See para. 54. Finally, the SAT 9 tests for 2001 evidenced some backsliding in terms of addressing racial disparities in achievement. See para. 61(b), infra (SAT 9 results). (57. ) In light of the condition of education for black students in the LRSD at the outset of the revised plan, the program changes which the LRSD identified as necessary, and the lack of implementation of key facets of those changes (as shown by evidence about those initiatives and test results), the court finds that the LRSD did not substantially comply with the obligation which it assumed in Section 2.7 of the revised plan to implement certain programs, policies and\or procedures. (58.) There was also a lack of substantial compliance in this area with Sections 2.12.2 and Sections 6.1 6.7, generally applicable elements of the revised plan. The LRSD did not adopt, and therefore could not follow-up on. "compliance standards" [Section 6.1]. [Tr., 8-1-01, at 671, 21 to 675, 6 (Dr. Lesley)] The LRSD was of the view that it need not address the racial gap in achievement, as such
the staff therefore did not seek to devise a remedy directed to decreasing this "racial [disparity]" as such. violating Section 2.12.2 of the revised plan. See Part III of this memorandum, infra. 36Ill Racial Disparities in Achievement (59.) The Revised Desegregation and Education Plan provides for the continuation in force of "The Pulaski County School Desegregation Case Settlement Agreement as revised on September 28, 1989." [Section l(a.)] Testifying after being superintendent of schools for four years. Dr. Les Carnine agreed that he understood that the agreement with the State required the LRSD to narrow the achievement gap between black and white students. [Tr., 7-6-01, at 378, 21-24] See also at 378, 2-7 ["Mr. Walker: Well, Your Honor, let me say this. We have the State agreement - The Court (Judge Wright) That's a settlement agreement, that's correct. about the achievement disparities, about reducing that, that's true."]
Tr., 11-20-01, at 564, 1-4 (Dr. Leslie).^ (60.) The LRSD did not II [develop] any particular program by which to remediate achievement disparity between African-American students and other students. . . " during Dr. Carnine's tenure as superintendent. [Tr., 7-6-01, at 374, 25 to 375, 1-4 (Dr. Carnine)
Tr. , 8-1-01, at 622, 18 to 623, 9 (Associate Superintendent Mitchell)
see also Tr. 7-6-01, at 375, 14 to 379, 18 (Dr. Carnine)] (61.) The results of the State Benchmark Examinations and the Stanford Achievement Test show. at best. continuing massive disparities in achievement between black and white students and, at See also CX 594, at 11 ["The achievement gap between African American and other students is always an issue of concern in the Little Rock School District. A major emphasis in the PreK-3 Literacy Plan is the significant narrowing and eventual elimination of that gap."] 37 worst, increasing disparities during the term of the revised plan. (a) On the Benchmark Examinations: [i] the proportion of fourth grade white students attaining the proficient or advanced levels in literacy has exceeded the like proportions for black students by 3.1 times (1998-99), 2.2 times (1999-2000), and 3.3 times (2000-01)
[ii] the proportion of fourth grade white students attaining the proficient or advanced levels in mathematics has exceeded the like proportions for black students by 6.6 times (1998-99), 4.1 times (1999-2000), and 3.7 times (2000-01)
[iii] the proportion of eighth grade white students attaining the proficient or advanced levels in literacy exceeded the like proportion for black students by 4.1 times (2000-01)
and [iv] the proportion of eighth grade white students attaining the proficient advanced levels in mathematics exceeded the like proportion for black students by 10.3 times (2000-01). See appendix infra. (b) Results on the nationally normed SAT 9 test for LRSD students for the period 199697 through 200102 seemingly reflect an increase in the achievement gap. Twenty-one comparisons are possible in the data which covers grades 5, 7, and 10. The following comparisons are for the first (1996-97) and last (2001- 02) years of the six year period, [i] The gap between the average percentile scores of black and white youth increased in 20 of 21 instances
[ii] over the six years, the average percentile scores for black students increased in 6 instances, remained the same in 6 instances, and declined in 9 instances
[iii] over the six years, the average percentile scores for white students increased in 17 38 I iinstances, remained the same in 2 instances, and declined in 2 instances. [C 741, at 1] (62.) The LRSD has administered the Developmental Reading Assessment (DRA) in the Fall and Spring in grades K-2 beginning in 1999-2000. The LRSD maintains that the results show a narrowing of the achievement gap in reading.[E.g. . Tr., 11-20-01, at 409, 21 to 410, 4] However, test results on the DRA depend on a classroom teacher's judgments on his\her students' abilities to read and to comprehend a series of progressively more difficult reading selections. In the spring, the teacher is in part judging her\his own performance. The LRSD has recognized this issue: "One caution, therefore, interpreting the data is that the teacher has scored his\her own students' performance, and bias may be possible." [Year Two Report on the PreK-3 reading program. Tab 4 at 21] There is yet to be like progress, if any progress, on either the State Benchmark Examination or the SAT 9. See also Tr., 8-1-01, at 721, 12 to 726, 12 (lack of a predicate for LRSD to use DRA to evaluate achievement gap by race)] (63.) The LRSD has acknowledged problems prior to the effort to completely overhaul the K-12 program, which would harm black students disproportionately and exacerbate the achievement gap. The LRSD curriculum did not cover various strands of the State benchmarks. The Title I program emphasized "pull out programs" which isolated participants, disproportionately black. from the mainstream curriculum. See paragraphs 31, 34-38, 53-54. (64.) The LRSD has not substantially complied with its 39 iobligation under Section 2.7 of the revised plan to implement the activities which it identified "to improve and remediate the academic achievement of African-American students . , II See paragraphs 41-55. (65.) The LRSD has not provided a predicate to end court jurisdiction with regard to its voluntary undertaking "to narrow" the achievement gap between black and white students. IV. Program Evaluation (66.) Three aspects of Section 2.7.1 (quoted above at page 19) are noteworthy. First. In the first sentence and the second sentence, the words "assess" and "assessment" refer to programs (rather than to assessment of students). Second. The assessment obligation is not limited to the programs described in Part 5 of the revised plan, but instead pertains to those "implemented n pursuant to Section 2.7 . . which as noted is not confined to the programs in Part of the plan. Third. The assessment 5 obligation is annual in nature. (67.) Asked during the hearing on November 19, 2001, "to discuss the difference between an assessment and an evaluation," Associate Superintendent Bonnie Lesley began by testifying "[w]ell, I think part of the confusion has been that we have sometimes used those terms interchangeably . . ." [Tr., at 242, 13-17] The evidence shows that prior to the hearings on whether or not LRSD had attained unitary status, the LRSD had indicated repeatedly, by its actions. that compliance with Section 2.7.1 required the carrying out of program evaluations. Indeed, Dr. Lesley agreed with 40this proposition, when called as witness by the Joshua a Intervenors. The relevant evidence is summarized in sub-paragraphs (a) to (e). (a) LRSD issued a "Compliance Plan for the LRSD Revised Desegregation and Education Plan" on June 10, 1999. The text concerning Section 2.7.1. identified relevant "Board Policies" to include those on "Testing Programs" and "Program Evaluation." The text on "Procedures (Regulations, Administrative Directives, Handbooks, etc.") relevant to Section 2.7.1 provided as follows: 1. Program Evaluation Agenda - in progress 2. Title I Restructuring Plan provides for Title I evaluation 3. National Science Foundation Project provides for program evaluation 4. Application for waiver includes an evaluation design from State or District rules 5. In progress: second-year evaluation of Success for All Thus, as seen, every sub-paragraph referred to "evaluation." [See CX 544, at 11-12] (b) In a June 1999 position paper on the PreK-3 literacy program LRSD staff wrote: PreK-3 Literacy Program evaluation. ----------------------- In keeping with the obligations in the Revised Desegregation and Education Plan, the District shall employ with Title I funding a program evaluator, who shall annually report on the level of effectiveness of the innovations in this PreK-3 Literacy Plan. [CX 703, Doc. 1, at 44
