Unitary status: ''Motion for an Immediate Declaration of Unitary Status''

United States District Court, Eastern Arkansas District of Arkansas, Western Division
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROC SCHOOL DISTRICT PLAINTIFF V. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT 1, ET AL RECEIVED MRS. LORE,NE JOSHUA, ET AL MAR 1 5 2002 DEFENDANTS KATHERDJT KNIGHT, ET AL OFRCEOF DESEGREGATION MONITORING INTERVENORS INTERVENORS MCl'ION FOR AN IMMEDIATE DECLARATION OF UNITARY STATUS Plaintiff Little Rock School District ("LRSD") for its Motion for an Immediate Declaration g. Unitary Status states: 1. Che LRSD moves for an immediate declaration of unitary status and an end to court superx uion based on its substantial compliance with the Revised Plan in accordance with ' Revised Plan 11, which provides: At th'^ conclusion of the 2000-01 school year, the district court shall enter an order relf-a.".ng LRSD from court supervision and finding LRSD unitary with regard to all aspects of school operations provided that LRSD has substantially complied witli Its obligations set forth in this Revised Plan. In anticipation of release, LRSC shall issue a report on March 15, 2001 indicating the state of LRSD's compliance with the Revised Plan. Any party challenging LRSD's compliance bears the burden of proof. If no party challenges LRSD's compliance, the above- descnbed order shall be entered without further proceedings. 2. The LRSD reported on March 15, 2001, that it had substantially complied with the Revises! Pisa. See Docket No. 3410. 3. The Joshua Intervenors ("Joshua") challenged the LRSD's compliance with a limited number of Revised Plan sections. See Docket No. 3447. 4. In proceedings before the Honorable Susan Webber Wright, the Court heard five and one-halt days of testimony and received 201 exhibits on the Revised Plan sections covering academic achievement ( 2.7), program assessment ( 2.7.1) and.student discipline ( 2.5 -2.5.4). The LRSD should be granted unitary status with regard to these Revised Plan sections based on the record of those proceedings. Joshua failed to come forward with any evidence that the LRSD failed to comply with those sections or that would cast doubt on the LRSD's intent to comply with the Constitution in the future absent court supervision. 5. Additionally, the LRSD should be granted summary judgment as to all remaining Revised Plan sections with which Joshua challenged the LRSD's compliance. The discovery process revealed that Joshua has no evidence that would cast doubt on the LRSD's intent to comply with the Constitution in the future absent court supervision. As a result, there are no material factual disputes, and additional hearings are unnecessary. 6. Finally, the LRSD should be granted unitary status with regard to those Revised Plan sections to which no party filed a timely challenge to the LRSD's compliance. See Revised Plan 11. 7. The accompanying brief and the attached exhibits are hereby incorporated by reference. WHEREFORE, the LRSD prays that an Order be entered without further evidentiary hearings granting the LRSD unitary status and releasing the LRSD from court supervision and that it be awarded all other just and proper relief to which it may be entitled. Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT Friday, Eldredge & Clark Christopher Heller (#81083) John C. Fendley, Jr. (#92182) 2000 Regions Center 400 West Capitol Little Rock, AR 72201-3493 (501) BVi Christopher Heller 2 ACERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the United States mail on March 15, 2002: Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey & Jennings 2200 Worthen Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON & JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 Little Rock, AR 72201 Ms. Ann Marshall (hand-delivered) Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Mark Hagemeier Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 stopher Heller 3 1 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. LET AL RECEIVED DEFENDANTS MRS. LORENE JOSHUA, ET AL MAR 1 5 2002 INTERVENORS KATHERINE KNIGHT, ET AL OFFICE OF DESEGREGATION MONITORING INTERVENORS STATEMENT OF MATERIAL FACTS NOT IN DISPUTE SUBMITTED IN SUPPORT OF MOTION FOR AN IMMEDIATE DECLARATION OF UNITARY STATUS Plaintiff Little Rock School District ("LRSD") for its Statement of Material Facts Not In Dispute Submitted in Support of Motion for an Immediate Declaration of Unitary Status states: 1. 2. The LRSD substantially complied with its Revised Desegregation and Education Plan. There is no reason to doubt the LRSD Board of Directors' intent to comply with the Constitution in the future absent court supervision. WHEREFORE, the LRSD prays that an Order be entered without further evidentiary hearings granting the LRSD unitary status and releasing the LRSD from court supervision and that it be awarded all other just and proper relief to which it may be entitled.Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT Friday, Eldredge & Clark Christopher Heller (#81083) John C. Fendley, Jr. (#92182) 2000 Regions Center 400 West Capitol Little Rock, AR 72201-3493 (501) 37^,2&tt--~\ BY:, istopher Heller 2CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the United States mail on March 15, 2002: Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey & Jennings 2200 Worthen Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON & JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 Little Rock, AR 72201 Ms. Ann Marshall (hand-delivered) Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Mark Hagemeier Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Christopher Hei 3 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. LR-C-82-866 RECEIVED PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. LET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL MAR 1 5 2002 office OF desegregation monitoring DEFENDANTS INTERVENORS INTERVENORS 1. MEMORANDUM BRIEF IN SUPPORT OF MOTION FOR AN IMMEDIATE DECLARATION OF UNITARY STATUS Introduction. On April 10, 1998, this Court granted the joint motion of the Little Rock School District ("LRSD") and the Joshua Intervenors ("Joshua") and approved the LRSD's Revised Desegregation and Education Plan ("Revised Plan"). See Docket Nos. 3107, 3136 and 3144. The Revised Plan expired by its own terms on May 31,2001, the last day of classes for the 2000- 01 school year. See Revised Plan 9. The LRSD moves for an immediate declaration of unitary status and an end to court supervision based on its substantial compliance with the Revised Plan in accordance with Revised Plan 11. Section 11 of the Revised Plan provided: At the conclusion of the 2000-01 school year, the district court shall enter an order releasing LRSD from court supervision and finding LRSD unitary with regard to all aspects of school operations provided that LRSD has substantially complied with its obligations set forth in this Revised Plan. In anticipation of release, LRSD shall issue a report on March 15, 2001 indicating the state of LRSD's compliance with the Revised Plan. Any party challenging LRSD's compliance bears the burden of proof. If no party challenges LRSD's compliance, the abovedescribed order shall be entered without further proceedings. The LRSD reported on March 15,2001, that it had substantially complied with the Revised Plan. See Docket No. 3410. Joshua challenged the LRSD's compliance with a limited number of Revised Plan sections. See Docket No. 3447. Joshua bears the burden of proving that the LRSD failed to substantially comply with those Revised Plan sections. See Revised Plan 11. Unitary status should be granted if the Court finds either that the LRSD complied with those Revised Plan sections challenged by Joshua or that the LRSD's noncompliance does not cast doubt on the District's intent to comply with the Constitution absent court supervision. See Cody v. Hillard. 139 F.3d 1197, 1199 (8* Cir. 1998). In proceedings before the Honorable Susan Webber Wright, the Court heard five and one- half days of testimony and received 201 exhibits on the Revised Plan sections covering academic achievement ( 2.7), program assessment ( 2.7.1) and student discipline ( 2.5 - 2.5.4). The LRSD should be granted unitary status with regard to these Revised Plan sections based on the record of those proceedings. Joshua failed to come forward with any evidence that the LRSD failed to comply with those sections or that would cast doubt on the LRSD's intent to comply with the Constitution absent court supervision. Additionally, the LRSD should be granted summary judgment as to all remaining Revised Plan sections with respect to which Joshua challenged the LRSD's compliance. The discovery process revealed that Joshua has no evidence that would cast doubt on the LRSD's intent to comply with the Constitution in the future absent court supervision. As a result, there are no material factual disputes, and additional hearings are unnecessary. Cody, 139 F.3d at 1200 ("They do not cite any cases stating that a hearing is a necessary prerequisite to terminating supervision of a decree.... At any rate, the necessity of a hearing depends on whether there are disputed factual issues."). Finally, the LRSD should be granted unitary status with regard to those Revised Plan sections to which no party filed a timely challenge to the LRSD's compliance. See Revised Plan 11. 2t I : f' r-' n. Discussion. A. Background. 1. 1954 Through 1972. I ( r (' On May 20, 1954, three days after the Supreme Court's landmark decision in Brown v. Board of Education. 347 U.S. 483 (1954), the LRSD released a public statement declaring its intent to comply with the Constitution and to integrate the LRSD. See Aaron v. Cooper, 156 F. Supp. 220,222-23 (E.D. Ark. 1957). The first LRSD desegregation plan was adopted in 1956 and was approved by the Eighth Circuit in 1957. See Cooper v. Aaron, 243 F.2d 361 (8th Cir. 1957). That plan called for gradual desegregation based on geographic attendance zones and was to be fully implemented by 1963. Id. Governor Orval Faubus' attempt to block implementation of this plan resulted in the infamous "crisis" at Central High School in 1957. However, as noted by the Supreme Court in Cooper v, Aaron, 358 U.S. 1,9 (1958), "the Governor's action had not I been requested by the school authorities, and was entirely unheralded. (I 1 In 1966, the Eighth Circuit approved, with two minor modifications, a "freedom of choice" desegregation plan for the LRSD. See Clark v. Little Rock School District. 369 F.2d 661 (8th Cir. 1966). The Eighth Circuit noted the LRSD's good faith commitment to desegregation: Many of the problems encountered are not of the Board's making or choosing and, we believe, the Board has evidenced a genuine desire to follow the commands of the Brown case to ultimately place into effect a non-racially operated school system. Id., at 666. The freedom of choice plan was in effect through the 1968-69 school year. In 1968, the Supreme Court held that "freedom of choice" plans, standing alone, failed to satisfy the constitutional obligation of school districts formerly segregated by law. See Green County Sch. Bd. of New Kent County, 391 U.S. 430,439-440 (1968). Accordingly, the LRSD developed a new desegregation plan based on geographic attendance zones for the V. 1969-70 school year. See Clark v. Little Rock School District. 426 F.2d 1035 (Sth Cir. 1970). Due to segregated housing patterns which existed in Little Rock at that time, however, a number 3of racially identifiable schools remained under this plan, and the Eighth Circuit found this plan to be "constitutionally infirm." Cl^, 426 F.2d at 1044. The LRSD began massive crosstown busing of students to achieve racial balance in grades 6 through 12 in the 1971-72 school year. Clark v. Little Rock School District. 328 F. Supp. 1205, 1209 and 1214 (E.D. Ark. 1971). Racial balance was achieved in grades 4 and 5 by means of crosstown busing in the 1972-73 school year. See Clark v. Little Rock School District. 465 F.2d. 1044,1046 (8th Cir. 1972). By the 1973-74 school year, all LRSD schools and all LRSD grade levels were racially balanced. S^ Exhibit 1 attached. Memorandum and Order filed July 9,1982, p. 16. 1. 1973 Through 1982. The LRSD maintained almost perfect racial balance in its schools from 1973 through 1982 with voluntary periodic adjustment of attendance zones. The district court in Clark noted that the Little Rock School District has operated in compliance with court decrees for nine years as a completely unitary desegregated school system . . . ." See Exhibit 1, p. 16. Despite nine years of successful desegregation, however, the LRSD was on its way to becoming a one race school district. In the fall of 1971, the LRSD was 42% black. In each year from 1971 through 1981, the number of black students increased while the number of white students decreased. Exhibit 2 attached, Austin Study, p. 17. In the fall of 1981, 76% of elementary students were black and 55% of high school students were black. See Little Rock School District v. Pulaski County Special School District. 584 F. Supp. 328, 335 (E.D. Ark. 1984)("LRSD v. PCSSD"). If existing trends continued, it was expected that 90% of the students entering the first grade in the LRSD in the fall of 1989 would be black. See Exhibit 2, p. 19
also LRSD v. PCSSD. 584 F. Supp. 328, 351 (E.D. Ark. 1984)("The Little Rock School District in spite of its good faith efforts to comply with orders of this court and to establish a unitary school system will become a segregated all-black district in a few years if present trends continue, which appears highly likely."). 4 I i r