emphasis added] See also Tr., 11-19-01, at 278, 19-21 (Dr. Leslie). (c) The material in the March 2000 interim compliance report addressing Section 2.7.1 refers to "[i]mprovements in the assessment of academic programs." [At 51] It also cites. inter 41alia, the "Program Evaluation Plan" [at 51], a draft policy on "Curriculum Evaluation" [at 52], and "[t]he 1999-2000 program evaluation agenda . , approved by the Board of Education in August 1999." [At 53] (d) The material in the March 2001 compliance report addressing Section 2.7.1 is headed "Program Evaluation" which is repeated at a later point in the discussion. a title The text (page 148 of the report) includes at least nine other references to fl evaluation." (e) During her testimony on August 1, 2001, Dr. Leslie agreed that the District had interpreted 2.7.1, which does not use the word evaluation. as nevertheless raising the topic of program evaluation. [Tr., 8-1-01, at 705, 24 to 707, 12
see also Tr. , 8-2-01, at 843 , 7-15 (Judge Wright noting that LRSD voluntarily undertook . . . obligation to have program evaluations of the programs that are designed to enhance African-American achievement"] (68.) The LRSD took a different tact in seeking to defend its implementation of Section 2.7.1, at the hearing on November 19, 2001. Dr. Lesley cited testing of students and other " assessment" activities as satisfying Section 2.7.1. [Tr., 11-19-01, at 242, 18- 22
243 , 6 to 249, 14
see also at 253, 22 to 254, 6 (colloquy between Judge Wright and LRSD counsel)]^ The content of paragraphs Dr. Lesley distinguished such assessment a "proqram evaluation." [Tr., 11-19-01, at 242, 23 to 243, 5] She described a program evaluation as "more long term" [at 242, 23] a feature congruent with the reference in Section 2.7.1 to an activity "after each year . . . ."in contrast, her discussion of "assessment" as from 23] fl In contrast, her discussion of "assessment" 42(a) through (h) supra provide the likely explanation for the LRSD's seeking to defend its performance by discussion of assessment rather than evaluation. The deficiencies in evaluation activities have been such that a finding of substantial compliance with Section 2.7.1 is not warranted. (a) The LRSD Board of Directors did not "[adopt"] its Policy IL on "Evaluation of Instructional Programs" until March 22, 2001 near the end of year three of plan implementation. [CX 575] As noted, Section 2.7.1 refers to assessments (evaluations) "after each year." The LRSD "voluntarily undertook [this] obligation." (b) The LRSD Planning, Research and Evaluation unit (PRE) presented evaluation documents covering four areas to the Board of Education in August 2000. The documents concerned the PreK-3 literacy program, the implementation of middle schools (including the effectiveness of new curriculum in English language arts and science), the effectiveness of the ESL program and the national Science Foundation project components. The Board of Education tabled the consideration of these documents because they were incomplete and there were no recommendations. [Tr., 7-6-01, at 362, 24 to 365, at 389, 18 to 392, 18
at 400, 16 to 401, 22 23
(Superintendent Carnine)] During the three year period of the plan, the LRSD recognized that it did not have the capability, interencompassing teachers "us[ing] the data that they have available on a daily basis to decide what to do next for one chid, for a group of children or for the whole class" [at 245, 12-20] was incongruent with the provision in 2.7.1. 43nally, to prepare the required evaluations. [Tr., 7-6-01, at 400, 2-19 (Dr. Carnine)
Tr. , 8-2-01, at 710, 3 to 713, 21 (Dr. Lesley)
at 829, 20 to 831, 6
Tr., 11-20-01, at 334, 496, 3 (Dr. Lesley)] 5-14
at 495, 16 to (c) The versions of the evaluation of the implementation of the PreK-3 Literacy Program prepared during the three-year period were drafts. [CX 577, Tr. , 7-6-01, at 418, 17-23 (Dr. at 1
Carnine)
Tr., 8-1-01, at 709, 3 to 710, 8 (Dr. Lesley)
Tr., li20 01, at 321, 21 to 322, 22
at 472, 25 to 473, 8 (Dr. Lesley)] (d) The versions of the evaluation of the implementation of the new mathematics and science curricula prepared during the three-year period were drafts. [CX 577, at 1
Tr. , 7-6-01, at 398, 1 to 399, 9
at 418, 17-23 (Dr. Carnine)
Tr., 8-2-01, at 829, 20 to 831, 6
Tr., 11-20-01, at 473, 25 to 476, 14 (Dr. Lesley)] (e) The version of the evaluation of the implementation of the new middle school program prepared during the three-year period was a draft. [CX 577, at 1] (f) The LRSD did not conduct during the three-year period an evaluation of the implementation of the several policies requiring interventions\remediation for students performing below para. 49. par. See (g) The LRSD identified the summer school program as an important component of its effort "to improve and remediate the academic achievement of African-American students" [Section 2.7]. [March 2000 report, at 47
March 2001 report, at 62, 125-26] In its March 2001 report, LRSD asserted that "PRE has evaluated" the 44"Summer School [Program]." [At 148] However, the evaluation of the summer school program for "Summer School 2000" was only in draft form as of April 5, 2001 and July 17, 2001. [CX 721
Tr., 8-1-01, at 645, 12 to 652, 12 (Assoc. Superintendent Mitchell)
Tr., 11-20-01, at 357, 1 to 358, 8] (h) In the March 15, 2001 report the LRSD asserted that "PRE has evaluated . . . [11] programs . . II [At 148] This assertion is misleading. [aa] The "Extended Years Report" existed in draft form as of July 13, 2001
there is a version of the report dated September 28, 2001. [CX 720] [bb] The LRSD presented only drafts of the "Summer School" report. [CX 721] [cc] There is an evaluation of the "Hippy Program" dated July 1999. [CX 722] [dd] The report on the "Charter School" is dated June 25, 2001
it was written by an external consultant. [CX 723] [ee] The report on "Campus Leadership Teams" contains survey data dated May 11, 2001 and lists of participants, without further discussion. [CX 724] [ff ] There is an evaluation of the ESL program dated * October 30, 2000. [CX 725] [gg] There is a draft evaluation on the "Lyceum Scholars Program at Philander Smith College" dated September 22, 2000. [CX 726] 45[hh] With regard to the "Southwest Middle School's SEDL Program," there is a request for data from an external source and some data, not an evaluation. [CX 727
Tr., 11-20-01, at 361, 17 to 362, 5] [ii] With regard to "Onward to Excellence (Watson Elementary)," there is collection of information provided by the "Site Facilitator" on November 1, 2001, not an evaluation. [CX 728
Tr., 11-20-01, at 362, 7-17] [jj] With regard to "Collaborative Action Team (CAT)," there is a collection of survey data and some comments, of anonymous authorship. dated November 6, 2001. [CX 729