( - 1 In early 1981, the LRSD commissioned a study of desegregation in the LRSD by the Desegregation Assistance Team from Stephen F. Austin University (the "Austin Study"). The Austin Study concluded that the demographic trends which accounted for the decrease in white enrollment in the LRSD were "long-term" and "deeply rooted," and as a result, [t]hey are not likely to be fundamentally altered by any change in the desegregation plan within the city.... The changes are rooted in migration patterns, housing segregation practices, changing birth rates, factors that determine the location of new private market housing, and decisions on the location of new subsidized housing." Exhibit 2, p. 28. The "fundamental" problem, according to the study, "has been the school board's inability to expand its boundaries in pace with a very rapidly expanding urban area." Exhibit 2, p. 28. Thus, the Austin Study concluded that the LRSD had done all it could do within its borders to desegregate its schools and that, if the LRSD's accomplishments were not to be undone by the "vast forces of demographic change," the LRSD would have to seek an interdistrict remedy. See Exhibit 2, p. 28. As an initial step to stem the tide of white flight, the LRSD adopted the Partial K-6 Plan on April 26, 1982. Under this plan, the LRSD created twelve K-6 neighborhood schools and retained fourteen paired schools with grades K-3 at one site and grades 4-6 at another. Eight of the 12 neighborhood schools were racially balanced and four were virtually all black. The plan converted Booker from a junior high school to an intermediate school. Finally, the Partial K-6 Plan provided for the creation of a magnet school west of University Avenue and required that committee be appointed to ensure that the four virtually all black schools would be treated a equally. Sgg Clark v. Little Rock School District. 705 F.2d 265 (Sth Cir. 1983). The Partial K-6 Plan was approved by the Eighth Circuit in 1983. Clark. 705 F.2d at 272. 3. Interdistrict Relief. In late 1982, the LRSD filed the present case against the Pulaski County Special School District ("PCSSD"), the North Little Rock School District ("NLRSD") and the State of Arkansas seeking consolidation of the three school districts into one metropolitan school district and state 5funding to assist in eliminating any remaining vestiges of segregation in the three school districts. On April 13,1984, the Honorable Henry Woods foimd the PCSSD, the NLRSD and the State of Arkansas liable for interdistrict constitutional violations. LRSD v. PCSSD. 584 F. Supp. at 328. Judge Woods ordered consolidation of the three districts in a memorandum opinion dated November 19,1984. LRSD v. PCSSD. 597 F. Supp. 1220 (E.D. Ark. 1984). The Eighth Circuit reversed Judge Woods' consolidation order a year later, finding consolidation too drastic a remedy. LRSD v. PCSSD. 778 F.2d 404 (8th Cir. 1985). In reversing, the Eighth Circuit ordered as part of a comprehensive interdistrict remedy that each district II. 'revise its attendance zones so that each school will reasonably reflect the racial composition of its district" and permitted a variance of plus or minus 25% of the minority race. Id., 778 F.2d at 435. See LRSD v. PCSSD. 839 F.2d 1296, 1305 (8th Cir. 1988). The Eighth Circuit also ordered the adjustment of district boundaries, making the LRSD coterminous with the City of Little Rock. LRSD V. PCSSD, 778 F.2d at 435. Recognizing the need for the LRSD to grow with the City of Little Rock, Judge Woods interpreted the Eighth Circuit's order to require the automatic expansion of the LRSD upon expansion of the City of Little Rock. Unfortunately, the Eighth Circuit disagreed with Judge Woods' interpretation and effectively eliminated further boundary changes as a means to desegregating the LRSD. See LRSD v. PCSSD. 805 F.2d 815, 816 (8^ Cir. 1986). The LRSD's "controlled choice" desegregation plan was approved by Judge Woods on February 27, 1987. Docket No. 739. Under this plan, the LRSD was divided into two attendance zones of approximately equal racial balance. Students were assigned to schools so that each grade at each school reflected the racial balance within that attendance zone. After a student was assigned to a particular school, the student's parents could request reassignment to another school within their attendance zone. That request would be granted so long as each school would remain within a range of plus or minus one-eighth of the black student population at the school. Additionally, the plan provided for eight magnet schools (four elementary, two 6junior high and two high schools) with seats reserved for students of each of the three Pulaski County school districts. The target racial composition of the magnet schools was 50%-50%. A Magnet Review Committee was established with representatives of each of the three districts. Joshua and the Knight Intervenors were each granted a non-voting member on the committee This plan was implemented beginning with the 1987-88 school year. Docket No. 670. The controlled choice plan resulted in many central and east Little Rock schools having fewer than fifty white students. The LRSD submitted a new desegregation plan for the 1988-89 year which was approved by Judge Woods. The 1988-89 school year was to be a "stabilizing year" to allow the LRSD to carefully plan for the 1989-90 school year and beyond. S^ LRSD v. PCSSD, 716 F. Supp. 1162, 1188 (E.D. Ark. 1989). Negotiations related to the development of a long-term desegregation plan for the LRSD culminated in a settlement agreement in March of 1989 (the "Settlement Agreement").' The Settlement Agreement also included desegregation plans for the PCSSD and the NLRSD, as well as an interdistrict desegregation plan. 4. 1989 Settlement Agreement. The LRSD's 1989 desegregation plan reflected the fact that the LRSD was, and had been for some time, imitary with regard to student assignments, faculty and staff. See Exhibit 1, p. 18. While these areas had been the focus of past desegregation plans, the 227-page 1989 plan contained only a six-page section on student assignments and no separate section specifically dedicated to the hiring and assignment of faculty and staff. The 1989 desegregation plan focused instead on secondary desegregation issues, such as improving Afiican-American academic achievement. The Settlement Agreement was initially rejected by Judge Woods who ordered implementation of a more comprehensive plan known as the Tri-District Plan. The parties appealed, and the Settlement Agreement as originally written was approved by the Eighth Circuit A revised Settlement Agreement was agreed to by the parties on September 28, 1989. None of the revisions are relevant to this motion. "Settlement Agreement" as used hereinafter shall refer to the agreement as revised September 28,1989. 7in December of 1990. LRSD v. PCSSD, 921 F.2d 1374 (8th Cir. 1990). In approving the Settlement Agreement, the Eighth Circuit recognized that, "It may be necessary, in order to make a smooth transition, for the details of the settlement plans to be adjusted to produce an appropriate fit between their future application and existing circumstances." Id., at 1394. Judge Woods recused following the Eighth Circuit's December 1990 decision, and the case was reassigned to the Honorable Susan Webber Wright. S^ LRSD v. PCSSD. 740 F.Supp. 632 (E.D. Ark. 1990). The parties agreed to modifications to the desegregation plans and submitted them to Judge Wright for approval. On June 21, 1991, Judge Wright rejected the modifications, finding that they exceeded the authority granted by the Eighth Circuit. LRSD v. PCSSD. 769 F. Supp. 1483 (E.D. Ark. 1991). The parties appealed, and on November 14, 1991, the Eighth Circuit vacated Judge Wright's opinion and remanded for consideration of the proposed modifications based on the analysis set forth in its opinion. Appeal of LRSD. 949 F.2d 253 (Sth Cir. 1991). On May 1,1992, Judge Wright issued an order approving in part and rejecting in part the revised desegregation plans. No appeal was taken. 5. Implementation of the 1989 Plan. The Settlement Agreement required the LRSD to implement its 1989 desegregation plan for six years.^ The parties agreed, in effect, that implementation of the plan would eliminate to the extent practicable any remaining vestiges of discrimination resulting from the interdistrict constitutional violations by the defendants. See Settlement Agreement, p 1. Because the Tri-District Plan was substantially similar to, but more comprehensive than, the LRSD's 1989 desegregation plan, the LRSD considered implementation of the Tri-District Plan during the The six-year term of the plan was one of the primary reasons that the Settlement Agreement was rejected by Judge Woods. S^ LRSD v. PCSSD, 716 F. Supp. at 1167 ("LRSD admits that the double funding is guaranteed for only six years, but contends that it 'retains its comrnitment to provide compensatory and enhancement funding to any school which might remain racially identifiable.' That commitment does not appear in the plan."). The LRSD argued to Judge Woods that its six-year plan could be successful: "We think a six-year plan can succeed where a one-year plan has failed. There are several components in place to help us assure the Court that a six-year plan can succeed." Tr. May 30, 1989, p. 13. 8f f i t 1990-91 school year as the first year of implementation of its six-year desegregation plan. During the 1995-96 school year, the LRSD conducted an audit of its desegregation obligations and found that it had substantially and in good faith complied with 96% of its desegregation obligations. See Exhibit 3 attached, p. 1. Accordingly, on May 17, 1996, the LRSD moved for a declaration of unitary status and an end to federal court supervision. See Docket Nos. 2665 and 2666. ( Without a hearing. Judge Wright denied the LRSD's Motion to End Federal Court Supervision, finding "nothing in the settlement plans which would release the LRSD from the Court's jurisdiction after six years of implementation of the plans." See Docket No. 2821, p. 10. Although Judge Wright recognized that the LRSD compared favorably to other urban school districts already declared unitary. Judge Wright focused on the ambitious "goals" of the 1989 plan. See Docket No. 2821, p. 12. Judge Wright stated, "Reports of the Office of Desegregation Monitoring and other evidence received in hearings in this matter reflect that the LRSD has fallen short of its goals with respect to many aspects of the plan." Id. In conclusion. Judge Wright invited the parties to modify those parts of the LRSD desegregation plan which had proved "ineffective and unworkable." Id. 6. The Revised Plan. t f Rather than appeal Judge Wright's denial of unitary status, the LRSD decided to work with Joshua to reach an agreement for ending more than 40 years of federal court control of the LRSD. On January 21,1998, the LRSD and Joshua filed a joint motion seeking approval of the LRSD's Revised Desegregation and Education Plan. See Docket No. 3107. The Revised Plan addressed numerous deficiencies in the 1989 desegregation plan. First, to prevent the plan's express or implied goals from being construed as obligations, the Revised Plan included a footnote which stated: The identification of specific goals in this Revised Plan is not intended to create an obligation that LRSD shall have fully met the goal by the end of the plan's term. LRSD's failure to obtain any of the goals of this Revised Plan will not be considered a failure to comply with the plan if LRSD followed the strategies 9r- f r described in the plan and the policies, practices and procedures developed in accordance with the plan. Revised Plan, p. 14 n.2. Second, the 277-page 1989 plan included too much detail and provided too little flexibility. The Revised Plan simply obligated the LRSD to implement "programs, policies and/or procedures" in 13 different areas. See Revised Plan 2. With some exceptions, the LRSD had discretion to determine the "programs, policies and/or procedures" to be implemented. The Revised Plan included a process by which Joshua or any other party could raise compliance issues, including a failure by the LRSD to adopt or implement the required programs, policies and/or procedures. See Revised Plan 8.2 and 8.3. The LRSD also agreed in advance to pay Joshua to monitor the LRSD's compliance with the Revised Plan, and Joshua billed the LRSD for monitoring the LRSD s Compliance. See Exhibits 7 and 8 attached. Even so, Joshua raised no objection to the programs, policies or procedures implemented by the LRSD during the term of the Revised Plan. Finally, the Revised Plan included a definite term and a process for terminating federal court supervision at the conclusion of that term. The term of the Revised Plan was "three (3) years beginning the 1998-99 school year and ending the last day of classes of the 2000-01 school year. See Revised Plan, 9, The last day of classes for the 2000-01 school year was May 31, 2001. Section 11 of the Revised Plan provided
At the conclusion of the 2000-01 school year, the district court shall enter an order releasing LRSD from court supervision and finding LRSD unitary with regard to all aspects of school operations provided that LRSD has substantially complied with its obligations set forth in tliis Revised Plan. In anticipation of release, LRSD shall issue a report on March 15, 2001 indicating the state of LRSD's compliance with the Revised Plan. Any party challenging LRSDs compliance bears the burden of proof. If no party challenges LRSD's compliance, the abovedescribed order shall be entered without fiirther proceedings. See Revised Plan, 11. 7. Status of Current Proceedings. 10r f ( f The LRSD provided the Court and the parties with an Interim Comphance Report on March 15, 2000 ("Interim Report") "to help the District assess its progress toward full compliance and to reassure the court, the parties, and the community of the District's good faith efforts to be in total compliance with the Revised Plan." See Docket No. 3344, Interim Report, p. 1. The Interim Report expressly requested that the parties and other interested persons submit comments on the content or format of the report. Id. No party commented on the Interim Report or otherwise challenged the District's "progress toward full compliance." See Docket No. 3410, Final Report, p. iv. One year later, on March 15,2001, the LRSD reported that it had substantially complied with all provisions of the Revised Plan ("Final Report"). See Docket No. 3410. ( I On Jime 25,2001, and after being granted two extensions of time, Joshua filed a pleading challenging the LRSD's compliance with some, but not all, sections of the Revised Plan. Joshua's challenge included little more than general allegations of noncompliance. Hearings were held on July 5-6, August 1-2 and November 19-20, 2001, on the issues of academic achievement ( 2.7), program assessment ( 2.7.1) and discipline ( 2.5 - 2.5.4). B. Substantial Compliance. I I The Revised Plan does not define "substantial compliance." In Cody v. Hillard, supra. the Eighth Circuit discussed the meaning of the term "substantial" as it related to compliance with and temunation of a consent decree. The consent decree in that case arose out of prison reform litigation in the State of South Dakota. Prison officials moved to terminate the consent decree after operating under the decree for nearly 11 years. The plaintiffs opposed the motion t Judge Wright stated at the conclusion of the November 20,2001, hearing that Joshua could have 25 minutes to present true rebuttal evidence, even though Joshua had used all of their allotted time. Tr. Nov. 20, 2001, 399 and 575. Judge Wright defined rebuttal evidence as evidence necessary to respond to evidence presented by the other side which could not have been anticipated. Tr. Nov. 20, 2001, 399. The LRSD submits that it presented no evidence which could not have been anticipated by Joshua, rendering Joshua's request for rebuttal time moot. The Court could resolve this matter by requiring Joshua to proffer their purported rebuttal evidence as a part of their response to this Motion. 11 and requested a hearing. The district court refused to order a hearing, but ordered the plaintiffs to submit evidence supporting their allegations of noncompliance. Id. at 1198. The plaintiffs filed a report from their expert, Robert Powitz, which stated that he inspected the prison and found It a number of conditions that pose serious health or safety risks," but he failed to specify how those conditions violated the consent decree. The plaintiffs then filed a supplemental brief linking those conditions to provisions of the consent decree. Without a hearing, the district court entered a two-paragraph order terminating the consent decree but making no findings of fact with regard to the conditions identified by Powitz. Id. at 1199. The plaintiffs appealed, and the Eighth Circuit remanded the case for factual findings stating: We cannot determine the basis for the district court's decision from this brief order. The record indicates that there have been failures in the past to comply with the decree and supplemental orders, and that there are 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 considered any violations inconsequential in the context of substantial compliance. If the conditions Powitz complained of constitute violations of the consent decree, the district court must exercise its discretion in determining whether those violations were serious enough to constitute substantial noncompliance and to cast doubt on defendants future compliance with the Constitution. See McDonald Iv. Carnahan], 109 F.3d [1319,] 1322-23 [(8 Cir. 1997)]. Moreover, the ultimate question of whether the defendants are likely to comply with the Constitution in the absence of court supervision is a question of fact, see [Board of Educ. v.] Dowell. 498 U.S. [237,] 247, 111 S.Ct. [630,] 636-37 [(1991)], for which the district court made no finding. Id. at 1199-1200 (emphasis supplied). Therefore, a party to a consent decree substantially complies with the decree so long as the party's noncompliance does not "cast doubt on [the party's] future compliance with the Constitution." Id. See Manning v. The School Bd. of Hillsborough County. 244 F.3d 927,946 (11* Cir. 2001 )("[I]n determining whether a school board has acted in good faith, a court should not dwell on isolated discrepancies, but rather should 'consider whether the school board's policies form a consistent pattern of lawful conduct directed at eliminating earlier violations,"' quoting Lockett v. Bd. of Educ. of Muscogee County. 111 F.3d 839, 843 (11* Cir. 1997)). 12Both the past and recent conduct of the LRSD Board of Directors confirms the District's commitment to complying with the Constitution. Three days after the Supreme Court's 1954 decision in Brown, the LRSD released a public statement declaring its intent to comply with the Constitution and integrate the LRSD. In 1982, the district court in Clark stated that "the Little Rock School District has operated in compliance with court decrees for nine years as a completely unitary desegregated school system . . . ." See Exhibit 1. p. 16. Having done all that it could do on its own, the LRSD filed the present case that same year, seeking and obtaining interdistrict relief. During the term of the Revised Plan, the LRSD Board of Directors ("Board") conducted a comprehensive review of all District policies. See CX 719. Fifteen of the 21 policies making up the District's "Foundation and Basic Commitments" express the District's commitment to fighting discrimination of all types. See CX 719, Section A. Among those were regulations setting forth the District's commitment to comply with the Revised Plan and to establish procediues for employees and patrons to raise compliance issues. See CX 719, Policy ACG-Rl, R2 and R3. The Board institutionalized numerous provisions of the Revised Plan by making them official Board policy. See CX 719."* Finally, in anticipation of being released from court supervision, the Board adopted the "Covenant for the Future" ("Covenant") on January 11, 2001. In the Covenant, the Board promised to continue to exercise its best efforts to: (1) improve the academic achievement of all students, (2) comply with the Constitution and ensure that no person is discriminated against on the basis or race, color or ethnicity in the operation of the District, and (3) provide equitable educational resources, programs and opportunity in a nondiscriminatory environment for all students attending LRSD schools. See Final Report, p. 1, CX 739, and CX 719, Policy AB. 4' 'The following Board policies and regulations come directly from the Revised Plan: ACBB, ACBE, ACG, ACG-Rl, ACG-R2, ACG-R3, GCE, GCE-R, IHBH, JB, JBA, JBA-R, JC, JCA, JI, JJ, JJ-R, JJIA, JJIB, JJIB-Rl, JJIB-R2, JLD, JMA, JMA-R, JRAA, and JRAA-R. See CX719. 13To be sure, the LRSD is not a perfect school system, but the Constitution does not require perfection. See Belk v. Charlotte-Mecklenburg Bd. of Educ.. 269 F.3d 305,335 (4* Cir. 2001) (Traxler, J.)("This is not to say that CMS is a perfect school system - it is not."). The ultimate question is whether the Board can be trusted to comply with the Constitution absent court supervision. In the five and one-half days of hearings held to date, Joshua presented no evidence indicating that it could not. c. Revised Plan Sections Already Litigated. 1. Revised Plan $ 2.7: Academic Achievement. 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. The LRSD identified and described the programs, policies and procedures implemented pursuant to Revised Plan 2.7 in the Interim Report (pp. 41-69 and 93-127) and the Final Report (pp. 51-148). Although Joshua monitored the LRSD's compliance with the Revised Plan and received fees for doing so, Joshua did not raise any objection during the term of the Revised Plan to the programs, policies and procedures pertaining to academic achievement which were outlined in the Interim Report and the Final Report. Tr. Nov. 19,2001, pp. 370-71. Joshua's belated challenge to the LRSD's compliance with 2.7 is based on the long-standing achievement gap between Afiican-American and non-African-American students on standardized tests (hereinafter "achievement gap"). See Docket No. 3447, pp. 28-30. Joshua's challenge fails because the Revised Plan contained no requirement that the LRSD eliminate or reduce the achievement gap. The Revised Plan simply required the LRSD to implement programs, policies and/or procedures designed io improve Afiican-American achievement. See Revised Plan, 2.7. To that end, the LRSD began in the Spring of 1998 what has been perhaps the most comprehensive curriculum reform in the history of the District. As a part of the reform effort, the District adopted research-based teaching strategies that have been proven to be effective in improving 14African-American achievement. Tr. Nov. 19, 2001, pp. 195-210. The District provided its teachers with comprehensive, in-depth professional development. See Final Report, pp. 32-33 (Gifted and Talented), 60-61 (K-12 Social Studies), 67-68 (middle schools), 73 (PreK), 81-90 (early childhood and primary grade literacy), 96-102 (intermediate grade literacy), 109-111 (secondary literacy), 117-123 (math and science) and 138-143 (technology). New instructional materials, including technological applications, were adopted in all curriculum areas. S^ Interim Report, pp. 41-51 (generally), 96-101 (primary language arts), 105-107 (intermediate grades language arts), 109-161 (secondary language arts)
117-118 (K-12 mathematics)
and Final Report pp. 51- 54, 57-59 and 62-65 (generally), 72-73 (early childhood), 75-79 (primary language arts), 93-95 (intermediate language arts), 105-109 (secondary language arts) and 115- 117 and 126-131 (math and science). See also CXs 696, 697, 699 and 714. The District rewrote and began implementation of an instructional technology plan (see Interim Report, pp. 122-126 and Final Report, pp. 136-38 and CX 705, tabs 19 and 20)
restructured its parent involvement program (see Interim Report, pp. 69-77 and Final Report pp. 149-157)
revised the Districts policies and procedures related to teaching and learning (see Interim Report, pp. 17-20 and 93 and Final Report, pp. 51-55). Among the policy changes have been enhanced graduation standards, the design of a recommended curriculum and higher standards for the honors diploma (see Interim Report, pp. 17-20 and Final Report, p. 30), and an emphasis on the improved access to and success in advanced courses by Afiican-American students. See Interim Report, pp. 17-41 and Final Report, pp. 30-50. It is too early to make a final judgment about the success of the LRSD's efforts to improve African-American achievement given the implementation status of the District's reform efforts. Dr. Steven Ross, one of two desegregation experts retained by the LRSD with approval from Joshua, wrote in a September 8,2000, memo: There is substantial rationale, both logical and empirical, for giving programs time to impact student achievement. The first stage of impact is program implementation, the next is changing instruction and/or conditions for learning, and after these effects occur, achievement may be impacted. In our Memphis 15r i f study, it took at least two years for school reform programs to show positive results. In fact, after the first year, achievement went down! This same pattern was replicated with three different cohorts of schools. f ex 702, tab 15. While the LRSD remains in the process of changing conditions for learning, early indications are that the LRSD's reform efforts are working. These include: Improvements in reading achievement at the K-2 level, especially in schools implementing the District literacy model, including Reading Recovery, s^ Interim Report, pp. 90-93, CX 703, tabs 1-27, and Exhibit 4 attached. Year 2 Evaluation: The Effectiveness of the PreK-2 Literacy Program in the Little Rock School District, 1999-2000 and 2000-2001', r Advances in closing the achievement gap in all areas of early literacy in grades K- 2, see Exhibit 4, pp. 81-100
I Improvements in the percent scoring at the proficient/advanced level on both the grade 4 literacy and mathematics state benchmark examinations, see Final Report, pp. 102-104 (language arts), 131-32 (math), CX 704, tabs 7, 12, 13, 15,18, and 19 and CX740
Decreased numbers and percentages of students performing in the below basic level of both the grade 4 literacy and mathematics state benchmark examinations, see Final Report, pp. 102-104 and 131-132 and CX 740
Improvements in the percent scoring at the proficient/advanced level on both the grade 8 literacy and mathematics state benchmark examinations, s^ CX 740
i . Decreased numbers and percentages of students performing in the below basic level of both the grade 8 literacy and mathematics state benchmark examinations, see CX 740
t Tremendous increases in the enrollment of students, including African-American students, in upper-level science and mathematics courses, see Final Report, pp. 126-129 and Exhibit 5 attached, 2000-2001 CPMSA Annual Report-, More than 100 percent increase of Afiican-American students enrolled in Advanced Placement courses at the high school level, see Final Report, pp. 37-39, Exhibit 5 and CX 705, tab 15. Significant increases in the enrollment of Afiican-American students enrolled in Pre-Advanced Placement courses in English, mathematics, science, and social studies at the middle and high school levels, see Final Report, pp. 39-43, Exhibit 5 and CX 705, tab 15
( Significantly more Afiican-American students taking the ACT for college admission, see Final Report, pp. 47-49
Significantly more Afiican-American students taking the Advanced Placement examinations, Final Report, pp. 43-44 and CX 705, tab 15
and 16Increases in the number of volunteer hours recorded by Volunteers in Public Schools, see Final Report, p. 157. While the LRSD believes these indicators portend improving Afiican-American achievement, factors beyond the LRSD's control make it unlikely that the achievement gap will be eliminated in the near future. In 1996, Judge Wright called Dr. David Armor and Dr. Herbert Walberg as court-appointed experts. Both testified that, given the current socioeconomic differences between Afiican-Americans and whites, it is impossible to eliminate the achievement gap. Dr. Armor testified: Q Doctor Armor, if I understood correctly yesterday, did you testify that, to your knowledge, there's no desegregation plan that has ever overcome the achievement gap between black and white students, that you're aware of? A That I'm aware of, yes. Q And I think you also testified that making the achievement gap zero is virtually impossible? A Well, impossible as long as there are socioeconomic differences between black and white families that exist today in this country. Tr. May 15,1996, p. 152-53. Dr. Walberg explained: Well, as an educational psychologist, I would like to have all students learn as much as they possibly can. But given the fact that students spend only about ten percent of their time in school, to say that a school district can remove the achievement gap between blacks and whites, I think, is too much. I think it's making a promise that can't be kept. If 90 percent of the students' time is outside of the school, where there are many other factors that affect the students' learning and capacity to learn, I think that it's an impossible promise to keep. Tr. May 13,1996, p. 33. Joshua may argue that the Eighth Circuit's decision in Appeal of Little Rock School District, 949 F.2d 253, 256 (8^ Cir. 1991), requires the LRSD to eliminate the achievement gap The LRSD introduced evidence fiom the Arkansas Department of Health and U.S. Census documenting the socioeconomic differences between Afiican-Americans and whites in the City of Little Rock, State of Arkansas and throughout the country. See CX 716 and 717. 17 before it may be released from court supervision. In that decision, the Eighth Circuit reviewed Judge Wright's decision prohibiting the parties from making modifications to their desegregation plans approved by the Eighth Circuit in Little Rock School District v, Pulaski County Special School District, 921 F.2d 1371 (8* Cir. 1990). The Eighth Circuit identified seven "crucial" elements of the 1989 plans "with respect to which no retreat should be approved." Appeal of LRSD, 949 F.2d at 256. One of those crucial elements was the agreed "effort" to eliminate the achievement gap. Id. (emphasis supplied). Even so, nothing in the Eighth Circuit's opinion suggested that the "effort" to eliminate the achievement gap must be successful in order for the LRSD to be released from court supervision. Moreover, no court has held that elimination of the achievement gap is a necessary prerequisite to being released from court supervision. To the contrary, the Supreme Court has cautioned against reliance on African-American achievement as a basis for continued judicial supervision. Missouri v. Jenkins, 515 U.S. 70, 101-02,115 S.Ct. 2038, 2055-56 (1995). As the Supreme Court explained: Just as demographic changes independent of de jure segregation will affect the racial composition of student assignments. Freeman fv. Pittsl. 503 U.S. [467], at 494-95, 112 S.Ct. [1430], 1447-48 [(1992)], so too will numerous external factors beyond the control of the KCMSD and the State affect minority student achievement. So long as these external factors are not the result of segregation, they do not figure in the remedial calculus. See [Pasadena City Bd. of Educ. v.1 Spangler, 427 U.S. [424], at 434, 96 S.Ct. [2697], at 2703-2704 [(1976)]
Swann [v. Charlotte-Mecklenburg Bd. of Educ.1.402 U.S. [1], at 22, 91 S.Ct. [1267], at 1279 [(1971)]. Insistence upon academic goals unrelated to the effects of legal segregation unwarrantably postpones the day when the KCMSD will be able to operate on its own. Id. Accordingly, the achievement gap has not prevented other school districts around the country from being declared unitary. See, e.g.. Coalition to Save Our Children v. State Bd. of Educ.. 901 F.Supp 784, 819 (D. Del. 1995) ("Because the environment outside school is so strong, cumulative, and varied, schools cannot overcome such environmental differences among children."), affd 90 F.3d 752 (3" Cir. 1996)
Keves v. School District No. 1. 902 F. Supp. 1274, 1300 (D. Colo. 1995)("There are too many variables, including societal and socio-economic 18 factors, to infer causation from prior unconstitutional conduct.")