Tr., 11-20-01, at 363, 10-24] [kk] Regarding "Vital Link," there is a brief. a undated evaluation of anonymous authorship. [CX 730] (67.) The LRSD did not substantially comply with the program evaluation obligation which it voluntarily assumed by virtue of Section 2.7.1. The LRSD did not evaluate the academic programs which it implemented pursuant to Section 2.7 after each year to determine their effectiveness in improving African-American achievement and to use the results to make program changes. Indeed, it has not fulfilled this agreement after three years. In fact, the LRSD tacitly acknowledged its failure by seeking to recast the nature of its obligation during the hearings. 46Argument A. Introduction and the Standard for Substantial Compliance In this matter, the court is called upon to "[apply] the terms of a contract between [two of] the parties ..." [LRSD v, PCSSD, 11, 83 F.3d 1013, 1017 (Sth Cir. 1996)] the LRSD and the Joshua Intervenors. "Because this case has been settled, the settlement agreement becomes, in a sense, a particularization of federal law applicable to these parties." Knight v. Pulaski County Special School District. 112 F.3d 953, 955 (Sth Cir. 1997). Put another way, "the terms of the settlement agreement became the law of the case." Little Rock School District V. Pulaskui County Special School District. No. 96-2047, Slip Opinion, Dec. 15, 1997, at 6. In sum. this court is called upon to apply the parties' agreement in the form of the revised plan, which left in place among other things "The Pulaski County School Desegregation Case Settlement Agreement as revised on September 28, 1989." [Section l(a.)] The revised plan identifies the standards which this court is to apply to determine, for example, whether the LRSD fulfilled its obligations regarding student discipline and program evaluation. and whether it is entitled to a "release from court supervision." That other systems face less onerous criteria^ is irrelevant. LRSD is held to the obligations which it "voluntarily undertook" [see Tr., 8-2-01, at 843, 7-15 (Judge Wright referring to "obligation to have program evaluations")
they form "the law of [this] case." 18 See LRSD Me.-Brief, at 18-19, 28. 47Construed as an entirety [see n. 1 at 1, supra 1 . the terms of the agreement support the construction that the court's jurisdiction continues as to an area in which a party meets its burden of proof of showing "that LRSD has [not] substantially complied with its obligations set forth in [the] Revised Plan." [Section 11] In this light, a principal task for this court is to define the term "[substantial compliance]." The opinion in Cody v. Hillard. 139 F.3d 1197 (Sth Cir. 1998) provides guidance on this topic. 19 There, the district court had dissolved a consent decree, merely asserting in a conclusory manner that "the defendants have conscientiously and in good faith complied substantially with its terms." [At 1199] In explaining the inadequacy of the district court's terse ruling, the appellate court wrote, in part: . . . . The record indicates that there have been failures in the past to comply with the decree and supplemental orders, and that there are still at least some violations of the decree. The district judge's order does not give us enough information to determine whether he ignored the evidence of past and present violations or whether he violations inconsequential in considered any the context of substantial compliance. If the conditions Powitz complained of constitute violations of the consent decree. exercise violations noncompliance its I were discretion I serious and to in the district court must determining whether those enough to constitute substantial cast doubt compliance with the Constitution. . added] on defendants' future . . [At 1199
emphasis The Cody court focuses on two related matter. These are. first, whether any violations are "inconsequential" in the light of 19 Cody is, however, largely distinguishable
"[t]he decree did not state the time of its duration." consent 1198. See 139 F.3d at 48the parties' overall performance and, second, whether the particular violations, given their subject matter, involve "serious" natters. The Court of Appeals for the First Circuit twice addressed the meaning of "substantial compliance" in the context of appeals from judgments of civil contempt. See Fortin v. Com'r of Mass. Dept. of Public Welfare, 692 F.2d 790 (1982) and Morales-Feliciano V. Parole Bd. of Commonwealth of Puerto Rico. 887 F. 2d 1 (1989) (Judge Breyer). These decisions are also helpful. In Fortin, the court wrote [692 F.2d at 795]: . 'substantiality' must depend Finally, no particular percentage of compliance can be a safe-harbor figure, transferable from one context to another. Like ^reasonableness,' . . . 'substantiality' must depend on the circumstances of each case, including the nature of the interest at stake and the degree to which non-compliance affects that interest. In the present case, the interest at stake - entitlement to subsistence-level benefits - is great . . ., making the consequences of failure to comply quite serious. The district court properly weighed the seriousness of the harm . . - in considering the substantiality of the Department's compliance. . . . [citations omitted] The court also considered the duration of noncompliance. Id. at 796. The Morales-Feliciano court followed the Fortin standard. See 887 F.2d at 4-5. Intervenors next apply these standards to the facts. The argument shows that all of the shortcomings cited in the Intervenors' factual presentation involve substantial noncompliance. Because all areas of noncompliance impinge on and harm the education of youth, an interest of great importance [see Fortin and Morales-Feliciano, supra], Intervenors address that matter once at the conclusion of the argument. 49B. Student Discipline In this case involving racial discrimination in public education, the person responsible for compliance with the discipline sections of the plan testified: "I can't say that we are looking at it based on See para. 18. Dr. Watson's description of inaction concerning discipline was entirely race." consistent with her admission. See paras. 12-17. The violation of Section 2.5 was "serious. II Cody, supra. The system argues that the revised plan "did not require the LRSD to reduce the discipline disparity." [At 28] However, it did require actions "designed to ensure that there is no racial discrimination with regard to student discipline . . It [ Sec. 2.5
emphasis added] Compliance would necessarily require scrutiny of disparity to determine whether it originated in discrimination in any schools. In any event, the LRSD plainly assumed this obligation in Section 2.12.2. See para. 26. Lastly, there are also obvious and serious violations of Section 2.1 (good faith efforts) and Part 6 (compliance program). See paras. 27-28. The LRSD merely accepted disparate discipline as a fact of lif e. That tact may be open to other school systems. See LRSD Mem. -Brief, at 28. However, the LRSD pledged to implement the revised plan in good faith. The plan became, therefore. "the law of this case." The failure to implement the provisions of Section 2.5.4 (behavior modification plans) can not be dismissed as "inconsequential." The March 2001 report listed 4,274 suspensions 50of black pupils in 1999-2000. [At 24] There was a need for such plans