Tasbv v. Woolerv. 869 F. Supp. 454, Aril (N.D. Tex. 1994) ("The Court is unable to find that the achievement gap in DISD is a vestige of the prior segregated school system."). Finally, Joshua bore the burden of establishing the LRSD's noncompliance with the Revised Plan. See Revised Plan, 11. To meet that burden, Joshua would have been required to come forward with evidence that the achievement gap resulted from the LRSD's noncompliance. rather than other factors. See People Who Care v. Rockford Bd. of Educ., 246 F.3d 1073, 1076- 77 (7* Cir. 2001). As the Com! of Appeals for the Seventh Circuit has recognized: The reality is that imtil minority students achieve parity of educational achievement with the white students in the Rockford public schools, the plaintiffs will contend that the minority students are victims of the unlawful discrimination of an earlier period in Rockford's history. Yet it is obvious that other factors besides discrimination contribute to unequal educational attainment, such as poverty, parents' education and employment, family size, parental attitudes and behavior, prenatal, neonatal, and child health care, peer-group pressures, and ethnic culture. Some of these factors may themselves be due to or exacerbated by discrimination, but not to discrimination by the Rockford school board. The board has no legal duty to remove those vestiges of societal discrimination for which it is not responsible. Insofar as the factors that we have mentioned, rather than unlawful conduct by the Rockford school board in years past, are responsible for lags in educational achievement by minority students, the board has no duty that a federal court can enforce to help those students catch up. It may have a moral duty
it has no federal constitutional duty. Id. Joshua made no effort to prove that the LRSD's alleged noncompliance caused or contributed to the current achievement gap. Therefore, Joshua failed to meet their burden to prove the LRSD's noncompliance with Revised Plan 2.7. The LRSD agreed to implement programs, policies and procedures designed to improve African-American achievement, and it has done so. Early indicators suggest that the programs, policies and procedures being implemented are improving African-American achievement. While it is unlikely that these efforts will completely eliminate the achievement gap anytime soon, neither the Revised Plan nor the Constitution requires elimination of the achievement gap as a prerequisite to ending court supervision. The LRSD should be declared unitary and released from court supervision in the area of student achievement. See Freeman v, 19Pitts, 503 U.S. 467,489, 112 S.Ct. 1430 (1992)("Partial relinquishment of judicial control, where justified by the facts of the case, can be an important step in fulfilling the district court's duty to return the operations and control of schools to local authorities."). 2. Revised Plan 2.7.1: Program Assessment. LRSD shall assess the academic programs implemented pursuant to Section 2.7 after each year in order to determine the effectiveness of the academic programs in improving African- American achievement. If this assessment reveals that a program has not and likely will not improve African-American achievement, LRSD shall take appropriate action in the form of either modifying how the program is implemented or replacing the program. Joshua alleges that the LRSD had done "no assessment of the academic programs for each of the three years following the court's approval of the modified desegregation plan." See Docket No. 3447, p. 27. At the hearing, Joshua focused on the program evaluations prepared by the District's Department of Planning, Research and Evaluation ("PRE"), and in particular, the program evaluations identified on the bottom of page 148 of the Final Report. On the bottom of page 148, the Final Report states: In addition to the three programs on the Board-i evaluated the following programs
adopted research agenda, PRE Extended Year Schools Summer School HIPPY Program Charter School Campus Leadership Teams English as a Second Language Lyceum Scholars Pro^am at Philander Smith College Southwest Middle School's SEDL Program Onward to Excellence (Watson Elementary) Collaborative Action Team (CAT) Vital Link While the term of the plan was three years beginning with the 1998-99 school year, the first semester of the 1998-99 school year was a transition period in preparation for implementation of the Revised Plan. See Revised Plan, 9 and 10. 20Joshua's focus on the evaluations listed on the bottom of page 148 resulted, at least in part, from comments made by Judge Wright. Judge Wright had expressed concern that "the District has not accomplished what it set out with respect to monitoring programs that were geared toward raising the achievement level of African-American students." Tr. July 9,2001, p. 31. The LRSD later learned that this concern likely had sprung from the Court's ex parte commumcations with Ann Marshall of the Office of Desegregation Monitoring. Marshall informed Judge Wright that the District had not performed certain program evaluations listed on page 148 of the Final Report after the District failed to provide the reports to her office. See Exhibit 6 attached, Marshall, pp. 59-60. In fact, PRE had either provided data for an evaluation or had evaluated each program identified on bottom of page 148 of the Final Report. See CX 720-730. The failure of PRE to provide the evaluations to ODM resulted from the departure from the District of the Assistant Superintendent for PRE, Dr. Kathy Lease, in June of 2001. See Tr. Nov. 20,2001, p. 369. As a result of Dr. Lease's departure, the task fell on Dr. Lesley to locate the evaluations. Dr. Lesley candidly admitted that her initial search failed to reveal all of the evaluations, but eventually they were all located. See Tr. Nov. 20,2001, pp. 356-369
see also CX 616. The evaluations were introduced as Court's Exhibits 720-730. Joshua's focus on the evaluations listed on the bottom of page 148 reflects an effort to distort the meaning of Revised Plan 2.7.1 to suit their case. Revised Plan 2.7.1 required the administration of an assessment each year, not formal program evaluations. The LRSD continuously used available assessment data "to determine the effectiveness of the academic programs in improving African-American achievement." See Revised Plan, 2.7.1, See Tr. Nov. 19,2001, p. 246. Dr. Lesley provided several examples of how the District used assessment data to make program decisions
identifying implementation problems with the Success for All program (Tr. Nov. 19,2001, pp. 247-264), refusing to extend for another year a curriculum waiver to Mann Magnet Middle School (Tr. Nov. 19,2001, pp. 264-267)
modifying the pre-kindergarten curriculum (Tr. Nov. 19, 2001, pp. 269-271)
developing pacing guides for 21 i middle school math teachers (Tr. Nov. 19, 2001, pp. 271-273)
and revising the class schedule for ninth grade English students (Tr. Nov. 19,2001, pp. 273-75). While no formal program evaluations were required, the LRSD evaluated some programs as a part of its efforts to comply with Revised Plan 2.7.1. Those programs were part of the Board-adopted research agenda also discussed on page 148 of the Final Report. See also Interim Report, p. 53. Additional evaluations performed by PRE were included on the bottom of page 148 so the Final Report would not be misleading. The District did not want to leave the impression that PRE had done nothing more than the three evaluations from the Board-adopted research agenda. See Tr. Nov. 20,2001, pp. 354-56. The evaluations on the bottom of page 148 would be relevant only if Revised Plan 2.7.1 required a formal program evaluation every year of every program affecting African-American achievement. To impose such a requirement would blur the distinction between an "assessment' and an "evaluation." While these words might be interchangeable in some contexts, they have separate and distinct meanings in the field of education. See Tr. Nov. 19,2001, p. 242-43. S^ .11 AMI Civil 4 3014 (Supp. 2001) ("You should interpret words or phrases associated with particular trade or occupation as experienced and knowledgeable members of that trade or a occupation use them, unless evidence discloses that the parties used them in a different sense."). An assessment is a norm-referenced or criterion-referenced test administered to students. Norm- referenced assessments compare a student's achievement to that of a sample of students known the norming group. Criterion-referenced assessments seek to determine the level of student achievement of specific academic standards. See Exhibit 9 attached, Arkansas Comprehensive as Testing, Assessment & Accountability Program, p. 4 and Tr. Nov. 19, 2001, pp. 242-43. Assessments may be one component of a formal program evaluation. See CX 586. Formal program evaluations are typically long-term, time consuming and very expensive. See Tr. Nov. 20,2001, p. 339. Dr. Lesley testified that she was not aware of any school district that formally 22 evaluates all of its programs and that, in her opinion, it would be impossible to do so given the District's limited resources. See Tr. Nov. 20,2001, pp. 339-40. From the very beginning, Joshua and ODM knew that the LRSD did not intend to prepare a formal program evaluation every year for every program in the District affecting African- American achievement, yet Joshua raised no objection during the term of the Revised Plan. S^ Tr. Nov. 20,2001, pp. 370-71. See AMI Civil 4"' 3015 (Supp. 2001) ("You should give weight to the meaning placed on the language by the parties themselves, as shown by their statements, acts, or conduct after the contract was made."). ODM issued a monitoring report on August 11, 1999, on the LRSD's "Preparations for Implementation of its Revised Desegregation and Education Plan." With regard to program assessment, ODM reported, "According to the Assistant Superintendent [Dr. Lease], the PRE staff will select programs to be evaluated each year rather than attempting to evaluate the district's entire instructional program at any one time." See Docket No. 3289, ODM Report, August 11,1999, p. 42. ODM offered no recommendations in the area of program assessment and did not suggest that the Revised Plan required that every program affecting African-American achievement be evaluated every year. See Docket No. 3289, ODM Report, August 11, 1999, p. 43. On August 26, 1999, the Board voted to formally evaluate three programs being implemented pursuant to the Revised Plan: the pre-kindergarten through grade 3 ("preK-3") literacy program, the transition to middle schools and the math and science project funded by the National Science Foundation. See Tr. Nov. 20,2001, pp. 319-321 and CXs 718 and 739. These three formal program evaluations became known as the Board-adopted research agenda. At the same Board meeting, the Board separately approved an "assessment" plan. The assessment plan included not only the state-mandated benchmark examinations, but also locally adopted criterion- 7' t The evaluation of the English as a Second Language program was also part of the Board- adopted research agenda. Obviously unrelated to the District's Revised Plan obligations, a memorandum agreement between the District and OCR required this evaluation. See Tr. Nov 20, 2001, p. 354. 23 referenced tests for grades K-2 reading and for grades 2-9 in English, language arts, mathematics, and science. See Tr. Nov. 19,2001, p. 216. Both the Board-adopted research agenda and the assessment plan were explained in the Interim Report. See Interim Report, pp. 53 (Board research agenda), 56-57 (assessment plan), 101 (primary grade language arts), 107 (intermediate grade language arts), 113 (secondary language arts), and 118 (math). Even after publication of the Interim Report, Joshua raised no objection to the Board-adopted research agenda or the assessment plan. See Tr. Nov. 20, 2001, pp. 370-71. The District's evaluations made pursuant to the Board-adopted research agenda were admitted into evidence as a part of Court's Exhibits 703 (literacy), 705 (math and science) and 711 (middle schools). Joshua will likely argue that these evaluations were poorly written and never approved by the Board. While it is true that the Board never approved the evaluations, nothing required the Board to approve them. When presented to the Board in August of 2000, the Board voted to table consideration of the evaluations until additional assessment data were available. See CX 739, Minutes of August 24, 2000, meeting, p. 5. If anything, the Board's tabling of the evaluations demonstrates its good faith commitment to having quality evaluations. It is also true that Dr. Lesley was not satisfied with the quality of the evaluations. See Tr. Nov. 20, 2001, pp. 329-330. Dr. Lesley discussed her concerns with Dr. Les Camine, then the The District paid particular attention to alignment between the District's curriculum and the assessments in order to better gauge the achievement of Afiican-American students. Dr. Bonme Lesley, Associate Superintendent for Curriculum and Instruction, explained: Alignment is absolutely critical, particularly in an urban school district, because alignment means that everything you are going to test kids over, that you have given them a chance to leam that, that you have got that included in the curriculum. And so, without alignment, poor kids in particular suffer most, because there may not be an opportunity for them to get that knowledge or skill anywhere else. Tr. Nov. 19, 2001, pp. 199-200. Results of the assessments were included in the final report. See Final Report, pp. 55-56 (assessments generally), 79 (early literacy), 90-93 (primary grade language arts), 102-105 (intermediate grade language arts), 111-114 (secondary language arts), 125-129 (math and science), and 131-135 (math). See also CXs 699, 700 and 701. 24 1.i District's Superintendent. Dr. Gamine sent the evaluations for review by Dr. Ross, one of the desegregation consultants approved by Joshua. See Tr. Nov. 20, 2001, p. 330. After reviewing the evaluations. Dr. Ross e-mailed Dr. Gamine stating, "I have read three of the recent program evaluation reports completed by your research department. They appear to be of very good quality - well-written, clear and comprehensive." GX 702, tab 15. Not surprisingly, Dr. Lesley's dissatisfaction with PRE's evaluations created a rift between Dr. Lesley and Dr. Lease. Joshua sought to capitalize on this rift by offering numerous District e-mails as exhibits. As a whole, these prove nothing more than the fact that Dr. Lesley was willing to fight for better program evaluations, even if Dr. Ross found them to be "of very good quality." Therefore, notwithstanding questions about the quality of PRE's formal program evaluations, Joshua failed to meet their burden in establishing noncompliance with Revised Plan 2.7.1. Revised Plan 2.7.1 required annual assessments, not annual program evaluations. The District administered assessments at least annually at each grade level. The District continuously used available assessment data to make program decisions. The Board and Dr. Lesley's concerns about the quality of PRE's program evaluations evidence their good faith commitment to improving Afiican-American achievement. Accordingly, the LRSD should be declared unitary and released from court supervision with regard to Revised Plan 2.7.1. See Freeman, 503 U.S. at 489. 3. 2.5. Revised Plan 2.5 - 2.5.4: Student Discipline. LRSD shall implement programs, policies and/or procedures designed to ensure that there is no racial discrimination with regard to student discipline. 2.5.1. LRSD shall strictly adhere to the policies set forth in the Student Rights and Responsibilities Handbook to ensure that all students are disciplined in a fair and equitable manner. 2.5.2. LRSD shall purge students' discipline records after the fifth grade and eighth grade 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. 252.5.3. 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 the discipline process, investigating parent and student complaints of race-based mistreatment and attempting to achieve equitable solutions. 