the LRSD merely gave "lip service" to the concept. Para. 25. C- Improving and Remediating the Achievement of Black Students The LRSD pledged not only to design, but also to implement actions "to improve and remediate the academic achievement of African-American students." [Section 2.7] 11 [T]he circumstances of [this] case ..." [Fortin, supra] highlight the centrality of this pledge. The evidence shows that at the time that the parties drafted the revised plan and its implementation began, LRSD polices and practices isolated black students, disproportionately, from the curriculum content LRSD identified as important for all students. This practice included the operation of the Title I program a mode of operation diametrically opposed to the requirements federal law. See paras. 31-38, 53. of The LRSD determined, essentially, that it needed to replace its curriculum and that this step would fulfil its Section 2.7 obligation to the plaintiff class. Intervenors factual presentation shows that implementation fell short in areas deemed significant by LRSD (training of teachers for the new literacy curriculum. implementation of the new math-science and social studies curricula. provision of interventions to students [mostly black youth] not performing well. and monitoring of classrooms. See paras. 32, 43 51. Indeed, State Benchmark Examination results in April 2001 revealed that the vast majority of black pupils in grades 4 and 8 continued to show signs of isolation from the curriculum content deemed essential by the State and the LRSD in 51 math and language arts. See paras. 52-55. These shortcomings in compliance obviously involved "serious" and not "inconsequential" matters. Cody, supra. D. Racial Disparities in Achievement Former Superintendent Carnine, Associate Superintendent Lesley, and Judge Wright recognized the continuing requirement of an effort to narrow the achievement gap between black and white students. See paragraph 59. LRSD did not argue during the hearing that it could not narrow the achievement gap. It argued that its Section 2.7 activities would do so and that it was doing so in the area of early grade literacy. See Tr., 7-6-01, at 375, 379, 18 (Dr. Carnine)
see para. 62. 14 to The LRSD did not develop any particular program designed to remedy achievement disparity between black and white pupils [see para. 60]
there have been, as noted, serious shortcomings in its implementation of the strategies to overhaul the educational program, K-12, which were to improve black achievement. The results of State benchmark and SAT 9 testing provide evidence that the educations of countless African-American students in the system have been tainted by isolation from the mainstream curriculum. See paras. 53-54, 61. The LRSD had promised in the prior plan to deal with achievement disparity. [At para. B] Manifestly, 1. a curriculum isolating black students from core content was not the way to make progress in this sphere. The failures to address the achievement gap, as such, and to implement major parts of the reforms encompassed in Section 2.7 are 52"serious" shortcomings. E. Program Evaluation The LRSD elected voluntarily to make a major commitment which it understood to involve program evaluation until such time as it determined that it could not show substantial compliance with Section 2.7.1, as so construed. Para. 67. The commitment encompasses not only evaluating the programs designed to benefit black students' achievement "after each year," but also making changes if programs prove to be ineffective. Section 2.7.1. The LRSD seeks to defend its performance in this area by arguing that Section 2.7.1 required something less than a program evaluation. [LRSD Mem.-Brief, at 22-23] Intervenors have addressed this point. LRSD also contends that Intervenors' focus is on a set of evaluations, which the system had identified on page 148 of its March 2001 report. [LRSD Mem.-Brief, at 20] LRSD asserts: "The evaluations were introduced as Court's Exhibits 720-730." [Id., at 21] Our response is two-fold. First. Intervenors's focus is on the LRSD's failure to complete, even in the threeyear period. program evaluations of central features of the LRSD program to implement Section 2.7. See paras. 68. Second. The content of paragraph 68(h) shows that the assertion that the page 148 "evaluations were introduced" is vast overstatement. The evaluations were to be an integral part of the LRSD effort to provide programs to improve and remediate the achievement of African-American students. The default here is "serious," not 53inconsequential" in the overall scheme of things. Cody, supra. F. The Setting in which Noncompliance Occurred "In the present case, the interest at stake - [education] - is great . . . , making the consequences of failure to comply quite serious." Fortin,_supra. Indeed, the Supreme Court has recognized the importance of education in the contexts of racially discriminatory school systems [Brown V. Board of Education. 347 U.S. 483, 492-93 (1954)] and school suspensions [Goss v. Lopez. 419 U.S. 565, 576 (1975)]. See also Appeal of Little Rock School District, 949 F.2d 253, 256 (Sth Cir. 1991) (in identifying "those elements of the 1989 plan that we consider crucial, and to which no retreat should be approved," court notes "the agreed effort to eliminate achievement disparity between the races"). States and local districts identify benchmarks in areas such as literacy and mathematics so that they can graduate youth prepared to enter postsecondary programs and later participate in all of life's callings and positive experiences. The noncompliance cited by intervenors continues to threaten these ends. The setting in which noncompliance has occurred adds to its substantiality. Conclusion The Joshua Intervenors bargained for. and secured by the district court's approval of the revised plan, the right to three years of substantial compliance with its terms. The appropriate remedy for substantial noncompliance in the areas addressed in this memorandum is compensatory relief in the form of a three year 54period of actual substantial compliance in those areas (and any other areas identified as ancillary to the areas marked by violations). See Miener v. Missouri. 800 F.2d 749 (Sth Cir. 1986)
Pihl V-_Massachusetts Dept, of Ed.. 9 F.3d 184 (1st Cir. 1993)
Lester H. v. Gilhool, 916 F.2d 865 (3rd. Cir. 1990), cert, denied, 111 S.Ct. 1317 (1991)
Jefferson County Board of Education V. Breen, 853 F.2d 853 (11th Cir. 1988). The same criteria concerning ultimate termination of the court's role should apply to the fresh three-year period. Finally, the LRSD suggestion [Mem.-Brief at 2] that the court could terminate its role despite finding of substantial a noncompliance should be rejected. The Cody opinion (at 1199) contains this language. citing the Supreme Court decision in Dowell: "if district court finds that defendant operating in compliance with Constitution and unlikely to return to 'its former ways,' purposes of injunction have been achieved" (emphasis added). This identifies a two-part standard. In any event, the LRSD agreed to make substantial compliance the test for the end of a court role and is bound by that choice. .'VX/' xR^pectfully .submitted, oecttully Robert Pressman 22 Locust Avenue Lexington, MA 02421 781-862-1955 Mass. 405900 ,Aohn W. Walker ^ohn W. Walker, P.A. 1723 Broadway Little Rock, AR 72206 501-374-3758 Ark. 64046 55Arkansas Benchmark Examination 4th Grade Literacy Note: See footnote 10 (description of Benchmark Examinations) Black Students 1998-99 [4-99] 1999-00 [4-00] 2000-01 [4-01] Below Basic Basic Proficient Advanced 52% 36% 49% 28% 80% 70% 81% 34% 32% 20% 29% 19% 0% 20% 30% 19% 1% 0% White Students 1998-99 [4-99] 1999-00 [4-00] 2000-01 [4-01] Below Basic Basic Proficient Advanced 17% 10% 14% 21% 38% 58% 62% 4% 23% 33% 60% 66% 6% 23% 37% 56% 7% 63% Appendix 1Arkansas Benchmark Examination 4th Grade Mathematics Note: See footnote 10 (description of Benchmark Examinations) Black Students 1998-99 [4-99] 1999-00 [4-00] 2000-01 [4-01] Below Basic Basic Proficient Advanced 74% 91% 17% 6% 2% 69% 85% 16% 10% 69% 17% 8% 8% 5% 15% 6% 86% 14% White Students 1998-99 [4-99] 1999-00 [4-00] 2000-01 [4-01] Below Basic Basic Proficient Advanced 24% 24% 25% 23% 28% 25% 47% 40% 48% 16% 21% 23% 21% 53% 40% 61% 31% 52% Appendix 2Arkansas Benchmark Examination 8th Grade