2.5.4. LRSD shall work with students and their parents to develop behavior modification plans for students who exhibit frequent misbehavior. Dr. Linda Watson, Assistant Superintendent for Student Hearings, led the District's effort to ensure no racial discrimination in student discipline by strict adherence to the Student Rights and Responsibilities Handbook (the "Handbook"). See Tr. Nov. 19,2001, pp. 24-25: see also Interim Report, pp. 13-16. Dr. Watson testified that the her goal was to reduce the number of suspensions and expulsions while at the same time strictly adhering to the Handbook. See Tr. Nov. 19, 2001, pp. 45 and 55. Dr. Watson achieved her goal. The number of suspensions decreased 21 percent from the 1997-98 school year through the 1999-2000 school year - a decrease of over 1,100 suspensions. See Tr. Nov. 19,2001, pp. 72-73. Expulsions dropped from 109 during the 1997-98 school year to 3 in 1999-2000. See Final Report, p. 24. The improved learning environment was obvious to both teachers and students. In 1999-2000, 94 percent of teachers indicated they felt safe at school, compared to only 42% in 1997-98. See Interim Report, p. 14. Also in 1999-2000, 93 percent of parents that expressed an opinion felt that their child was safe at school. See Final Report, pp. 24-25. Dr. Watson explained a number of strategies implemented by the District to ensure strict adherence to the Handbook. First, each year the District involved all stakeholders (students, parents, teachers and administrators), including Joshua, in the process of revising the Handbook. See Tr. Nov. 19, 2001, pp. 33-34. Second, the District provided training to students, teachers and administrators on the provisions of the Handbook. See Tr. Nov. 19, 2001, pp. 33 and 38-44 and CXs 672-675. Third, the District asked all parents to sign a "parent contract" by which a parent stated that he or she had read the Handbook and agreed to ensure his or her child's 26 compliance with the Handbook. Tr. Nov. 19,2001, p. 33 and CXs 661-670 (back cover). Fourth, the District created the Ombudsman position to investigate student complaints of racebased mistreatment in student discipline. See Tr. Nov. 19,2001, pp. 16-17. Finally^ Dr. Watson monitored schools' compliance with the Handbook in two ways. Dr. Watson (or another hearing officer working under her supervision) reviewed every long-term suspension and expulsion and those short-term suspensions that were appealed. Tr. Nov. 19, 2001, pp. 35-37 and 54. Dr. Watson testified that any failure by the school to follow the Handbook resulted in the suspension or expulsion being expunged from the student's record and the student being returned to school. See Tr. Nov. 19, 2001, pp. 26-27 and 35-37. Dr. Watson also prepared and reviewed quarterly Discipline Management Reports cataloging the number of suspensions and expulsions at each school. Tr. Nov. 19, 2001, pp. 55-56 and CXs 678-681 (annual reports). Dr. Watson provided these reports to Joshua on a regular, ongoing basis. Tr. Nov. 19, 2001, pp. 62-63 and CX 682. She used these reports to identify schools having discipline problems and would conference with the school's administrators to work out solutions. Tr. Nov. 19, 2001, pp. 64-71 and CXs 684 and 685. The District also engaged in a number of activities designed to decrease the number of suspensions and expulsions. First, the District revised the curriculum in an effort to make it more engaging. Students engaged in learning are less likely to misbehave. See Tr. Nov. 19, 2001, p. 45. Second, the District established a number of new alternative learning environments to allow students with behavioral problems to remain in an educational setting. See Tr. Nov. 19, 2001, pp. 49-55. Third, each year schools were asked to develop strategies for reducing the number of suspensions and expulsions. See Tr. Nov. 19, 2001, p. 48 and CX 677. Fourth, the District offered traimng for teachers and other personnel in classroom management and effective discipline. See Tr. Nov. 19,2001, pp. 45-46 and CX 676. Fifth, the District provided training to students in conflict resolution and peer mediation and provided group counseling and case managers. See Tr. Nov. 19, 2001, p. 46. Finally, for those students who violated the Handbook's 27 !code of conduct, the District followed progressive discipline imposing lesser sanctions before suspending students. Behavior modification plans were used as a part of the progressive discipline process. Tr. Nov. 19,2001, p. 46. Despite the substantial decrease in the number of suspensions and expulsions, there was no decrease in the percentage of suspensions going to Afiican-American students. Courts have used a statistic called the total suspension index to measure the extent to which Afiican- American students are disproportionately suspended, often referred to as the "discipline disparity." The total suspension index is calculated by dividing the percentage of Afiican- American students suspended and expelled by the percentage of Afiican-American students in the total student population. Thus, proportional discipline of Afiican-American students would yield a total suspension index of 1.00. SSS Hoots v. Pennsylvania. 118 F.Supp.2d 577, 608 n.25 (W.D. Pa. 2000). The LRSD's total suspension index has ranged from 1.31 to 1.25 from the 1992-93 school year through the 2000-01 school year. See Exhibit 743 and Docket No. 2226, Exhibit 17. According to 1998' data from the Office of Civil Rights, the total suspension index for all of Arkansas was 2.16. The national total suspension index was 2.24. Other school districts around the country have been declared umtary despite a total suspension index greater than that of the LRSD. See Coalition of Save Our Children. 901 F.Supp. at 817 (total suspension index of 1.81) and Hoots. 118 F.Supp.2d at 608 (total suspension index of 1.50). Joshua will likely argue that the District should have done more to try to reduce the discipline disparity. However, the Revised Plan did not require the LRSD to reduce the discipline disparity. The Revised Plan required strict adherence with the Handbook, irrespective of whether strict adherence to the Handbook resulted in a discipline disparity. The only way to ensure proportional discipline is racial disciplinary quotas. In reversing a remedial decree requiring proportional discipline, the Seventh Circuit noted
^This was the most recent data available at the time of the hearings. 28( . r' Racial disciplinary quotas violate equity in its root sense. They entail either systematically overpunishing the innocent or systematically imderpunishing the guilty. They place race at war with justice. They teach schoolchildren an unedifying lesson of racial entitlements. And they incidentally are inconsistent with another provision of the decree, which requires that discipline be administered without regard to race or ethnicity. People Who Care v. Rockford Bd. of Educ.. Ill F.3d 528, 538 (7** Cir. 1997). See Keyes. 902 1 F.Supp. at 1304 ("If a student's conduct violates the discipline policy, it is expected that he or she will be disciplined regardless of the potential disparate effect on racial/ethnic statistics."). See also Ark. Code Ann. 6-18-506(c) ("Every school district board of directors in this state shall hold its pupils strictly accountable for any disorderly conduct in school, on the school grounds, in r a school bus, or at any school function."). Similarly in the present case, mandating proportional discipline would violate the Revised Plan's promise of "no racial discrimination with regard to student discipline." See Revised Plan 2.5. ( Joshua came forward with no evidence that the current racial disparity resulted from systematic discrimination by the LRSD. Not a single student testified that he or she had been discriminated against by the LRSD in the imposition of discipline. Dr. Watson, an Afiican- American, testified that, based on her experience as a hearing officer, Afiican-American students were being suspended more because they were engaging in behavior requiring suspension imder the Handbook. See Tr. Nov. 19,2001, pp. 83-84. Dr. Watson stated that socioeconomic factors likely explain the current disparity. See Tr. Nov. 19, 2001, p. 84. The District's Ombudsman, ^^Similarly, Dr. Walberg testified: Q I asked you about whether or not socioeconomic status was related, or bore a relationship to disparity in Special Education, you indicated that it was. I think you mentioned also gifted and talented as another area that would be impacted in the same manner. What about discipline, suspensions, expulsions, that type of activity? Are you familiar with the relationship between socioeconomic status and school discipline? A It's not my primary area of interest, but I am somewhat familiar, and the relation is what you would expect from the other research that poor children more often get into difficulties of various kinds of indiscipline and so on, and are suspended from school. Tr. May 13, 1996, p. 183. See also Tr. May 13, 1996, p. 189. 29 {- iJames Washington, an African-American, investigated student claims of race-based mistreatment with regard to discipline. Washington testified: Q. A. Finally, Mr. Walker asked you about the over representation of black students among students suspended and expelled. Based on your experience as Ombudsman and your experience in the District, do you have any reason to believe that the over-representation of African-Americans in discipline has resulted from any systematic discrimination by the Little Rock School District? No, sir, I have no reason to believe that that is true. S^Tr.Nov. 19,2001, p. 21. Therefore, the LRSD successfully endeavored to reduce the number of suspensions while at the same time strictly adhering to the Handbook. The Revised Plan did not require the LRSD to eliminate the discipline disparity. To the contrary, the Revised Plan required "no racial discrimination with regard to student discipline." See Revised Plan 2.5. Joshua failed to meet their burden in establishing that the current racial disparity was caused by systematic racial discrimination by the LRSD. Accordingly, the LRSD should be declared unitary and released from court supervision with regard to Revised Plan 2.5 - 2.5.4. See Freeman, 503 U.S. at 489. D. Siunmary Judgment. For purposes of summary judgment, the Revised Plan sections can be divided into two categories: sections timely challenged by Joshua and those that were not. With regard to those Revised Plan sections not timely challenged by Joshua, the Revised Plan requires that the LRSD be immediately granted unitary status and released from court supervision. See Revised Plan 11. With regard to sections timely challenged by Joshua but not yet litigated, the LRSD moves for summary judgment. Discovery has revealed no evidence that the Board cannot be trusted to comply with the Constitution in the future absent court supervision. Consequently, there is no genuine issue as to any material fact and the LRSD should be granted judgment as a matter of law. Fed. R. Civ. P. 56(c)
Celotex Corp, v. Catrett. 477 U.S. 317, 323 (1986) Cody. 139 F.3d at 1200. 30I i There will hkely be a dispute as to what Revised Plan sections were timely challenged by Joshua. On April 4, 2001, Judge Wright issued a scheduling order pertaining to challenges to the LRSD's compliance with the Revised Plan. The order stated, "Any challenges to the LRSD's compliance must be filed on or before May 18, 2001." See Docket No. 3414, p. 2. Following two extensions of time, Joshua's challenges to the LRSD's compliance were due June 25,2001. See Docket Nos. 3434 and 3445. On June 25, 2001, Joshua filed a pleading challenging the LRSD's compliance with following sections of the Revised Plan: 2.1, 2.1.1,2.2,2.2.1,2.2.2, 2.2.3, 2.2.4, 2.2.5, 2.2.6, 2.2.7, 2.3, 3.6, 2.4, 2.5, 2.5.1, 2.5.2, 2.5.3, 2.5.4, 2.6, 2.6.1, 2.6.2, 2.7, 2.7.1, 2.8, 2.9,2.11.1, 3.4, 3.6, 5.4 and 5.6. Docket No. 3447. Joshua's June 25, 2001, pleading included little more than general allegations of noncompliance. As Judge Wright recognized at the June 29, 2001, pretrial hearing, "His objections are very general I might add." Tr. June 29,2001, p. 49. In preparation for hearings scheduled for July 5-6, 2001, and August 1-2,2001, Judge Wright admonished Joshua: THE COURT: ... Try to tailor your evidence, so that the Court hears the strongest evidence you have against these people. MR. WALKER: Yes. Your Honor, we would ask - THE COURT: I mean, I am not saying that you have any evidence against them, but don't fritter away your time with - MR. WALKER: I understand. THE COURT: with trivial matters, you know. And I am not like some judges, but I do get, you know, and all of us get tired of hearing just, you know, the trivial things. We want to hear the, you know, we want to hear the strongest evidence you have got. Tr. Jxme 29, 2001, pp. 54-55. On July 5-6, 2001, Joshua called as witnesses Junious Babbs, the LRSD's Associate Superintendent for Administrative Services, and Dr. Gamine, the LRSD's Superintendent during the term of the Revised Plan.'^ Joshua wasted almost an entire day ^^At the conclusion of these hearings. Judge Wright observed, "[I]t has occurred to me that more likely than not, just more likely than not, if all we were looking at were the constitution, that is the FGreen v. County Sch. Bd. of New Kent County. 391 U.S. 430(1968)] factors. Little Rock is probably unitary." Tr. July 6,2001, p. 553. The Green factors are: (1) 31 Iquestioning Babbs about Revised Plan sections for which he was not directly responsible. See, e^, Tr. July 5,2001, pp. 249-250 . As a result, it became obvious that additional time would be needed beyond the August 1-2, 2001 hearing dates, and that time limits would be necessary. On July 9,2001, Judge Wright scheduled two additional hearing days on Revised Plan 2.7, 2.7.1 and 2.5 - 2.5.4 for November 19-20, 2001, and advised the parties that all remaining hearing time would be split evenly between the LRSD and Joshua. Tr. July 9,2001, p. 64. In addition. Judge Wright set aside the week of January 28,2002, for a hearing on the LRSD's compliance with other Revised Plan sections challenged by Joshua. In preparation for the January 28, 2002, hearing. Judge Wright directed Joshua to narrow the issues by specifically identifying how the LRSD had failed to comply with the Revised Plan sections identified in Joshua's general objections filed June 25,2001. Judge Wright stated: I want you, Mr. Walker, to decide between now and, I will give you a date, but sometime in December, what other issues you want to bring to the Court's attention, and what other issues you object to, and want to carry a burden of proving that the District is not in compliance on. And I want you to be very specific about these in terms of what parts of the Compliance Report you are objecting to, so that we can once again, beginning January 28th, have a hearing a discrete part of this plan, if that is what you want to do. I don't want just general objections. I want it to be, you know, very explicit, as to why you think this District has not complied. If you have just a more general objection, such as the one you filed initially, that still stands of record. on Tr. 536 (11/20/01) (emphasis supplied). In response to Judge Wright's directive, however, Joshua simply identified additional sections of the Revised Plan that it "intend[ed] to show noncompliance by the [LRSD]." See Docket No. 3557. More disturbing to the LRSD than the lack of specifics was the fact that Joshua for the first time challenged the LRSD's compliance with Revised Plan 2.11, 3.1, 3.8, 3.9,4.0, 5.5,6.0, 7.0 and 8.3. Compare Docket No. 3447 with 3557. Joshua's challenge to these Revised Plan sections was untimely pursuant to Judge Wright's order of April 4, 2001, and the LRSD should be granted immediate unitary status with student assignment, (2) facilities, (3) faculty, (4) staff, (5) transportation and (6) extracurricular activities. Id. at 435. 32 regard to Revised Plan 2.11, 3.1, 3.8, 3.9, 4.0, 5.5, 6.0, 7.0 and 8.3. as required by Revised Plan 11. See Freeman. 503 U.S. at 489. in. Conclusion. This Court has a "duty to return the operations and control of schools to local authorities' ,11 at the earliest practicable date. Freeman, 503 U.S. at 489. The Supreme Court explained: As we have long observed, 'local autonomy of school districts is a vital national tradition.' Dayton Bd. of Education v, Brinkman, 433 U.S. 406,410, 97 S.Ct. 2766, 2770, 53 L.Ed.2d 851 (1977) (Dayton I). Returning schools to the control of local authorities at the earliest practicable date is essential to restore their true accountability in our governmental system. When the school district and all state entities participating with it in operating the schools make decisions in the absence of judicial supervision, they can be held accountable to the citizenry, to the political process, and to the courts in the ordinary course. Id. at 490 (emphasis supplied). See also Missouri v. Jenkins. 515 U.S. 70,138 (1995) ("Usurpation of the traditionally local control over education not only takes the judiciary beyond its proper sphere, it also deprives the States and their elected officials of their constitutional powers. At some point, we must recognize that the judiciary is not omniscient, and that all problems do not require a remedy of constitutional proportions.")