Literacy Note: See footnote 10 (description of Benchmark Examinations) Black Students Below Basic Basic Proficient Advanced 1998-99 [4-99] 1999-00 [4-00] 2000-01 [4-01] 43% 39% 82% 17% 1% 18% White Students Below Basic Basic Proficient Advanced 1998-99 [4-99] 1999-00 [4-00] 2000-01 [4-01] 8% 19% 27% 51% 22% 73% Appendix 3Arkansas Benchmark Examination 8th Grade Mathematics Note: See footnote 10 [description of Benchmark Examinations) Black Students Below Basic Basic Proficient Advanced 1998-99 [4-99] 1999-00 [4-00] 2000-01 [4-01] 75% 21% 4% 0% 96% 4% White Students Below Basic Basic Proficient Advanced 1998-99 [4-99] 1999-00 [4-00] 2000-01 [4-01] 25% 34% 59% 31% 10% 41% Appendix 4The Extent of the Racial Disparity in Discipline by School, Race, and Sex in 1998-99 The Extent Black Male Suspensions Per 100 Students Exceed White Male Suspensions Per 100 Students The Extent Black Female Suspensions Per 100 Students Exceed White Female Suspensions Per 100 Students Junior High Schools Cloverdale Dunbar Forrest Heights Henderson Mabelvale Mann Pulaski Heights Southwest 1.23 2.05 1.56 1.64 1.39 2.07 3.00 0.79 1.53 2.71 2.18 1 to 1 1.11 2.80 7.00 0.71 Total 1.83 2.40 Senior High Schools Central Fair Hall McClellan Parkview 2.00 1.50 1.65 2.25 1.13 3.50 1.27 2.44 1.17 0.67 Total 1.83 1.71 Source
ODM Report, June 2000, at 90-120 Appendix 5 ICERTIFICATE OF SERVICF. This is to certify that a copy of the foregoing has been mailed, postage prepaid to the following counsel or record, postage prepaid on this day of May, 2002. Mr. Clay Fendley Friday, Eldredge & Clark, P.A. 400 W. Capitol, Suite 2200 Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, Arkansas 72201 Mr. Sam Jones Wright, Lindsey & Jennings 2200 Worthen Bank Building 200 West Capitol Little Rock, AR 72201 Mr. Mark Hagemeier Office of Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 1. fehifW.ap RECEIVED FILED us DISTRICT COURT EASTERN DISTRICT ARKANSAS JUL J 8 2002 OFRCEOF DESEGREGATION MONITORING IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION JUL J 6 2002 LITTLE ROCK SCHOOL DISTRICT vs. 4:82CV00866-WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. Let al MRS. LORENE JOSHUA, et al KATHERINE KNIGHT, et al ORDER JAME! 0 c DEP CLERK PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS Attached is a transcript of the hearing held Friday, last (July 12). Since time is short (the evidentiary hearing will commence next Monday, July 22), this transcript, rather than a detailed. separate order, is adopted as the order of the court (court solecisms and all). IT IS SO ORDERED this I ri* day of July, 2002. UNITED STATES DISTRICT JUDGE THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WITFH RULE 58 AND/OR 7^ RCP ON BY. 1 2 3 4 5 6 1 8 9 10 11 1 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT, Plaintiff, V . PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al., Defendants. MRS. LORENE JOSHUA, et al.. Intervenors. KATHERINE KNIGHT, et al.. Intervenors. No. 4:82CV00866WRW Friday, July 12, 2002 Little Rock, Arkansas 8:30 a.m. 12 13 TRANSCRIPT OF HEARING BEFORE THE HONORABLE WILLITkM R. WILSON, JR., UNITED STATES DISTRICT JUDGE 14 APPEARANCES: 15 On Behalf of Little Rock School District: 16 17 18 19 MR. CHRISTOPHER HELLER, Attorney at Law MR. JOHN C. FENDLEY, JR., Attorney at Law Friday, Eldredge & Clark Regions Center, Suite 2000 400 West Capitol Avenue Little Rock, Arkansas 72201-3493 20 On Behalf of Pulaski County Special School District: 21 22 MR. M. S7H4UEL JONES, III, Attorney at Law Wright, Lindsey & Jennings 2200 NationsBank Building 23 200 West Capitol Avenue Little Rock, Arkansas 72201 24 25 [Continued] Christa R. Newburg, RMR, CRR, CCR United States Court Reporter1 2 APPEARANCES CONTINUED: 2 On Behalf of North Little Rock School District: 3 4 5 MR. STEPHEN W. JONES, Attorney at Law MR. GUY W. MURPHY, JR., Attorney at Law Jack, Lyon & Jones, P.A. 425 West Capitol Avenue, Suite 3400 6 7 Little Rock, Arkansas 72201-3472 On Behalf of the Joshua Inteirvenors: 10 11 MR. JOHN W, WALKER, Attorney at Law MR. John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72206
and ROBERT PRESSMAN, Attorney at Law 22 Locust Avenue Lexington, Massachusetts 02421 8 9 12 On Behalf of the Knight Intervenors: 13 14 MR. RICHARD W. ROACHELL, Attorney at Law Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 15 16 17 Post Office Box 17388 Little Rock, Arkansas 72222-7388 RECEIVED 18 JUL J 8 2002 19 OFFICE OF 0KE6REGATI0N MONITORING 20 21 22 Proceedings reported by machine stenography and displayed in realtime
transcript prepared utilizing computer-aided transcription. 23 24 25 Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 11 3 (Proceeding at 8:30 a.m., as follows:) 2 THE COURT: We're here this morning for a short 3 hearing in the Little Rock School District against the Pulaski 4 5 County Special School, et al. It's Case No. LR-C-82-866. I 10 might first introduce counsel and the people present to Ms. Christy Conrad. Would you stand up, please, ma'am? She is my new lawyer on this case, commenced to work this morning. case. She will be the law clerk especially assigned to this That's Ms. Christy Conrad. We might start with Mr. Walker. I got my letter off late 6 7 8 9 11 yesterday, and if you don't mind outlining for me briefly what 12 13 your two rebuttal witnesses will say. Ms. Marshall go ahead. If you don't mind, come to the lectern. When we start 14 the trial next week, week after next, we'll have mikes on the 15 table, but I don't have them now. 16 MR. WALKER: Your Honor, my I inquire whether you 17 received my letter? Apparently our letters -- 18 THE COURT: I did get a letter from you. I've got it 19 right here, as a matter of fact. I don't believe it addressed 20 that issue. If it did, I overlooked it. Like I say, my letter 21 got out later than I thought. 22 MR. WALKER: Your Honor, it does attempt to address 23 it on page 2, paragraph four, sub six. 24 25 THE COURT: Paragraph four? MR. WALKER: Sub six, the bottom of the second page. Christa R. Newburg, RMR, CRR, CCR United States Court Reporter1 It begins, 4 "Plaintiff suggests that if not" 2 3 4 5 6 7 8 THE COURT: All right. Let me read that. I do have this letter, and I've read it. That's another one of my lawyers. We're all working on this case, and she needs to be able to hear us back in chambers, and she has just announced, Mr. Walker, she couldn't hear you. So both of us need to speak right into the mike. 10 11 12 13 MR. WALKER: THE COURT: sir. I have read that. Can you be a little more specific with us? MR. WALKER: Dr. Lesley in her testimony indicated that the evaluation process was not flawed. in part because it was it involved the ODM, Mr. Gene Jones specifically. and Yes, 9 14 Ms. Ann Marshall to some extent. And she submitted an exhibit 15 that relates to or was attempting to relate to the 16 participation of the ODM, in order to demonstrate that 17 involvement. We wanted to establish what ODM's role was and 18 also the fact that ODM at all times through Mr. Jones had 19 expressed difficulty and problems with the evaluation approach 20 that was being used by the district and the lack of 21 evaluations. 22 THE COURT: And Ms. Marshall and Gene Jones are both 23 going to address that issue? 24 25 MR. WALKER: There were two separate points where -- which differ. Ms. Marshall can only relate to an exhibit that Christa R. Newburg, RMR, CRR, CCR United States Court Reporter1 5 Dr. Lesley introduced where she made reference to, if I 2 understand to be correct, where she made reference to the 3 comments and the like that had been made about in criticism or 4 critique of a document which she had prepared, and it would be 5 our intention to show that that was misrepresentative of the 6 involvement of ODM. 7 THE COURT: All right. Thank you. 8 MR. WALKER: And the other will be Mr. Gene Jones, 9 and Mr. Jones was sometimes invited to some of the sessions 10 that dealt with the subject. And his -- the way his 11 participation was presented, we would address, and also the 12 comments and the like that he made or his obse3rvations from the 13 perspective from which he sits we thought would be useful to 14 the Court in explaining the overall evaluation. The ODM was 15 supposed to have a special role in relationship to the whole 16 process, and we would like to at least take that time to put 17 that in. 18 THE COURT: All right. I'll hear from Mr. Heller, 19 see if he continues his objection in view of that. 20 21 MR. HELLER: Good morning, your Honor. We do continue our objection. Mr. Walker didn't identify any of the 22 exhibits he's talking about. Dr. Lesley's testimony, which. as 23 we've said, could have been anticipated in its entirety because 24 it didn't concern anything other than the compliance reports 25 which were filed by the district, her testimony regarding ODM Christa R. Newburg, RMR, CRR, CCR United States Court Reporter1 6 10 was minimal. As I recall, all she did was point out that an ODM monitoring report which is in the record did not require anything other than what Dr. Lesley was doing. in the record. That report is Mr. Walker had a chance to question Dr. Lesley about it, and there shouldn't be any issue about that. With regard to Mr. Jones, all that was said about him was that he was a participant in several meetings. I think that's undisputed. Dr. Lesley didn't say that she thought Mr. Jones' position on a particular issue would be X or Y. The only thing in the record that I recall is that Mr. Jones participated in a 2 3 4 5 6 7 8 9 11 meeting, and I think that's undisputed. 12 With respect to Mr. Walker's comment about Mr. Jones' 13 perspective would be helpful on the evaluation process, which 14 really, as the Court is aware, was a requirement for 15 16 assessments rather than evaluations, that's something that clearly could have been presented in Mr. Walker's case in 17 18 chief, if he believed that someone from ODM had a perspective about the assessment process that was important, because 19 Mr. Walker knew that's exactly what Dr. Lesley was going to 20 testify about. 21 THE COURT: Let me say this before you leave the 22 lectern, if you will, because I may ask you another question: 23 I generally take a pretty dim view of rebuttal evidence because 24 I've found that most of it -- I've found in practice over the 25 years that most of it is not true rebuttal. And I point that Christa R. Newburg, RMR, CRR, CCR United States Court Reporter1 7 10 11 out in some of my letters or orders, and, as a matter of fact. in my standard scheduling order or letter with that scheduling order, one or the other, I point out that rebuttal witnesses must be identified if known. Well, that's almost by definition that if they're known, they're not rebuttal witnesses. always had a hard time with that. So I've But this case was tried by Judge Wright, the first roughly half of evidentiary hearing on the issues before the Court now. She did reserve 30 minutes' rebuttal time. Truthfully, I'm inclined to agree that this doesn't sound like rebuttal, but out of an abundance of caution. since it's only 30 minutes. I'm 2 3 4 5 6 7 8 9 12 going to allow these witnesses to be called, with these 13 requirements: Number one, I'm going to require Mr. Walker to 14 identify the documents -- are you prepared to do that now. 15 Mr. Walker, exhibits, or would you rather do this by a pleading 16 in the next -- by, say, Monday afternoon? 17 18 19 20 you 21 MR. WALKER: THE COURT: MR. WALKER: THE COURT: A letter, your Honor. All right. Then by 4 p. m. Monday. Your Honor, before you finish, could Let me finish, and then I'm going to let 22 you have the floor again, Mr. Walker. 23 24 MR. WALKER: All right. Thank you. THE COURT: By 4 p.m. Monday, identify the exhibits 25 that you plan to address with Jones or Marshall. Christa R. Newburg, RMR, CRR, CCR United States Court Reporter1 2 3 4 5 6 7 8 Number two, Mr. Heller, if you want to -- you can interview these people, I assume. If you can't interview them. I'll allow you to take a telephone deposition of them next week to prepare you to meet this rebuttal testimony. If you want to do that, notify Mr. Walker and me by 11 a.m. Monday, if you want to take their depositions as opposed to interviewing them. All right. If you don't have any other comments. 8 9 Mr. Heller, Mr. Walker looks like he's going to swell up and burst if he doesn't get to say something else on this. 10 MR. HELLER: There is just one thing, your Honor. I 11 think it's at least implicit in all of the orders, but we'll 12 13 certainly have an opportunity for cross-examination. I'm not sure how that counts against our time in the overall process. 14 but 15 THE COURT: I'm going to be somewhere between Judge 16 Woods and Judge Eisele on timing. 17 18 19 20 21 22 23 24 25 MR. HELLER: I think we'll have plenty left from our 20 hours, even if the cross-examination counts against THE COURT: All right. us. MR. WALKER: Well, your Honor, I have no objection to them interviewing these people, but Ms. Brown has always -- and the ODM, for the Court's benefit, has always taken the position that it's available to speak with either or both of the parties about any matter that they are related to. THE COURT: It looks to me like, Mr. Walker, you've Christa R. Newburg, RMR, CRR, CCR United States Court Reporter9 1 2 3 4 just won. Are you piling on now? MR. WALKER: No, sir. No, sir. All I'm saying -- no. sir. All I'm saying is that it's not an order that's necessary. I mean, they have that as a standing -- that's been 5 longstanding in the district, as long as the ODM has been in 6 the process. 7 THE COURT: I'm going to enter the order even if it's 8 pure surplusage. 9 MR. WALKER: All right. Now, with respect to the 10 testimony, we will provide that. 11 12 13 14 15 THE COURT: MR. WALKER: THE COURT: MR. WALKER: THE COURT: You mean the exhibits? The exhibits. Right. Your Honor, by way of background -- Let me -- I want to change that. If you 16 want to depose them, I don't think you would, Mr. Heller, but 17 if you do, let me know by -- let Mr. Walker and me know by 9 or 18 9:30, by 9:30 Tuesday morning, because you may not know until 19 you see the exhibits. 20 Go ahead, Mr. Walker. 21 MR. WALKER: Your Honor, I hate to say this. The 22 Court -- you indicated you were going to follow much of Judge 23 24 25 Wright's process that she followed. She steadfastly refused to allow us to depose the ODM, which was part of her staff. as she said it, because that would, in effect. in a way be like Christa R. Newburg, RMR, CRR, CCR United States Court Reporter1 2 10 deposing an arm of the Court. And I would ask that the Court not enter an order requiring depositions but allowing instead 3 for them to just have the interviews. 4 Once you start doing that, then 5 THE COURT: You know, that's a pretty good point. 