Freeman v. Pitts. 503 U.S. 467, 505-06 (1992)(Scalia, J., concurring)('"From the very first, federal supervision of local school systems was intended as a temporary measure to remedy past discrimination.' Dowell. 498 U.S., at 247, 111 S.Ct., at 637 (emphasis added). We envisioned it as temporary partly because '[n]o single tradition in public education is more deeply rooted than local control over the operation of schools,' Milliken v. Bradley. 418 U.S. 717, 741, 94 S.Ct. 3112, 3125,41 L.Ed.2d 1069 (1974) (Milliken I), and because no one's interest is furthered by subjecting the Nation's educational system to 'judicial tutelage for the indefinite future,' Dowell, supra. 498 U.S., at 249, 111 S.Ct., at 638
see also Dayton Bd. of Education v. Brinkman. 433 U.S. 406, 410, 97 S.Ct. 2766, 2770, 53 L.Ed.2d 851 (1977)
Spangler v. Pasadena City Bd, of Education. 611 F.2d 1239, 1245, n. 5 (CA9 1979) (Kennedy, J., concurring). But we also envisioned it as temporary, I think, because the rational basis for the extraordinary presumption of causation simply must dissipate as the de jure system and the school boards who produced it recede fiirther 33 into the past. Since a multitude of private factors has shaped school systems in the years after abandonment of de jure segregationnormal migration, population growth (as in this case), 'white flight' Iftom the inner cities, increases in the costs of new facilities-the percentage of the current makeup of school systems attributable to the prior, government-enforced discrimination has diminished with each passing year, to the point where it caiuiot realistically be assumed to be a significant factor.")
Bd. of Educ. v. Dowell, 498 U.S. 237, 248 (1991)("Dissolving a desegregation decree after the local authorities have operated in compliance with it for a reasonable period of time properly recognizes that 'necessary concern for the important values of local control of public school systems dictates that a federal court's regulatory control of such systems not extend beyond the time required to remedy the effects of past intentional discrimination. See Milliken v. Bradley [Milliken 11 ], 433 U.S., at 280-82, 97 S.Ct., at 2757-58.' Spangler v. Pasadena City Bd. of Education, 611 F.2d, at 1245, n. 5 (Kennedy, J., concurring)."). The "ultimate question" before this Court is "whether the [LRSD] [is] likely to comply with the Constitution in the absence of court supervision ...Cody. 139 F.3d at 1199-1200. Joshua bears the burden of proof on this question. See Revised Plan 11. Joshua has not and cannot meet their burden. After over 40 years of court supervision of the LRSD, the time has come to return control to the democratically elected Board. Fourth Circuit Chief Judge Wilkinson's final thoughts in affirming the district court's granting of unitary status to the Charlotte-Mecklenburg school district apply with equal force to the LRSD: No decisions are more sensitive and difficult than those involving public schools, and no process more wrenching than that of matching limited resources to the limitless array of educational needs. But these challenges are better met by communities than by courts and, after thirty-five years of sporadic judicial supervision, the time has come to conclude. If not now, when? Each child is a human being to educate. If this essential task of education has become too daunting for democracy, then I know not who we are or what we shall become. Belk, 269 F.3d at 356 (Wilkinson, C.J., concurring). For the reasons set forth above, the LRSD should be granted unitary status and released from court supervision without further evidentiary hearings. 34f' Respectfully Submitted, f LITTLE ROCK SCHOOL DISTRICT Friday, Eldredge & Clark Christopher Heller (#81083) John C. Fendley, Jr. (#92182) 2000 Regions Center 400 West Capitol Little Rock, AR_22201-3493 (5011 r^ii r BY: :hristopher Hi r I 35 bp CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the United States mail on March 15, 2002: Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 I Mr. Sam Jones Wright, Lindsey & Jennings 2200 Worthen Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON & JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 Little Rock, AR 72201 I Ms. Ann Marshall (hand-delivered) Desep-egation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Mark Hagemeier Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Christopher Hellei ( f 36 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION DELORES CLARK, ET AL. VS. NO. LR 64 C 15S THE BOARD OF EDUCATION OF THE LITTLE ROCK SCHOOL DISTRICT, ET AL. MEMORANDUM AND ORDER FILED UAOtsnocT courr EASTtWH DtSnRCT AKKANSAS JUL 91982 CA^R. BRENTS, CLERK OE^.CLLRA PLAINTIFFS DEFENDANTS The Board of Education of the Little Rock School District has petitioned the Court for approval of a revised elementary school student assignment plan. The plan is referred to as the "Partial K-6 Plan". 1 In 1973, after years of litigation, 2 the plaintiffs ana the school district reached a mutually satisfactory agreement involving a number of issues, including a student assignment plan, and a moratorium was declared with respect to further litigation. Beginning in the school year 1973-74, the elementary schools were essentially desegregated. Because the eastern parts of the district are essentially black residential areas and western parts of the district are essentially white residential areas, it has been necessary to employ extensive bussing to achieve school desegregation. Over the years, there has been a steady trend of increasing black enrollment and decreasing white enrollment in the elementary schools. The trend is present, although less pronounced, in the upper grades. 1. DX 20. 2. The original desegregation case against the Little Rock School District was filed in 1956. The pending case, was simply a continuation of the original litigation, in 1964. The pending case which was filea : exhibit J 1 The following chart 3 illustrates the trend' which has been established and maintained since 1971: Little Rock Public Schools, Grades 1-12 Change in Student Enrollment, Fall 1971 to Fall 1981 Year Number of Whites Number of Blacks Decline in Whites Percent DecIn In Whites 1971 13,413 9,814 1,256 1972 11,926 9,909 1,487 11.1 1973 10,999 10,096 927 7.8% 1974 10,303 10,246 696 6.3% 1975 9,760 10,730 543 5.3% 1976 9,320 10,991 440 4.5% 1977 8,708 11,089 612 6.6% 1978 7,979 11,142 729 8.4% 1979 7,454 11,517 525 6.6% 1980 6,806 11,780 648 8.7% 1981 6,291 11,813 515 7.5%' b.b% The trend is generally explained by a number of demographic factors, such as population shifts by whites to the suburbs. increase in black population in the district, differences in birth rates, and, to some extent, the element of "white 4 flight". As previously mentioned, the increasing disparity in the ratio between black and white students attending the district is most pronounced at the elementary school level. The following chart^ illustrates that trend. 3. DX 19, page 17. 4. 5. DX 19, pages 12-28
testimony of Dr. Dewitt Davis. Composite from Exhibits 2 through 13. 2I Little Rock Public Schools, Grades 1-6 Change in Student Enrollment, Fall 1971 to Fall 1981 Year Number of Whites Number of Blacks Decline in Whites Percent beclin in Whites 1971 7,283 5,712 1972 6,497 5,933 786 10.8% 1973 5,700 5,822 797 12.3% 1974 5,012 5,805 688 12.1% 1975 4,560 5,864 452 9.1% 1976 4,374 5,928 186 4.1% 1977 4,066 6,022 308 7.1% 1978 3,871 6,218 195 4.8% 1979 3,459 6,637 412 10.7% 1980 3,152 6,661 307 8.9% 1981 2,501 6,953 651 20.8% During the 1977-78 school year. it became apparent that the student assignment plan implemented in earlier years was not accomplishing the desegregation goals established by the district. 7 The district took the initiative in correcting the problem. A "Reorganization Committee" was formed which studied various proposals and, as a product of that work. the district adopted a reorganization of the student assignment plan which was implemented in the 1978-79 school year. 6. The Court was given two sets of figures for student enrollment in the 1979-1980 school year. This chart is basea on the figures contained in Defendant's Exhibit 12. 7. Testimony of Dr. Leonard Thalmueller. 3Under -^e 1978-79 reorganization plan, the first three grades were designated prinary grades and graaes four through six were designated as intermediate graaes. At that tine blacks accounted for 63% of the students in graaes one through six. One of the goals of reorganization was to maintain a black-white attendance ratio at each school which was within a ten percent variation from the district average at the elementary school level. 8 For example, as a result of the 1978-79 reorganization plan. Forest Park School had the lowest percentage of black students at 53% and Garland and Mitchell Schools had the highest percent at 70%. By 1980-81 the declining white enrollment, particularly * in the primary grades, again resulted in significant deviations in the black-white ratio at a number of schools. For example. at Williams School, which is located in a predominantly white residential area, only 8 white children enrolled in the first grade for the 1981-82 school year while 117 black children enrolled. There were seven schools, grades one through six, irtiich had black enrollment of 80% or more, one in excess of 86%. Although the School District has been conscious of the trend of decreasing white enrollment and taken some measures to curtail the erosion. 9 nothing has significantly affected the trend. All of the persuasive evidence indicates the school district will have an enrollment which is essentially all black, particularly in the elementary grades, within the next few years. 8. Testimony of Dr. Thalmueller. 9. The administration has done an admirable job of offering quality education. Considerable effort has been drrectea toward providing curricula calculated to attract whites who have left the district's schools because of a belief that the district was not offering quality education. These efforts include honors classes, ability grouping. emphasis on improvement in basic skills, etc. Addi- tionally, the administration has worked with the civic community and volunteer groups in efforts to encourage support for public schools and improvement in the quality of education provided. 4Faced with a significantly reduced white enrollment in the primary grades and a vocal protest by white parents against white racial insolation in some of the primary classes, the School Board adopted a "65-35" classroom assignment plan in the fall of 1981. The plan was a hurriedly conceivea stopgap measure to appease white parents of primary age children. The plan required that white children be assigned to home room classes with other whites until the percentage reached 35% in each class. The plan had the effect, of course, of creating some all black classes. The plan was disapproved by this Court following an evidentiary hearing in September, 1981. In the fall of 1981, the Little Rock School Board faced a host of problems which prompted reconsideration of the school attendance plan. For example, a significant disparity had developed in the black-white ratio of attendance at the various elementary schools and there was reason to believe the ratio would increase. Some of the black parents complained that their children were being bussed across the city to attend all black classes. Additionally, the last two milleage increase proposals had been defeated by the electorate and the district is faced with severe financial problems and an eroding financial base. The overall declining enrollment in the district and financial considerations dictated the closing of some school buildings. The Board took several steps in response to the problems. A "Patrons Reorganization Committee^ was appointed to receive and review various proposals for pupil assignment plans and determine the feasibility of implementing the pro- posals. The Committee was asked to conduct public hearings 10. The committee was a twenty member committee composea of 10 blacks and 10 whites, 10 who were males and 10 females. 5in various parts of the city in order to get as much input from the public as possible. The Board arranged for a stuay of the district's desegregation efforts by the Technical Assistance Center of Stephen F. Austin State.University. This "Desegregation Assistance Team" submitted a report of its findings and conclusions to th_e Board in December, 1981. 11 The Biracial Committee, which is an advisory com- mittee formed as a result of the agreement in 1973, was asked to review the various plans and proposals for changes in the attendance plan. The administrative staff was assigned the task of compiling information and lending support assistance to committees. The Board also investigated the possibility of seeking an interdistrict remedy through legal proceedings against the adjacent County School District and has hired a law firm to pursue that remedy. Some 15 proposed plans or concepts for elementary pupxl assignment were submitted to the Board, Patrons Committee and Biracial Committee for consideration. The plans were reduced to three, and finally "Partial K-6 Plan" was adopted by the Board after a number of minor modifications. The Board apparently views Partial K-6 as a temporary plan which provides the best chance for maintaining an integrated school system pending a decision in the interdistrict remedy suit. Partial K-6 Plan produces a number of results the Board views as preferable over the present plan. 1. The plan eliminates the primary-intermediate grouping, (or 3-3) plan (or has the same effect by pairing schools). Apparently one of the recurring complaints about the present plan is that students are moved from school to school too frequently. 11. DX 19. 6and their classmates change every three years. K-6 permits elementary age children to attend the same school or at least attend with the same schoolmates for six years, thereby fostering a sense of security, continuity and stability. 2. Partial K-6 permits the organization of nine neighborhood schools. 3. Approximately 1,000 fewer students will be bussed under Partial K-6. The number of bus routes will be reduced from 104 to 72 with an estimated immediate savings of $132,000. Furthermore, the number of school opening and closing times can be reduced. 4. Two elementary school buildings will be closed under partial K-6. 5. Partial K-6 employs the concept of a magnet school with a curricula attractive to some parents who are concerned about the quality of education. 