6 Let me hear from Mr. Heller on that. 7 10 11 aware, MR. WALKER: MR. HELLER: Okay. Your Honor, as I'm sure the Court is we raised an issue with Judge Wright concerning the role of the monitors in this case. THE COURT: Let me say something on that, and I'll 8 9 12 try not to interrupt you too much, but I probably won't do a 13 14 very good job since I have -- I'm a type A. When I assumed the case, I met with Ms. -- or was assigned the case. I met with 15 Ms. Marshall, and we exchanged pleasantries right after I was 16 17 appointed. We did not talk about the substance of the case in any way. After that, after thinking about it and after 18 reviewing the file some and seeing what had been discussed. I 19 asked a member of my staff to contact Ms. Marshall and advise 20 her that all of our communications would be in writing. And I 21 have had no further conversations with her, do not intend to. 22 Everything will be in writing. And I can't imagine that I 23 wouldn't share the -- whatever writings I send to her or she 24 sends to me with counsel. So there will be no - just out of 25 an abundance of caution -- and I see the ODM as a fact- Christa R. Newburg, RMR, CRR, CCR United States Court Reporter11 1 gathering institution, and I'm going to use ODM in a different 2 way than Judge Wright used the ODM, although I'm not 3 criticizing or passing judgment on the way she used it. 4 But if 10 11 12 13 14 that helps you, that's I hope it does. But at any rate. that will be the relationship. MR. HELLER: And I think, your Honor, that addresses Mr. Walker's argument, because our position with Judge Wright IS , the monitor's office is either more like a law clerk and cannot be deposed but can't testify either, or more of a fact gatherer and not so closely related to the Court that testimony would be prohibited. And Judge Wright allowed us to take Ann Marshall's deposition. her testimony. We've done it once in anticipation of So your ruling is entirely consistent with what Judge Wright had previously ordered. And in any event, I can 5 6 7 8 9 15 say right now that if interviews can be arranged, I won't be 16 17 asking for a deposition. I will be perfectly satisfied with an interview. But only in the event that we couldn't reach an 18 agreement about arranging an interview -- 19 20 THE COURT: Let me ask you this, Mr. Heller: Assuming you wanted to discuss conversations. you or 21 Mr. Walker, either one, that Ms. Marshall had had with Judge 22 Wright, I don't see how that would be relevant now that I'm the 23 trier of fact. So that's something that I want to avoid being 24 delved into if a deposition is allowed. 25 MR. HELLER: I agree that would not be relevant. Christa R. Newburg, RMR, CRR, CCR United States Court Reporter1 2 3 4 5 6 12 again. shot. THE COURT: All right. Well, I'm going to flip-flop Y'all are going to give me a nervous breakdown. MR. WALKER: THE COURT: Don't do it yet. All right. I'll give Mr. Walker one last MR. WALKER: This is not a subject that I asked that 7 should be dealt with perhaps today. 8 9 I think that the Court of Appeals was very clear about what it wanted monitoring to do. There was a special concurrence from Judge Wollman in the -- 10 11 THE COURT: I'm familiar with that concurrence. MR. WALKER: -- that anticipated that monitoring 12 would be conducted in a certain manner, and the manner that it 13 was being conducted has, in effect, been approved by the Court 14 of Appeals. Now, if it's to be changed, then I would certainly 15 think that the Court ought to at least invite the positions of 16 the parties in writing and a brief on the subject so that we -- 17 18 19 20 21 22 23 24 25 THE COURT: MR. WALKER: On what subject? On the subject of the way the monitors should react or act with the Court. Recall in this situation. your Honor, there is a situation where once when Little Rock came to court and demonstrated that it was not aware of all the employees they had, even the total number and what they were doing and things like that. Judge Wright then gave the office a function that was to do an investigation and to do things, and then she had hearings on those things. The Christa R. Newburg, RMR, CRR, CCR United States Court Reporter1 13 role of the monitor is distinctly different from that of 2 a party where orders are given and things --so what we'd like to 3 4 do is at least preserve that. In the field of desegregation 10 11 12 law, monitors me to do. THE COURT: MR. WALKER: I'm not understanding what you're asking I'm asking that you do nothing to change the way that that office operates. Because if you say that you're going to - THE COURT: I'm not changing the way, as far as I know. MR. WALKER: Even if you communicate with them and 5 6 7 8 9 13 communicate with them each time in writing, I think that that's 14 not something that should be necessarily -- 15 16 is saved. THE COURT: Your objection is noted. Your exception You can file a motion for reconsideration if you 17 want to, but I've made my mind up on that at this point, and 18 you can file a motion and -- but don't do it with a great deal 19 20 21 of optimism. But feel free to do it. MR. WALKER: Here's the reason I raise the issue THE COURT: I've decided on that issue, Mr. Walker. 22 Put whatever objection you have in your motion for 23 24 25 reconsideration. We need to move on to some other issues. MR. WALKER: Half a minute, please? THE COURT: Yes. Christa R. Newburg, RMR, CRR, CCR United States Court Reporter I I I14 1 MR. WALKER: We have the matter of -- the ruling here 2 necessarily has to apply to the other districts as well. 3 THE COURT
Absolutely. 4 MR. WALKER: We have the matters of Pulaski County 5 that are still pending. There is no motion before the Court. 6 7 The role of the monitor there would seem to be being limited by the Court's ruling now because -- 8 10 11 12 13 14 THE COURT: MR. WALKER: THE COURT: Put that in your motion. All right, your Honor. Thank you. All right. All right. I want to remind the parties, I've said it several times in writing, and Judge Wright said it, but I want to remind you at the outset of that, we have three discrete issues left, and one of them is advanced placement courses, another is extracurricular activities. the 9 15 third is guidance and counseling. And then, of course, we have 16 good faith, but only as good faith applies to those one, two. 17 three things that I just mentioned. And we have academic 18 achievement on the table, but only as it relates to those 19 three one, two, three issues. As Mr. Walker just noted. 20 this applies to both sides with equal force. 21 Now, as I have read the transcript, the issues tried to 22 23 conclusion, and I emphasize the phrase "to conclusion. II by Judge Wright were lack of good faith under Section 2.1
two. 24 25 improving African-American achievement, lack of good faith by the Little Rock School District
and, three, student Christa R. Newburg, RMR, CRR, CCR United States Court Reporter1 2 15 discipline. Now, those issues are closed. They've been tried to conclusion, save and except the 30 minutes for rebuttal 3 which we will start the hearing a week from Monday with. 4 All right. Now, I want to turn to Mr. Pendley's letter 5 which was in response to the letter I got out about one o'clock 6 yesterday. Let me find Mr. Pendley's letter. It's dated July 7 11. 8 Now, on the first page, there's a reference to Joshua's 9 witness list and a reference to Ms. Sharon Brooks. 10 It appears to me that Mr. Walker's testimony would go to student 11 discipline there. If that's true, I think it would be 12 appropriate to object at the trial, but I don't know that I 13 14 need to deal with it now. If anybody thinks I do. I'll hear from you. But if it does go to student discipline. I'm likely 15 to exclude it at the trial. 