6. The number of schools with a black ratio of 80% or more will be reduced from seven to four. Plaintiffs oppose the plan for several reasons. The "objections to petition" will be discussed in the order raised in plaintiffs' response to the Board's petition. 1. The "plaintiffs object to additional black school closings". This objection revolves around the part of Partial K-b which proposes that Booker Junior High School be changed to an elementary school. Although it is asserted that Booker will be "closed", such is not the case. 7Because of declining enrollments in junior high school. the Board concluded that one junior high facility was not needed. Booker had the fewest number of students ano reassignment of its students to other schools caused the least disruption. Thus, Booker was selected for conversion to an elementary school. Under the final plan, the schools which will be closed are Jefferson and King. Jefferson is in a white neighborhood and King is in a black neighborhood. The Board commissioned an evaluation of school physical plants and a report was submitted to the Board (the Leggett report) which indicatea that the cost of refurbishing and repairing King Elementary would be 51,500,000. On the basis of that estimate. King was selected for closing. Plaintiffs' argument that converting Booker to an elementary school causes a "burden" on blacks is puzzling. as is the claim that such a move is calculated "to further relieve white stufendts (sic) of educational presence in the Black community." First, if there is a burden on black junior high students, there is a corresponding buroen on white elementary students who will be transported to Booker. Second, the black neighborhood will certainly have the "presence" of those white elementary age students who attend Booker, Third, while black junior high students may be transported from the Booker neighborhood to other areas. black elementary age children will be relieved of that burden. It would seem that bussing older children is preferable to transporting elementary age children. With respect to the general allegations that school closings have, over the years, had the effect of relieving the "proportionate burden" upon white children and enhancing it for black children, such is simply not supported by the evidence. First, all site selection for construction has 8been the subject of court approval. (Testimony of Lacey). Second, plaintiffs failed to produce any evioence that a school has been "closed or downgraded* because of improper consideration. Third, if there has been a "disproportionate burden" caused by transportation of students, it has fallen on white students, not blac)c, and such will continue as the case under Partial K-6. (Testimony of Thalmueller and Lacey). The only bases for this objection are conclusory allegations which are not supported by persuasive evidence. 2. "Plaintiffs object to the efforts to develop four 'segregated' or 'racially' identifiable" schools. Under Partial K-6, four elementary schools will have a black enrollment of 90% or more. These schools are locatea in black residential areas. The black enrollment in the eighteen remaining elementary schools will range from bU% to 77%. Currently, the average black elementary enrollment in the district is 76%. Plaintiffs contend that creating four schools which have a black enrollment in excess of 90% is simply an effort to establish segregated schools and, that if allowed, "there will be no prohibition upon the defendants in establishing them for white school children". Plaintiffs further argue that by simply "adjusting" the attendance zones of the present plan a racial l>alance can be maintained in each school. The Board's decision to depart from the present plan was prompted by a numljer of factors. First, the present plan is not working. Although attendance zones can be drawn based upon school age census in the zone, predictions as to the number of students who actually enroll in school from that zone cannot be made with any degree of accuracy. Predictions as to enrollment by grade from a zone are even more troublesome. A good example of the problem is the 9situation last school year at Williams Elementary where b white children and 117 black children enrolled in the first grade. The problem of maintaining a racial balance at each school is compounded by the declining white enrollment at the elementary age level. In 1981-82, only 2,501 white elementary age students enrolled. 1 This was a decline of bSl from the previous year. Obviously, if the trend continues. t and there is no reason to believe otherwise, in a matter of two or three years there will be no "critical mass" of white students in any elementary school for the purpose of meaningful integration. Dnder the present plan, seven schools have a black I i enrollment of 80S or more. The Board's conclusion that "meaningful integration" did not exist at those schools is apparently supported by a majority of authorities on the subject of desegregation. Those authorities think that in order to have meaningful integration, 20S'of the students must be of the second race. 12 Given the difficulties in predicting enrollment and the sharp decline each year in white enrollment, there is no reason to believe that a I simple "adjustment" in attendance zones will reduce the number of schools with a black enrollment in excess of 80%. 3. Plaintiffs argue that Partial K-6 is "reimposition" of the concept of separate but equal. This argument would have some persuasiveness if there was any realistic hope of stabilizing the ratio of blacks and whites enrolled in elementary schools. Such stabilization plus a reasonable degree of predictability as to enrollment 12. DX 19, pages 7, 8. Testimony of Orfield, page 2b. 10?! by grades from an attendance zone may permit the maintenance of a "balanced ratio" at each school. Unfortunately, such is not the case. Partial K-6 is simply recognition of the fact that a substantial number of black students are now being bussed across the district to attend classes which ctre essentially all black. Although maintaining a "balanced ratio" at each school is a worthy goal of any desegregation plan, it is not the sole criterion. Most importantly, the four elementary schools in question are not part of a separate school system for blacKs. Attendance is determined by neighborhood, not by race. Furthermore, under a modification to the plan, black students are given the opportunity of transferring from those four schools to other schools in the district. 4. Plaintiffs make a number of general objections to the plan which will be discussed collectively. Plaintiffs contend the plan violates a part of the moratorium agreement which required that the primary grades would be located in the black community when the black enrollment reached 65%. No such agreement has been established by the evidence. Furthermore, if there was such an agreement, it has not been enforced because black enrollment in the primary grades has been in excess of 65% for several years. In any event, any informal agreement between the parties reached in 1973 cannot reasonably be applied so as to dictate the terns of an attendance plan in 1982.* - During the evidentiary hearing plaintiffs contended that the facilities at the four essentially all black schools would be "overcrowded". Defendants' witnesses denied the 11allegation And contend that guidelines in the plan are calculated to insure quality education at the four schools. The Court is unwilling at this point to predict failure or the Board's stated goals of insuring quality education at the four schools. If any disparity develops in the facilities or the quality of education offered at the four schools, the plaintiffs can always file a motion seeking correction of the disparity. Plaintiffs contend the Partial K-6 plan is actually the same as the "65-35" plan offered by the Board and rejected by this Court in September, 1981. The argument is made that Partial K-6 effectively segregates by placing clacks in separate school buildings instead of separate classes, which was the effect of the 65-35 plan. There is little parallel between the two plans. The 65-35 plan was an ill-conceived reaction to vocal white parents who were alarmed about racial insolation in the primary grades. The partial K-6 plan is the product of a reorganization project which utilized the' Patrons Committee, Biracial Committee and administrative staff in an effort to seek community involvement in a student attendance plan. Moreover, the factors influencing the adoption of the plan are legitimate considerations for any student assignment plan. The only weight which can be given the 65-35 plan in any evaluation of Partial K-6 is on the issue of the Board's motive. The Court concludes that the Board is not motivated by a desire to resegregate the schools in adopting.Partial K-6. Finally, plaintiffs contend that the district has not achieved unitary status in that "vestiges of discrimination" have not been totally eliminated. Particularly, plaintiffs claim that discrimination persists in the "faculty, staff. programs, activities, discipline and site selection policies and practices of the district". Since this same argument 12has come up at the last three hearings, the Court will address it although resolution is not essential to the issue at hand. The claim is asserted that administrative and faculty positions are filled in a discriminatory manner. The issue regarding the recent employment of_ a white superintendent over plaintiffs' objections was decided following our evidentiary hearing in February, 1982, and need not be reviewea again. The question of faculty and administrative staffing has been monitored for years by Dr. J.J. Lacey, a black wno is Special Assistant to the Superintendent for Desegregation in the district. Dr. Lacey knows and understands the require-' ments of the Clark decrees and, without reviewing the details, the Court accepts Dr. Lacey's testimony that the district has been, and is, in compliance with those guidelines. Plaintiffs suggested, during the evidentiary hearings, that the black-white faculty and staff ratio should coincide with the ratio of black to white students. The Court concurs with Dr. Lacey's view that the available labor market more appropriately determines the racial composition of the faculty and staff than does the ratio of students. Plaintiffs claim all the "heads of departments" are white. This is not a fact but, in any event, the supervisor of all the academic department heads is Dr. Benjamin Williams, a black. The argument is made that currently there are no black principals of any of the three high schools, white principals and one position is vacant. There are two A black woman was recommended by Dr. Masem^^ for the vacant position, but she was not hired by the Board. Plaintiffs also argue that 13. Dr. Paul Masem was Superintendent of the District for a little over three years and the Board voted to replace him. Dr. Masem's departure was not an amicable he harbors some bitterness toward the District. him. one ana 13Dr. Ruth Patterson was denied a position because of racxal reasons and that racial considerations influenceo personnel decisions involving William Thrasher and Paul Margrow. These arguments are supported solely by conclusions ana opinions of the witnesses. In any event, the opinions ana conclusions from such witnesses as~Dr. Patterson, who can hardly be characterized as a disinterested witness, are not persuasive evidence that the district pursues discriminatory personnel practices. 14 Plaintiffs point to the fact that whites predominate in the honors courses, advanced academic courses and language courses as a "vestige" of discrimination. While it is true that whites predominate in those courses, there is absolutely no evidence that such enrollment is the product of any discriminatory policy or practice pursued by the Board. To the contrary, advanced academic courses and language courses are "open" to anybody who elects to take the courses. There is no evidence that the honors program is administered in anything other than an objective fashion. According to br. Benjamin Williams, the administration has been conscious of the disproportionate numbers of whites in these programs as well as the fact that blacks are represented in disproportionate numbers in the basic courses. If there was any explanation grounded in racially discriminatory practices, surely those reasons would have been produced. Reference was made to disciplinary action and the claim that blacks are disciplined in disproportionate numbers to 14. Dr. Patterson has a lawsuit pending against the district asserting her claims that she has been subjected to discriminatory treatment, . I 15. Testimony of Dr. Williams. 14) whites. Dr'. Lacey monitors the discipline situation and says that he makes "every effort" to see that discriminatory practices play no part in disciplinary procedures. Plaintiffs produced no evidence that any practice or policy regarding discipline was discriminatory or applied in a discriminatory manner. The suggestion has been made that one vestige of discrimination is the fact that whites are represented in disproportionate numbers on the cheerleader squads. A reference is also made to discrimination in "extracurricular activities". There is no evidence before the Court as to how cheerleaders are selected, the composition of the cheerleader squads or even a description of the policy or practice adopted by the district which is supposed to discriminate against black students. The Court has no idea what other "extracurricular activities" are involved in the allegation. Site selection for school closing and construction is alleged as a vestige of discrimination. That allegation has been discussed in preceding sections. Plaintiffs point to the fact that the Board has only one black member. 