16 17 18 MR. WALKER: THE COURT: MR. WALKER: Your Honor, may I be heard? You may. Some of these matters overlap. A matter 19 that may be related to student discipline may also relate to 20 counseling. And I would say in this situation, the discipline 21 part of this 22 23 THE COURT: Related to guidance and counseling? MR. WALKER: Yes, sir. And the first part of it. 24 where students collectively are punished for ringing an alarm 25 by putting them in a room with an aide for two months where Christa R. Newburg, RMR, CRR, CCR United States Court Reporter10 16 there's no record of the discipline appears to be disciplinary. But at the same time, it certainly goes to the educational experience and the need for there to have been at least some counseling with respect to what those -- the educational needs of those children were and how they were being addressed. we say that it has two purposes. The first, on discipline, So though, has to relate -- you remember, you've seen the records. They have disciplinary records showing students who are suspended for this, this, and this. Normal discipline relations, those kinds of things. But putting kids in a room 1 2 3 4 5 6 7 8 9 11 where they -- where there's no record of it clearly is 12 13 14 15 16 17 18 19 20 discipline. but it is also something else. THE COURT: I'm going to think about that issue. inclined to think that I'm relates directly to discipline, but I'll think about it and we'll take it up at the trial. Mr. Heller address it right now, briefly. MR. HELLER: I'll let if he wishes to. Thank you, your Honor. I would just like to point out that at the last hearing, Mr. Walker argued that this was a discipline issue, and he presented evidence about it and argued about it and argued precisely what he just 21 told the Court, that this is - this situation, he alleges. was 22 a way to avoid the recorded discipline statistics but was 23 nonetheless discipline. I think it's going to be easy for him 24 to say anytime something happened to any student at any time in 25 the district, whether it relates to academic achievement or Christa R. Newburg, RMR, CRR, CCR United States Court Reporter10 11 17 some issue that's already been litigated, oh, by the way, they missed some counseling or could have been counseled otherwise. But I don't think that draws it into the scope of any legitimate objection he might have about guidance and counseling. THE COURT: this issue. Mr. Walker, you're on the downside of If you want to submit a trial brief to me to try to get me in a right frame of mind, in your view, by trial day. do a -- and this applies to either side. If you want to do another trial brief, get it to me by noon Wednesday of next week. By noon Wednesday. And I will guarantee you I will -- 1 2 3 4 5 6 7 8 9 12 if it's not too long, I will have read your brief and your 13 citations of authorities. if you will avoid string cites. On 14 string cites, I read only the first one and sometimes the 15 second one. 16 17 18 19 Now we come to exhibits not directly related. some of them have been withdrawn and so forth, but right. Let's go to No. 746. MR. HELLER: And I think all Your Honor, there was one other witness 20 mentioned in Mr. Pendley's letter, and that's Ethel Dunbar. 21 THE COURT: Yes. I don't believe that it' s Yes. 22 my opinion, and, again, you can put this in the trial brief. 23 24 Mr. Walker, if you think I am wrong-headed on this issue, that what it looks like what Ethel Dunbar would testify to goes 25 to the gifted and talented issue, as far as I'm concerned. 1 I Christa R. Newburg, RMR, CRR, CCR United States Court Reporter t1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18 That's not on the table. If you want to persuade me otherwise, you can put it in the trial brief. Let's go to the exhibits now. 746. I'm having a hard time reading my -- what is 746, Mr. Walker? Why don't you just hand me a copy of it so I can look at it? MR. WALKER: Your Honor THE COURT: can hand me? MR. HELLER: THE COURT: annotations on there. MR. HELLER: THE COURT: MR. WALKER: a copy of it. THE COURT: Does the school district have Yes, your Honor. a copy you If you've got any of your inked I don't want to see them. I've got a circle and an underline. I promise not to accept your emphasis. Your Honor, we have given you our copy, I just don't have it out here with me. and I just -- I need to look at something. MR. WALKER: MR. PENDLEY: MR. HELLER: is merely highlighted. MR. WALKER: THE COURT: sure. MR. HELLER: This one has been Here you go. We'll give you Mr. Pendley's copy, which Is this the new number given by your -- I think this is the old number. I'm not That's correct, your Honor. Our Christa R. Newburg, RMR, CRR, CCR United States Court Reporter19 1 objections use the old numbers. 2 3 over. THE COURT: 746 . All right. I'm working my way Mr. Walker, if you'll approach the lectern. Are you 4 telling me you don't have a copy either, Mr. Walker? 5 MR. WALKER: No, no. We have a copy, but we have 6 taken the old exhibits -- after your courtroom deputy told us 7 the new numbers, we changed them. 8 THE COURT: Okay. I'll give you time to get your sea 9 legs. 10 MR. WALKER: What is now 747 was 746. I don't 11 understand the objection. 12 13 THE COURT: All right. I'll have him state his objection then. Mr. Heller -- why don't you stand aside. 14 Mr. Walker, and let him state his objection. 15 16 MR. WALKER: All right. MR. HELLER: Your Honor, our objection is that 17 Exhibit 746, using the old number, relates to ALT testing and 18 not to any of the issues before the Court for next week. 19 MR. WALKER: Your Honor, if you look at that exhibit. 20 we're looking at the way the district has referred to the 21 numbers that are related -- I don't see anything in 746 in the 22 middle of the page which happens to be -- and I stand to be 23 corrected, the e-mail from Babbs to Kathy Lease. 24 25 THE COURT: You're going to have to -- I'm computer illiterate, Mr. Walker. You're going to have to quote the Christa R. Newburg, RMR, CRR, CCR United States Court Reporter10 11 12 13 14 15 16 17 18 19 20 21 22 20 language. I can't tell on e-mails from who to what unless it's written on there. MR. WALKER: Mr. Babbs, your Honor, is the person responsible for monitoring desegregation compliance. THE COURT: MR. WALKER: THE COURT: MR. WALKER: And he sent something to Kathy Lease. It apparently comes from Babbs to Lease. Right. And the third paragraph says, "It would be appropriate to list current data that is available. Be reminded that when writing materials for our report submission. we will include district-wide numbers. We may not be there yet, but this will help serve as an indicator of established baseline information from which we will jump off." Now, this relates to, your Honor, the data that relates to pre-AP and AP courses, along with some other data, but it will be related to testimony regarding advanced placement. will be related to extracurricular activities. It also So you'11 understand the concept, when you've got two black schools. McClellan and Fair, for all practical purposes, when you lump the extracurricular participation from those schools with the other schools, it gives a picture of real inclusivity. If you take it out. it may not. When you lump the -- when you do a 1 2 3 4 5 6 7 8 9 23 lumping process, we're saying that it gives a false picture. 24 There was an intent here. and this goes -- this is an 25 intent, it goes to good faith, an intent to make a presentation Christa R. Newburg, RMR, CRR, CCR United States Court Reporter1 21 of a reality that did not exist. 2 3 THE COURT: All right. Mr. Heller? 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HELLER: Your Honor, Mr. Walker's explanation shows why this exhibit should be excluded. When we objected to their response was that it was related to extracurricular activities. Now the first thing that he said was that it's related to advanced placement and pre-advanced placement. not related to any of those things. and the compilation of documents. It' s It's related to testing It doesn't have anything specifically to do with any of the issues before the Court. Mr. Walker has now given the Court two different explanations of how it relates, none of which can be shown from the face of the exhibit. THE COURT: All right. I don't believe I need briefs on this one. forthwith. I will do a letter order ruling on that Mark No. 746 down and remind me so I don't -- with the other issues involved so I get right on it. I think it's already been noted, but I want to re-note it. It's now 747 under the new numbering system. All right. 754 . MR. WALKER: THE COURT: MR. WALKER: Mr. Walker, will you comment on 754? Yes, sir. Which now is what? It should be 755, if I'm not mistaken. MR. PRESSMAN: Same number. 4 5 6 7 8 9 it, Christa R. Newburg, RMR, CRR, CCR United States Court Reporter1 2 3 4 5 6 7 22 THE
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