16 Plaintiffs claim the "at large" election procedure discriminates against blacks and that under Arkansas law the Board has the power to change the procedure so that members will be elected by wards. The Board's failure to oo so is asserted as further evidence of official discrimination. Although plaintiffs' attorney assured the Court at trial that an Arkansas statute exists which confers that power upon the Board, he has been unable to furnish the citation to the statute and the Court cannot find any sucn procedure in the Arkansas Code. In any event, the Board 16. T.E. Patterson, a black, had been a Board member for at least 10 years. In 1981, B.G. Williams, a black. against Patterson and defeated him. ran 15can hardly be criticized for failing to employ a proceaure which is nonexistent. Plaintiffs are critical of the Board for failing to take affirmative measures to halt the trend of increasing black enrollment in the district and stop the decreasing white enrollment. Specifically, plaintiffs' attorney repeatedly asked witnesses if the Board had taken any steps to "de-annex" black residential areas from the district. Changes in district boundaries require, under Arkansas law. concurrence of the electorate in the affected districts. Ark. Stat. S80-404, et seg. Unilateral action taken by the Little Rock School Board is ineffective. The surrounding Pulaski County District has publicly announced that it has no interest in merging with the Little Rock District. Aside from the legal impediments, it would seem that "de-annexing" black residential areas in order to deliberately get blacks out of the district is unprecedented and, undoubtedly constitutional. unIn summary, the Court finds no evidence of vestiges of discrimination in the district policies or practices. The Court adopts the opinion of Dr. Orfield and the Austin Stuay Group that the district has done an admirable job in the task of desegregation. Doubtless, there will always be allegations of racial discrimination when any school decision is reviewed in an adversary setting, particularly when there is an integrated enrollment of almost 18,000 pupils and 1,250 teachers and administrators operating under court order. Nevertheless, the Little Rock School District has operated in compliance with court decrees for nine years as a completely unitary desegregated school system and isolateo complaints of discrimination without persuasive specific evidence to the contrary do not detract from that record. 16Conclusions of Law The only serious question in this case is whether that portion of Partial K-6 which produces four elementary scoools with black enrollment in excess of 90% is unconstitutional. Although racial balance in each school is one method which may be used for dismantling "dual school systems, there can be no serious claim that "racial balance" in the public schools is constitutionally mandated. Milliken v. Bradley, 418 D.S. 717, 740-741 (1974)
Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U.S. 1, 22-25
and Pasadena City Bd. of Education v. Spangler, 427 U.S. 424, 434. Furthermore, a small number of onerace, or virtually one-race, schools within a district is not in and of itself the mark of a system that still practices segregation by law. Swann v. Charlotte-Mecklenburg Bd. of Education, supra at 26. This is particularly true where, as here, the one race schools are the product of demographics over which the Board has no control. Pasadena City Bd. of Education, supra at 436. As a tool for accomplishing desegregation of elementary grades, the present plan has, perhaps, outlived its usefulness. The dual system has long since been eliminated and the Board should be permitted to consider factors other than "racial balance" in structuring an elementary attendance plan. Neighborhood schools, a magnet school, financial considerations, and the desirable aspects of a K through 6 grouping are legitimate factors which may be considered when weighing the educational benefits of one attendance plan against another. Given the declining value of the present plan for desegregation purposes, the Board is certainly entitlea to adopt an attendance plan which meets constitutional standards and permits the district to achieve other educational goals. 17Under the circumstances of this case, Partial K-b Plan is a constitutionally sound plan which may be implementea by the Little Rock School District. Dated this day of July, 1982. UNITED STATES DISTRICT JUDGE 18 IBuilding on a Generation of Accomplishment Maintaining and Strengthening Desegregation in Little Rock A Report to the Little Rock School District Desegregation Assistance Team December 16, 1981 The Technical Assistance Center Box 13010A, SFA Station Nacogdoches, Texas 75962 (713) 569-5307 Bennat Mullen, Director J EXHIBIT 2- Dr. Bennat C. Mullen, Team Manager and Director of the Technical Assistance Center Dr. Shirley McCune, Chairperson, Committee on the Maintenance of Quality Integrated Education Dr. Gary Orfield, Committee to Examine the Current Desegregation Plan and to Explore Options Dr. McCune and Dr. Orfield respectively drafted the reports for the two committees above. Other members of the visiting team are listed on the following page.VISITING TEAM Ms. Wanda Banks Jonal Coordinator P.O. Box 39 Marianna, AR 72360 (501) 295-5429 Dr. Clara Jenning.s Chairperson Dept, of Elem/Early Childhood Education University of Arkansas Pine Bluff, AR 71601 (501) 541-6854 "r. Glenn Campbell Executive Director of Desegregation Monitoring Office 911 Locust St. St. Louis, MO 63101 (314) 231-4153 Dr. Alex John Dean of University Relation.s Northeast Ixjuisiana University 1-5 Administration Bldg. Monroe, LA 71209 (318) 342-2055 Ms. Linda Yee Chew Assistant Director Technical Assistance Center of the Southwest Box 13010A-SFA Station Nacogdoches, TX 75962 (713) 569-5307 Dr. Sheryl Uenbo, Director Race Desegregation Assistance Center The zimcrican University SbO8 Carlynn Drive Bethesda, MD 20034 (202) 686-3511 Dr. Ralph Eddins Professor of Secondary Education Stephen F. Austin State University Box 13023-SFA Station 75962 , TX Nacogiloche (713) 509-3409 Ms. Donna Grady Speech Therapist Marianna School District 212 Church Marianna, AR (501) 295-3364 72360 Dr. Burnett Joiner Dean, College of Education Granibling State University . P.O. Box 46 Grambling, LA 71245 (318) 247-6941 Dr. Lee Mahon Associate Director Project Equity 2047 Ticonderoga Drive San Mateo, CA 94402 (408) 984-4696 Dr. Shirley McCune Director Education Commission of the States State Services Division 1860 Lincoln St. Denver, CO 80295 (303) 830-3786 Mr. George Mirnbal, Manager Shreveport Chamber of Coiiiiiierce P.O. Box 20074 529 Crockett Street Shreveport, LA 71120 (318) 226-8521 Lois Hart Consultant Technical Assistance Center of the Southwest Box 13010A-SFA Station Nacogdoches, TX 75962 (713) 569-5307 Dr. Bennat C. Mullen Director Technical Assistance Center of the Soutliwe.st Box 13010A-SFA Station Nacogdoches, TX 75962 (713) 569-5307Ms. Willia Murphy Senior Program Administrator Technical Assistance Center of the Southwest Box 13010A-SFA Station (713) 569-5307 Mr. Allen E. Alonzo Desegregation Coordinating Supervisor East Baton Rouge Parish School Board P. 0. Box 2950 Baton Rouge, LA 70821 (504) 928-2651 Dr. Gary Orfield, Guest Scholar in Governmental Studies Brookings Institution and Professor at at the University of Illinois 1775 Mass N.W. Washington, D.C. (202) 797-6066 (217) 333-2574 (217) 352-0696 20006 Mr. Win Grant East Baton Rouge Parish School Board P. 0. Box 2950 Baton Rouge, LA 70821 (504) 928-2651 Ms. Susan Paynter Instructor of Secondary Education Stephen F. Austin State University Box 13018-SFA Station Nacogdoches, TX 75962 (713) 569-2908 Dr. Kay Rogers 3809 Sevier North Little Rock, AR 42116 (501) 450-3110 Dr. Donnya Stephens Professor of Secondary Education Stephen F. Austin State University Box 13018-SFA Station Nacogdoches, TX 75962 (713) 569-2908 RESOURCE PERSONS Dr. Dewitt Davis, Demographer Associate Professor of Geography The University of Arkansas at Pine Bluff 4003 Old Warren Road Pine Bluff, AR 71603 (501) 541-6855 Mr. Nathaniel Griffin, Urban Planner Director of Comprehensive Planning City Hall Markham 4 Broadway, Room 311 Little Rock, AR 72201 (501) 371-4790 Dr. J. J. Lacey Special Assistant to the Superintendent for Desegregation Little Rock Public Schools West Markham 6 Izard Little Rock, AR 72201 (501) 374-3361 Mr. Paul Masem Superintendent of Schools Little Rock Public Schools West Markham & Izard Little Rock, AR 72201 (501) 490-2000Technical Assistance Center of the Southwest December 16, 1981 Mr. Paul Masem Superintendent of Schools Little Rock Public Schools West Markham and Izard Little Rock, AR 72201 Dear Mr. Masem: Herewith in this report are the results .of the study that you asked our Center The support and cooperation that you, members of your staff. Board to conduct. of Education, faculty, students, and community gave us throughout the long course of the study was beyond anything that could have been expected. The quality of interest in and support of the school district exhibited during this study will surely enable the community to meet some of the very real challenges that exist. The visiting team members were again and again impressed with the quality of personnel and the quality of programs found within the district. You and the members of the Board of Education can indeed be proud of the affirmative progress and the quality education progress that are in evidence. At Stephen F. Austin State University we are pleased to have been a part with you of a major effort to simultaneously address equity and excellence in education. The report is organized around those two concerns. It is believed that they complement each other very well. It is our hope that you will find this report useful as you plan for the future. On behalf of our University, the staff of the Technical Assistance Center, and the members of the visiting team I thank you for your hospitality and wish you well. Sincerely yours. Bennat C. MiXLlen Director BCM:pc Box 13010 A SFA Station Nacosdoches, Texas 75962 (713) 569-5307 INTRODUCTION into The image of nine Black children being accompanied by military personnel Central High School in Little Rock, Arkansas in 1957 is etched into the minds of many adult Americans. This event, the result of the confrontation between Governor Orval Faubus and President Eisenhower, captured the drama of the nations' commitment to dismantle dual school systems and end school deseg- regation. Less well known to Americans, however, is the current status of desegregation and the quality of public education in Central High School and the Little Rock schools. Today, Little Rock's ten all Black schools and 23 all white schools are integrated. The quality of education in Little Rock has shown steady improvement and progress despite the usual setbacks and controversies. Much has been accomplished through the leadership provided by the community and the steady efforts of local school personnel. Once again the commitment of the Little Rock community to the maintenance of quality, integrated, public education is being tested. Concerns about increasing racial isolation, white flight, differential treatment and achievement of Black and white students, and the future of Little Rock schools have been raised. Most of Little Rock citizens recognize that these problems will be increased in the future if nothing is done. The solutions of the past can no longer meet the needs of the community and the schools. The situation found in Little Rock is similar to that of many other cities. Changes in our societydemographic changes, economic changes, socialpolitical changes, and technological changesare as evident in Little Rock as in other areas of the nation. In 1957, Little Rock was a community with a Black population of approximately 25,352 of the total population of 107,813. Little Rock served as the trading center for an agricultural economy. Today,the community consists of 393,494, with a Black population of approximately 82,865, and it has become a growing industrial center. The structure and needs of the community have changed during this period of time and these changes require a reevaluation of the evolving needs and the steps which are required if progress is to be maintained in future years. The following is a report of the observations of a team of twenty-two social scientists, business leaders, educators and technical assistance specialists from all parts of the United States who are involved in the study of school desegregation issues. This team visited the Little Rock community in November, 1981, under the auspices of the Technical Assistance Center located in Nacogdoches, Texas. This Center, a project of Stephen F. Austin State University, serves schools in the states of Arkansas, Texas, Oklahoma, Louisiana and New Mexico. The team spent four days in Little Rock observing schools
interviewing community leaders, parents and school personnel
and reviewing available research and program documentation. The purpose of the visit was to review the progress of desegregation in Little Rock and to identify ways that the progress could be maintained and expanded. Considerable information had been collected prior to the teams' visit in Little Rock, but it was not anticipated that the team would be able to devote the time or effort necessary for an in- depth study of the Little Rock schools. Rather, the goal of the visit was to utilize the experience of the team as a means of gaining general impressions and recommendations and identifying those areas where further study and consideration was needed. The team was divided into two groups. One group focused on an examination of the current desegregation plan, the demographics and attitudes of the community, and the alternatives which are available for the maintenance andimprovement of Integrated education programs. The second group focused on the internal structure and operation of school programs, the quality of education services provided to Black and white students, and the steps which could be taken to improve the quality of education for all students. A primary assumption of the team was that the maintenance and Im- provement of the quality of education is an essential component of any desegregation effort. The report is organized in two primary sections. The first section deals with the report of the community teamthe feasible adjustments in the desegregation plan within the community and the demographic change and racial trends in Little Rock. The second section of the report focuses on the general quality of integrated education in Little Rock and the opportunities for improvement within the school system. The team was Impressed by the level of community concern about maintaining quality, integrated, public education in Little Rock and the openness and can- dor of school officials and personnel. The team was provided complete coopera- cion and access to schools and information. School personnel were candid in discussing weaknes
This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. Mellon Foundation and Council on Library and Information Resoources.